Neutral Citation: 2003 ONFSCDRS 32

FSCO A01-001278

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

VIDA TENKORANG

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Catherine Skinner

Heard: December 9, 10 and 11, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ian A. Little for Ms. Tenkorang

Darrell March for Wawanesa Mutual Insurance Company

The Applicant, Vida Tenkorang, was injured in a motor vehicle accident on April 18, 2001. She received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa did not pay income replacement benefits, certain medical benefits, and expenses for lost or damaged clothing. The parties were unable to resolve their disputes through mediation, and Ms. Tenkorang 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. Tenkorang entitled to income replacement benefits from April 25, 2001 to the present under section 4 of the Schedule?
What is the amount of income replacement benefit to which Ms. Tenkorang is entitled?
Is Ms. Tenkorang entitled to approximately $200 in US funds for taxi and motel expenses, claimed under section 14 of the Schedule?
Is Ms. Tenkorang entitled to expenses for lost or damaged clothing under section 23 of the Schedule?
Is Ms. Tenkorang disentitled to accident benefits because she did not provide Wawanesa with reasonably required information, pursuant to subsection 33(2) of the Schedule?
Is either party liable to pay the other's arbitration expenses under section 282(11) of the Insurance Act?

Ms. Tenkorang is not entitled to an income replacement benefit from April 25, 2001 to the present under section 4 of the Schedule.
Ms. Tenkorang is not entitled to reimbursement for her taxi and motel expenses under section 14 of the Schedule.
Ms. Tenkorang is not entitled to expenses for lost or damaged clothing under section 23 of the Schedule.
Ms. Tenkorang is not disentitled to accident benefits under section 33(2) of the Schedule.
Wawanesa is liable to pay 70% of Ms. Tenkorang's arbitration expenses.

Background:

Vida Tenkorang claims that she was injured when the bus on which she was travelling was involved in an accident on April 18, 2001. The accident occurred in the early hours of the morning near Binghamton, New York, en route from Toronto to New York City. Ms. Tenkorang claims that the injuries she sustained in that accident prevented her from returning to her employment as a chambermaid at the Quality Hotel in Toronto. Ms. Tenkorang's employment at the Quality Hotel was seasonal: she was ordinarily laid off in December of every year and recalled in April or May of the following year. Between April/May and December of every year, Ms. Tenkorang was employed full time at the Quality Hotel, working an 8 hour shift. During the months that she was not working at the Quality Hotel, Ms. Tenkorang collected employment insurance benefits.

Wawanesa paid medical benefits to Ms. Tenkorang for approximately one year for physiotherapy treatments received at Canada's Accident Rehab Group. Ms. Tenkorang's entitlement to the cost of treatments is not at issue in this arbitration.

Entitlement to Income Replacement Benefits

To succeed in her claim for income replacement benefits from April 25, 2001, Ms. Tenkorang must demonstrate that she suffered a substantial inability to accomplish the essential tasks of her employment during that period as a result of an impairment she sustained in a motor vehicle accident.

Was there an Accident?

Preliminary to the determination of entitlement to income replacement benefits, the Insurer raised the issue of whether there was an accident, as defined in section 2 of the Schedule. The Insurer submits that Ms. Tenkorang provided no positive evidence of an accident having occurred on April 18, 2001. Ms. Tenkorang herself has no recollection of the incident and did not call any eye witnesses to the incident. She did not produce a police report or any other official report confirming that the bus in which she was travelling was involved in an accident.

Ms. Tenkorang testified that she was travelling alone on a bus from Toronto to New York City on April 18, 2001. She was asleep in her seat. Although she has no recollection of the incident, she was later told by other passengers that the bus rolled over and that luggage that was being stored overhead fell onto Ms. Tenkorang. Ms.Tenkorang only recalls the events of April 18, 2001 from the time that she was admitted to the Binghamton General Hospital. She has no recollection of being removed from the bus or being transported to the hospital in an ambulance.

The Emergency Department Triage Record of Binghamton General Hospital indicates that Ms. Tenkorang arrived at the emergency room by ambulance at approximately 5:55 a.m. The handwritten notes in that record indicate that Ms. Tenkorang was sleeping on a bus that rolled over on Route 81 near Whitney Point.

Upon being discharged from the hospital at approximately 9:15 a.m., Ms. Tenkorang went to a local motel with other passengers and awaited another bus to bring them back to Toronto.

Although the handwritten notes in the Emergency Department record were not authored by a witness to the accident, I find that they constitute some positive evidence that an accident involving a bus occurred on the highway near Binghamton on April 18, 2001.

