Neutral Citation: 2002 ONFSCDRS 186

FSCO A01-000956

BETWEEN:

HUYNG YEN TANG

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

September 23, 25 and 26, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Sue Chen for Ms. Tang

Jay Stolberg for Coachman Insurance Company

The Applicant, Huyng Yen Tang, was injured in a motor vehicle accident on January 8, 1999. She applied for and received statutory accident benefits from Coachman Insurance Company ("Coachman"), payable under the Schedule.¹ Disputes arose which the parties were unable to resolve through mediation and Ms. Tang applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Tang entitled to caregiver benefits under section 13 of the Schedule?
Is Ms. Tang entitled to housekeeping benefits under section 22 of the Schedule?
Is Ms. Tang entitled to recover expenses under section 24 of the Schedule in an amount beyond that already paid by Coachman for the preparation of a treatment plan?
Is Ms. Tang entitled to recover expenses under section 24 of the Schedule in respect of fees charged by her family physician?
Is Coachman entitled to an order under the authority of section 282(11.2) of the Insurance Act requiring Ms. Tang to repay its assessment fee?
Is either party entitled to an order authority of section 282(11) of the Insurance Act requiring the other party to pay her/its hearing expenses?

Ms. Tang is not entitled to caregiver benefits under section 13 of the Schedule.
Ms. Tang is not entitled to housekeeping benefits under section 22 of the Schedule.
Ms. Tang is not entitled to recover expenses under section 24 of the Schedule in an amount beyond that already paid by Coachman for the preparation of a treatment plan.
Ms. Tang is not entitled to recover expenses under section 24 of the Schedule in respect of fees charged by her family physician.
Coachman is not entitled to an order under the authority of section 282(11.2) of the Insurance Act requiring Ms. Tang to repay its assessment fee.
If the parties cannot resolve the issue of hearing expenses in light of this decision, they will follow the procedure stipulated by the Dispute Resolution Practice Code. If necessary, I will issue a separate decision on hearing expenses.

On January 8, 1999, Ms. Tang was travelling in the right rear seat of a vehicle when it collided with another vehicle. She testified that she felt pain in her spine, neck and shoulder.

In her Application for Benefits, dated February 5, 1999, Ms. Tang indicated that prior to the accident she had been both a press operator in an auto parts factory and the primary caregiver of her two children, ages nine and four.² In a separate form, also signed on February 5, 1999, Ms. Tang elected to claim caregiver benefits rather than income replacement benefits.³ This election was made necessary by section 36 of the Schedule which stipulates that while an applicant may qualify for both income replacement benefits and caregiver benefits, he/she is not entitled to receive both forms of benefits in respect of the same period. Correspondence filed at the hearing makes it clear that Ms. Tang was represented by Ms. Chen's firm, Royce, Young and Associates, at the time of her original application and election. Despite Ms. Tang's election to claim caregiver benefits, Ms. Tang's original application was not accompanied by any documents detailing her caregiver expenses; rather, it was accompanied by documents supporting a claim for income replacement benefits.⁴

On receipt of these documents, Coachman took the position that Ms. Tang was not the primary caregiver of her children and was not, therefore, entitled to caregiver benefits. However, Coachman accepted that Ms. Tang was entitled to income replacement benefits.⁵ Accordingly, it paid her income replacement benefits until early May 1999 when it received the report of a Disability Designated Assessment Centre (Disability DAC) confirming the opinion of its own medical examiner⁶ that Ms. Tang was no longer disabled from her pre-accident work.⁷ In early May 1999, Coachman also obtained information indicating that Ms. Tang had been in receipt of deductible collateral benefits since the accident. It, therefore, informed her agent that it sought the repayment of $3,772.40 in respect of the income replacement benefits already paid.⁸

Ms. Tang did not dispute the Disability DAC finding at the time it was released or at the hearing. Instead, by letter dated May 20, 1999, Ms. Tang's agent sent to Coachman, for the first time, documents setting out her alleged caregiver and housekeeping expenses from the date of the accident to April 30, 1999.⁹ The agent continued to send Coachman documents in support of Ms. Tang's claim for caregiver and housekeeping expenses up to May 26, 2000.¹⁰ None of the agent's covering correspondence entered as evidence alluded to the fact that Ms. Tang had received income replacement benefits for some of the period that she was now claiming caregiver benefits; nor did this correspondence acknowledge Coachman's claim for the repayment of some of the income replacement benefits Ms. Tang had received.

