Stella Owusu v. Non-Marine Underwriters, Mbrs. of Lloyd's, 2003 ONFSCDRS 50

Neutral Citation: 2003 ONFSCDRS 50

FSCO A02-000499

BETWEEN:

STELLA OWUSU

Applicant

and

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S

Insurer

REASONS FOR DECISION

Before: Joyce Miller

Heard: January 27, 28 and 29, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Sue Chen for Mrs. Owusu

R. Lee Akazaki for Non-Marine Underwriters, Mbrs. of Lloyd's

Issues:

The Applicant, Stella Owusu, was injured in a motor vehicle accident on May 25, 2001. She applied for and received statutory accident benefits from Non-Marine Underwriters, Mbrs. of Lloyd's ("Lloyd's Underwriters"), payable under the Schedule.¹ Lloyd's Underwriters denied her claim for caregiver benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Owusu 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 Mrs. Owusu entitled to receive weekly caregiver benefits in the amount of $250 per week from May 26, 2001 to January 22, 2003 pursuant to section 13 of the Schedule?
Is Lloyd's Underwriters liable to pay Mrs. Owusu's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mrs. Owusu liable to pay Lloyd's Underwriters' expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

Mrs. Owusu is not entitled to receive weekly caregiver benefits in the amount of $250 per week from May 26, 2001 to January 22, 2003 pursuant to section 13 of the Schedule.
Mrs. Owusu is liable to pay Lloyd's Underwriters' expenses in respect of the arbitration under section 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS

Background

Mrs. Owusu is 34 years old. She came to Canada from Ghana in 1991. Mrs. Owusu alleges she was injured in a motor vehicle accident and, as a result, she is unable to care for her young child who was two years old at the time of the accident. Because of inconsistent evidence it is difficult to state exactly what her marital status is.²

The accident happened on May 25, 2001. Mrs. Owusu testified that on that day it was raining and the roads were slippery. She was moving very slowly in the curb lane when the bumper of her car was struck by the car behind her which had been struck and pushed into her car by a third car.

Mrs. Owusu testified that as a result of the accident she injured her neck, upper back, lower back, right shoulder, right wrist, and right knee. Although some of her injuries such as her right wrist has resolved she still suffers body pain, especially back and knee pain and continuous headaches.

Mrs. Owusu's claim for caregiver benefits for the period of May 28, 2001 to January 22, 2003, in the amount of $21,400, was denied by Lloyd's Underwriters. Succinctly, Lloyd's Underwriters denied her initial entitlement.

To be eligible for caregiver benefits Mrs. Owusu must have sustained an "impairment" as a result of a car accident. "Impairment" is defined in section 2 of the Schedule as "a loss or abnormality of a psychological, physiological or anatomical structure or function." In addition, Mrs. Owusu must meet the test outlined in section 13 of the Schedule.

Section 13 of the Schedule provides:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:
At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

(2) The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care.

(3) The amount of the caregiver benefit shall not exceed,

(a) for the first person in need of care,

(i) $250 per week, or

(ii) if the optional caregiver and dependant care benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit;

Succinctly, the burden of proof rests with Mrs. Owusu to prove on a balance of probabilities that as a result of the accident she sustained an impairment which substantially disabled her from caring for her daughter who was two years old at the time of the accident and that she incurred reasonable and necessary expenses in this regard.

For the following reasons I find that Mrs. Owusu has not discharged her burden.

I will deal with the evidence in two parts: one, whether Mrs. Owusu is substantially disabled as a result of the car accident and two, whether she incurred the expenses for a caregiver.

"Substantially Disabled"

For the following reasons I find that Mrs. Owusu has not provided objective, credible evidence that she sustained physical and/or psychological injuries as a result of the car accident on May 25, 2001 which substantially disabled her from taking care of her daughter.

1. Physical Injuries

Mrs. Owusu testified that she developed her physical injuries two days after the accident and went to see her family doctor, Dr. Patrick Safieh, who sent her to physiotherapy. This testimony, however, is not consistent with the objective evidence.

