September 28, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Alec Fadel
Date of Decision: July 3, 2014
Jathees Selvarajah was injured in a car accident on December 3, 2009. He was the passenger in the back seat of a car that was rear ended. His testimony indicated the impact was ‘not big’. Prior to the accident he had a fracture of the right wrist which had begun to heal. He claims it was reinjured. On his application for accident benefits he noted that he had pain in his back, neck, shoulder, aggravated fracture, pain in his elbow, pain in his knee, headaches and sleeping difficulty. He applied for statutory accident benefits from State Farm. A dispute arose with regards to his entitlement IRB and housekeeping benefits and Mr. Selvarajah applied for arbitration at the Financial Services Commission of Ontario.
The issues in this hearing are:
Is Mr. Selvarajah entitled to an income replacement benefit from February 4, 2010 to January 3, 2011?
Is Mr. Selvarajah entitled to a housekeeping and home maintenance benefit at the rate of $100.00 weekly from January 4, 2010 to January 3, 2011?
Is Mr. Selvarajah entitled to interest for overdue payments?
Is State Farm liable to pay a special award pursuant to s. 282(10) of the Insurance Act?
Is Mr. Selvarajah entitled to his expenses of this arbitration?
Is State Farm entitled to its expenses of this arbitration?
Mr. Selvarajah is not entitled to an income replacement benefit.
Mr. Selvarajah is not entitled to a housekeeping and home maintenance benefit.
State Farm is not liable to pay a special award.
The issue of expenses is left to the parties, if they are unable to come to an agreement, they may request an appointment before me in accordance with Rule 79 of the DRPC.
Mr. Selvarajah had been an employee of Goodlife Fitness since September 2008 and he returned to work immediately following the accident but then stopped working for the remainder of the month of December 2009. He testified that he returned to his job on January 2, 2010 to similar hours but that he was finding it hard to do because of his accident-related injuries.
Mr. Selvarajah submitted an employer’s confirmation of income form (OCF-2) signed by him but not completed by the employer. He included the name and address of his general manager. He also enclosed invoices for caregiving and housekeeping receipts for the period from December 4, 2009 to March 4, 2010. After State Farm requested an OCF-2 completed by his employer, Mr. Selvarajah advised that he was unable to obtain one and asked State Farm to contact the employer directly. On a disability certificate (OCF-3) dated December 9, 2009, it was stated that Mr. Selvarajah re-aggravated a right wrist injury. Mr. Selvarajah is right-hand dominant. State Farm requested clarification with regard to the housekeeping claim, seeking information regarding what Mr. Selvarajah could complete prior to the accident given his pre-accident wrist injury.
Mr. Selvarajah submitted that State Farm’s failure to request a competed OCF-2 directly from the employer and its failure to arrange an insurer examination contrary to s. 35(3) or (4) of the Schedule entitles him to the income replacement and housekeeping benefits sought. Mr. Selvarajah submits that it was up to State Farm to communicate with the employer to have it complete the OCF-2, once he provided his signature on a blank OCF-2. He refers to Part 2 of the form where Mr. Selvarajah signs thus allowing the employer to complete the form and deliver directly to State Farm. Mr. Selvarajah states that once he signed the form which he claims authorizes State Farm to contact the employer directly, State Farm thereafter bears the responsibility to gather the employment information directly from the employer.
The Arbitrator disagreed for two reasons. Firstly, the Arbitrator found that State Farm was not in breach of its obligations under the Schedule. Secondly, the law is clear that an insurer’s breach of an obligation under the Schedule does not automatically entitle an insured person to a disputed benefit.
State Farm submitted that it was not in breach of the legislation. State Farm’s position is that despite receiving the blank OCF-2 signed by Mr. Selvarajah, it was incumbent on Mr. Selvarajah to provide the completed form and not for it to contact the employer directly.
The Arbitrator agreed with State Farm. The form is meant to be signed by Mr. Selvarajah and delivered to the employer who then completes it and sends it to State Farm directly. No evidence was presented that showed Mr. Selvarajah took steps to deliver this form to his employer. In fact, Mr. Selvarajah’s testimony that he delivered the OCF-2 to the employer and that he followed up two or three times was directly contradicted by his employer in her testimony. In fact the general manager of Goodlife at the relevant time, testified that she does not recall ever receiving this document from Mr. Selvarajah.
Mr. Selvarajah gave no evidence of how he came to know that the OCF-2 that he allegedly delivered to the employer was in fact never completed. Had Mr. Selvarajah experienced difficulty getting the employer to complete the form, and he informed State Farm, the situation may be different. In the present situation, State Farm was in compliance with the Schedule by continuing to request the required completed OCF-2 and not contacting the employer directly.
Mr. Selvarajah also submitted that State Farm failed to request an insurer examination contrary to s. 35(3) or (4) of the Schedule and in doing so it was in breach of its mandatory obligation. State Farm’s position is that it did not request a medical examination as it continued to request more information relating to both the income replacement and housekeeping claims.
