Neutral Citation: 1998 ONICDRG 50, 1998 ONFSCDRS 50

FSCO A96-001401

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JOAN PRIVETT

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Joan Privett, was involved in a motor vehicle accident on March 24, 1995. On February 5, 1996, she submitted an application for statutory accident benefits to Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule¹ Allstate refused to pay the benefits claimed on the basis that Ms. Privett failed to notify Allstate that she was injured in the accident, in accordance with section 59(1) of the Schedule as well as other defences. The parties were unable to resolve their dispute through mediation, and Ms. Privett applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the Act).

The issues in this hearing are:

1. Did Ms. Privett notify Allstate of the circumstances that gave rise to her claim within the time limits prescribed under subsection 59 (1) of the Schedule?

2. Is Ms. Privett entitled to caregiver benefits pursuant to section 18 of the Schedule from March 24, 1995 onwards?

3. Is Ms. Privett entitled to housekeeping expenses of $2,675?

4. Is Ms. Privett entitled to the cost of Dr. O'Sullivan's report for $200.

5. Is Ms. Privett entitled to chiropractic expenses of $170?

6. Is Ms. Privett entitled to a special award pursuant to section 282(10) of the Act?

Ms. Privett also claims interest on any amounts owing and her arbitration expenses.

Result:

1. Ms. Privett did not notify Allstate of the circumstances that gave rise to her claim within the time limits prescribed under subsection 59 (1) of the Schedule?

2. Ms. Privett is not entitled to any benefits under the Schedule.

3. Ms. Privett is not entitled to a special award.

4. Ms. Privett is not entitled to her arbitration expenses.

Hearing:

The hearing was held in Hamilton, Ontario, on September 8, 9 and 10, 1997 and October 31, 1997, before me, Asfaw Seife, Arbitrator. The proceedings were recorded by court reporters of Mark Nimigan, Court Reporting Enterprises.

The names of those present at the hearing, the witnesses, and the exhibits filed are listed in the Appendix to this decision.

Evidence and Findings:

Background

At the time of the accident of March 24, 1995 (the accident), Ms. Privett was 21 years old, and the primary caregiver of her two children, Stephen and Danielle, aged 3 and 5 years, respectively.

Ms. Privett was previously injured in a motor vehicle accident on July 7, 1993, (the first accident). As a result of that accident, she sustained soft-tissue injuries to her neck, low back, right shoulder as well as headaches. She applied for and received from Allstate various accident benefits, including weekly caregiver benefits until July 1994. In September 1994, Ms. Privett started working at Tim Horton Donuts as a server. She testified that she had not fully recovered from her injuries when she returned to work; however, despite her problems, she was able to work 25 to 40 hours per week and perform the majority of her caregiver and housekeeping activities.. She left Tim Horton's and went to work for The Donut Diner from December 15, 1994 until February 28, 1995. She left this job because she could not get along with her supervisor. She also felt that she was neglecting her children. At the time of the second accident, she was working on a part-time basis as an assistant to a superintendent of an apartment building.

The accident occurred on a Friday afternoon, around 3:30 p.m. in Hamilton. Ms. Privett was driving her 1986 Chevrolet Camaro, with her son as a passenger. Her vehicle collided with another car at an intersection. Ms. Privett was charged with making an unsafe turn by the police officer who attended at the scene of the accident.

Ms. Privett testified that immediately after the impact she felt "instant" headache and pain in the base of her neck. Her right shoulder locked instantly. She claims that she re-injured her low back, neck, shoulder and thoracic spine — the same areas of her body injured in the first accident.

Ms. Privett claims that she has been suffering a substantial inability to engage in her pre-accident caregiver activities since the date of the accident due to the injuries she sustained in the accident.

Ms. Privett maintains that she notified Allstate by telephone of the circumstances of the accident, and the fact that she was injured in the accident, on the date it happened and on numerous occasions during the several months following the accident. She contends that Allstate representatives told her that she had no insurance coverage, failed to provide her with the appropriate application forms, an explanation of the benefits available to her under the Schedule and information to assist her in applying for benefits, as they are required under section 59 of the Schedule.