Ms. Tenkorang is not required to prove with certainty that an accident occurred. She is only required to prove on a balance of probabilities that an accident occurred. I find that Ms. Tenkorang's testimony, the notes of the Binghamton General Hospital and the course of events after her discharge from the hospital establish on a balance of probabilities that the bus on which Ms. Tenkorang was travelling was involved in an accident.

Ms. Tenkorang's Testimony

Ms. Tenkorang testified about the essential tasks of her pre-accident employment and about the effect of the accident on her ability to perform those essential tasks.

She described the essential tasks of her employment as including: changing the sheets on the beds, turning the mattress over, spraying the mirrors in the bathroom, cleaning the sink, bathtub and walls in the bathroom, removing the garbage from the hotel room and vacuuming the hotel room. She cleaned 16 rooms during an 8-hour shift, with each room taking between a half hour and 45 minutes to clean. I accept that these are the essential tasks of Ms. Tenkorang's pre-accident employment.

Ms. Tenkorang testified that, after the accident, she was prevented from accomplishing the essential tasks of her employment because of frequent headaches, backaches, the cut above her 5^th^ finger and fatigue. She testified that she would not have been able to kneel down or lift the sheets or the mattress on the bed.

Approximately three weeks after the accident, Ms. Tenkorang fell down a flight of ten stairs in her home. She acknowledged under cross examination that this fall contributed to her pain.

Ms. Tenkorang testified that she had been very healthy before the accident. She denied having any pre-existing medical conditions, except for headaches due to colds during the winter season.

Ms. Tenkorang indicates that she was not called to return to work in May 2001, as she would ordinarily have been. She contacted her former employer at Quality Hotel in October 2002 and inquired about employment vacancies. Her former employer informed her that the hotel was not very busy and that there was no work for her at that time.

Ms. Tenkorang testified that she has not worked since the time of the accident but that she has been actively looking for work during the two months prior to the arbitration hearing.

Ms. Tenkorang's testimony did not persuade me that the injuries she sustained in the motor vehicle accident of April 18, 2001 have prevented her from returning to her pre-accident employment duties. Ms. Tenkorang did not attempt a return to work. She testified that this was because she felt physically unable to return and believed that she would not be able to kneel, bend or lift, all of which are required activities of her employment. She did not testify that she had attempted any of these activities. Her evidence appears to be based rather on her own perception of her functional abilities.

Ms. Tenkorang acknowledged that the employer did not call her back in May as it would ordinarily have done and it is not obvious, therefore, that Ms. Tenkorang had a job to return to. Ms. Tenkorang described a fall down some stairs which contributed to her post accident symptoms. She does not appear to have reported the fall down the stairs to any of the medical professionals who treated her or evaluated her condition. I find Ms. Tenkorang's assessment of her own symptoms and functional abilities is not sufficiently reliable to support a finding of entitlement to income replacement benefits. I prefer to rely on the medical evidence in this case.

Medical Evidence

The Hospital Records

The records provided by the Binghamton General Hospital indicate that Ms. Tenkorang sustained contusions to her face and left elbow, a lumbar strain and a laceration above the fifth finger of her right hand. Ms. Tenkorang was prescribed medications and the cut above her fifth finger was closed and dressed. She was discharged approximately three hours after being admitted.

The Binghamton General Hospital's records also indicate that Ms. Tenkorang underwent x-rays of her spine and elbow which showed no fractures. She underwent a CT scan on her head/brain. The records indicate a clinical impression of a normal unenhanced cranial CT.

Upon her return to Toronto, Ms. Tenkorang went immediately to the emergency room at Scarborough General Hospital because she felt ill during the return trip on the bus. The Scarborough General Hospital records indicate that she arrived at 6:35 a.m. and was discharged at 7:40 a.m. The hospital staff changed the dressing on her cut finger. No other action was taken at the Scarborough General Hospital.

Dr. Umoquit

On April 19, 2001, Ms. Tenkorang went to see her family doctor, Dr. Andres Umoquit.

Dr. Umoquit did not testify at the hearing, but his notes and records were admitted into evidence.

Dr. Umoquit's entry on April 19, 2001 indicates that Ms. Tenkorang may have suffered from a concussion and a sprained lower back, knee and elbow.

On May 5, 2001, Ms. Tenkorang's next visit, Dr. Umoquit recorded that his examination revealed no problem with Ms. Tenkorang's head and neck. The stitches were removed from her finger and the doctor prescribed physiotherapy treatments.

