September 21, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Rosemary Muzzi
Date of Decision: May 16, 2013
REASONS FOR DECISION
Giovanni Bruno was injured in a motor vehicle accident on January 15, 2007 while driving a company vehicle. He applied for and received some statutory accident benefits from State Farm payable under the Schedule. State Farm terminated some benefits and denied payment on other benefits. The parties were unable to resolve their disputes through mediation and, as a result, Mr. Bruno applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.
Mr. Bruno seeks the following benefits
Income replacement benefits at the rate of $400 weekly beyond the 16 weeks paid by State Farm
Payment for a physical rehabilitation treatment plan dated February 8, 2008 in the amount of $2,649.76, and
Payment of $1,642.50 for the cost of a dental assessment by Dr. Gfor TMJ and $506.27 for the cost of an Activities of Daily Living assessment conducted by Therapeutic Rehabilitation and Assessments Inc.
Mr. Bruno is not entitled to additional income replacement benefits.
Mr. Bruno is not entitled to payments for a physical rehabilitation treatment plan.
Mr. Bruno is not entitled to payments for the costs of two assessments.
Mr. Bruno is not entitled to any of the benefits he claims because in general he did not provide sufficient credible evidence to support his case. His oral evidence was inconsistent and in many cases contradictory and he also lacked sufficient consistent and reliable documentary evidence to found his claims.
Issue 1: Income replacement benefits
In order to be eligible for income replacement benefits (IRBs), an insured person must be employed at the time of the accident and as a result of and within 104 weeks after the accident suffer a substantial inability to perform the essential tasks of that employment.
State Farm initially paid Mr. Bruno $400 weekly IRBs for sixteen weeks only in accordance with section 5(2)(e) of the Schedule, because Mr. Bruno was assessed as having a Grade II Whiplash.
The Arbitrator found that Mr. Bruno is not entitled to further IRBs essentially for two reasons. First, Mr. Bruno failed to prove on balance that he was employed at the time of the accident. In particular, the evidence about his employment status and income was so inconsistent and unreliable that the Arbitrator was not satisfied that he worked as claimed during the period in question. Second, Mr. Bruno failed to prove that he sustained an impairment as a result of the accident that extended beyond the sixteen weeks he was paid benefits by State Farm. Further, the Arbitrator found that the evidence about his continuing disability was insufficient to satisfy the test for entitlement to further IRBs.
(i) Employment Status
Mr. Bruno failed to prove that he was employed at the time of the accident. The documentary evidence, his oral evidence at the hearing, and the other evidence he provided to State Farm under oath indicate an inexplicable confusion about his employment status and the income he earned, and reveal the existence of other employers.
Mr. Bruno’s IRB claim was based on his employment with his mother-in-law’s companies in the year before the accident where he asserted he earned $1,000 per week. Yet the evidence in its entirety suggests he worked for several employers. It is also unclear whether he was an employee or self-employed and whether he reported any or all of his income. As a result, the Arbitrator was not satisfied that he worked for his mother-in-law’s companies and was unable to ascertain his employment status.
Mr. Bruno gave contradictory oral evidence about his employment with his mother-in-law’s companies. Initially he testified that he began working for his mother-in-law at the end of 2005 at one of her companies and then moved to her tiling company in early 2006. She guaranteed him a $1,000 weekly wage with the tiling company. He also testified that he did additional other work for her and for another unrelated plumbing company. He testified that he worked for this plumbing company only a few weeks and was paid cash. However, during an examination under oath conducted in June 2010, he testified that while he was employed by the plumbing company and his mother-in-law’s tiling company in 2006, he worked more for the plumbing company.
This contradictory oral evidence was not clarified by the documents before the Arbitrator. To begin with, none of the documentary evidence tendered at the arbitration hearing even relates to any employment or earnings from a plumbing company. Further, both the application for accident benefits and the employer’s confirmation document, submitted soon after the accident, indicate Mr. Bruno’s employment as a tile setter for both of his mother-in-law’s companies, earning $1,000 weekly.
Mr. Bruno’s employment with his mother-in-law was even more difficult to believe given the dearth of documents to corroborate this relationship and his incredible explanations for the lack of such documentation.