Ms. Privett testified that since Allstate refused to respond to her claim, she approached Len Sheddon of Entitlement Inc, Automobile Insurance Consultants in February 1996 to assist her with her claim. Ms. Privett submitted to Allstate an Application for Accident Benefits dated February 5, 1996 and a Health Practitioner's Certificate dated February 13, 1996, signed by her family physician Dr. A.B. O'Sullivan.

On March 22, 1996, an Allstate representative obtained a signed statement from Ms. Privett and by an Explanation of Assessment dated the same day, Allstate advised Ms. Privett that her entitlements to benefits were to be decided following further investigation of the late application. On May 21, 1996, Allstate sent another Assessment of Claim to Ms. Privett stating that her claim for weekly benefits and chiropractic expenses were "denied based on a late notice and application."

Allstate agrees that Ms. Privett reported the accident within a few hours of its occurrence; however, it denies that she informed the Allstate representatives she dealt with that she was injured in the accident. Allstate maintained that it only became aware of Ms. Privett's claim that she was injured approximately ten and half months after the accident, when it received the Application for Accident Benefits.

In this arbitration, Allstate also contends that Ms. Privett did not satisfy the test for entitlement to the benefits she claimed.

Did Ms. Privett comply with the notice requirements of the Schedule?

Section 59 of the Schedule states:

59.-(1) A person who wants to apply for benefits under this Regulation shall notify the insurer within thirty days after the circumstances arose that gave rise to the entitlement to benefits, or as soon as practicable thereafter.

(2) The insurer shall promptly provide the person with,

(a) the appropriate application forms;

(b) a written explanation of the benefits available under this Regulation; and

(c) written information to assist the person in applying for benefits, including information to assist the person in making any possible elections.

(3) The person shall submit an application for the benefits to the insurer within ninety days of receiving the application forms.

(4) A failure to comply with a time limit set out in subsection (1) or (3) does not disentitle a person to benefits if the person has a reasonable excuse.

There is no dispute between the parties, and I find that Ms. Privett reported the accident to the Allstate claims office by telephone on the same day the accident occurred. Mr. Paul Delicci, Allstate's Loss Report Co-ordinator who received the report advised Ms. Privett that Allstate's records showed no collision coverage on the Camaro. Ms. Privett told him that the vehicle should have collision coverage because the vehicle was "under a bank loan." Mr. Delicci suggested that she call Dan Johnstone's office, the Allstate agent who sold her the automobile insurance and sort out the coverage issue. In the meantime, Mr. Delicci forwarded the electronic file to Ms. Tatania Latko, one of Allstate's property damage claims adjusters.

In the weekend following the accident, Ms. Privett had the damage to her car repaired by a friend. She also paid the traffic violation fine.² On Monday, March 27, 1995, she telephoned Dan Johnstone's office and spoke to Mr. Sean Brousseau, who confirmed Mr. Delicci's advice to her. Mr. Brousseau explained to Ms. Privett that on February 17, 1995 when she added the Camaro to her insurance policy, she had declined collision coverage for it. Mr. Brousseau told her that since she was the at-fault driver, it was her responsibility to pay for the repair of her car.

On March 27, 1995, Ms. Latko telephoned Ms. Privett who advised that the damage to her car was under $500 and that she was not making a claim. However, Ms. Privett requested that the coverage issue be investigated. Ms. Latko followed up on Ms. Privett's concerns, and on April 26, 1995, she confirmed that the vehicle in question was leased from a local car dealership and that collision coverage was required for it. She determined that an error had been made when Ms. Privett was allowed to decline collision coverage on the vehicle. Ms. Latko cleared the "discrepancy" in coverage on May 8, 1995. She opened a new file (electronic) with new claim and policy numbers.