The Arbitrator found that State Farm’s request for information pursuant to s. 33 was reasonable. In fact, the information being sought was not forthcoming until much later and after the dispute resolution process had been initiated by Mr. Selvarajah. The Arbitrator was clear in citing the Court of Appeal in Stranges vs. Allstate Insurance Company of Canada makes that even in the face of an insurer’s inadequate refusal notice, it is still up to Mr. Selvarajah to prove entitlement to the claimed benefit based on the merits of the claim.
Mr. Selvarajah is sought an income replacement benefit (IRBs) from the date of termination up to and including January 3, 2011. Given that this period is within the two year timeframe from the date of the accident, Mr. Selvarajah must prove that he suffered “a substantial inability to perform the essential tasks” of his pre-accident employment.
For the following reasons the Arbitrator found that Mr. Selvarajah failed to prove entitlement to the claimed IRBs. The Arbitrator preferred the evidence of the employer over Mr. Selvarajah with regard to the actual job duties. The employer confirmed that the heavier aspects of the job which Mr. Selvarajah testified were a part of his job duties, in fact, were not. As discussed below, this was a crucial aspect to Mr. Selvarajah’s claim for income replacement benefits.
Mr. Selvarajah referred to a list of employment duties found in an occupational therapy in-home assessment report dated March 11, 2010 which are as follows:
In addition, he testified that he did outreach, generated leads and cross-promoted as part of his employment duties. On cross-examination, Mr. Selvarajah added to his job duties, indicating that on a daily basis he shared the responsibilities for maintenance including ensuring things were clean, replacing weights and adjusting equipment.
The disability certificate dated December 9, 2009, completed by Dr. JF, chiropractor, indicated that Mr. Selvarajah would be off work for 9-12 weeks with the explanation “cannot lift equipment without pain. Pain writing.” Mr. Selvarajah did not return to work for the month of December.
Importantly, Goodlife’s manager testified that Mr. Selvarajah’s job as a sales representative/manager trainee was not physically demanding, was sedentary in nature, requiring a lot of phone calls. She stated that Mr. Selvarajah’s essential job duties were sales, customer service and administration. She stated that the fitness manager and personal trainers, and not the sales representatives, were responsible for training clients, putting weights away, and general cleaning of the workout area. She indicated that at times the sales representatives may go out and clean but it was not an everyday occurrence and not part of their daily duties. With regard to the moving of equipment, the manager testified that a team would come in to do that and this was not a part of Mr. Selvarajah’s job duties.
Mr. Selvarajah submitted that he was substantially unable to do his employment as proven by his salary which reflects his sales numbers. He submitted that since January 2010, his sales were significantly lower than a year prior, this is evidence that he could not complete his job. In fact, his employer testified that in the 12 month period before the accident, Mr. Selvarajah had failed to meet his targets for most months. She testified that his performance in general was slipping and she intended to take care of the matter at the end of November 2009 but he injured his wrist and then had the motor vehicle accident so she instead agreed to give him time off in December to get himself together. Therefore his weak sales numbers in January 2010 truly reflect Mr. Selvarajah’s ability to do his job.
He stated that upon his return to work in January, he could not complete all of his job tasks, specifically that he could not show potential members how to do movements because he was restricted by back pain. He stated that he modified his own job and was exhausted at the end of the day but was not sleeping properly. He stated that he had a good relationship with his manager and to this date had no idea why he was fired.
The employer testified that Mr. Selvarajah was in serious danger of losing his job by the end of November 2009, if his performance did not improve and this was documented in his file. He requested time off in December but the employer wasn’t aware if it was because of a back injury or not. She only recalls him complaining about his wrist injury and not his back. She stated that upon his return in January 2010, as far as she could see he was able to complete his duties but his performance was still lacking, noting that he would come and go without permission and was pre-occupied. She ultimately terminated his employment without cause. She stated that his behaviour had not changed since his earlier warning and rather than document in order to terminate his employment with cause, she chose to terminate at the time without cause.
In testimony, Mr. Selvarajah indicated that he applied for employment insurance in February 2010 and was ready and willing to work, however he was not looking for the same type of work but was looking in the same industry. He stated that he was trying to secure employment with Bally’s gym which was more a phone job. This is contrasted with the testimony of his employer that the job Mr. Selvarajah was completing at Goodlife was sedentary in nature and mostly a job spent on the phone.
The Arbitrator found Mr. Selvarajah has not proven that he was unable to do the tasks of his employment. Crucial aspects of his testimony were contradicted by his employer, who had nothing to gain by her testimony. The contradictions in the testimonies regarding Mr. Selvarajah’s job duties were as follows:
Putting weights away
Showing potential members how to do movements
Helping people with workouts (he didn’t specify if this was with clients, potential clients, or other employees)
Interestingly, all of the heavier aspects of the employment which Mr. Selvarajah claimed he could not do are exactly what the employer stated were not a part of his job. Also, none of these duties was set out in his actual job description contained in the employment file. In addition, when describing his job duties to the occupational therapist, he did not mention moving machines, putting weights away and reported to her that his job demanded a lot of “writing, sitting, walking around, etc.” The Arbitrator found that none of these heavier tasks was a part of Mr. Selvarajah’s employment duties before the accident.