Mr. Bruno’s main claim in this regard was that he had no documents because he did not know until very shortly before the arbitration hearing that he would require such evidence. Then he also claimed that he ordered records from his bank to show the canceled cheques he received from his employment only three weeks before the hearing. Mr. Bruno insisted that the date of hearing was the first day he understood that State Farm and the Arbitrator would be interested in his work records notwithstanding that he has been represented by counsel for several years prior to the arbitration date.
Later in his evidence, Mr. Bruno testified that, if he had known, he would have asked his mother-in-law for the work-related documents because she retained them all in a box in her office. At the examination under oath, however, Mr. Bruno claimed that there was no office for her companies and that he did not know where the books and other business-related materials were kept. Furthermore, he also testified that he had his mother-in-law’s accountant help him complete his 2006 income tax return and that his employment records were brought to the accountant’s office so the return could be completed. Mr. Bruno had no explanation for why the accountant would not provide him with copies of the foundation documents for his own tax return. Moreover, it is unbelievable that he did not retain or obtain copies of his records given the fact that he clearly knew by that time, it was 2011, that his accident benefits claims were proceeding to arbitration.
At another point in his testimony, Mr. Bruno alleged that his failure to provide employment documents was on account of his estrangement from his mother-in-law. His wife had not spoken to her mother since 2009 just after Christmas and his mother-in-law gave him the cold shoulder beginning in March 2010. Despite these personal problems, his mother-in-law took him to consult with her accountant a full year later. Moreover, his mother-in-law has apparently since disappeared and all of his attempts to locate her have been fruitless with no one knowing her exact whereabouts.
Mr. Bruno’s confusion of explanations for his inability to substantiate his employment relationship with his mother-in-law did not satisfy the Arbitrator on any basis.
Compounding the problem for Mr. Bruno in proving that he was employed as he asserts is that he appears to have had no idea of his employment status with his mother-in-law’s companies for income tax purposes either. Mr. Bruno could not be clear on whether he was an employee of her companies or whether he was self-employed.
Mr. Bruno asserts he only recently understood himself to have been self-employed. He claimed that he and his mother-in-law never had conversations regarding his status. It was the Arbitrator’s view that his ignorance about his employment status is particularly problematic in light of their familial relationship. To further add doubt to his claims, although apparently a business woman, his mother-in-law was not clear on his employment status either. She identified him as an employee in the employer’s confirmation form even though she required him to pay his own taxes and expenses. He believed himself to be an employee notwithstanding that he never received a T4 slip from either of her two companies.
Mr. Bruno’s general description of the employment contract was also vague. At the examination under oath he testified that he would get $1,000 a week by cheque, but he could earn more, in cash, which he did not claim. At the hearing he said he earned $1,000 weekly no matter how much time he worked.
Mr. Bruno’s failure to prove the details of his employment not only casts doubt on his claims to employment with his mother-in-law, it also renders it impossible to calculate the quantum of any IRB because the Schedule specifies different formulas for the calculation between employed persons and self-employed persons.
Because the evidence demonstrated that Mr. Bruno has had an unstable employment history, the details about his employment and income in the year before the accident took on more significance; there was no other period in his employment history to assess to determine his earnings. Furthermore, the evidence about his earnings was so inconsistent that the Arbitrator concluded that it is not credible or reliable. The result is that, in addition to his failure to prove his employment, Mr. Bruno was also unable to prove his income.
Mr. Bruno’s tax records and related testimony were incomplete, confusing and unpersuasive. The tax records corroborate Mr. Bruno’s inconsistent employment and income history. His 2004 income tax return shows an income of almost $15,000. His 2005 reported income is zero even though he testified that he did some work for one of his mother-in-law’s companies and for the plumbing company during that year. He testified that he completed both of these returns in 2008 and that they varied between 2004 and 2005 because it depended on whether he had “sub-jobs.” This explanation only clarifies why he might have had a difference in income, but does not explain why he did not report income when he earned income.