While it is clear that Ms. Privett reported the accident on March 24, 1995, the evidence as to whether she also reported being injured in the accident is less straightforward. Ms. Privett testified that she told every Allstate representative she spoke to that she was injured in the accident. Mr. Brousseau, Mr. Delicci and Ms. Latko testified that Ms. Privett's claim related only to property damage. They denied that she told them that she was injured in the accident. Mr. Delicci and Ms. Latko had no independent recollection of their telephone conversations with Ms. Privett. They testified on the basis of electronic records, including computer printouts of the Claims Screen and the electronic Diary. The Claims Screen is an electronic form in which details of the accident, the insured person, the insured automobile and the loss claimed by the insured person are recorded by employees of the insurer. The questions are prompted by the computer. The Diary is a contemporaneous record of telephone calls, electronic messages or other information sent or received and any action taken by any representative of the insurer who has an involvement in the file.

Mr. Delicci and Ms. Latko testified that they recorded the information contained in the Claims Screen and the Diary in this case. They testified that these records do not indicate that Ms. Privett reported being injured in the accident. Under the "Loss Detail" field, the Claims Screen shows the words "inj" (meaning "injuries") followed by the letter "n"(meaning "no"). Ms. Latko testified that the electronic data cannot be changed or deleted after their entry. When a new file is opened the old file is "voided" but the information is retained in the computer. She said that the Loss Detail field must be entered before the Claims Screen can be successfully completed. If this are is not completed, the computer requires the adjuster to abandon the screen.

Ms. Delicci testified that he is trained to ask screening questions in order to determine whether the file should be assigned to a property damage claims adjuster or to an accident benefit claims specialist. He stated that the computer automatically assigns a claim number to the file and assigns it to an accident benefits specialist if the claim involves both property damage and accident benefits. The file is assigned to a property damage adjuster if no injuries are reported.

Mr. Delicci and Ms. Latko testified that it is their common practice to ask a person involved in an accident if anyone was injured in the accident.They testified that while they do not have an independent recollection of each case they proceess, they would have had no reason to depart from their common practice in this case. Ms. Delicci testified that he would have asked Ms. Privett if she was injured, and if she told him that she was, he would have recorded that fact in the Claims Screen and in the Diary and the computer would have assigned the file to an accident benefits adjuster. The file was assigned to Ms. Latko since it was recorded as property damage claim only. Ms. Latko testified that if, in the process of adjusting the property damage claim an insured tells her that a person was injured in the accident, she would transfer the file to an accident benefits adjuster because the procedures require her to do so. She has no training in processing accident benefit claims.

Mr. Brousseau has known Ms. Privett since 1992 and has dealt with her on several occasions, arranging insurance coverage for her cars. He testified that as far as he can recall, Ms. Privett did not tell him on March 24, 1995 or at any other time that she was injured in the accident. The first time he became aware of her claim of personal injury was in March 1996, when he was asked by Allstate to provide a memo about his involvement. Mr. Brousseau testified that he made his notes of the telephone conversation with Ms. Privett on March 27, 1995 immediately after the conclusion of the call. His notes refer to the dispute around the collision coverage and do not mention injuries. Mr. Brousseau testified that he would have asked Ms. Privett if she was injured, and if she told him she was, he would have noted it in his memo. He could not, however, say with 100 percent certainty that she did not mention to him that she was injured.

Ms. Julie Carlson was the Allstate adjuster who handled Ms. Privett's claim from the first accident. She testified that she met Ms. Privett in December 1995 or January 1996, at Ms. Privett's request. Ms. Privett told her that she was having further problems and needed treatment. Ms. Carlson told Ms. Privett that she could re-open the 1993 file if she produced a certificate from her doctor saying that she required treatment. Ms. Carlson testified that during this meeting Ms. Privett did not tell her that she was involved in a second accident. The first time she became aware of the accident at issue was when she received a letter from Entitlement Inc. in February 1996. Ms. Carlson stated that she did not deal with Ms. Privett's claim from that time onwards because of a perceived conflict of interest as her husband and Ms. Privett's brother were on the same football team. In her testimony, Ms. Privett maintained that she told Ms. Carlson that she was injured in a second accident The testimony of Ms. Kathleen Rayner, Ms. Privett's mother, is the only evidence that supports Ms. Privett's claim that she notified Allstate of her injuries within 30 days of the date accident. Ms. Rayner testified that she attended at Ms. Privett's home after 7:00 p.m. on March 24, 1995, and on that occasion, Ms. Privett told her that she had called the insurance company and was told that she had no coverage. Ms. Rayner observed Ms. Privett was upset and appeared to be in a great deal of pain. She helped her bath the children and put them to bed and left the house at 10:00 p.m.

