Neutral Citation: 1995 ONICDRG 198

File No.: A-951780

ONTARIO INSURANCE COMMISSION

BETWEEN:

Collins Owusu-Ansah

Applicant

and

Guardian Insurance Company of Canada

Insurer

DECISION

Issues:

The Applicant, Collins Owusu-Ansah, was injured in a motor vehicle accident on October 2, 1993. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by Guardian Insurance Company of Canada ("Guardian") on March 4, 1994. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Owusu-Ansah entitled to reasonable expenses for transportation to and from his medical appointments pursuant to section 6 of the Schedule?

2. What is the correct amount of weekly income benefits Mr. Owusu-Ansah is entitled to under section 12 of the Schedule?

Mr. Owusu-Ansah also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Owusu-Ansah is entitled to payment of $2,152.00 for travel expenses pursuant to section 6(1)(d) of the Schedule.

2. Mr. Owusu-Ansah is entitled to weekly income benefits at the rate of $466.12 per week for 13 weeks.

3. Mr. Owusu-Ansah is entitled to payment of interest on overdue amounts in accordance with the provisions of section 24(4) of the Schedule.

4. Mr. Owusu-Ansah is entitled to his expenses incurred in this arbitration.

Hearing:

The hearing was held in North York, Ontario, on Thursday, November 23, 1995, before me, Joyce Miller, Arbitrator.

Present at the Hearing:

Applicant:

Mr. Collins Owusu-Ansah

Applicant's

Representative:

Mr. Murray Tkatch

Barrister and Solicitor

Insurer's

Representative:

Mr. Stephen B. Macaulay

Barrister and Solicitor

Witnesses:

Mr. Collins Owusu-Ansah

Mr. Joseph Poku

Mr. William L. Thomas, CA

Exhibits:

9 exhibits were filed

Evidence and Findings:

1. Background

Mr. Owusu-Ansah, who is a taxi driver, was injured in an automobile accident on October 2, 1993. At about 12:10 a.m. that night he was driving east on Bloor Street when he slowed down for a yellow light at the intersection of Symington and Bloor. A car travelling west, at a fast pace, tried to stop for the red light, lost control and skidded into Mr. Owusu-Ansah's lane. Mr. Owusu-Ansah turned his car away to avoid the oncoming car. However, he was not successful and the other car skidded into his car and spun it around.

As a result of the impact Mr. Owusu-Ansah received injuries to his jaw and neck. He also experienced over-all body pain, including low back pain.

Mr. Owusu-Ansah sought treatment from a dentist because he could not move the left side of his jaw. On the recommendation of his doctor, he also attended 43 physiotherapy sessions from October 6, 1993 until January 14, 1994². Mr. Owusu-Ansah claimed his travel expenses to and from his medical appointments.

2. Is Mr. Owusu-Ansah entitled to expenses in the amount of $2,152.00 for transportation to and from his medical appointments pursuant to section 6(1)(f) of the Schedule?

Mr. Owusu-Ansah testified that after the accident he tried travelling to his medical appointments using the TTC. However, he found this form of transportation very difficult as he was in severe pain and his medication made him drowsy. He therefore arranged for a taxi driver friend of his, Mr. Joseph Poku, to take him to his physiotherapy sessions. Mr. Owusu-Ansah paid Mr. Poku each time he drove him to and from his physiotherapy. Mr. Poku gave him a receipt for each trip.

Mr. Owusu-Ansah presented these receipts to Guardian,³ along with other receipts from other cabs, when Mr. Poku could not drive him.

Guardian refused to pay the transportation costs. Guardian admitted that Mr. Owusu-Ansah attended these physiotherapy sessions as a result of the accident. It also admitted that the transportation expenses were reasonable. What it found to be "'unreasonable" was that Mr. Owusu-Ansah had given the transportation business to a taxi-driver friend. They said that the receipts from Mr. Poku were not sufficient evidence that these transportation costs were paid.

Mr. Poku testified that the reason he took money for transporting his friend is because Mr. Owusu-Ansah told him that the insurance company would pay Mr. Owusu-Ansah for his transportation expenses. He also stated that he did not have his trip sheets for 1993 to verify the receipts, because he was no longer in the taxi business.

Section 6(d) of the Schedule states:

6.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

Succinctly, section 6(1)(d) of the Schedule requires an insurer to pay reasonable expenses resulting from an accident for transportation to and from treatment that is required by an applicant because of the accident.