In a statement given to Lloyd's Underwriters on July 20, 2001, Mrs. Owusu stated :

I did not immediately feel as though I was injured. About a week later, I began having headaches with fever, with pain in my neck, both shoulders, chest, both wrists, and upper and lower back. I also had pain and swelling in my right knee. Nothing else happened to me during that week that would have caused these symptoms. I went to see my family doctor, Dr. Safeih [sic]. This is the first time I saw him.

When confronted with this evidence Mrs. Owusu denied that she made this statement. The objective evidence, however, shows otherwise. The objective evidence reveals that:

On or before May 30, 2001, Mrs. Owusu saw an accident benefits representative, Mr. Raymond Manzor, who signed a Disability Certificate on her behalf.
On May 31, 2001, Mrs. Owusu began physiotherapy at Physiotherapy Fix without a referral from any doctor.
On June 4, 2001, ten days after the accident, Mrs. Owusu saw Dr. Safieh for the first and only time. There is no indication in his clinical notes that he referred her to physiotherapy.

Accordingly, based on the objective evidence, I accept the statement given to Lloyd's Underwriters to be correct and Mrs. Owusu's denial not to be credible.

In the Disability Certificate signed on June 4, 2001, Dr. Safieh states his primary diagnosis regarding Mrs. Owusu's injury as a result of the car accident is a whiplash injury. Significantly, in response to the question "Does the applicant suffer an impairment that substantially prevents him or her from engaging in pre-accident caregiving activities?", Dr. Safieh checked off "Not applicable." He did, however, note that she suffered from an impairment that prevented her from carrying on substantially all of her normal pre-accident activities because she could not bend, lift or push. He also noted that she could not do heavy housework.

On June 11, 2001, Mrs. Owusu saw another family doctor for the first time, Dr. Sam Crystal. In his clinical notes, Dr. Crystal states that Mrs. Owusu was referred to him by Physiotherapy Fix.

Dr. Crystal recommended that she attend 28 physiotherapy sessions with Dana Anderson at Physiotherapy Fix. As well, Dr. Crystal gave her a prescription for pain.

Mrs. Owusu saw Dr. Crystal only four times. One of the times, on June 20, 2001, dealt with a medical matter not related to the car accident.

With respect to the injuries from the car accident on May 25, 2001, she reported to Dr. Crystal that she was 20 per cent better. On August 1, 2001 she reported that she was 60 per cent better.

After August 1, 2001 there is no evidence, except for two legal medicals, that Mrs. Owusu ever saw any other medical doctor for any of her alleged physical injuries. She was never referred to, nor did she see, an orthopaedic surgeon for further investigation of her alleged injuries. Nor did she have any x-rays taken to further investigate, for example, her alleged knee injury and the source of her alleged pain. Nor did any medical doctor ever confirm that as a result of the car accident Mrs. Owusu was substantially disabled from carrying out her essential duties as a caregiver to her young daughter.

On August 31, 2001, Mrs. Owusu completed her physiotherapy treatment. No report was presented regarding her physical condition at the conclusion of this treatment as to whether or not she was capable of carrying out her caregiver duties for her daughter.

In December 2001, she was referred to B.C. Rehabilitation Centre by her present accident benefits representative, Mr. Dan Luu, for chiropractic treatment, acupressure, massage, hyperthermy and exercise. The treatment was concluded on February 22, 2002. No report was presented regarding her physical condition at the conclusion of this treatment as to whether or not she was capable of carrying out her caregiver duties for her daughter.

(a) Dr. Malcolm's Report

On July 9, 2002, Mrs. Owusu attended for a Insurer's Medical with Dr. Barry W. Malcolm, an orthopaedic surgeon. In his report of August 13, 2002 Dr. Malcolm records an in-depth interview with Mrs. Owusu. As well, he notes his review of the medical records of her treatment following the accident and the medical brief he was provided with by Lloyd's Underwriters.

In this report, Dr. Malcolm states that Mrs. Owusu told him that a "couple of days" after the accident is when she began to feel any pain and that she went to see her "family physician, Dr. Crystal, two or three days following the accident." After examining her, in his conclusion Dr. Malcolm notes the following:

Ms. Owusu's symptoms arose three to four days following her motor vehicle collision, suggesting in a medical sense that the overall severity of her soft tissue injuries was mild, in comparison to an individual with immediate, and very specific complaint.