Ms. Rayner testified that the following day, Saturday, March 25, she returned to Ms. Privett's home at around 9:00 a.m and stayed with her until 1:00 p.m. She testified that on this occasion, she observed Ms. Privett talking to her agent on the telephone and telling the person that she was injured in the accident and that she needed treatment that was not covered by OHIP. She heard Ms. Privett repeat the same thing to another person, several times. She said the agent was telling Ms. Privett that she did not have insurance. Ms. Rayner testified that she went to Ms. Privett's home again on Monday morning, arriving there between 9:00 and 10:00 o'clock. She testified that she observed Ms. Privett on the telephone speaking to the "insurance people" and telling them that she was injured and needed chiropractic treatment. Ms. Rayner testified that in the months that followed, Ms. Privett made several telephone calls from her house to the insurance company telling them that she needed treatment.

Ms. Rayner testified that she keeps a journal of everything she does and that she had made a note of her observations in the journal; however, her 1995 notes were either lost when she moved or "they are probably at home" since she did not unpack everything. She testified that she has never told Allstate that she had made notes of these incidents. Ms. Rayner has been aware since February 1996 that the main dispute between Allstate and Ms. Privett was Allstate's contention that Ms. Privett did not report to the insurance company or its agent that she was injured in the accident in a timely fashion. Given this knowledge, I find it significant that Ms. Rayner neither advised Allstate that she had contemporaneous notes of the incidents prior to this hearing nor made any attempt to find the journal to be filed in evidence at this hearing.

In addition, Ms. Rayner's testimony that she heard Ms. Privett talking to the insurance representative on Saturday, March 25 is inconsistent with Ms. Privett's testimony and the documentary evidence which indicate that there was no communication between Ms. Privett and her agent or the claims office in the weekend of March 25 and 26. Ms. Privett testified that the first time she was able to reach anyone at the agent's office was on Monday, March 27. This is corroborated by Ms. Brousseau's contemporaneous notes, filed in evidence. After Ms. Privett's initial calls on Friday, March 24, the claims office did not hear from her again until Monday March 27. This is corroborated by entries in the electronic Diary.

I did not find Ms. Rayner's evidence convincing or impartial. Given her claim that she has paid from her own funds for Ms. Privett's housekeeping expenses, she has a vested interest in the outcome of the case.

I reject Ms. Privett's evidence for the reasons given below under the heading "Ms. Privett's Credibility." I am satisfied that the electronic records produced by Allstate were created in the normal course of business. These records indicate that Ms. Privett did not report she was injured in the accident. I find Allstate's witnesses credible. I accept the evidence of Mr. Delicci, Ms. Latko and Mr. Brousseau that during their dealings with Ms. Privett they would have asked her if she was injured in the accident, and if she told them that she was injured, they would have recorded that fact. I also accept Ms. Carlson's evidence which was given in a straightforward manner.

I find that Allstate's business records, in conjunction with the testimony of the witness who created them, constitute sufficient proof that Ms. Privett did not report to Allstate until February 5, 1996, that she was injured in the accident.

Under subsection 59(1), the 30-day notice period begins immediately "after the circumstances arose that give rise to the entitlement to benefits, or as soon as practicable thereafter." Ms. Privett did report to Allstate that she was involved in an accident within a few hours of the occurrence; however, in my view, merely reporting being involved in an accident, or making a property damage claim is not sufficient to discharge an inured person's responsibility to notify the insurer of the circumstances giving rise to the claim for accident benefits. The insurer's obligation to provide the insured person with the assistance set out under subsections 59(2) of the Schedule is triggered by a proper notice given by the insured of the circumstances giving rise to the claim for entitlement.

Ms. Privett claims that her disability started on March 24, 1995, immediately after the accident; however, she argues that Allstate's denial at the outset that she had no insurance coverage constitutes a reasonable excuse under subsection 59(3) for not meeting the time limits for notice. While there was some confusion initially regarding the collision coverage for the vehicle, the discrepancy was resolved within 72 hours of the accident. I do not accept that the initial coverage issue was material to Ms. Privett's failure to inform Allstate of her claim that she was injured in the accident for over 10 months after the occurrence.