As noted above, Guardian admitted that Mr. Owusu-Ansah attended physiotherapy sessions as a result of his accident, and that the transportation expenses submitted by Mr. Owusu-Ansah were reasonable. They also admitted that Mr. Owusu-Ansah provided receipts for his transportation costs. Their sole reason for refusing payment is that they did not find it reasonable that Mr. Owusu-Ansah gave this taxi business to a friend of his.

In his submissions, Mr. Macaulay, counsel for Guardian, noted that Mr. Owusu-Ansah's physiotherapy sessions were located at Bloor and Christie and that Mr. Owusu-Ansah should not have had any problem hailing a cab at that corner. In his view, this was a more reasonable thing to do than to arrange for a taxi-driver friend to come and pick him up.

Mr. Tkatch, counsel for Mr. Owusu-Ansah, submitted that it was reasonable and logical to give ones business to a friend rather than count on random strangers. Since Mr. Owusu-Ansah was injured, in pain and required to wear a neck collar, it was reasonable that he would want to have someone he could rely on, and would care for him, to transport him to his physiotherapy sessions. Moreover, he noted, Mr. Owusu-Ansah's therapy treatments for the most part took place during the winter months, when it would really be difficult to stand on the corner of Bloor and Christie and to hail a cab.

Mr. Tkatch submitted that both Mr. Owusu-Ansah and Mr. Poku were straightforward and consistent in their response to questions. They were open about their friendship. The receipts that were submitted to Guardian were the best evidence of their arrangement. Mr. Tkatch pointed out that if the receipts had come from strangers they would have been accepted by Guardian.

In my view, the relevant issue here is not who transported Mr. Owusu-Ansah, but whether the expense was required because of the accident and whether it was reasonable. Guardian has not disputed the fact that the expense was required and reasonable. They have merely raised a "'red herring" by questioning the expenses.

Without any factual basis, Guardian inferred that because a taxi-driver friend transported Mr. Owusu-Ansah, the transportation expense was not incurred. I disagree with Guardian's inference.

Accordingly, I find that Guardian must pay Mr. Owusu-Ansah his transportation expenses in the amount of $2,152.00.

3. What is the correct amount of weekly income benefits to which Mr. Owusu-Ansah is entitled pursuant to section 12 of the Schedule?

Guardian refused to pay weekly income benefits in excess of $185.60 a week pursuant to section 12 of the Schedule. Mr. Owusu-Ansah does not dispute the period of his entitlement to weekly income benefits, which was 13 weeks. He does dispute the amount that was paid. Guardian's position is that Mr. Owusu-Ansah had not presented sufficient evidence to prove that benefits were payable at a higher amount.

The evidence reveals that shortly after the accident, Mr. Owusu-Ansah provided Guardian with his trip sheets for the four weeks prior to the accident. As well, he gave Guardian a copy of his 1992 income tax return. On the basis of his 1992 income tax return, Mr. Basil Zahed of Guardian estimated that Mr. Owusu-Ansah's weekly income benefit was $588.00.

On November 12, 1993, Mr. Zahed wrote to Mr. Thomas, a chartered accountant, noting his estimate of $588.00, and asking Mr. Thomas to assess what he thought Mr. Owusu-Ansah's weekly income benefits should be. In Mr. Zahed's letter to Mr. Thomas he also noted that surveillance would be conducted on Mr. Owusu-Ansah. No evidence, however, was presented to me to show that such surveillance ever took place.

According to section 12(4) of the Schedule, weekly income benefits are based on 80 per cent of the insured person's pre-accident income up to a maximum of $600. The calculation of pre- accident income is set out in section 12(7) as follows:

(7) The following rules apply to the calculation of gross weekly income:

1. A person's gross weekly income shall be deemed to be the greatest of,

i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,

ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,

iii. $232.

Mr. Owusu-Ansah, who is self-employed, elected to be paid weekly income benefits on his average gross weekly income for the four weeks preceding the accident. Guardian paid Mr. Owusu-Ansah the minimum amount required by law, being $185.60 per week for 13 weeks.

Mr. Thomas calculated that, based on Mr.Owusu-Ansah's income and expenses for the four weeks prior to the accident, he should be entitled to weekly income benefits of $466.12 per week. Mr. Owusu-Ansah agrees with this calculation.