... Despite [Ms. Owusu's] continuing symptoms, she has virtually normal objective range of motion in her injured areas, and has a normal neurological examination. Her ongoing disability is a self-expression of her pain. [emphasis added]

Dr. Malcolm goes on to conclude:

Based on the assessment, it is my opinion that despite her expressed complaints, Ms. Owusu is not substantially disabled from performing her accustomed preaccident functions, on the basis of objective residuals of her collision-related musculoskeletal impairments. Based on her history she would be performing them with symptoms, in which case pacing and sparing techniques could be utilized to facilitate performance and completion of the tasks.

(b) Dr. Zitney's Report

In September 2002, Mrs. Owusu was referred by Mr. Luu to a medical legal examination with Dr. Michael Zitney.

In his report of September 5, 2002, Dr. Zitney does not state what his qualifications are. However, the letterhead of his report states that he is the Director of the Headache & Pain Relief Centre. The initials after his name "M.D., D.A.A.P.M." indicate that he is a medical doctor with a Diploma from the American Academy of Pain Management.

I can give little weight to Dr. Zitney's report. There is no indication that Dr. Zitney reviewed any of Mrs. Owusu's post-accident treatment or medical reports. He relies totally on what she told him. His interview regarding Mrs. Owusu's family and social history is recorded in one short paragraph. I note this latter point because Dr. Zitney diagnosed Mrs. Owusu with a post traumatic disorder. This is a psychological injury. It would be very important to have had a full picture of Mrs. Owusu's family and social history as well as any other supporting objective medical evidence regarding her psychological health before coming to such a conclusion. In any case, there is no indication in his report that he has any expertise in the area of psychological injury.

Along with suffering from a post traumatic stress disorder, Dr. Zitney found that Mrs. Owusu had mechanical low back pain, likely due to biomechanical abnormalities. He states:

I suspect that Stella's low back pain is mechanical due to pre-existing biomechanical injuries that were again exacerbated by the physical trauma to her back and knee during the accident. There may be a connection with myofascial spasms of her low back acting as a further perpetuating factor in reinforcing her neck pain and headaches.

Dr. Zitney's finding that Mrs. Owusu's pre-exisiting back pain was exacerbated by the car accident is based on what Mrs. Owusu told him. I cannot give much weight to this conclusion as it is based on subjective self-serving evidence as opposed to objective evidence. There is no evidence that Dr. Zitney had reviewed any clinical notes and records in respect of her physiotherapy and chiropractic treatment or any other reports that would support his conclusion.

He also diagnosed that Mrs. Owusu had post traumatic headache. He states:

Stella experienced migraine headaches prior to her motor vehicle accident. These were occasional and of short duration only. She was involved in a motor vehicle accident in May, 2001. Since that time she has had neck and back pain, and worsening of her headache condition. We know now that unresolved trauma to the neck is one of the strongest triggers for headaches. This has been elegantly demonstrated by the work of Dr. Nicolai Bogduk in Australia, and others. [bold emphasis added]

Dr. Zitney's finding that Mrs. Owusu's headache condition is worse post accident is based on what Mrs. Owusu told him. I cannot give much weight to this conclusion as it is based on subjective self-serving evidence as opposed to objective evidence. There is no indication in Dr. Zitney's report whether he was aware of any treatment or medication Mrs. Owusu received post accident for her headaches.

In addition Dr. Zitney made the following findings without commenting on them. He states that Mrs. Owusu has a Whiplash Associated Disorder Grade II and right temporomandibular joint syndrome (TMJ). As well, he states that with respect to her knee injury Mrs. Owusu should be assessed by an orthopaedic surgeon and that "She may require a CT scan, an MRI or arthroscopic examination and/or treatment." He notes that the "knee pain is likely also contributing to the mechanical low back pain."

Dr. Zitney concludes: "I suspect that Stella has a poor prognosis for recovery at the present time. She has had extensive physical therapy, and has exhibited only modest improvement to date."