Coachman maintained its original position that Ms. Tang was not the primary caregiver of her children and was not, for that reason among others, entitled to caregiver benefits. Coachman was initially prepared to accept that Ms. Tang was entitled to recover some housekeeping assistance (to March 27, 1999)¹¹ but, at the hearing, took the position that she was not entitled to recover any housekeeping expenses either.

With respect to the cost of a treatment plan, Coachman disputed the amount it is required to pay, not its obligation to pay. With respect to the consultation fees charged by Ms. Tang's family physician, Dr. B. Wong, Coachman argued that these should have been paid by OHIP.

Issues 1 and 2: caregiver and housekeeping benefits

In view of the overlapping evidence, I will deal with these issues together.

In order to establish her entitlement under sections 13 and 22 of the Schedule, Ms. Tang was required to prove first, that she engaged in caregiving and housekeeping before the accident, second, that she was unable to engage in such activities as a result of the accident and third, that she incurred reasonable and necessary expenses by paying or by agreeing to pay someone else to provide these services. To be entitled to caregiver benefits, Ms. Tang was also required to prove that she was the children's primary caregiver. With respect to each element, Ms. Tang's evidence was required to meet the "balance of probabilities" standard of proof.

Ms. Tang testified that prior to the accident her husband only cared for their two children in the morning before they went to school and in the early afternoon when the youngest child was home from school after attending only a half a day. She testified that she got off work at 3:00 p.m. and was solely responsible for both her children's care from about 4:00 p.m. until they went to bed. This care involved preparing meals, feeding and bathing the children and helping them with school work. Her husband, she maintained, left the home during these hours in order work for various companies delivering pizzas.

With respect to housekeeping, Ms. Tang testified that vacuuming, dusting, dishes and garbage disposal responsibilities were shared with her husband prior to the accident. Her statement indicates that she would do "cleaning up on the weekend."

Mr. Stolberg challenged Ms. Tang's testimony that her husband had been working prior to the accident. He pointed out to her that according to a statement she signed on January 18, 1999, ten days after the accident happened,¹² her husband was "unemployed" and was "looking after my two children." Ms. Tang denied saying this to the person who took her statement. Mr. Stolberg then pointed out that according to the reports of two doctors,¹³ she also told them that her husband was unemployed.

Despite Mr. Stolberg's effective cross-examination and its impact on my assessment of Ms. Tang's overall credibility, I am not prepared to infer that Ms. Tang's husband was the children's primary caregiver merely because he was unemployed and hence more available to perform that role than Ms. Tang. He may have nevertheless not performed that role. Moreover, Ms. Tang's signed statement can perhaps be read to mean that her husband was only "looking after" the children (in fact, only the youngest child in the afternoon) while she was at work.

The heaviest child care burden was clearly born by the person or persons who cared for both children from 4:00 p.m. until they went to bed. That is the only period of each day in respect of which Ms. Tang claims caregiver benefits.¹⁴ If, for whatever reason, Ms. Tang performed all the required caregiver activities during this period, then, in my opinion, she was the children's primary caregiver.¹⁵

In order to question Ms. Tang's testimony that she was unable to engage in caregiving and housekeeping activities after the accident, Mr. Stolberg pointed to evidence of what he called "symptom magnification" in the various medical reports. After conducting an insurer's medical examination in mid-March 1999, Dr. Hall noted "a marked degree of conscious misrepresentation... [and]...no objective evidence to suggest that she is not now fit to resume her previous work both remunerated and non-remunerated."¹⁶ Likewise, the Disability DAC found in early May 1999 that Ms. Tang was no longer unable to return to pre-accident work or to engage in her pre-accident caregiving and homemaking activities; it further noted that Ms. Tang's demonstrated abilities during focussed examination were inconsistent with her abilities when distracted.¹⁷ This DAC report also included a psychiatric assessment which concluded that "psychiatrically speaking, Ms. Tang appears to be substantially able to carry out her activities of daily living."¹⁸