All subsequent entries in Dr. Umoquit's notes indicate that Ms. Tenkorang continued to see him during the post-accident period, complaining of various medical problems including intermittent headaches and backaches. The notes also indicate that Ms. Tenkorang saw Dr. Umoquit for similar complaints before the accident. According to the notes, Dr. Umoquit's examinations of Ms. Tenkorang's head and neck during the post accident period did not reveal any problems.

Dr. Umoquit's notes do not establish the necessary causal link between Ms. Tenkorang's various ongoing symptoms and the motor vehicle accident of April 18, 2001. The notes do not address the issue of causation. They also do not establish that Ms. Tenkorang's symptoms prevent her from accomplishing the essential tasks of her employment. There is no indication that Dr. Umoquit was aware of Ms. Tenkorang's essential tasks of employment or that he addressed the question of Ms. Tenkorang's ability to return to work.

Dr. Umoquit did not refer Ms. Tenkorang to any specialists in relation to the injuries she sustained in the accident of April 18, 2001.

Dr. Umoquit completed a disability certificate regarding Ms. Tenkorang on July 30, 2001 in which he suggests a diagnosis of cerebral concussion and back strain. This disability certificate was not admitted into evidence because it is opinion evidence and it was provided to Wawanesa only on the first morning of the arbitration hearing, contrary to Rule 39 of the Dispute Resolution Practice Code (the "Code"). I orally ruled that I would not admit opinion evidence that was provided to the opposing side on the first day of the arbitration hearing. I was not persuaded that there were extraordinary circumstances that would warrant the admission of such evidence under Rule 39.3(c) of the Code.

Even were I to admit the disability certificate, I would give it little weight. There was no evidence to demonstrate that Dr. Umoquit had knowledge of Ms. Tenkorang's pre-accident employment tasks. In the disability certificate, he indicates that there are further investigations and consultations required, but he did not refer Ms. Tenkorang to a specialist in connection with her injuries. Dr. Umoquit's notes of July 30, 2001, the date on which he completed the disability certificate, indicate that Ms. Tenkorang was suffering from a tension headache and anxiety on that day. His examination of her neck and head on July 30, 2001 revealed no problem.

Disability Certificate of May 10, 2001

Ms. Tenkorang also relies on a disability certificate completed by M. Shedelsky, a chiropractor, on May 10, 2001. The disability certificate indicates that Ms. Tenkorang is prevented from returning to her pre-accident caregiving activities and that she is prevented from carrying on substantially all of her normal pre-accident activities. Although the disability certificate is illegible for the most part, it appears that M. Shedelsky offers a primary diagnosis of spinal and cervical strain and a secondary diagnosis of TMJ and head injury.

I attach very little weight to the disability certificate of May 10, 2001 as evidence of Ms. Tenkorang's functional abilities. There is no evidence to indicate that M. Shedelsky had any understanding of Ms. Tenkorang's pre-accident employment duties. I cannot determine whether M. Shedelsky treated Ms. Tenkorang, and there was no evidence introduced to suggest that M. Shedelsky, as a chiropractor, was qualified to offer a diagnosis of head injury.

The Insurer's Medical Examination

In August 2001, Ms. Tenkorang attended a multi-disciplinary insurer's examination at Seiden Health Management Inc. She was evaluated by Dr. Robert Yufe, a neurologist, Dr. Stanley Debow, a psychiatrist, and Dr. Garson S. Conn, an orthopaedic specialist. A Functional Abilities Evaluation was also conducted by Lorrie Milne, RN, and Shauna Hurnaren, a kinesiologist.

Dr. Robert Yufe, Dr. Debow and Dr. Conn all concluded that Ms. Tenkorang did not suffer from an impairment that prevented her from returning to her pre-accident employment. Ms. Tenkorang testified that she had discussed her employment duties with Dr. Yufe. The Functional Abilities Evaluation (FAE) report indicates that Ms. Tenkorang refused to perform a number of tasks that were requested of her during that evaluation. The report notes self-limiting behaviour and inconsistent results during objective and subjective testing. On that basis, the authors conclude that the results of the evaluation are not considered to be a true indication of Ms. Tenkorang's maximal functional abilities. The report indicates that the results, though submaximal, show that Ms. Tenkorang did not achieve her pre-accident physical demands.

Ms. Tenkorang urges me to find that she suffered from a substantial inability to accomplish her pre-accident employment tasks on the basis of the FAE's conclusion. I am unable to do so. It is apparent from the report that Ms. Tenkorang declined to participate in a number of activities. The report itself notes her inconsistent responses during testing and indicates that the results are not considered to be a true indication of her abilities. Ms. Tenkorang was not asked to testify about her performance during the FAE and she did not call the authors of that report to question them about their conclusions. I am left with a report that does not support Ms. Tenkorang's claim that she was substantially unable to accomplish the essential tasks of her employment.

