Neutral Citation: 2017 ONFSCDRS 151

FSCO A13-014632

BETWEEN:

MOSES COHEN

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on September 21-23, 2016; November 28-30, 2016; December 1, 2 & 19, 2016; and by written submissions completed March 20, 2017

Appearances: Mr. Andrew Stein for Mr. Moses Cohen Mr. Raymond Murray for Aviva Canada Inc.

Issues:

The Applicant, Mr. Moses Cohen, was injured in a motor vehicle accident (“MVA”) on March 28, 2006 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Cohen, 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. Cohen entitled to Income Replacement Benefits (“IRBs”) at the rates of $182.12 per week from April 4, 2006 until March 28, 2008 and $185.00 per week from March 29, 2008 to date and on-going?
Is Mr. Cohen entitled to Housekeeping and Home Maintenance Benefits for the period from March 28, 2006 until March 28, 2008?
Is Mr. Cohen entitled to interest for the overdue payment of benefits?
Is either party liable to pay expenses in respect of the Arbitration Hearing?

Result:

Mr. Cohen is not entitled to IRBs.
Mr. Cohen is not entitled to Housekeeping and Home Maintenance Benefits.
Mr. Cohen is not entitled to interest for the overdue payment of benefits.
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”).

EVIDENCE AND ANALYSIS:

Prior to the start of the Hearing, 4 Motions were requested to be heard.

MOTION #1

The Applicant put forward a Motion, requesting an adjournment of the Hearing. There were 3 reasons given for this request. The first reason was that the Applicant’s Rabbi was in the midst of preparing for a funeral for one of the members of his synagogue. The Applicant wanted Rabbi Shalom Revach to testify at this Hearing and therefore he would not be available. The second reason was that a witness from one of the Applicant’s companies was not able to testify at this Hearing due to a scheduling conflict. The third reason was that one of the Applicant’s 10 children was going into labour in New York City, and the Applicant wanted to be with her there. For these three reasons, the Applicant requested an adjournment until a later date.

The Insurer opposed the request for an adjournment. The Insurer stated that neither the Applicant’s Rabbi nor the witness from the Applicant’s company were listed as witnesses on the list supplied by the Applicant. As for the Applicant’s pregnant daughter, this Hearing was originally scheduled to take place in April 2016, and prior to that time, the Applicant requested and was granted an adjournment. The Applicant selected a new date and the Insurer agreed. The Applicant knew of his daughter’s pregnancy and he was the one who suggested that the Hearing be scheduled for this time.

Based on the submissions of both parties, I agreed with the Insurer’s position and I denied the request for adjournment. However, since this Hearing was to be bifurcated, I allowed the Applicant’s wife to be excused from testifying at Part 1 of the Hearing, in order to be with their daughter in New York City for the birth. She could testify at a later date.

MOTION #2

The Insurer put forward a Motion to exclude documents that the Applicant sent to the Insurer that did not comply with Rule 32 of the DRPC.² They were served less than 30 days before the Hearing. These documents were the May 6, 2004 Notice of Assessment for Tivon Trading;³ the letter from the Applicant’s Rabbi, Rabbi Shalom Revach;⁴ a loan letter from Toledo Estate Ltd.;⁵ and the American Dental Wholesalers document with the fax date of June 21, 2016.⁶

The Applicant stated that he requested the Notice of Assessment from the government, but the federal government was slow in sending the Notice to the Applicant due to the fact that the information requested was over 12 years old. Once the Applicant received the Notice of Assessment, it was sent to the Insurer. As for the other 3 letters, the Applicant said that the letter from the Rabbi was only located just prior to the Hearing. The Applicant stated that the other 2 letters were inadvertently overlooked and that is why they were not in compliance with Rule 32 of the DRPC.

The Insurer objected to the submission of these documents. In preparation for the Hearing, the Insurer had sent over 12 document request letters to the Applicant that the Applicant either ignored or did not fulfill. The Insurer was able to comply with Rule 32 for its documents. It requested that the Applicant be held to the same standard.

After hearing submissions on this Motion, I ruled that I would allow the Notice of Assessment to be entered at this Hearing because the late serving of this document was as a direct result of government delay. As for the other 3 letters, I did not allow them to be entered into evidence at the Hearing because there was no evidence presented that provided a valid reason for the Applicant not producing these documents to the Insurer as per Rule 32 of the DRPC.

MOTION #3

The Insurer made a Motion to exclude a letter/document from Ms. Hilda A. Liett from being entered into evidence.⁷ The Insurer stated that it was not able to verify its authenticity since it was unable to contact its author. Ms. Liett was the Applicant’s housekeeping provider. She could not be summoned to testify because she was deported from Canada prior to the commencement of the Hearing. The Applicant requested that the letter stand on its own merits, and the Applicant, as part of his testimony, would be attesting to its authenticity. I ruled that I would allow the letter to be entered as part of this Hearing. I would decide on the weight I would give its content after all of the evidence was entered at the Hearing.

MOTION #4

The Applicant made a Motion to add 3 individuals to the witness list for this Hearing: 1) Rabbi Shalom Revach, 2) Jack Banks, and 3) Ruben Poliszuk. These individuals were the authors of the letters that I denied adding to this Hearing in Motion #2. The Applicant submitted that the testimony of these individuals was important to be heard at the Hearing. Upon my questioning, there was no evidence presented by the Applicant as to why these individuals were not added to the witness list prior to 30 days before the Hearing, as per Rule 33 of the DRPC. ⁸

The Insurer objected to the Motion. It submitted that the only reason these individuals would be testifying is that their letters were not allowed to be entered into evidence at this Hearing. Further, the Insurer felt this would be trial by ambush if they were allowed to testify because these witnesses were not made available to the Insurer prior to the start of the Hearing.