The most pertinent return for this arbitration, the 2006 income tax return, he completed in 2010. Mr. Bruno testified that he filed late because it was more complicated and he knew he owed money. His evidence was that he went with his mother-in-law to her accountant in March 2011 to complete the return. However, there are a host of problems with this evidence. First, as already noted, it makes no sense that his mother-in-law would assist him a full year after his estrangement from her. Second, the documentary evidence before the Arbitrator was unclear with respect to a 2006 return. One copy of the return shows a business income of $50,000 with a net of $31,480. A second income tax return for that year contains different figures and is dated October 13, 2010 not a date in 2011. The notice of assessment for the year 2006 is dated June 9, 2011.
Most significantly, the 2006 return was filed almost 3 years after the FSCO mediation (the mediation was conducted in 2008 and the mediator’s report issued in early 2009), and just before the arbitration. Mr. Bruno’s only explanation for why he filed at this particular time was that it was the right thing to do. In the circumstances, this explanation does not dispel any concerns with his credibility when it comes to reporting income.
Finally, Mr. Bruno failed to show disability as required by the Schedule.
Initially the Arbitrator was not satisfied about the nature of Mr. Bruno’s disability and how much, if any, of it can be related to the accident. There is medical evidence of similar pain and disability in the past and there is evidence suggesting intervening factors as well.
Mr. Bruno had similar pain and disability in 2002. Dr. M, Mr. Bruno’s family doctor, confirms in her notes in May 2002 that Mr. Bruno had back pain for 6 months which was quite disabling and with which he had difficulty coping. A lumbar spine x-ray on May 29, 2002 showed no abnormality and the back pain improved in June 2002. Nothing appeared to change as a result of the accident. A lumbar spine x-ray done two days after the accident, on January 17, 2007, reveals that the lumbar spine appears normal, with the five vertebrae in good position and alignment. The family doctor notes that the appearance is unchanged since the previous x-ray of May 2002.
In addition, none of the examinations shows even a minor change in Mr. Bruno’s lower back until the summer of 2007, six months after the accident. A CT scan done on July 10, 2007 reveals mild disc bulging at L5-S1 and L4-L5 and some mild narrowing at L3-L4. Dr. Chapman, the orthopaedic specialist who consulted with Mr. Bruno in May 2008, opines that the scan of July 10, 2007 does not even show anything wrong.
Moreover, though Mr. Bruno’s claim is based on the fact that he could not work after the accident, other evidence suggests that Mr. Bruno was working during this time, though, again, the evidence about where and for how long is inconsistent.
There is a gap of approximately seven months in Mr. Bruno’s consultations with Dr. M, from the end of April until mid-November 2007, coincident with his exit from physiotherapy treatment. When Mr. Bruno resumed those consultations in November 2007 there is information that he is working. His family doctor’s November 12, 2007 notation states that he has had difficulty doing physical work and she recommends modified duties. Furthermore, Dr. M notes on November 26, 2007 that he should avoid strenuous work. The orthopaedic specialist’s report of May 2008 iterates that the referral letter does not mention a car accident as the cause of his condition and mentions that Mr. Bruno has not been able to work since June 2007. Mr. Bruno testified that he got work as an estimator for a kitchen fabricator/installer but that he made no money. He reported to one of the insurer’s assessors that he worked there as a fabricator and installer for 2 to 3 months.
Issue 2: Physical rehabilitation treatment plan
In order to show entitlement to $2,649.76 for the costs of physiotherapy recommended in the treatment plan dated February 8, 2008, Mr. Bruno must demonstrate that the expense is reasonable and necessary.
The Arbitrator found that the treatment plan of February 2008 for physiotherapy is not reasonable and necessary given the evidence.
Initially, as already discussed in relation to the question of Mr. Bruno’s disability, the Arbitrator was not satisfied on balance that he is disabled or whether any disability he might have can be related to the accident.
Moreover, there was no evidence from the treatment facility that recommended the treatment about the specific plan itself, how it would benefit Mr. Bruno’s condition, or why it would be reasonable and necessary to engage in such treatment one year after the accident.
The fact that the treatment plan is submitted by a clinic referred by Mr. Bruno’s lawyer rather than Dr. M also takes away from the legitimacy of the treatment when considered in the context of Mr. Bruno’s frequent visits to Dr. M and her regular recommendations for continuing therapy.