I cannot give much weight to this vague conclusion. Dr. Zitney only has a "suspicion" that Mrs. Owusu's prognosis is poor. He never addresses the relevant issue of whether or not Mrs. Owusu is substantially disabled from carrying out the essential duties of a caregiver. Accordingly, I cannot give much weight to Dr. Zitney's report of September 5, 2002.

For all of the above reasons I find that Mrs. Owusu has not provided any credible, objectively verifiable evidence that she sustained a physical impairment as a result of the car accident on May 25, 2001 which substantially disabled her from caring for her daughter.

2. Psychological Injury

Mrs. Owusu testified that in addition to her physical injuries she also suffered psychological injuries as a result of the accident on May 25, 2001.

Before discussing Mrs. Owusu's alleged psychological injuries it is important here to note Mrs. Owusu's testimony about her family history and life before the accident varies quite significantly from the history she told her treating psychologist Dr. Van der Spuy and the history she gave to Dr. Isabelle Cote, a forensic psychiatrist who examined her on behalf of Lloyd's Underwriters.

(a) Mrs. Owusu's Testimony

Mrs. Owusu testified that she was born in Ghana and that her father died in a car accident in the year she was born. She stated that she had an older sister still living in Ghana.

Mrs. Owusu testified that she was married in Ghana and her husband had to flee to Canada as a refugee because he was being persecuted for his religious belief. In 1991 she had a baby girl by a cesarean section. That same year she left her infant daughter in the care of her mother to join her husband in Canada. A year after she came to Canada she divorced her husband.

Mrs. Owusu second daughter was born premature in 1999. The father of her second daughter was a boy friend of hers. Mrs. Owusu testified she ended the relationship when she learned he was having an affair with another woman.

Mrs. Owusu testified that in February 2001 she was laid off from her job as a packer in a factory. She stated she went to the United States for one month. After she returned and before the accident happened on May 25, 2001 she spent time looking after her daughter and looking for a job.

Mrs. Owusu testified that her older daughter did not come to Canada until August 2002. At that time, her daughter was 12 years old.

Mrs. Owusu testified that she suffered no emotional reaction to the fact that she left her daughter behind as an infant in Ghana as she knew her daughter would be well taken care of. Regarding her husband's life being in danger, she said it was no concern of hers.

Mrs. Owusu testified that before the accident she had a happy, stress-free life and that everything changed after the accident. As a result of the accident, she developed depression and anxiety, as well as a phobia for driving or being a passenger in a car.

Mrs. Owusu testified that sometime after the accident she attended every week for one year for psychological treatment with Dr. Van der Spuy at the clinic of Dr. B. Roy Raghunan. However, Dr. Van der Spuy, who testified at the hearing, stated that he personally only saw her on five or six occasions between January 2002 and August 2002. He did, however, supervise interns at the clinic who treated her on other occasions. The clinical notes indicate that she attended Dr. Raghunan's clinic for about 17 sessions. Accordingly, I do not believe Mrs. Owusu's testimony that she received psychological treatments every week for one year from Dr. Van der Spuy.

(b) Dr. Van der Spuy's Report and Testimony

Dr. Van der Spuy prepared a report on August 6, 2002 summing up his clinical findings. In this report, Dr. Van der Spuy states that a combination of his clinical interview, assessment results and other medical examinations and reports gave rise to the following diagnoses, namely, that Mrs. Owusu was suffering from an "Adjustment Disorder with mixed Anxiety and Depressed mood," as well as a "Pain Disorder Associated with Both Psychological Factors and General Medical Condition." He also stated that Mrs. Owusu suffered from "Other psychosocial problems: Exposure to MVA."

In his report, Dr. Van der Spuy concluded that "Ms. Owusu is substantially disabled as a result of the trauma arising from the May 25, 2001 M.V.A. and cannot perform the essentials of her daily activities, including her household chores and being gainfully employed." He does not, however, mention that Mrs. Owusu cannot take care of her daughter.