This evidence again reflects poorly on Ms. Tang's credibility but it does not specifically counter the earlier medical opinion of Ms. Tang's family physician, Dr. Wong.¹⁹ His Disability Certificate, based on an examination on January 22, 1999, describes the following impairments: "whiplash, L-S [lumbar sacral], headaches, shoulder, knee and phobia." In answer to the Disability Certificate question "does the applicant suffer an impairment that substantially prevents him or her from engaging in pre-accident caregiving activities?", Dr. Wong responded "yes," specifying her inability "to lift, twist & bend." In answer to the question "does the applicant suffer from an impairment that substantially prevents him or her from performing pre-accident housekeeping and/or home maintenance activities?", Dr. Wong answered "yes," specifying "unable to vacuum, sweep, laundry nor clean driveway."²⁰

In addition, Ms. Tang was assessed on February 26, 1999 by Dr. Kathleen Lung, a clinical psychologist whose report contains the following entry:

Impact of the Accident on Activities of Daily Living

Ms. Tang claims that she is presently unable to return to work because she is unable to lift anything of more than 30 lbs. She expects to return to work in 2 months' time. Her irritability and her diminished stamina have affected her ability to take good care of her similarly irritable children. She is able to cook for her family, but it takes some effort for her to initiate the action, as she is feeling lethargic most of the time. She also claims that she cannot perform most housework due to her low back injury. She commented, "Everything feels heavy to me."²¹

In view of my doubts about Ms. Tang's credibility, I find that her evidence establishes only the possibility, as opposed to the probability, that she was her children's primary caregiver before the accident. On the other hand, I would be prepared to find that she was at least one of the family's housekeepers before the accident and that, for some period immediately after the accident, she required caregiving and housekeeping assistance. However, in my opinion, Ms. Tang's claims for both caregiver and housekeeping benefits must be rejected because she has not proved the third condition of her eligibility to such benefits, namely, that she incurred reasonable and necessary expenses by paying or by agreeing to pay someone else to provide these services.

Based on the documentary evidence filed, Ms. Tang claimed caregiver and housekeeping expenses in the total amount of $21,300. Ms. Tang testified that the only person she paid to provide these services was her younger sister, Huu Hong Tang. In my view, Ms. Tang's evidence regarding the amount she paid or agreed to pay her sister was imprecise and inconsistent. It consisted of the following elements:

In her statement on January 18, 1999, Ms. Tang stated that she paid her sister "$100 a week including groceries."
On cross-examination, Ms. Tang stated that she paid her sister $100 to $200 per week in cash or would make payment towards her sister's credit card.
Later in her cross-examination, Ms. Tang stated that she promised to pay her sister $1,200 per month and, in total, paid her $5,000 or $6,000 in cash.
Still later in her cross-examination, Ms. Tang acknowledged that she made out five cheques to her sister in the total amount of $4,400 for housekeeping and caregiving services for the period January 9 to March 7, 1999 and for caregiving services for the period May 5 to June 5, 1999. Copies of these cheques were sent to Coachman, together with other documents detailing her caregiver and housekeeping expenses.²²
At her examination for discovery in a related tort action, Ms. Tang stated that she paid her sister a total of "close to a thousand dollars" cash, though it was unclear from her answers whether she was referring only to housekeeping services, because she paid nothing for caregiving services, or to both housekeeping and caregiving services.²³ When confronted with this transcript, Ms. Tang testified that on top of the total amount she referred on her examination for discovery, she also made payments towards her sister's credit card.

The testimony of Huu Hong Tang did nothing to clarify the issue of the amount she was paid. She stated that she was paid a total of $5,000 to $6,000 in cash in the year of the accident. She stated that her sister told her not to cash any of the cheques made payable to her for housekeeping and caregiving services as they would be returned "NSF" and that she never attempted to cash these cheques. Instead, she testified, she received cash payments from her sister in the amount of $100 to $200 per week together with a promise from her sister to pay more when funds became available. Huu Hong Tang testified that, by her calculations, her sister still owed her $5,000.