I agreed with the Insurer’s position and therefore I did not allow these individuals to be added to the Applicant’s witness list.

BACKGROUND

The Applicant speaks, reads and writes in English, Spanish, French, Hebrew and Arabic. He is married and has 10 children with his wife.

The Applicant was involved in a MVA on March 28, 2006. The vehicle he was driving was hit on the front driver’s side. The estimated speed at the time of collision was approximately 50 km/h. The Applicant was transported from the scene of the accident by ambulance and was taken to North Central Hospital, where he complained of pain in his right shoulder.⁹ At the hospital, x-rays were taken, which all came back as normal. The Applicant was discharged later the same day. He was instructed to visit his family doctor. The Applicant was given Tylenol at the hospital to relieve the pain he was experiencing.

Approximately 1 month after the accident on April 30, 2006, the Applicant went to see his family doctor, Dr. Warner. According to Dr. Warner’s clinical notes and records, there were only two other follow-up visits related to the MVA, which occurred in July and December of 2006. In reviewing the Applicant’s medical records, it was noted that the Applicant had numerous, well-documented pre-existing medical issues prior to the accident.

The Applicant was an experienced salesman and also had numerous business investments. He started selling tiles with a multi-national firm when he first came to Canada. After that time, he expanded his book of business to include selling religious items and fruit along with dental equipment. The evidence submitted at the Hearing showed he never made more than $18,000.00 in any given year from 2004 to 2014.¹⁰

The Applicant

The Applicant testified that he and his wife, Mrs. Batsheva Cohen, have 10 children. He was asked as part of his testimony to state the ages of his children which he could not remember. The Applicant confirmed that at the time of the accident, only 4 of the 10 children were considered dependents and still living at home.

The Applicant strictly adheres to the teachings of Orthodox Judaism. He faithfully attends his synagogue for prayer service, and is active in the synagogue’s community. Since the accident, he testified that he has not been as active due to his injuries.

Prior to the accident, the Applicant stated that he was active and played basketball, soccer, and liked to occasionally swim for exercise. He is not as active as he was prior to the accident.

In his testimony, the Applicant was asked questions about his lengthy pre-existing medical issues. He testified that prior to the accident, he had some major and minor medical issues, including spurs in his right heel, tennis elbow, and stiffness in his neck and back. Prior to the accident, he was receiving acupuncture treatment on a regular basis to treat pain in his back. In order to treat the pain, especially in his foot, the Applicant also received cortisone shots on a regular basis. Dr. Reuven Lexier was the orthopaedic surgeon who treated the Applicant with injections for tennis elbow, as well as treating his plantar fasciitis. Dr. Lexier stated in his notes that in addition to the medical issues that he was being treated for, the Applicant had signs of early osteoarthritis in his hips. The Applicant testified that he started seeing Dr. Lexier around 2001.¹¹

The Applicant testified that he began seeing his current family doctor, Dr. Warner, in 2005. Dr. Warner’s clinical notes and records showed that the Applicant didn’t see him until approximately 1 month after the accident, on April 30, 2006.¹² Since the accident, the Applicant testified that he now has pain in his shoulder which was not there prior. He also testified that the pain in his back and neck is now chronic since the accident. In addition, he now has been diagnosed with a frozen shoulder. The Applicant also testified that he has sleep issues since the accident, and as a result, he gets up 2-3 times per night.

After the accident, the Applicant attended massage therapy, chiropractic and acupuncture treatments for pain in his shoulder and his back. After a while, he only continued with acupuncture treatment. The Applicant testified that Dr. Warner said “if acupuncture feels good and it is reducing your pain, keep doing it”. The Applicant was asked as part of his testimony how many times he visited his family doctor with regards to issues related to the accident. Dr. Warner’s clinical notes and records showed that the Applicant only had 3 visits specifically related to the MVA in April, July and December 2006. When asked by Insurer’s counsel if he agreed with these dates, the Applicant became agitated and angry, saying “How is he supposed to remember dates?” The Applicant was asked why his family doctor’s clinical notes and records, between July 2006 and the beginning of January 2008, did not show any pain issues or impairments related to accident. The Applicant replied that he did not know why there were no accident related pain issues documented. He testified that he has suffered from pain continuously since the accident.

The Applicant was asked by Insurer’s counsel to explain why, if he was suffering from continuous pain since the accident, did he delay submitting his accident benefit forms to the Insurer after the accident? He could not explain the lapse in time, and as with his testimony prior, he again became agitated and angry at the question being asked. The Applicant then testified that the delay in submitting the forms could have been explained because he did not know how to fill out the insurance forms. As a result, he had his wife fill out the forms on his behalf. However, later on, the Applicant contradicted himself and testified that he filled out his forms. The Insurer had sent the Applicant a letter approximately one week after the accident, on April 6, 2006, explaining his accident benefit claim and how to fill out the forms.¹³ The Applicant testified that he could not remember receiving this letter.