I give little weight to Dr. Van der Spuy's conclusions in his report. I do so based on the fact that Dr. Van der Spuy was not provided with a credible family history. Nor was he provided with credible information regarding Mrs. Owusu's ability to drive or to be a passenger in a car.

Mrs. Owusu told Dr. Van der Spuy that her father died the year she was born and that her mother was in "trading" and was a "good provider to the family." She told him she was "the elder of two sisters." She also stated "They were a happy family, interacted well with each other and provided a very supportive and cheerful environment." [emphasis added]

Mrs. Owusu told Dr. Van der Spuy her marriage came to an end in December 2000 and that she had two daughters from this marriage. She stated "She enjoyed the intimacy with her daughters and had much fun with the family as they traveled to various cities within Ontario including many places of cultural and social interest, and recreational facilities and parks."

Dr. Van der Spuy's also reports Mrs. Owusu told him that:

[She] no longer drives and has developed almost phobic reaction towards driving. Even when she is a passenger in a motor vehicle, the short trips become fearful and anxiety-provoking. Hence, her social and other activities away from her residence have been significantly curtailed. She uses motor vehicular transportation only when absolutely necessary. [emphasis added]

The impression Mrs. Owusu conveyed to Dr. Van der Spuy, as noted in his report and as he stated in his testimony, is that Mrs. Owusu had a happy, carefree pre-accident life and that her life radically changed for the worse after the accident.

Mrs. Owusu, however, omitted significant details in her story to Dr. Van der Spuy. She omitted telling him that she gave birth by a cesarean section and left her infant daughter in Ghana in 1991; that this daughter did not come to Canada until August 2002; that her second daughter was born premature after three miscarriages and that her husband was not the father of the child.

I find that these omissions are significant. According to Dr. Van der Spuy's testimony loss in a person's life is a cause of depression. Given Mrs. Owusu's disrupted pre-accident life - the loss of leaving her infant child in Ghana, the divorce from her husband, the loss of her employment, the end of the relationship with the father of her daughter - I do not find it reasonable or plausible that these events would have no effect on Mrs. Owusu, but her minor car accident would.

For these reasons I cannot accept Dr. Van der Spuy's conclusion that Mrs. Owusu's depression is as a result of the car accident. Clearly, other factors not revealed to Dr. Van der Spuy may have significantly contributed to her depression. Accordingly, I find that Mrs. Owusu did not provide Dr. Van der Spuy with credible, objective, reliable information on which to base his conclusions.

I also give little weight to Dr. Van der Spuy's comment in his report where he states "Ms. Owusu no longer drives" and "exhibits an almost phobic reaction to a// forms of motorized transportation." This is based on what Mrs. Owusu told Dr. Van der Spuy. However, this information is clearly inconsistent with Mrs. Owusu's actual experience.

First, in cross-examination, Mrs. Owusu admitted to buying a new car after the accident and that she drove from time to time. This is clearly inconsistent with her claim that since the accident she no longer drives.

Second, and most significantly, is the fact that when Lloyd's Underwriters offered to pay for her transportation by train for her examination with Dr. Cote in St. Catharines, Mrs. Owusu threatened not to attend the Insurer's Medical if she was not provided with taxi service for a trip that takes over an hour by car.³ This is clearly inconsistent with her claim to Dr. Van der Spuy that she uses motor vehicular transportation only when absolutely necessary.

Accordingly, for all of the these reasons I give little weight to Dr. Van der Spuy's report of August 6, 2002 and his conclusions therein.

(c) Dr. Raghunan's Report

I also give little weight to the report of Dr. Roy Raghunan dated January 17, 2003. First, his report is mostly based on the findings and recommendations of Dr. Van der Spuy's report of August 6, 2002 for which I have given very little weight.

Accordingly, for these reasons I cannot give much weight to Dr. Raghunan's conclusion in his report that "Caregiving assistance should be made available to this lady as she is not capable to provide the necessary assistance to her three-year and ten-month old infant."

(d) Dr. Cote's Report

In her report of October 1, 2002, Dr. Isabelle Cote, a forensic psychiatrist, who examined Mrs. Owusu on behalf of Lloyd's Underwriters on July 22, 2002, provides another version of Mrs. Owusu's family history.

