November 08, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator James Robinson
Date of Decision: August 14, 2014
REASONS FOR DECISION
Roshanth Balasunderam, 24, was injured in a car accident on January 2, 2010. He was driving his 2008 Honda Civic when his car was struck from the right in a T-bone fashion by another vehicle which had failed to stop at a red light. Mr. Balasunderam recalled head and shoulder came into contact with the car interior and his right knee hit the dashboard. He reported that he was “shocked” and “nervous” after the accident but that he felt no immediate pain. Some five days after the accident he visited his family doctor complaining of lower back pain as well as pain in his neck and right shoulder.
He applied for and received statutory accident benefits from State Farm payable under the Schedule. State Farm terminated weekly income replacement benefits in early September 2011. State Farm terminated attendant care benefits in early April 2010. State Farm did not pay housekeeping and home maintenance benefits requested by the Insured. The parties were unable to resolve their disputes through mediation, and Mr. Balasunderam applied for arbitration at the Financial Services Commission of Ontario.
The Arbitrator disallowed Mr. Balasunderam’s claim for Special Award pursuant to AIG’s request as he had failed to provide written particulars of the basis for his claim within 30 days of the date of the pre-hearing as ordered by Arbitrator Renahan. The Arbitrator disallowed the claim to add issues at the arbitration since there was an absence of a prior mediation these issues could not be and were not added to the arbitration and that I lack jurisdiction to do so.
The issues in this hearing are:
Is Mr. Balasunderam entitled to receive a weekly income replacement benefit from September 3, 2010?
What is the amount of weekly income replacement benefit that Mr. Balasunderam is entitled to receive?
Is Mr. Balasunderam entitled to attendant care benefits in the amount of $361.95 per month from April 2, 2010?
Is Mr. Balasunderam entitled to payments for housekeeping and home maintenance services from January 2, 2010 to date and ongoing?
Is State Farm liable to pay Mr. Balasunderam’s expenses in respect of the arbitration?
Is Mr. Balasunderam liable to pay State Farm’s expenses in respect of the arbitration?
Is Mr. Balasunderam entitled to interest for the overdue payment of benefits?
Mr. Balasunderam is entitled to receive a weekly income replacement benefit from September 3, 2010 to January 1, 2012.
Mr. Balasunderam is entitled to receive weekly income replacement benefit in the total amount of $2,528.22.
Mr Balasunderam is entitled to attendant care benefits in the amount of $361.95 per month from April 2, 2010 to August 1, 2010.
Mr. Balasunderam is entitled to housekeeping and home maintenance payments for the period from January 2, 2010 to August 1, 2010.
State Farm is liable to pay Mr. Balasunderam’s expenses in respect of the arbitration.
Mr. Balasunderam is not liable to pay State Farm’s expenses in respect of the arbitration.
Mr. Balasunderam is entitled to interest for the overdue payment of benefits.
EVIDENCE AND ANALYSIS:
The Arbitrator determined that Mr. Balasunderam’s testimony lacked credibility due to his troubling testimony. Mr. B was involved in a subsequent second car accident. In the second car accident Mr. B was the driver and there were 3 other people in the car. However Mr. B could only identify one passenger. Mr. B was vague about their destination that evening and he was vague in his answers under cross-examination. The arbitrator determined that his testimony or the manner in which he gave his evidence was believable. Mr. B was claiming he was socially withdrawn after the first accident but the second accident likely involved a social event. It was also inconsistent with Mr. B’s contention that he had driver’s anxiety after the first accident. There also seemed to be some glaring omissions by Mr. B in the information that he provided to medical assessors. Another example were numerous medical reports where Mr. B suggests he is not working when in fact he was employed. Even accounting for any language barriers, the inconsistencies provided reason to doubt Mr. B’s testimony. It appeared that Mr. B was tailoring his information to the medical assessors to create the appearance of disability that was greater than reality. As such, the arbitrator focussed more on the reports of medical assessors whose findings were based primarily on physical examination and test results.