The Applicant confirmed in his testimony that he submitted his Form 1 on May 27, 2009.¹⁴ He also submitted his Disability Certificate (OCF-3) on the same day.¹⁵ This was 38 months post-accident. The Insurer approved $1200.00 in treatment for the Applicant, and subsequent to this, there was a period of no activity on this file.

The Applicant also confirmed that he submitted his Employer’s Confirmation Form (OCF-2) on June 19, 2012, which was 6 years post-accident.¹⁶ That same day, he also submitted an Expenses Claim Form (OCF-6) for out-of-pocket physiotherapy treatment¹⁷ from 2007-2008, 4 years earlier. There were many discrepancies in the information provided by the Applicant, especially surrounding his employment status.

When asked about details related to his 2005 income and any money earned, the Applicant was not able to provide any credible details. His tax return showed no business income in 2005, just investment income. This was important in order to calculate the Applicant’s IRBs, since the 52-week self-employed calculation took into account his 2005 income from March 28, 2005 up until March 28, 2006.

The Applicant stated as part of his examination-in-chief that he has worked as a sales rep since 1984 selling various products. He has sold everything from religious items to dental equipment. After leaving a tile company he worked for from 1978-1984, the first item he started selling as a sales rep was an imported fruit called an Etrog. As part of the sales process for Etrogs, the Applicant had to identify potential customers to purchase the product. This included travelling to Morocco to pick the Etrog fruit from trees in the orchard. The Applicant also had to coordinate importing the Etrog to Canada. This required paperwork to be filed with Canada Customs, which the Applicant said he completed himself. Finally, the Applicant had to prepare the Etrog for sale in Canada. He explained that the fruit was purchased by the kilogram, and that he personally picked the Etrog from the trees. He testified that this was physically demanding work. The Applicant testified that he was able to complete all of these tasks on his own. I found this testimony to not be credible given the Applicant’s medical evidence—he would have had great difficulty completing these tasks.

The Applicant testified he started working at Tivon Trading 1 week prior to the accident, and was responsible for learning about different samples of products that they were importing. He said he was considered self-employed at Tivon Trading, since he was part-owner of the company. The Applicant was asked to name the other owners at Tivon Trading; he said that he did not know their full names.

The Applicant was asked about a signed statement he gave the Insurer prior to the Hearing, in which he said he started working at Tivon Trading 4-6 months prior to the accident. He also stated that he was learning about processes in Tivon Trading’s warehouse. The Applicant’s testimony completely contradicted his sworn statement as to his work timeline and responsibilities at Tivon Trading. The Applicant also testified that he was not a worker at Tivon Trading, but an investor who had invested $80,000.00 into the business. Despite being an investor, the Applicant testified that he did not know the value of the business, nor the income tax returns it filed or any of the daily operational revenue or expense numbers. He did not know the full names of the people who were fellow owners of the company, yet testified that he invested $80,000.00.

The Applicant also testified that he doesn’t remember specific companies he invests in. He also said he doesn’t remember the job tasks that he was responsible for at the places that he claimed to have worked. In the case of Tivon Trading, the Applicant testified that Mr. Telman Menasherow took care of the records. The Applicant stated that he was a part-owner of Tivon Trading prior to his accident, where they sold pomegranate juices. The Applicant stated that he got interested in this company because pomegranate juice is supposed to help diabetic people, and he is diabetic. To claim IRBs, the Applicant needs to show business income for 2005, but he didn’t. His 2006 income tax return showed $13,500.00 in business income, but no proof that this amount was earned in the 3 months prior to the accident.

There were share certificates issued to the Applicant by Tivon Trading, dated October 7, 2004, but signed on June 22, 2006.¹⁸ The Applicant testified that he was issued 100 shares, but he could not tell what total amount of outstanding shares were issued by Tivon Trading. Tivon Trading’s income tax returns showed that the company earned profits. When looking at the tax returns filed, it showed Mr. Telman Menasherow was 100% owner of the business. The Applicant’s name was not listed on the income tax returns filed to the government. Ultimately, the Applicant testified that Tivon Trading closed and is no longer in operation.

In addition to selling Etrogs and the work activities of Tivon Trading, the Applicant testified he also was selling dental equipment as part of American Dental. The Applicant stated he was retained to find customers to purchase the dental products in exchange for a finder’s fee. He testified that he made no income from this venture. The dates as to which he was selling the dental equipment were unclear and the Applicant’s testimony did nothing to clarify the dates.

In addition to American Dental, the Applicant testified that in 2005, he was hired as a general contractor to supervise renovations at the Midrash Bar Yohai Synagogue, despite never having any prior experience working as a general contractor. There was a $13,500.00 amount showing on the Applicant’s tax return in 2006, which he testified was the payment he received for purchasing materials and physically renovating the floors and the walls of the Synagogue. But there were no documents in terms of purchase orders, contracts, or bill of goods presented at this Hearing that showed the $13,500.00 was in fact from the Synagogue work that the Applicant claimed. In fact, there was no documentation that showed any work was completed by the Applicant at the Synagogue.

In order to pay IRBs, the Insurer had to be able to accurately calculate the Applicant’s income pre-accident (March 28, 2005 to March 28, 2006). The Insurer also had to be able to calculate the Applicant’s post-accident income (March 29, 2006 and beyond). Any difference in those amounts would be the quantum that the Applicant could receive as IRBs. The Applicant’s questionable testimony and complete lack of evidence made this calculation a difficult task for not only the Insurer, but for me as well.