Conclusion Regarding Income Replacement Benefits

The medical evidence does not establish that Ms. Tenkorang's injuries resulted in a substantial inability to perform the essential tasks of her pre-accident employment. I accept that Ms. Tenkorang suffered from headaches and neck and back pain during the months following the accident, but there is no reliable medical evidence to establish a causal link between the accident and her continuing symptoms.

There is also no reliable medical evidence to support Ms. Tenkorang's claim that her injuries prevented her from returning to work. Dr. Yufe was aware of her pre-accident employment tasks and he concluded that she is not prevented from returning to work. The authors of the FAE were aware of her pre-accident employment tasks and they found that the results of their testing were not a true indication of Ms. Tenkorang's abilities. There is no evidence that either Dr. Umoquit or M. Shedelsky had knowledge of Ms. Tenkorang's pre-accident employment tasks.

On the basis of the evidence introduced, I find that Ms. Tenkorang has not suffered a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident of April 18, 2001. In light of this finding, there is no need to determine the quantum of the income replacement benefit.

Taxi and Motel Expenses

Ms. Tenkorang claims entitlement to $80.00 in US funds for taxi expenses from the motel back to the Binghamton General Hospital. Ms. Tenkorang returned to the hospital after being discharged because she had inadvertently left her purse there. Ms. Tenkorang also claims $120 in US funds for the motel expenses incurred while waiting for the bus to return her to Toronto.

I find that Ms. Tenkorang is not entitled to reimbursement for her taxi and motel expenses under the Schedule. Clause 14(2)(h) of the Schedule provides that the insurer will pay for all reasonably necessary expenses incurred for goods and services of a medical nature. There is no evidence that either of these expenditures was of a medical nature.

Clothing

Ms. Tenkorang claims expenses of $420 for clothing lost or damaged as a result of the motor vehicle accident under section 23 of the Schedule. Ms. Tenkorang testified that she was wearing a denim suit and a winter jacket at the time of the accident. She testified that she had to be cut out of her clothing when she was removed from the bus. She did not indicate whether the clothing was lost or damaged.

There is no reliable evidence that Ms. Tenkorang had to be cut out of her clothing at the scene of the accident. Ms. Tenkorang has no recollection of the event, the ambulance records are not available and the hospital records do not indicate that Ms. Tenkorang was cut out of her clothing upon being removed from the bus.

Ms. Tenkorang did not supply any receipts or photographs of the damaged clothing to support her claim for reimbursement. There is no independent evidence on which to establish her entitlement to reimbursement for the amounts claimed.

Ms. Tenkorang submits that Wawanesa is obligated to reimburse her for at least 50% of her claim for damaged or lost clothing because it had communicated to her that depreciation of 50% would apply to her claim if she did not provide receipts. This communication would be relevant only if it was argued that the parties had agreed that Wawanesa would reimburse 50% of the value of the clothes. Mr. Little did not advance this argument and, nevertheless, I do not find that there was an agreement between the parties that Wawanesa would pay 50% of Ms. Tenkorang's claim under section 23. Even if I accepted that Wawanesa's correspondence was an offer, rather than simply information, I do not find that Ms. Tenkorang accepted that offer. There is no evidence that Ms. Tenkorang accepted an offer of 50% of the value of the clothing.

I find that Ms. Tenkorang is not entitled to reimbursement for damaged or lost clothing under section 23 of the Schedule.

Section 33 of the Schedule

In his closing submissions, Mr. March argued that Ms. Tenkorang is disentitled to benefits because she did not provide information to Wawanesa as she is required to do under section 33 of the Schedule. Subsection 33(1) of the Schedule provides that an insured person must provide the insurer with any information reasonably required to assist the insurer in determining the person's entitlement. Subsection 33(2) of the Schedule provides that a benefit is not payable for any period before the person complies with subsection 33(1). Mr. March submitted that Ms. Tenkorang had not provided sufficient information concerning the occurrence of the accident, her income during the 52 weeks before the accident, and her election between caregiver and income replacement benefits.

Mr. Little argued that it would be unfair to rule that Ms. Tenkorang was disentitled to benefits on the basis of subsections 33(1) and 33(2) because Wawanesa did not indicate that it was relying on section 33 in any of its previous correspondence. The first time Wawanesa invoked section 33 was in its closing submissions.