Dr. Cote reports that Mrs. Owusu stated: "Her parents are still alive. They live in Guana [sic] and they are together. Her father is 65 years old and her mother is 55 years old. She is an only child." ... "Her father was a businessman. Her mother did not work." Mrs. Owusu also admits to having only one child, a daughter. As well, Mrs. Owusu states that her relationship with the father of her child ended when she found out that he had a wife in Ghana. Dr. Cote also notes that Mrs. Owusu stated she had a boyfriend that she was planning to marry. According to Mrs. Owusu, he paid all her bills, apart from the cable bill.

When confronted under cross-examination with the information in Dr. Cote's report, Mrs. Owusu stated that the information in the report was incorrect. She stated she had a stepfather who was like a father to her. She denied that her mother was only a housewife. She also stated that her boyfriend did not pay all her bills as she paid her rent.

I give little weight to Mrs. Owusu's explanation that Dr. Cote had incorrectly reported what she had told her. Mrs. Owusu, through her evidence and testimony, has shown that she changes her story to suit her purpose. In her report, Dr. Cote listed 12 examples of inconsistencies by Mrs. Ouwsu in her interview with her which are objectively verifiable. Mrs. Owusu did not provide any objective evidence to show that Dr. Cote had incorrectly reported the interview.

Dr. Cote concluded her report stating:

... it is my opinion that from a psychiatric point of view, Ms. Owusu is capable of functioning socially and psychologically. In fact, she is likely functioning far better than she portrays herself to be. [emphasis added]

Dr. Cote further concluded that the information she received from Mrs. Owusu and the clinical data available did not support Mrs. Owusu's alleged post-accident disability and alleged ongoing disability to such a degree as would constitute a substantial inability to perform the pre-accident functions of looking after her child.

I prefer Dr. Cote's report and conclusions over that of Dr. Van der Spuy's and Dr. Raghunan's. Dr. Cote had the benefit of other medical reports that made her aware of Mrs. Owusu's omissions and her lack of credibility. Accordingly, I give more weight to her conclusions.

Accordingly, for all of the above reasons I find that Mrs. Owusu has not provided any credible, objectively verifiable evidence that she sustained a psychological impairment as a result of the car accident on May 25, 2001 which substantially disabled her from caring for her daughter.

Caregiving Expenses Incurred

If I am wrong in my above conclusions, for the sake of completeness I will deal with the issue of whether Mrs. Owusu incurred caregiving expenses.

The burden of proof rests with Mrs. Owusu that she incurred expenses for caregiving as a result of the accident. For the following reasons I find that Mrs. Owusu has not presented any credible or reliable evidence to discharge her burden.

(1) Mrs. Owusu's Testimony

Mrs. Owusu testified that the day after the accident she hired Lydia Appiah-Kubi to look after her then two year old daughter and do her household chores. Mrs. Owusu testified that her daughter, who was born premature, needed extra-special attention and care. For example, her daughter ate slowly and it would take one and a half hours to feed her a meal.

Mrs. Owusu testified that at the time of the accident she was subletting an apartment in a building on Kipling Avenue and was still living there. It was at this location that Ms. Appiah-Kubi provided her caregiver services. Mrs. Owusu testified that Ms. Appiah-Kubi worked seven days a week, eight to nine hours every day from the time of the accident until January 22, 2003. She arrived at about 8:00 a.m. and left at about 6:00 or 7:00 p.m.

Mrs. Owusu testified that she paid Ms. Appiah-Kubi $100 a month because that was all she could afford. However, the arrangement she made with Ms. Appiah-Kubi was that her salary would be $250 per week and she would pay Ms. Appiah-Kubi the balance owing when the insurance company paid her. Mrs. Owusu testified that she had paid Ms. Appiah-Kubi $2,000 in total and owed her $19,400.

Under cross-examination it was pointed out to Mrs. Owusu that the invoices submitted to Lloyd's Underwriters indicate that Ms. Appiah-Kubi began to work on May 28, 2001 and the caregiver claim was only for work done five days a week for five hours a day.