In addition to IRBs, the Applicant was claiming Housekeeping and Home Maintenance Benefits. He testified that he lives in a multi-level residence that has 5 bedrooms and 5 bathrooms with his wife and 4 of his children. The Applicant testified that he did housework on a weekly basis which included doing laundry. He was able to complete these tasks prior to the accident, but since the accident, he is no longer able to complete virtually any housekeeping or home maintenance work. He testified that the pain in his shoulder, neck and back prevent this. As a result, he was forced to hire Ms. Hilda Liett to complete these tasks. Prior to the accident, Ms. Liett did some housekeeping work for the Applicant, but only prior to any big gathering/or holiday celebrations that the Applicant would host. After the accident, the Applicant testified that Ms. Liett had to come on a regular basis, 3 times per week, as opposed to her prior schedule of just working before Jewish holidays. The Applicant stated that Ms. Liett was not able to testify at this Hearing because she was deported from Canada, but he could not remember when this was.

After hearing from the Applicant, I found his testimony to lack credibility. Throughout the Hearing, his answers were contradictory as well as vague when questioned by both his own counsel and Insurer’s counsel.

Dr. Bernard Woolford

Dr. Bernard Woolford was called by the Applicant as an expert witness. Dr. Woolford testified that he started practicing in 1961, but has retired since he assessed the Applicant in September 2011. Dr. Woolford initially saw the Applicant on September 13, 2011, which was 5 years after the accident. He issued 3 reports, dated September 13, 2011, September 29, 2011 and October 1, 2011.¹⁹

He was asked to assess if the Applicant’s injuries were permanent; if the impairment prevented him from completing any tasks, including his housekeeping and home maintenance duties; and if the Applicant’s injuries caused him to suffer a substantial inability to engage in his pre-accident employment and/or a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

Dr. Woolford testified as to his methodology when he conducts an exam on a patient. He stated that he relied on the Applicant’s family doctor’s clinical notes and records. Dr. Woolford also testified that at the time of the exam, the Applicant complained of symptoms related to the accident. He stated that many of the items listed as medical issues in his assessment were reported by the Applicant, as opposed to medically-proven evidence. Dr. Woolford testified that he has to make some assumptions in his conclusions to fill in the blanks. He also testified that there had been no follow up exams of the Applicant since October 1, 2011, which was the last day of the report.

Due to the length of time since the Applicant was seen by the doctor, the doctor had some problems remembering details surrounding the Applicant’s medical issues. He did, however, rely on his reports. Dr. Woolford testified that as part of the Applicant’s initial report he authored, that he didn’t see Dr. Farkas’ records. He only saw those records prior to his third report. As part of his report, Dr. Woolford testified that he looked at the Applicant’s MRI of December 21, 2010. He also stated under cross-examination that he had never heard of or received records of the Applicant’s physiotherapist (Ms. Jenny Lai, registered physiotherapist) when he completed his report. He said her notes would have been helpful in his report in order to show the treatment that the Applicant was receiving.²⁰ As part of his exam, Dr. Woolford used thermal imagining to examine the patient. He testified that as part of his report, if there is a blue colour on the image, it means there is less blood flow. Red colour means that the area is having muscle spasms. The thermographic testing went to a depth of 2 mm. This testing helped Dr. Woolford to reach his conclusions that from a medical perspective, the Applicant is unable to return to work.

I found Dr. Woolford’s testimony of minimal value since he was not able to recall many aspects of the exam he conducted on the Applicant. I suspect that this was in part due to the length of time that had passed (6 years), as well as the fact that Dr. Woolford had been retired for some time prior to testifying. Ultimately, at the end of the day, the evidence submitted by Dr. Woolford’s report shows the Applicant has some injuries, but there was no evidence presented to show that the Applicant’s injuries were caused by the March 28, 2006 accident.

Mrs. Batsheva Cohen

Mrs. Batsheva Cohen has been married to the Applicant since 1978. She confirmed that both she and the Applicant have been living at the same residence for the past 19 years. She testified that they live in a multi-level residence with 5 bedrooms and 5 bathrooms. She also confirmed that their residence is part of a condo corporation where the corporation maintains the exterior of the property, which includes shoveling snow, cutting grass and gardening.

She confirmed that the Applicant had some pre-existing health issues for which he sought treatment. However, prior to the accident, she testified that her husband did vacuuming, laundry and helped with cleaning up after the couple’s children. Mrs. Cohen confirmed that she doesn’t have a driver’s license and relies on the Applicant to drive her around. Since the accident, the Applicant is only able to drive her to appointments, and run errands sporadically.

As a result of the accident, she said that the Applicant had pain-related issues. He complains of headaches, shoulder pain and back pain. She testified that now he is not able to do much of the work around the house. In addition, he doesn’t sleep well at night and constantly gets up multiple times.

She testified that she had trouble remembering which accident benefit documents the Applicant filled out and which ones she did. She confirmed that she filled out the Applicant’s OCF-6, but didn’t know how the dollar amounts were calculated and she couldn’t explain why it took 6 years to submit.