Therefore, having regard to all of the circumstances, I find that Ms. Privett has not satisfied the onus of proving, on a balance of probabilities, that she complied with her obligation under subsection 59(1) of the Schedule. I find Ms. Privett did not notify Allstate within thirty days after the onset of her disability or as soon as practicable thereafter. I did not find Ms. Privett to be a credible witness. I am not satisfied that she has a reasonable excuse for failing to comply with the time limits under subsection 59(1).

On the basis of these findings alone, Ms. Privett would be disentitled to benefits³; however, in the event that I am in error, I have proceeded to consider whether Ms. Privett satisfies the test for entitlement to the benefits she claimed.

In his submissions, counsel for Ms. Privett argued that the Applicant has a subsisting claim for benefits for the period reaching back 30 days before the date she submitted her application to Allstate and carrying on beyond that date to the completion of her entitlement. Given my findings below that Ms. Privett is not entitled to any benefits, I do not find it necessary to address this argument.

Entitlement to Weekly Caregiver Benefits:

In order to be entitled to weekly caregiver benefits, Ms. Privett must demonstrate, on a balance of probabilities, that as a result of injuries she sustained in the accident of March 24, 1995, she suffers a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident, or suffers a partial or complete inability to carry on a normal life. However, after 104 weeks of the onset of her disability, she would be entitled to the benefits only if she continued to suffer a substantial inability to engage in her caregiver activities or suffers a complete inability to carry on a normal life. Ms. Privett's claim is advanced on the basis that she continues to suffer a substantial inability to engage in her caregiver activities, ongoing from the date of the accident.

Ms. Privett testified that she has not seen much improvement in her condition since the accident. She still has difficulty sitting, walking, standing, climbing stairs, and bending because of the pain in her back. She experiences severe headaches and her shoulder has not improved "by much."

She can only cook light meals, she cannot carry anything heavy up and down the stairs. She has difficulty picking up her children. She can dust and vacuum the house with the help of her children; however, she cannot mop the floor. She can do grocery shopping but she needs help to take the groceries to the second floor where the kitchen is. She has no difficulty driving long distances now; however for many months after the accident she could not undertake a long trip.

In November 1995, Ms. Privett had a slip-and-fall accident in her house. She injured her right ankle when she lost her balance going down the stairs and skidded three steps. She was treated at Henderson General Hospital in Hamilton. She testified that the effects of this injury were temporary. In December 1995, she had a serious bout with pneumonia which was her major concern at the time.

Ms. Kathy Rayner and Ms. Rhonda McGrath, Ms. Privett's 16 year-old next door neighbour supported Ms. Privett's claim of disability. Ms. Rayner testified that she spent a lot of time helping Ms. Privett in the first few weeks of the accident. Because she had a full-time employment, she paid Ms. McGrath to help her.

Ms. McGrath, who was a full-time student, had babysat for Ms. Privett since August 1994, when she went to work or to other engagements. Ms. McGrath described her relationship with Ms. Privett as being akin to a mother-daughter relationship. She considered Ms. Privett a very close friend. Before the second accident, Ms. McGrath frequented Ms. Privett's house a lot. Sometimes she went there just to run away from home. Ms. Privett paid her for babysitting, sometimes.

During the first two weeks after the accident, Ms. McGrath went to Ms. Privett's house on a daily basis, before and after school, and helped her with housekeeping, her personal care needs and babysitting. She did not discuss any payment with Ms. Privett or Ms. Rayner. She does not know how much she was paid and how much of what she was paid related to which functions she performed. She has not helped Ms. Privett since she moved away on July 7, 1997.

Medical Evidence

The first health practitioner Ms. Privett saw after the accident was Dr. O'Sullivan. It is clear from the Health Practitioner's Certificate that he completed, Dr. O'Sullivan understood Ms. Privett's complaints in February 1996 were the result of an aggravation of her symptoms from the first accident.