Mrs. Owusu did not explain the discrepancy between the May 2001 invoice and her testimony regarding when Ms. Appiah-Kubi began to work. However, she stated that the reason the invoice only claims a caregiver benefit for five days a week, five hours a day is because her accident benefits representative told her the insurance company would not pay for any more than this amount of time.

(2) Ms. Appiah-Kubi's Testimony

Ms. Appiah-Kubi testified that she began to work for Mrs. Owusu the day after the accident. She stated she accepted Mrs. Owusu's offer of $250 a week for her services, which was not a high salary, as a favour because she was a friend of Mrs. Owusu's older sister. Contrary to what Mrs. Owusu stated, Ms. Appiah-Kubi testified that she was paid cash at $100 a week with the understanding that she would get the balance at a later date when the Insurer paid Mrs. Owusu.

Although Ms. Appiah-Kubi was adamant that she was paid $100 a week, which would have amounted to about $8,500 for approximately 85 weeks that she allegedly worked, she nevertheless insisted that she was only paid in total the sum of $2,000 and was owed $19,400. This discrepancy in her testimony was never explained.

Ms. Appiah-Kubi testified that although she had three children of her own, the younger being a ten year old, she nevertheless worked for Mrs. Owusu seven days a week, every day, eight to nine hours a day up until January 22, 2003 when she got another job. Ms. Appiah-Kubi testified that at all times she provided her caregiving services at the Kipling Avenue address.

She stated she began work at 8:00 a.m. and finished around 6:00 or 7:00 p.m.

According to Ms. Appiah-Kubi's testimony and the invoices submitted to Lloyds Underwriters, her caregiving duties consisted of generally taking care of Mrs. Owusu's daughter, playing with her, preparing meals, feeding her (which took 30 minutes), taking her to the playground, bathing her and "reading to her." In addition, she did grocery shopping, cooking, dishwashing, sweeping, mopping and washing the floors, vacuuming, cleaning the bathroom, garbage removal. laundry and ironing.

In cross-examination, it was pointed out to Ms. Appiah-Kubi that although the caregiver invoices to Lloyd's Underwriters stated that "reading to her" was one Ms. Appiah-Kubi's services, Ms. Appiah-Kubi had previously admitted that she could not read. Ms. Appiah-Kubi's explanation was that her son had filled out the invoices and she did not know what was written in them.

Also in cross-examination, Ms. Appiah-Kubi was asked the birth date of the child she had been looking after for over a year and a half. Ms. Appiah-Kubi did not know the date.

(3) Surveillance Evidence

A private investigator from Burl-Oak Investigative Services Inc. conducted surveillance on Mrs. Owusu on August 2, 9, 10 and 19, 2002. According to the investigator's report dated August 23, 2002, the investigator attended at the Kipling Avenue address on August 2nd at 5:45 a.m, on August 9th at 6:00 a.m. and on August 10th at 8:00 a.m.

The investigator reported that no one had entered the apartment Mrs. Owusu alleged she lived in at any time in the morning. Inquiries with the superintendent, management office and neighbours revealed that Mrs. Owusu did not reside there.

On August 10th, the investigator learned that Mrs. Owusu was at an apartment building on Falstaff Avenue. The investigator proceeded to that address. There the investigator saw the name of "M. Owusu" on the directory without a buzzer code number. There was a buzzer code number in the name of H. Frimpong for the same apartment number as "M. Owusu." The investigator confirmed that Mrs. Owusu was in that apartment, but the investigator did not see her come out. The surveillance was discontinued at 3:00 p.m.

On August 19th, the investigator established surveillance at 9:00 a.m. at the Falstaff Avenue location. According to the investigators report, "discreet" inquiries confirmed that Mrs. Owusu was in the apartment but was not observed leaving her unit during the time of the surveillance which ended at 1:00 p.m.

No further surveillance was carried out.

Findings:

Based on the evidence, the investigator's report, and the testimony of Mrs. Owusu and Ms. Appiah-Kubi, for the following reasons I do not find that there is credible, plausible evidence to show that Mrs. Owusu incurred caregiving expenses for the services of Ms. Appiah-Kubi.