Is Mr. Balasunderam entitled to receive a weekly Income Replacement Benefit?
Mr. Balasunderam had worked full-time as an office cleaner for some four months prior to the accident. His evidence was that his pre-accident health was excellent and he testified that he was fully functioning in all aspects of his life prior to the accident. He lived alone and rented a room, as he does now. Upon review of the medical testimony the Arbitrator accepted that Mr. Balasunderam was, on the balance of probabilities, unable to return to his duties as an office cleaner because he was physically unable to perform the duties of that employment. Mr. Balasunderam has met his burden and the Arbitrator found that during the 104 weeks following the accident Mr. Balasunderam suffered a substantial inability to perform the essential tasks of his employment as a cleaner.
2. Did Mr. Balasunderam suffer a complete inability to engage in any employment after the first 104 weeks of disability?
Mr. Balansunderam was working for Pickle Barrel Restaurant as a driver two weeks before his IRB expired. The Arbirator found that, by virtue of his education and English-language skills, the work in which Mr. Balasunderam engaged in the period 104 weeks after the accident is employment to which he is “reasonably suited by education, training and experience.” The Arbitrator was satisfied on the basis of the available evidence that he does not meet the “complete inability” test.
Amount of Weekly Income Replacement Benefit
Mr. Balasunderam failed to provide complete accounting for his income sources during the period of 2010- 2012. Calculating the ‘top up’ amount was therefore impossible. Mr. Balasunderam failed to meet his burden of proof in an important respect. His gross employment income in 2011 was $36,965.00 according to his Canada Revenue Agency Notice of Assessment, filed in evidence. If his only employer in that year had been Pickle Barrel, it would be possible to use the weekly statement of earnings filed in evidence to determine whether, in any given week in 2011, the amount earned by Mr. Balasunderam should be “topped up” by the insurer.
In the absence of information with respect to the timing of the payments by other employers, Mr. Balasunderam failed to prove that he should receive any Income Replacement Benefit for the taxation year 2011 and subsequently to January 2, 2012. The situation is somewhat better for the taxation year 2010. In that case it does not appear from the available evidence, including Mr. Balasunderam’s 2010 tax return that he had any employment income other than that received from Pickle Barrel. Mr. Balasunderam’s claim for replacement income in the amount of $331.47 per week should accordingly be abated an appropriate amount to the extent of his earnings from his employment in any week in 2010 subsequent to the accident.
Mr. Balasunderam testified that he was unable to attend to his own personal care after the accident. Only the testimony of Mr. Balasunderam was available, supplemented by the various medical reports produced in evidence. The same concerns about Mr. Balasunderam’s credibility with regard to his claim for income replacement benefits must also apply with respect to his claim for attendant care benefits. The Arbitrator was satisfied that the physical impairments described in the report of Dr. K dated March 15, 2012 are sufficiently corroborative of the testimony of Mr. Balasunderam to support a finding that attendant care was reasonable and necessary no later than August 1, 2010. Mr. Balasunderam shall accordingly be awarded attendant care expenses from the date of termination of his benefits up to and including August 1, 2010.
Housekeeping and Home Maintenance
Although he rented a room in someone else’s home, Mr. Balasunderam testified that he was no longer able to help with household chores after the accident. He required help with housecleaning, laundry and grocery shopping. The cleaning included washroom and kitchen clean-up as well as the cleaning of the living room which comprised a common area for which he was apparently responsible. He testified that he was unable to bend, scrub, sweep or mop because the range of motion necessary for those tasks was painful for him.
Mr. Balasunderam produced a series of OCF-6 forms in evidence, supported by written reports completed by JJ who did not appear at the hearing to testify. These confirm that housekeeping services were provided from February 15, 2010 through August 1, 2010. The Arbitrator found that Mr. Balasunderam’s claim for housekeeping and home maintenance benefits should be paid to and including August 1, 2010.