In his report to Entitlement Inc. dated May 21, 1996, Dr. O'Sullivan stated:

Ms. Privett was examined by Dr. John Darracott, physiatrist, in April 1994 who discovered she was yet complaining of constant pain in her neck, shoulder, entire spine, hips and thighs. He stated that she was developing a chronic pain state. Ms. Privett was complaining of pain in all the above areas and demonstrated restricted movements of her neck and right shoulder in June and July [1994] when she attended Dr. Ghouse.

This was Ms. Privett's status when she had her second accident on March 24/95. She again complained of pain in the same area - namely her neck, thoracic spine and low lumbar spine. She felt that she was no longer able to do her regular house work and caregiver duties. I sent her back to physiotherapy and she was to attend the chiropractor again. Her same injuries therefore seem to have been worsened. As her cerebral symptoms from her concussion seemed to flare namely her nausea, headaches and dizziness, I sent her back to again to Dr. Kronby.

Dr. O'Sullivan agreed that his comments that Ms. Privett had difficulty carrying out her caregiver activities were based on Ms. Privett's subjective complaints of pain and the history she provided him. He was also unable to state in his testimony whether and to what extent the second accident was responsible for Ms. Privett's functional problems. He testified that he could not separate the effects of the second accident on her functional ability and cannot say which accident was responsible for how much of her disability.

Ms. Privett took 11 chiropractic treatment with Dr. Sciullo between March 23 and May 13, 1996, at a cost of $170. Dr. Scuillo was the chiropractor who treated her after the first accident. He stated in his report dated August 29, 1997, that he treated Ms. Privett for an exacerbation of neck and back pain as a result of the accident of March 24, 1995. He was of the view that Ms. Privett's injuries from March 24, 1995 accident were significant enough to affect her ability to function as a caregiver.

Dr. Kronby saw Ms. Privett in September 1996 regarding her complaints of persistent headaches. He found no evidence of neurological deficit that could account for her complaints.

Ms. Privett has not filed a report from Mountain Rehabilitation Services regarding the treatment she received there. I find the clinical notes of the physiotherapist of no assistance in determining Ms. Privett's claim of disability.

Ms. Privett's Credibility

There are numerous problems with Ms. Privett's testimony regarding the reporting of her injuries and the medical atttention she sought after the accident.

In her signed statement to Allstate on March 22, 1996, and in her testimony at the hearing, Ms. Privett stated that she saw Dr. O'Sullivan on several occasions after the accident and prior to February 1996. She testified that during her visits, she told Dr. O'Sullivan about the accident and her injuries. Ms. Privett testified that she first saw Dr. O' Sullivan within a week or two of the accident and that he gave her a prescription for Tylenol #3 in another person's name because she had no drug coverage. She stated that in May 1995, Dr. O' Sullivan gave her a prescription for physiotherapy but she did not take the treatment because she could not afford the cost.

Dr. O'Sullivan's testimony and his clinical notes contradict Ms. Privett's testimony. Dr. O Sullivan, who has been Ms. Privett's family physician since before the first accident, testified that the first time he saw Ms. Privett with complaints of injuries received in the March 24, 1995 accident was on February 1, 1996. He testified that he did not see Ms. Privett between December 29, 1994, when he last saw her after the first accident, and June 13, 1995. He testified that on June 13, 1995, Ms. Privett complaints related to family problems. She did not mention to him about the March 24, 1995 accident.. He saw her on August 17 and December 24, 1995 and on January 6, 1996. He testified that Ms. Privett did not mention the car accident in any of these visists. Her attendances at his office were for medical problems unrelated to a car accident. Dr. O'Sullivan denied Ms. Privett's claim that he gave her a prescription for Tylenol # 3 or for physiotherapy at any time prior to February 1996.

On cross-examination, Ms. Privett explained the discrepancy between her evidence and that of Dr. O'Sullivan by saying that Dr. O'Sullivan's notes were not fully accurate. Although Ms. Privett maintained a daily journal of her appointments at that time, she testfied that her journal has now gone missing and that she is not able to recall specific dates or incidents.