In his report to Guardian,⁴ however, Mr. Thomas recommended that Mr. Owusu-Ansah not be paid $466.12, but should be paid the minimum amount of $185.60 because Mr. Owusu-Ansah did not have credible and reliable evidence to substantiate his revenue and expenses. I find that the conclusion in Mr. Thomas' report is not substantiated by the evidence and Mr. Thomas' own testimony.

Mr. Thomas testified that in analysing the amount of weekly income benefits Mr. Owusu-Ansah would be entitled to, he read Mr. Owusu-Ansah's statement made to Guardian on October 27, 1993;⁵ he reviewed Mr. Owusu-Ansah's tax return for 1992;⁶he interviewed Mr. Owusu-Ansah; he interviewed Mr. Poku who rented the taxi cab to Mr. Owusu-Ansah; as well, he reviewed Mr. Owusu-Ansah's trip sheets⁷ which indicate both his earnings and incidental expenses for gas, car washes and other miscellaneous items.

Mr. Thomas testified that he had experience in analysing weekly income for taxi drivers. From his experience, Mr. Thomas admitted that Mr. Owusu-Ansah's average daily income of about $188.00 a day was a reasonable amount. His taxi rental expense of $400.00 a week was reasonable. As well, his incidental expenses of $110.00 a week was reasonable.

Mr. Thomas, however, went on to say that Mr. Owusu-Ansah did not present any financial records to support his income and expenses. Nevertheless, Mr. Thomas admitted that Mr. Owusu-Ansah's trip sheets were his financial records and that his trip sheets were the "best evidence" Mr. Owusu-Ansah could present. When Mr. Tkatch pointed out that Mr. Owusu-Ansah's 1992 tax return, a copy of which he gave to Guardian shortly after the accident, was in itself a financial record, Mr. Thomas stated that he rejected the 1992 tax return because it was not a certified copy. This was also raised by Mr. Macaulay in his submissions.

Mr. Tkatch submitted that Guardian had a copy of the 1992 tax return since shortly after the accident in 1993. In fact, this is the copy that Guardian gave to Mr.Thomas to analyse. If Guardian needed a certified copy, it had ample time to request this from Mr. Owusu-Ansah. Moreover, Mr. Tkatch noted that Guardian had not bothered to make such a request at the pre-hearing. Guardian cannot now reject the tax return because it is not certified. He submitted that whether or not the tax return was certified, it was still a record of Mr. Owusu-Ansah's business affairs. I accept Mr. Tkatch's submissions.

I note that the nature of the taxi business is that it is a cash business. Very little paper work is involved. The only records that a taxi driver has are his trip sheets. And as Mr. Thomas admitted, it is the "'best evidence" of a financial record that a taxi driver can present.

I found the testimony of Mr. Owusu-Ansah and Mr. Poku credible and consistent.

There was no evidence, other than suggestions on the part of Guardian, that Mr. Owusu-Ansah's revenue and expenses in the previous four weeks to the accident were not reasonable and credible.

Accordingly, I find that the correct amount of Mr. Owusu-Ansah's weekly income benefits is $466.12. Mr. Owusu-Ansah is therefore entitled to the difference between $466.12 and $185.60 which is $280.52. I therefore find that Guardian must pay Mr. Owusu-Ansah the amount that was underpaid which is $3,646.86 (calculated at $280.52 x 13 weeks) plus interest.

Expenses

Mr. Owusu-Ansah seeks an award of the expenses he has incurred in this arbitration. In accordance with section 282(11) of the Insurance Act and the case law that has evolved, I find that Mr. Owusu-Ansah is entitled to his expenses as set out in schedule F of the Dispute Resolution Practice Code - 1995. In the event that the parties cannot agree as to the total amount of expenses, a party may apply to the Registrar of the OIC for an assessment of the expenses.

Order:

1. Mr. Owusu-Ansah is entitled to weekly income benefits at the rate of $466.12 per week for 13 weeks.

2. Mr. Owusu-Ansah is entitled to payment of $2,152.00 for travel expenses pursuant to section 6(1)(d) of the Schedule.

3. Mr. Owusu-Ansah is entitled to payment of interest on overdue amounts in accordance with the provisions of section 24(4) of the Schedule.

4. Mr. Owusu-Ansah is entitled to his expenses incurred in this arbitration.

December 29, 1995

Joyce Miller

Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 4, Bloor Park Medical Rehab Services
3. 3Exhibit 5
4. 4Exhibit 8
5. 5Exhibit 9
6. 6Exhibit 1
7. 7Exhibit 3