There were also significant discrepancies in the evidence regarding the services provided to Ms. Tang by her sister Huu Hong Tang. Ms. Tang testified that her sister arrived at around 5:00 p.m. and stayed until the children went to bed around 10:00 or 11:00 p.m., thus providing a total of five or six hours of caregiving and housekeeping services per day. During her evidence, Huu Hong Tang acknowledged signing the documents submitted to Coachman which indicate that she provided a total of seven or eight hours of caregiving and housekeeping services per day.²⁴ These documents also indicate that Huu Hong Tang drove the children to and from school, even though that service would clearly have been provided before 5:00 p.m., and that she continued to provide services in July 1999, even though she acknowledged on cross-examination that she went to Vietnam during that month.

In view of the imprecisions and inconsistencies in this evidence, I cannot rely upon it to find that Huu Hong Tang provided the services indicated in the documents she signed or that Ms. Tang paid, or agreed to pay, her $21,300 or any other ascertainable amount for such services. I am, therefore, unable to find that Ms. Tang incurred reasonable and necessary caregiver and housekeeping expenses as a result of the accident. Accordingly, I dismiss her claims for caregiver and housekeeping expenses.

Issue 3: treatment plan expense

The documentary evidence confirms that Ms. Tang's agent sent Coachman an invoice from Dr. Wong in the amount of $160 in respect of a treatment plan and that Coachman agreed to pay "$76.47 as per the OMA guideline."²⁵ Ms. Tang claims the difference of $83.53.

In her submission, Ms. Chen pointed out that Ms. Tang did not dispute the amount payable to Dr. Wong under the OMA guideline; she claimed the additional amount of $83.53 in respect of the proposed service provider's contribution to the preparation of the treatment plan.

The treatment plan in question was not received in evidence. I am, therefore, unable to find that the proposed service provider contributed anything to its preparation. I reject this claim.

Issue 4: Dr. Wong's fees

The documentary evidence confirms that Ms. Tang's agent sent Coachman invoices from Dr. Wong in the total amount of $1,230 in respect of "office visits," "examinations" or "assessments."²⁶ In its first correspondence on this issue, Coachman responded that these invoices were covered by OHIP but added "if...these expenses are not covered by OHIP, please re-submit your invoices to this office with the supporting document from OHIP for our consideration."²⁷ Coachman maintained this position as it received additional invoices and, in some cases, it also disputed whether the expenses were reasonable and necessary.²⁸

At the hearing, Ms. Chen limited Ms. Tang's claim to $1,005; it was not clear why the total amount of $1,230 was not claimed. In support of Coachman's refusal to pay any of Dr. Wong's invoices, Mr. Stolberg relied upon section 60(2) of the Schedule, dealing with an insurer's right to deduct collateral benefits. He cited the case of Allstate Insurance Company of Canada and Putter in which a Director's Delegate observed: "The effect of s. 60(2) of the SABS-1996 is that an insurer need not pay for any...expense, or portion of an expense, that is reasonably available under OHIP. ...Apart from...excluded services, OHIP remains the primary payer for accident-related treatment and assessments."²⁹

As the reference to "excluded services" in the above quote implies, OHIP is not obliged by the Health Insurance Act and regulations to pay for all accident-related treatment and assessments. Moreover, in the last paragraph of the Putter decision, the Director's Delegate clearly deferred to the arbitrator's factual finding that OHIP would not pay for the assessments in question. She wrote: "The arbitrator heard conflicting evidence about whether [a service provider] could bill OHIP for its assessment services, and she preferred the evidence of [a certain witness] that it could not. That finding was open to her, and I find no error of law in her conclusion."³⁰

In the present case, I heard no argument that Dr. Wong's services would have been excluded from the definition of "insured services" under the Health Insurance Act and regulations. I received no evidence that Dr. Wong's invoices were submitted to OHIP and denied. Nor did I receive evidence that OHIP would have refused to pay Dr. Wong's invoices had they been submitted.