Dr. O'Sullivan testified that it is his practice to make a note every time he sees a patient and the reasons for the visit. He testified that although he may not have asked her if she was involved in a car accident when he saw her between June 1995 and February 1996, he would certainly have noted it down if she had told him she was involved in a further car accident and sustained injuries. He stated he would also bill OHJP for the visit.

I accept Dr. O'Sullivan's testimony, which is corroborated by his clinical notes and records and the OHIP records, which show no attendance by Ms. Privett at his office between December 29, 1994 and June 13, 1995. I find that Ms. Privett did not see Dr. O'Sullivan within two weeks of the accident, as she claims. I find that she did not tell Dr. O'Sullivan about the accident or injuries she sustained in the accident during her visits with him on June 13, August 17, and December 24, 1995 and on January 6, 1996. I find Dr. O'Sullivan did not give her a prescription for Tylenol #3 or physiotherapy at any time between March 24, 1995 and February 1, 1996. I find the first time that Ms. Privett complained to Dr. O'Sullivan about being involved in a motor vehicle accident on March 24, 1995 was on February 1, 1996.

The evidence shows that Ms. Privett did not receive any treatment for her injuries until after she applied for accident benefits. Ms. Privett testified that despite suffering significant disabling pain, she did not seek medical attention because she could not afford the cost of the treatments. She testified that it was her belief that physiotherapy treatment was not available through OHIP.⁴She testified that she depended on Allstate to arrange and pay for the treatments. She stated that since she was not getting any response from Allstate, she treated herself by using exercise techniques she learned during her treatment for injuries she sustained in the first accident.

Ms. Privett testified she did not see Dr. O'Sullivan as often as she wanted to because she did not like the long waiting periods in his office. She stated she preferred to suffer the pain than waiting at his office. Ms. Privett testified that she wanted to see Dr. Ralph Scuillo, her mother's chiropractor, but she could not see him prior to February 1, 1996 because she could not afford the additional $12 charge per session. Her mother testified that she told her to see a doctor, and would have paid Dr. Scuillo's bills if Ms. Privett asked her asked her to pay it for her. She said she was paying Ms. McGrath for the babysitting and housekeeping services she was providing her.

I find Ms. Privett's reasons for not seeking treatment during the 10 months after the accident, at a time when she said her symptoms were at their worst, not worthy of belief. In my view, it would be reasonable to expect a person in her situation to seek medical help by attending at a hospital, talking to her family physician or by consulting with family members and friends. The evidence also indicates that as of May 1995, Ms. Privett was receiving social assistance benefits. She could have obtained information about how to obtain free medical assistance had she reported her injuries.

I find Ms. Privett's claim that she believed she could not get treatment unless Allstate arranged and paid for it not credible. I find her decision not to seek medical attention for more than 10 months after the onset of her disability strongly supports Allstate's argument that she did not suffer the functional problems she claims.

Conclusion:

There is no medical evidence regarding Ms. Privett's problems between March 25, 1994 and February 1, 1994. I find the medical evidence after February 1, 1996 scant and insufficient to support her subjective claim of disability or to attribute the disability to the effects of the accident of March 24, 1995. There are no objective, physical findings to account for Ms. Privett's complaints. Due to the problems with her credibility, I cannot rely on Ms. Privett's testimony to support her subjective complaints of pain and disability. I find Ms. Privett's lack of credibility has tainted the medical evidence based on her own reporting.

Ms. Rayner and Ms. McGrath have testified about Ms. Privett's functional difficulties and how they helped her cope with her caregiver and housekeeping responsibilities. Given the lack of medical evidence and the questions around Ms. Privett's credibility, I am not prepared to accept their evidence. While it may be that Ms. Rayner and Ms. McGrath have provided Ms. Privett assistance with her caregiver and household activities, I do not find this was as a result of the accident.

Ms. Rayner also has a financial interest in the outcome of the hearing because she claims paying Ms. McGrath over $2,600 for her services. Ms. McGrath is a very close friend of Ms. Privett who helped her with babysitting before and after the accident. Considering Ms. Privett's lack of credibility, I do not find the testimony of Ms. Rayner and Ms. McGrath any more reliable than that of Ms. Privett.