The disability certificate also referenced “pain writing,” however, the Arbitrator had difficulty with Mr. Selvarajah’s evidence surrounding his wrist injury. The Arbitrator agreed with State Farm that there is overwhelming evidence that Mr. Selvarajah had injured his right wrist before the accident and not the left hand as he testified before. On the OCF-1, he indicated that he aggravated a fracture to his palm/wrist, on the OCF-2 he hand wrote “… along with additional pain to my right hand and wrist”. The notes from the family doctor which were entered as an exhibit show that on the first visit after the accident a reference to a previous injury as “R little finger” and “Rt digit … deformity.” Also the occupational therapist who completed an in-home assessment on behalf of Mr. Selvarajah, in her report references an injury to the right hand (though she also references left hand). Finally, his employer testified that she recalled him having issues with writing with his dominant hand after his hand injury (but before the motor vehicle accident) and recalled him making an effort to write with his left (non-dominant) hand. Also, while testifying, Mr. Selvarajah feigned surprise that State Farm questioned which hand he injured in the accident despite its specific reference to it in the OCF-9 of April 27, 2010, July 8, 2010 and in its response to the application for arbitration.
Mr. Selvarajah failed to prove that he meets the test of “substantial inability” to complete his pre-accident employment. His evidence regarding his employment insurance claim supports that in February 2010 Mr. Selvarajah was looking for the exact same type of job he had just been fired from at Goodlife. His evidence was that he was ready and able to complete this type of employment. The Arbitrator found that he has not proven that he was substantially unable to complete the tasks of his pre-accident employment as a result of accident related injuries.
At the time of the accident Mr. Selvarajah lived in one of two apartments in the basement of his mother’s house. Mr. Selvarajah testified that prior to the accident he was responsible for laundry, shovelling snow, lawn work, cooking for himself, helping generally around the entire house including vacuuming. He stated that his brother and sister also lived in the family home but he completed the bulk of the housekeeping as he had more flexibility since he started his employment at 11 a.m. and could get things done in the morning. Prior to the accident, he stated he completed approximately 15 to 20 hours of housekeeping per week. This included tasks to help his mother.
Mr. Selvarajah testified that after the accident he could hardly do anything and relied on his brother and girlfriend for his laundry, vacuuming, meal preparation. He stated that his brother would help him with some attendant care and both were still assisting him when he returned to work in January 2010.
Mr. Selvarajah’s girlfriend at the time and now his spouse, testified that she assisted Mr. Selvarajah with many of his housekeeping activities starting about one week after the accident on an ongoing basis. She stated that she took time off of work in order to assist once she realized the severity of his injuries. The Arbitrator had some trouble with her evidence. The invoices that were submitted for the period up to March 4, 2011, were completed by Mr. Selvarajah’s brother and not by his wife. Also, Mr. Selvarajah testified that his mother was the main cook of the household and that he was responsible to assist with preparation before the accident whereas his wife testified that Mr. Selvarajah’s mother rarely cooked before the accident.
The Arbitrator had issues with Mr. Selvarajah’s credibility given the discrepancies in his evidence concerning his job duties and his wrist injury, and therefore was hesitant to make a finding of entitlement to a housekeeping benefit on the evidence of a lay witness without medical evidence supporting same. His wife testified that it was the left hand that was injured pre-accident. The Arbitrator did not understand why Mr. Selvarajah would state that his right hand injury was aggravated, on the disability certificate, if that was not the case, given the significance of that being his dominant hand.
The occupational therapy in-home assessment completed on March 11, 2010 speaks to Mr. Selvarajah’s entitlement to housekeeping. After her assessment, she recommended 11 hours of assistance for an unspecified period of time.
The Arbitrator rejected the findings of entitlement to housekeeping. Firstly, it acknowledged the pre-existing wrist injury but there was no inquiry as to what he was unable to do before the accident and this is in the face of Mr. Selvarajah’s hand being in a sling, or just out of the sling, at the time of the assessment (as he testified in cross he used a sling until the spring). His function pre-accident is the relevant information required and, in fact, what State Farm was asking for repeatedly at the relevant time. Ms. A, who wrote the report, testified that she took Mr. Selvarajah at his word that he was fully independent before the accident. Given concerns with Mr. Selvarajah’s credibility, the Arbitrator gave little weight to the report.
Mr. Selvarajah did not discharge his burden in proving that he was substantially unable to complete the housekeeping tasks he was able to do prior to the accident and he is therefore not entitled to a housekeeping benefit as claimed.
As no benefits were found owing, State Farm is not liable to pay a special award. Even if benefits were found owing, The Arbitrator would not conclude that State Farm acted unreasonably in this case.