Ms. Tang bore the burden of proving that she was entitled to benefits for the disputed invoices under either section 14 or section 24 of the Schedule. In my view, Ms. Tang could not discharge that burden without first establishing how much OHIP would contribute towards the payment of those invoices. In this respect, I agree with the arbitrator in the case of Pereira and Allstate Insurance Company of Canada³¹ who held that once the existence of a collateral carrier of medical or rehabilitation benefits is established, it is the insured person, not the insurer, who bears the burden of proving how much is reasonably available in collateral benefits. The arbitrator observed:

In general, this obligation would not impose a heavy burden for any Applicant. He or his agent...submits treatment invoices to the collateral insurer, which examines them, issues an explanation and pays any amounts available under its policy. The Applicant or his agent then submits the invoices, along with the collateral insurer's explanation, to the automobile insurer as proof of what was reasonably available to the insured person under the primary plan.³²

This was, of course, the very procedure proposed by Coachman in its first response to Dr. Wong's invoices. I acknowledge that this procedure might have resulted in some delay in the full payment of these invoices. However, a finding that Coachman was, and still is, required to pay these invoices in their entirety pending any OHIP reimbursement, would have left, and would still leave, Coachman with little means to encourage Ms. Tang and Dr. Wong to apply for any OHIP reimbursement. I reject this outcome. I find that by failing to prove how much OHIP would contribute towards the payment of Dr. Wong's invoices, Ms. Tang failed to prove that she is entitled to any medical benefits from Coachman in respect of these invoices. Her claim in respect of these invoices is, therefore, dismissed.³³

Issue 5: Coachman's assessment fee

Section 282(11.2) of the Insurance Act reads as follows:

If an insured person commences an arbitration that, in the opinion of the arbitrator is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

In the case of Richard and Lombard General Insurance Company of Canada,³⁴ an arbitrator held that section 282(11.2) is intended to return to the insurer the filing fee which it should not have been required to pay because the Application for Arbitration was "so devoid of merit" that it should not have been filed in the first place. Using the same logic in the case of Nguyen and Scottish & York Insurance Company Limited,³⁵ I found that, unless it is established that the Application for Arbitration was frivolous, fraudulent, vexatious or an abuse of process when commenced or filed, the applicant should not be liable to pay an award under section 282(11.2) of the Insurance Act.

In my opinion, the evidence in this case does not support a finding that Ms. Tang's Application for Arbitration was frivolous, fraudulent, vexatious or an abuse of process when commenced or filed. I acknowledge the possibility that some of the evidence given at the hearing by Ms. Tang and her sister may have been false; at a minimum, its imprecise and inconsistent nature led to the dismissal of Ms. Tang's claims for caregiving and housekeeping expenses. Still, neither this nor any other evidence established that Ms. Tang never required caregiving and housekeeping services as a result of the accident or that her claims in this regard were frivolous, fraudulent, vexatious or an abuse of process from the outset. As I have acknowledged, Ms. Tang may have been the children's primary caregiver and she probably did require some caregiving and housekeeping assistance as a result of the accident. Her claims with respect to caregiving and housekeeping services were rejected primarily due to her failure to gather and present cogent evidence proving the reasonableness, the necessity and the cost of such services. As for Ms. Tang's claims in respect of the cost of the treatment plan and the invoices of Dr. Wong, I have no hesitation in observing that these claims were incompetently presented at the hearing.

In short, Coachman may have succeeded in defeating all of Ms. Tang's claims not because any of them was frivolous, fraudulent, vexatious or an abuse of process from the outset, but because they were not supported by cogent evidence. In any event, based on the limited evidence before me, I am not able to find that Ms. Tang's Application for Arbitration was one which should never have been commenced in the first place. Accordingly, I reject Coachman's request for the return of its assessment.

EXPENSES:

I was informed that settlement offers were exchanged prior to the commencement of the hearing, but I was not informed what those offers were.

If the parties cannot resolve the issue of hearing expenses in light of this decision, they will follow the procedure stipulated by Rule 77.5 of the Dispute Resolution Practice Code. If necessary, I will issue a separate decision on hearing expenses.

November 22, 2002

David Leitch Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 186

FSCO A01-000956

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HUYNGYEN TANG