As it related to housekeeping and home maintenance tasks around the residence, Mrs. Cohen testified that she couldn’t remember what the Applicant could do prior to the accident from what he could not do now. She confirmed that they had hired Ms. Hilda Liett for 1 day a week prior to the accident to assist with housekeeping, mostly on Fridays. Mrs. Cohen testified that Ms. Liett came to the house an additional day after the accident for a total of 2-3 days per week and was paid $200.00 per week to clean the Applicant’s house. This was somewhat different from what the Applicant testified to as to the frequency of Ms. Liett’s housekeeping and home maintenance services. An invoice for Ms. Liett’s services was submitted to the Insurer. When asked, Mrs. Cohen testified that it was in fact her and not Ms. Liett who filled out the invoice for housekeeping services and could not recall why the document wasn’t dated. Mrs. Cohen could also not recall when Ms. Liett was deported.

Mr. Ian Wollach

Mr. Ian Wollach testified on behalf of the Applicant as an expert witness. He is a forensic accountant who started working in the accident benefits area in 1990, and has written numerous articles and spoken at many conferences on this subject. He completed multiple reports on behalf of the Applicant.²¹ He testified that he was asked to complete IRB calculations based on assumptions provided by the Applicant’s counsel. He stated that the information he was given to complete the IRB calculation was “sparse”. Mr. Wollach was told to assume that the Applicant met both the substantial and complete inability tests respecting IRBs. He was provided with the Applicant’s tax returns and the reports written by Ms. Katrina Zalenko from Maston, Driscoll and Damico. Mr. Wollach stated that based on the information given to him, the Applicant was self-employed, which meant he would use the prior 52-week income or last fiscal year calculation to calculate the Applicant’s IRB quantum.

On the Applicant’s OCF-2, it showed income of $17,156.00.²² Mr. Wollach testified that the Applicant made an error in his OCF-2 submission because this amount was investment income. Mr. Wollach, in keeping within the rules on how to properly calculate IRBs, used a figure of $13,500.00 because that was earned/business income from the 2006 tax year. He was told to assume that this money was all paid in 2006 prior to the accident of March 28, 2006. Based on the $13,500.00 figure, at 80% gross amount, he calculated $182.12 per week in IRBs owing to the Applicant. He was told to assume there was no post-accident income because the Applicant’s business income on all of his post-accident income tax returns should have been investment income. Prior to completing his calculation, the Applicant’s counsel told Mr. Wollach that the Applicant’s accountant made the same error 10 years in a row on the post-accident tax returns.

Mr. Wollach confirmed that the Applicant was issued a T4A slip for his 2005 investment income. He had no idea where any amounts came from on the Applicant’s tax returns because he was not the Applicant’s accountant. When it came to Tivon Trading, even though there was no information that the Applicant owned Tivon Trading, Mr. Wollach was told that the Applicant was a co-owner, and for the purposes of IRB, self-employed.

Under cross-examination, Mr. Wollach was presented evidence that the Applicant was not the owner of Tivon Trading and in fact Mr. Telman Menasherow was the sole owner. There was also no information about American Dental, which the Applicant claimed to have owned. There was no evidence showing that the Applicant was paid $13,500.00 as a general contractor between January 1, 2006 and March 28, 2006. Without corroborating evidence, this $13,500.00 amount on the tax return could have come from anywhere. Most importantly, Mr. Wollach stated that only business income can be used to calculate IRBs, as opposed to investment or passive income. Therefore, based on this new information presented at the Hearing, Mr. Wollach stated that if the $13,500.00 was not business income (and he had no proof that it was, since he was only told to assume that it was), the Applicant would not be entitled to any IRBs.

Dr. Leonard Warner

Dr. Leonard Warner has been the Applicant’s family doctor since May 10, 2005. Dr. Warner testified that he filled out the Applicant’s OCF-3 that was submitted to the Insurer. In Part 7 of the document, he stated that the Applicant could not work.²³

Dr. Warner confirmed that prior to becoming the Applicant’s family doctor, the Applicant was seen by Dr. Lexiar (an orthopaedic surgeon) starting in 2000 due to the Applicant’s significant pre-existing medical condition. Dr. Lexiar treated the Applicant with Cortisone injections for pain in his shoulder and heel. The Applicant also had foot spurs and osteoarthritis in both hips. There was right knee pain and tennis elbow requiring injections in June/October of 2005, which were all before the accident. After Dr. Warner became the Applicant’s family doctor, he referred the Applicant to various specialists both pre-and post-accident, including Dr. Gordon to treat the Applicant’s Achilles tendonitis and Dr. Charendoff for a bone scan of his Achilles heel.

Dr. Warner’s clinical notes and records listed details of the Applicant’s post-accident visits to his office including his first visit post-accident which was on April 30, 2006, one month after the accident. At these visits, treatment options were discussed with the Applicant, including massage therapy, chiropractic, and acupuncture treatment. Dr. Warner testified that the Applicant felt acupuncture treatment was providing the best results.

Dr. Warner was asked by the Applicant to complete a report that summarized his conditions.²⁴ Based on the information provided by the Applicant, Dr. Warner determined that he suffered a substantial and complete inability to work from a medical point of view. Dr. Warner was asked to complete a second report on behalf of the Applicant.²⁵ In that report, he confirmed that the 2006 x-rays of the Applicant showed no issues. However, the x-rays of 2008 showed that the Applicant had noticeable issues. Dr. Warner testified that there were potentially medical-related issues in the 2006 x-rays that were present but were missed on review. These issues could have evolved into some of the pain issues that surfaced in 2008 with the Applicant. However, this was only a hypothesis presented by Dr. Warner to explain why the x-rays in 2008 showed something, but they did not in 2006.