I agree with Mr. Little that the issue of whether Ms. Tenkorang is disentitled to benefits by operation of section 33 is not properly before me. Wawanesa did not give notice of its intention to rely on section 33 in its correspondence or in its response to the application for arbitration. Neither the mediator's report nor the pre-hearing letter identifies compliance with section 33 as an issue in dispute.

This is not a case where the insurer has provided grounds for denial and now wishes to include additional defences or change its grounds for denial. In some such cases, arbitrators have found that insurers were not limited to their original ground for denial, focusing in part on the short time frame in which insurers are required to provide a response to an application for benefits.²

In the case before me, Wawanesa has never provided an adequate response to Ms. Tenkorang's claim for income replacement benefits as it is required to do under section 37 of the Schedule. Mr. March argues that Wawanesa did not have an obligation to provide reasons for denial in this case because Ms. Tenkorang did not provide sufficient information about the accident or her employment income. Mr. March did not explain why Wawanesa failed to notify Ms. Tenkorang or her counsel that she was disentitled to benefits by operation of section 33(2), or that compliance with section 33 was going to be argued at the arbitration hearing.

Wawanesa did not provide an explanation for its denial of Ms. Tenkorang's benefits. Mr. March raised the issue of the application of section 33 for the first time in his closing submissions. He argues that the applicant is barred from recovery on procedural grounds which are completely distinct from the substantive defences outlined in Wawanesa's response to an application for arbitration. To permit Wawanesa to raise the issue of section 33 in these circumstances would be contrary to the principles of natural justice and to the scheme and objectives of the legislation.

Accordingly, I have not considered Wawanesa's argument that Ms. Tenkorang is disentitled to benefits by operation of section 33 of the Schedule.

Were I to consider Wawanesa's argument, I would find that Ms. Tenkorang is not precluded from receiving benefits by operation of subsection 33(2) of the Schedule. In support of its submission, Wawanesa refers to the arbitration decisions in Carr and Lombard General Insurance Co. of Canada³ and Iankilevitch and CGU Insurance Company of Canada.⁴ In both of those cases, the arbitrator found that the insurer had made detailed and repeated requests for information to assist in the determination of the insured's income from self employment. The applicants had not responded to those requests and the arbitrators found that subsection 33(2) applied.

In the case before me, Wawanesa bears the onus of demonstrating that it clearly requested certain information and that Ms. Tenkorang did not provide that information. Wawanesa wrote to Ms. Tenkorang on August 16, 2001 requesting documentation showing income from all sources for the 52 week period before the accident, including EI benefits. Subsequently, Ms. Tenkorang forwarded income tax returns for 1999 and 2000 and an EI statement showing benefits from January 14, 2001 to April 28, 2001. There is no evidence that Wawanesa wrote again to Ms. Tenkorang requesting more detailed information or informing her that it did not have sufficient information to calculate her income replacement benefit. In these circumstances, I do not find that Ms. Tenkorang has failed to provide information reasonably required to assist the Insurer in determining her entitlement.

Special Award

I find that Ms. Tenkorang is not entitled to any of the benefits claimed. There is no basis for a special award under section 282 of the Insurance Act.

Award under section 282(11) of the Insurance Act

Mr. March submits that the circumstances of this case, including the failure of Ms. Tenkorang or her counsel to comply with Wawanesa's production requests in a timely manner, support his claim that the application is frivolous or vexatious. I do not accept that the conduct of Ms. Tenkorang or her counsel necessarily leads to a conclusion that the application is frivolous. Wawanesa has not introduced positive evidence that Ms. Tenkorang filed a frivolous or vexatious application. Wawanesa's claim for an award under section 282(11) of the Insurance Act is denied.

Expenses

Both parties are claiming their arbitration expenses. During the hearing, I ruled that Ms. Tenkorang would be responsible for the expenses incurred as a result of her production of an arbitration brief on the morning of the hearing. I permitted Mr. March some time to review the brief, which had not been previously produced. Mr. March spent approximately three quarters of one day reviewing the documents in Ms. Tenkorang's brief. The hearing lasted approximately two and one half days. Ms. Tenkorang's conduct in producing her arbitration brief on the morning of the hearing had the effect of unreasonably delaying the proceedings. I otherwise find that Ms. Tenkorang is entitled to her arbitration expenses. Ms. Tenkorang advanced legitimate claims and, although she was not successful, she was entitled to have them decided by an arbitrator. The award of expenses in favour of Ms. Tenkorang is reduced by approximately one-third, which is the proportion of hearing time spent by Mr. March reviewing her arbitration brief.

Ms. Tenkorang is entitled to 70% of her arbitration expenses.

March 6, 2003

Catherine Skinner Arbitrator

Date