Accordingly, on the totality of the evidence, I find that Ms. Privett did not suffer a substantial inability to engage in the caregiver activities in which she engaged at the time of the accident, as a result of the accident, for any period after March 24, 1995.

Housekeeping and Supplementary Medical Expenses:

Based on my findings in respect of Ms. Privett's claim of disability, I am not satisfied that the amounts Ms. Privett claimed as housekeeping expenses are additional expenses that she reasonably incurred as a result of the accident.

The claim for outstanding chiropractic expenses also fails for the same reasons. The evidence Ms. Privett adduced is not sufficient to establish that the chiropractic services, provided almost 11 months after the alleged injury, were necessary and reasonable.

I find the cost of Dr. O'Sullivan's report to Entitlement Inc. is an expense incurred for the purpose of pursuing a claim for accident benefits. It may not be claimed as a report reasonably required for the treatment or rehabilitation of Ms. Privett.

Special Award:

I have not awarded Ms. Privett any benefits. I do not find that Allstate has unreasonably withheld or delayed Ms. Privett's benefits. Accordingly, this is not an appropriate case for a special award.

Expenses:

Ms. Privett has not succeeded in her claim. I find that she has dragged Allstate into an arbitration to defend a claim that has no merit. Accordingly, I have exercised my discretion under section 282(11) of the Act to deny Ms. Privett her arbitration expenses.

Order:

1. Ms. Privett did not notify Allstate of the circumstances that gave rise to her claim within the time limits prescribed under subsection 59 (1) of the Schedule.

2. Ms. Privett is not entitled to any benefits under the Schedule.

3. Ms. Privett is not entitled to a special award.

4. Ms. Privett is not entitled to her arbitration expenses.

October 9, 1998

Asfaw Seife

Arbitrator

Date

Appendix

Present at the Hearing:

Applicant:

Joan Privett

Ms. Privett s Counsel

Robert Monroe

Barrister and Solicitor

Allstate s Counsel

Stuart Aird

Barrister and Solicitor

Allstate s Representative

Tony Cioffi

Witnesses:

Joan Privett, Applicant

Kathleen Rayner, Applicant's mother

Rhonda McGrath, Applicant's neighbour

Dr. A.B. O'Sullivan, Applicant's family physician

Sean Brousseau, Insurance agent

Paul DeLicci, Loss Report Co-ordinator

Tatiana Latko, Insurance claims adjuster

Julie Carlson, Insurance claims adjuster

Exhibits: 20 exhibits were filed at the hearing.

1. Insurer's Arbitration Brief

2. Applicant's Medical Brief

3. Applicant's Supplementary Medical Brief

4. Medical notes of Dr. O'Sullivan

5. Surveillance photographs

6. Explanation of Assessment by Insurer dated May 21, 1996

7. Handwritten receipt for babysitting by K. Rayner dated August 1, 1993

8. Telephone call message slip

9. Handwritten notes of Sean Brousseau

10. Application for Automobile Insurance

Exhibits:

11. Handwritten notes of Sean Brousseau dated March 25, 1996

12. Computer-generated copy of Claims Screen and Diary

13. Computer-generated copy of Claims Screen

14. Computer-generated copy of Claims Screen and Diary

15. Letter of Entitlement Inc. to Julie Carlson, dated February 5, 1996

16. Letter of Entitlement Inc. to Julie Carlson dated February 16, 1996

17. Information Request by Insurer from Hamilton-Wentworth Regional Police

18. Surveillance Summary

19. Videotape

20. Videotape

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2Ms. Privett testified that she was not at fault in the accident but she paid the fine because she did not know that she could dispute the charge.
3. 3In H'ng and Allstate Insurance Company (OIC A-96-000988, March 7, 1997), confirmed on appeal, P97-00017, October 1, 1997), the applicants were found to be disentitled to claim statutory accident benefits on the basis of a finding that they failed to comply with the time limits set out under subsection 59(3) of the Schedule.
4. 4On cross-examination, Ms. Privett conceded that she did not know the actual cost of a physiotherapy session until January 1996 when she spoke to Ms. Julie Carlson, the Allstate employee who handled her claim in the first accident. She had made no inquiries about the cost of treatment during the 10 months following the accident.