Dr. Warner in his testimony said that the Applicant could work, but could not do physical jobs. It was the doctor’s understanding that the Applicant was working after the accident, but instead of physical work, he was doing administrative work. Dr. Warner also testified that there were entries in the clinical notes and records post-accident which alluded to the Applicant working. For example, on May 30, 2010, it was recorded by the doctor that the Applicant was having business-related stress. On June 18, 2013, the Applicant stated that he was currently employed.²⁶ When asked by the Insurer if he thought that the Applicant was working, Dr. Warner said yes he thought the Applicant was working, based on his interactions with him on his visits. Dr. Warner testified that he was sure that the Applicant was currently working doing something, but wasn’t sure what it entailed.

Dr. Alborz Oshidari

Dr. Alborz Oshidari was hired by the Insurer to complete a multi-disciplinary assessment on the Applicant.²⁷ As part of his evidence, Dr. Oshidari went through the steps on how he conducts his assessments. First, he takes a history, then he completes a physical and neurological exam. Dr. Oshidari noted that the Applicant had significant pre-existing medical issues prior to the accident. As part of the Applicant’s intake review, the Applicant confirmed that he had an administrative type of job.

As part of a physical exam, the doctor looked for tumors, damaged nerves and anything else that might look suspicious. Dr. Oshidari noted that the Applicant suffered from a frozen right shoulder, and he couldn’t raise his right arm above chest level. He completed an addendum report and noted that the Applicant had a pre-disposition to a frozen shoulder.²⁸ The report also stated that, from a medical perspective, the Applicant did not suffer a substantial inability to work for the first 104 weeks post-accident nor a complete inability to engage in any employment for which he is reasonably suited by education, training or experience, as a result of the MVA.

Ms. Lynn Courts

Ms. Lynn Courts testified that she has been a field adjustor for over 10 years with Aviva. Ms. Courts met with the Applicant in his lawyer’s office in December 2009, where she recorded the Applicant’s statement about the accident. This statement included comments by the Applicant as to his ability to function.²⁹ Ms. Courts testified that the Applicant said he continued to work after the accident. He put together catalogues and created marketing/client development packages to generate sales.

Ms. Courts testified that when she took the statement from the Applicant, it was hard getting information from him. She said that he wasn’t giving specific details as to his job responsibilities, which Ms. Courts thought was odd. She testified that she has taken numerous statements from Applicants over her career and most people in the Applicant’s situation remember many job details; this Applicant did not. I found Ms. Courts’ testimony reflected the same issues that the Applicant had in testifying at the Hearing. Mainly, that the Applicant was not forthcoming with his answers, and when he was, it contradicted his earlier statements.

Ms. Katrina Zalenko

Ms. Katrina Zalenko was the Insurer’s accounting expert, responsible for calculating the amount of the Applicant’s IRB. I found her testimony truthful and straight-forward. Ms. Zalenko explained the manner in which she calculated the quantum of the Applicant’s IRB. The information provided showed that the Applicant was self-employed at the time of the accident, so therefore she had to calculate the quantum of the Applicant’s IRB claim based on the Applicant’s 52-week income prior to the accident.

She completed multiple accounting reports on behalf of the Insurer.³⁰ In all of the reports, she testified that she was provided minimal information from the Applicant. As a result, she had to make educated assumptions, such as the monthly breakdown of the Applicant’s pre-accident income in the 52 weeks prior to the accident. The Applicant never provided a monthly breakdown of his income. His tax returns were based on a calendar year. This meant that Ms. Zalenko had to analyze approximately ¾ of the Applicant’s 2005 tax return and approximately ¼ of the Applicant’s 2006 tax return, in order to determine the Applicant’s 52-week pre-accident income.

Ms. Zalenko determined that the Applicant was entitled to $0.00 for IRBs because the income he reported was passive/investment income in 2005, and there were no documents submitted to confirm where or when the 2006 business income was generated. Further, there was no proof that the $13,500.00 came from any work performed prior to March 28, 2006. On the balance of probabilities, this amount could have easily been paid after March 28, 2006. If the Applicant submitted his bank statements for 2006, this doubt could have been lifted. By not submitting his bank statements, I inferred that the Applicant’s bank statements were not going to be beneficial to the Applicant’s IRB claim. Ms. Zalenko testified that her calculations were based on the Schedule. The second report she authored was to rebut findings in the Collins Barrow report written by Mr. Wollach. She testified that after looking at the Collins Barrow report, her findings did not change from the first report.

To give the Applicant the benefit of the doubt, Ms. Zalenko calculated the $13,500.00 spread out over 52 weeks. She calculated the amount of $3,180.82 as the Applicant’s earned income in 2006. When Ms. Zalenko compared the business income/earned income after the MVA, the Applicant made more business income post-accident than he did pre-accident, and as a result, no IRBs are payable.

As with the pre-accident income, the Applicant’s post-accident income was once again difficult to calculate because of a lack of information. The Applicant showed that he had earned income post-accident, so if he qualified for IRBs based on his pre-accident 52-week income, any IRB amount would be negated by the business income post-accident he claimed on his tax returns. However, the Applicant testified and also told Ms. Zalenko that he received $0.00 business income post-accident, and all of his tax returns showing business income post-accident were incorrect. The amounts listed as business income were from loaning money, not actively working. However, the Applicant never filed amendments with Canada Revenue Agency to fix those errors.