This fact is particularly significant as there is also other evidence suggesting that Mr. Bruno was not interested in engaging in physiotherapy to treat his condition. For example, it appears that Mr. Bruno voluntarily ceased his initial treatment after only a few months. The physiotherapy clinic notes indicate a voluntary discharge date of May 7, 2007. With respect to the treatment plan at issue, it appears from the clinic notes that Mr. Bruno only attended 6 sessions, until May 9, 2008 even though the plan called for 24 sessions of physiotherapy. Further, in February 2010, Mr. Bruno reported to Dr. K, a physiatrist, that physiotherapy made his symptoms worse.
In January 2009, Dr. M reported that physiotherapy has been approved by Mr. Bruno’s insurer and he is prepared to go. The Arbitrator heard no oral evidence from Mr. Bruno that he was engaging in physiotherapy that had been approved by State Farm or any other insurer in 2009.
Finally, other medical practitioners who consulted with Mr. Bruno seem to recommend other forms of therapy rather than physiotherapy. Dr. K ultimately recommended a home exercise program. Dr. M recommended range of motion exercises on September 10, 2008 and in September 2009 she suggested back exercise counselling.
When all of this evidence is considered together the Arbitrator found that it fails to show that Mr. Bruno required this physiotherapy treatment or that this kind of treatment was reasonable in the circumstances.
Issue 3: Costs of examinations
Mr. Bruno seeks payment of $1,642.50 for the cost of a dental assessment by Dr. G and $506.27 for the cost of an Activities of Daily Living assessment conducted by Therapeutic Rehabilitation and Assessments Inc.
An insurer shall pay reasonable fees charged by a member of a health profession or a social worker for conducting an assessment or examination and preparing a report if the assessment or examination is reasonably required in connection with a benefit that is claimed or in connection with the preparation of a treatment plan.
(i) Dr. G’s dental assessment
Dr. G proposed an extensive dental evaluation at a cost of $1,642.50 on November 12, 2007. State Farm asked for a medical opinion about whether the assessment was reasonably required in the circumstances. Its assessor concluded that the documents he reviewed failed to identify and/or support the presence of any injuries or complaints associated with the maxillofacial region. He noted that none of the family physician’s disability certificates or any of the other treatment plans submitted mentioned a dental, temporo-mandibular joint or other maxillofacial-related impairment. He also found that the fees submitted exceeded those considered reasonable for such an examination.
The Arbitrator agreed that there is very little medical evidence to support the need for such an evaluation given that it does not appear that Mr. Bruno suffered any dental or maxillofacial-related injuries as a result of the accident. Neither of the two disability certificates provided by Dr. M (dated January 17, 2007 and March 31, 2008) mentions Mr. Bruno suffering from jaw pain or the need for dental treatment or assessment as a result of the accident. Further, none of the detailed notes from his consultations with Dr. M refers to this problem arising as a result of the motor vehicle accident or even existing. The first time Mr. Bruno even mentions jaw pain is during his attendance at Therapeutic Rehabilitation and Assessments Inc. in November 2007.
Having considered all of this evidence the Arbitrator found that Mr. Bruno has failed to show that the dental evaluation is reasonably required in connection with a benefit that is claimed or in connection with the preparation of a treatment plan for injuries suffered as a result of the accident.
(ii) Activities of Daily Living assessment
The Arbitrator had the same finding with respect to the assessment by Therapeutic Rehabilitation and Assessments Inc. related to Mr. Bruno’s activities of normal life and housekeeping and home maintenance needs.
There was no evidence before that this assessment was reasonably required in connection with a benefit that is claimed or in connection with the preparation of a treatment plan for injuries suffered as a result of the accident. The Arbitrator heard no evidence from Mr. Bruno in this regard and was not directed to any medical evidence supporting a need for housekeeping and home maintenance assistance. In addition, there was no evidence that Mr. Bruno could not accomplish the activities of normal life without assistance.
Moreover, the report produced as a result of this assessment is not itself reliable evidence of the necessity of the assessment. The report is dated November 20, 2007 but does not clearly indicate the date of the assessment itself. The report is purportedly based on “meetings and or telephone conversations with Mr. Bruno”, none of which are specified either in the report itself or in the accompanying invoice #715.
Mr. Bruno has failed to prove the purpose or necessity of this assessment. As such it was not reasonably required and State Farm need not pay for it.