Ms. Zalenko testified that the IRB calculation is considered a sophisticated calculation because it has to take into account a lot of information in order to determine the proper quantum. The more information provided, the more accurate the IRB number will be. When she questioned the Applicant on the details relating to his income tax returns prior to completing her report, she testified that the Applicant claimed that he was unsophisticated and did not know any financial details. Ms. Zalenko felt this comment was at odds with the Applicant’s actual tax return, because his tax returns were not simple returns and showed a level of sophistication. The Applicant claimed that he was ignorant and didn’t know what columns required what numbers, but the evidence presented showed otherwise. In the end, Ms. Zalenko stood by her determination that when looking at the totality of the information provided, the Applicant is not entitled to IRBs.

ANALYSIS

IRBs

The Applicant is claiming IRBs up to the two-year mark, as well as IRBs beyond the two-year mark. The onus is on the Applicant to prove that he suffered a substantial and/or a complete in ability to work as a result of the accident on March 28, 2006. Section 4(1) of the Schedule provides for an Applicant's entitlement to an IRB.

The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
The insured person,

i. was not employed at the time of the accident,

ii. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

iii. was 16 years of age or more or was excused from attendance at school under the Education Act at the time of the accident, and

iv. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.³¹

The question germane to the Applicant’s claim for IRBs is does the evidence show that the Applicant was earning employment income pre-accident, and if so, what was the quantum? If an IRB amount cannot be calculated, then IRBs are not payable.

The Applicant filled out his OCF-2, claiming IRBs as a self-employed individual; however, he did not submit the necessary documents to prove his claim. As a result, the Insurer requested that the Applicant submit his income tax returns from 2005 and 2006 (52 weeks pre-accident) and post-accident. In addition, it wanted Notices of Assessment, business financial statements, related source deductions, invoices, expenses, GST returns and relevant bank statements. The Applicant never produced any of these documents, even though they were necessary to calculate his entitlement to IRBs. The Applicant always defaulted to the answer that he gave everything to his accountant to calculate and he had no idea what the amounts were. The onus is on the Applicant to prove his case.

The Applicant testified that his income was $17,156.00 prior to the accident, which was investment income for the 52 weeks prior to the accident.³² The Insurer provided evidence that the Applicant did not submit enough information to calculate an IRB claim; therefore, he has not met the burden of proof. Since May 2015, the Insurer’s accountant has been waiting for information to properly calculate the Applicant’s IRB claim.

The Applicant kept saying he didn’t know why proof was not provided to show where and when the $13,500.00 was earned in 2006. He proceeded to blame the lack of information on his accountant. But if you sign and submit a tax return, the onus is on the individual on the tax return to understand what he is filing. When it came to Tivon Trading, the Applicant was issued back-dated shares to October 7, 2004, but these shares were signed after the accident on June 22, 2006. Again, the onus is on the Applicant to explain why these were back-dated.

The Applicant’s own expert’s testimony proved the Insurer’s case more than the Applicant’s when Mr. Wollach was presented new evidence at the Hearing relating to calculating the Applicant’s IRB amount for 2006. Specifically, there was no evidence showing that the business income was earned prior to March 28, 2006, or even if it was business income. Both he and Ms. Zalenko confirmed that investment income is treated as passive income. Investment income is distinct from business income and does not form part of the calculation for determining the net income earned in the 52 weeks prior to the subject accident.³³ Further, there was no documentation showing when or if the $13,500.00 was earned by the Applicant in 2006.

The Applicant testified that he also sold dental equipment for American Dental. His compensation included a finder’s fee for business that was generated; however, he testified that he was not successful in this endeavour. Therefore, we can eliminate this as the source of the $13,500.00.

An Applicant must produce evidence that they were either employed or self-employed prior to the subject accident. The Applicant did not and therefore is not entitled to IRBs. As Director’s Delegate Draper found in Price and Liberty Mutual Insurance Company, “anyone who operates a business without keeping records runs a variety of risks, including the possibility that he or she will be unable to prove pre-accident income in the event of an automobile accident.”³⁴

If an Applicant fails to produce a sufficient reliable or complete picture of pre-accident income as a self-employed person in the 52 weeks prior to the accident, the income from self-employment does not form part of the IRB calculation.³⁵ I am of the opinion that the $13,500.00 on the Applicant’s tax return as business income was not active income, since there was no evidence presented as such. Therefore, if it was not active income, it must be by default passive income. This means that the Applicant earned $0.00 in earned income for the 52 weeks prior to the accident.

The Applicant bears the onus to provide medical evidence that as a result of the accident, he is unable to return to his pre-accident employment.³⁶ There was no evidence presented that conclusively ties the Applicant’s injuries from the accident to his reported complaints, thereby preventing him from working. In fact, the evidence overwhelmingly shows the Applicant was working post-accident. The Applicant also left the impression on his doctors and treatment providers that he was working post-accident.

Based on the evidence presented, the Applicant did not suffer a substantial inability to engage in his pre-accident employment, nor did he suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. As the Arbitrator ruled in Wadhwani v. State Farm Mutual Automobile Insurance Company, if the Applicant doesn’t suffer a substantial inability to perform the essential tasks of the employment within 104 weeks after the accident, the Applicant will not qualify for post 104-week IRBs.³⁷ Based on the evidence submitted, the Applicant’s injuries did not prevent the Applicant from returning to his pre-accident employment. The evidence showed that he performed virtually the same tasks post-accident as he did prior to the accident.

The Applicant’s testimony, as it related to his work status and job responsibilities, was vague and contradictory. In the end, he was not able, in a clear and concise manner, to state unequivocally what he did to earn money. The evidence showed that the Applicant’s average income over the past number of years is $14,000.00, and he never earned more than $18,000.00. He somehow managed to raise a family of 10 children who attended private school plus paid a housekeeper $200.00 per week, all while his wife did not work. The money had to come from somewhere. To say that the Applicant’s financial information is not credible is an understatement.

As with his testimony, I put little weight on the contents of the Applicant’s tax returns. The only way that the Applicant is able to claim IRBs is to show that the $13,500.00 was earned before the date of the accident (March 28, 2006). If the $13,500.00 was not business income at all, or even if it is divided evenly among 12 months, the Applicant is not entitled to IRBs.

Housekeeping and Home Maintenance Benefits

To claim Housekeeping and Home Maintenance Benefits, the Applicant must prove that an impairment resulted in a substantial inability to perform the housekeeping and home maintenance services normally preformed before the accident.³⁸

Three elements must be satisfied to establish entitlement to Housekeeping and Home Maintenance Benefits:

The insured must have performed housekeeping and home maintenance services before the accident;
The insured must suffer a substantial inability to perform those housekeeping and home maintenance services as a result of an accident-related impairment; and,
Additional expenses must be incurred for someone else to perform those services.³⁹

The Applicant failed to produce evidence that he incurred housekeeping and home maintenance costs as a result of the accident. In addition, there was no credible evidence submitted as to the amount of housekeeping and home maintenance that the Applicant performed pre-accident when compared to post-accident. His wife couldn’t say for certain what housekeeping tasks the Applicant did pre-accident that he could not do post-accident. As in Konstantakos and Aviva Canada Inc., the test for entitlement to Housekeeping and Home Maintenance Benefits under section 22 of the Schedule requires a comparison of what the insured did before the accident, what they could do after the accident, and whether the difference amounts to a substantial inability.⁴⁰

It is important to keep in mind that the Applicant had significant pre-accident chronic pain in his neck and back, as well as his right foot and right elbow. The Applicant testified that he vacuumed 2-3 times per week prior to the MVA. He would mop the floor or do whatever his wife wanted. However, prior to large gatherings or holidays, he would hire Ms. Liett to help get the house cleaned up, so it was a natural fit for the Applicant to use Ms. Liett for any further housekeeping and home maintenance post-accident. She attended the residence 2-3 times a week until she was deported from Canada, but the Applicant was unable to recall when that was. I note that the Applicant submitted an OCF-6 to claim the expenses⁴¹ 3 years post-accident.

The Applicant had no idea what housekeeping was completed prior to the accident, nor the frequency with which it was completed. As with the ruling in Hernandez and Kingsway General Insurance Company, the Applicant must prove that they are familiar with the household tasks in order to establish that they performed them prior to the accident.⁴²

I believe on the balance of probabilities that the Applicant completed very limited housekeeping and home maintenance prior to the MVA, as a result of his limited mobility from his pre-existing medical issues. I also believe, based on the evidence presented at the Hearing, that the Applicant would have completed the same limited amount of housekeeping and home maintenance post-accident as he did pre-accident. Based on the medical evidence presented, the Applicant didn’t qualify for Housekeeping and Home Maintenance Benefits since his injuries could not be tied directly to the accident based on the medical evidence submitted. In addition, there was no credible evidence presented showing how much was paid to Ms. Liett. Therefore, without showing that costs were incurred, and the lack of evidence showing what he did pre-accident that he couldn’t do post-accident, and that the accident was the reason for his limited range of motion, the Applicant failed to meet the onus of proving that he was entitled to Housekeeping and Home Maintenance Benefits.

Medical Benefits – Withdrawn

At the start of the Hearing, the Applicant was claiming Medical Benefits in the amount of $954.00 from Dr. Anthony Possa at Network Care Physio, dated June 19, 2012, and $915.00 in medical benefits from Dr. Anthony Possa at Pearl’s Acupuncture, dated April 26, 2012. The Applicant had witnesses testify as to the reasonableness of these Medical Benefits and evidence from both parties was submitted. However, in the Applicant’s written submissions of January 31, 2017, the Applicant withdrew all Medical Benefits in dispute.

CONCLUSION

The onus is on the Applicant to prove his case, and specifically as it related to the issues of IRBs (both pre-104 and post-104) and Housekeeping and Home Maintenance Benefits. The Applicant failed to provide sufficient evidence to meet these thresholds. The Applicant must show a direct connection between his claim for accident benefits and the accident.

The Applicant’s credibility undermined his case. He didn’t submit evidence at this Hearing that would be necessary to reasonably prove that he was receiving earned income versus investment income prior to the accident, and investment income versus business income after the accident. Without earned income prior to an accident, IRBs cannot be calculated and are thus not payable. In terms of Housekeeping and Home Maintenance Benefits, there was no credible evidence submitted that the Applicant preformed any significant housekeeping and home maintenance work at his residence pre- or post-accident. In addition, there was no credible evidence showing that Ms. Liett was paid for her housekeeping and home maintenance services post-accident. Therefore, Housekeeping and Home Maintenance Benefits are not payable.

For these above-stated reasons, I find that the Applicant failed to prove his case, and as a result, all claims in dispute are denied.

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 DRPC.

May 31, 2017

Jeff Musson Arbitrator

Date

Financial Services Commission of Ontario