First, I find that there is a serious discrepancy in the amount Ms. Appiah-Kubi was allegedly paid for her services. Although both Mrs. Owusu and Ms. Appiah-Kubi testified that Ms. Appiah-Kubi was to be paid $250 a week, they both gave different amounts as to what Ms. Appiah-Kubi was actually paid - Mrs. Owusu claiming that she paid Ms. Appiah-Kubi $100 a month and Ms. Appiah-Kubi insisting several times in her testimony that she was paid $100 a week.

I find this to be a significant discrepancy. It is only reasonable to expect that if these alleged payments were made over the period of a year and a half, each would know exactly how much Mrs. Owusu was paying Ms. Appiah-Kubi.

Second, Ms. Appiah-Kubi admitted in her testimony that she could not read and I accept this to be true. However, her invoices for caregiver services includes the duty of "reading to her."

I give no weight to Ms. Appiah-Kubi's explanation that the reason why "reading to her" was listed as one of her duties in her caregiver invoices was because her son filled out her invoices for her. Given that she is unable to read, it is more likely than not that her son would know this and would have no reason to fill it in as one of her duties. As well, the invoices were signed by Mrs. Owusu, who would also know Ms. Appiah-Kubi did not know how to read. Accordingly, I cannot give much weight to these invoices as a reflection of the duties allegedly performed by Ms. Appia-Kubi.

Third, Mrs. Owusu did not provide any plausible explanation as to why the investigator's report stated that she was living at the Falstaff Avenue address and not the Kipling Avenue address. I find the reason she gave, namely, that no one in the Kipling apartment building knows she is living there because she sublets the apartment, not to be plausible. If Mrs. Owusu has in fact been living at the Kipling Avenue address for three years, at a minimum the management office and/or her neighbours would know if she is living there, especially if she has a young child.

Finally, Mrs. Owusu was clearly not seriously injured in this minor accident. In fact, her medical evidence shows by August 1, 2001 she was 60 per cent better. This being the case there is no plausible reason why Ms. Appiah-Kubi would forsake her own family and devote all of her time to care for Mrs. Owusu's child and do all of her housework.

I do not find it plausible that Ms. Appiah-Kubi, who had three children of her own, would spend seven days a week, eight to nine hours every day, not counting traveling time, for more than a year and a half looking after Mrs. Owusu's daughter and doing Mrs. Owusu's housework on the promise that one day she would be paid.

Accordingly, for all of these reasons I find that Mrs. Owusu has not presented any credible, plausible, reliable, objective evidence to support her claim that she incurred caregiving expenses as a result of her car accident on May 25, 2001. Accordingly, for all of these reasons I find that pursuant to section 13 of the Schedule Mrs. Owusu is not entitled to a caregiver benefit.

EXPENSES:

Subsection 282(11) of the Insurance Act provides:

The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

The degree of success in the outcome of an arbitration proceeding is only one of a number of criteria that an arbitrator takes into consideration when exercising his or her discretion to award expenses to a party.⁴ Subsection 12(2) of the Expense Regulation⁵ provides that other matters to be considered are:

the manner in which the parties conducted the hearing;
whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process,
the degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.
settlement offers,
as well as any other matter related to the proceeding that the arbitrator considers relevant to the issue of awarding expenses.

Findings

Applying the criteria outlined above, for the following reasons I find that Mrs. Owusu is not entitled to her expenses and Lloyd's Underwriters is entitled to its expenses.

Adhering to the criteria, I did not find that the issues in this case were complex or novel. There were no settlement offers that I must consider. Although the hearing was conducted by both parties in a timely manner, this does not offset the fact that Mrs. Owusu was not only unsuccessful in her claim, but also that her claim lacked any merit. Mrs. Owusu was not a credible witness. She did not present any credible or reliable evidence to support her claim. Neither was her witness, Ms. Appiah-Kubi, credible. As a result, Lloyd's Underwriters was forced to defend an unmeritorious claim.

Accordingly, pursuant to subsection 282(11) of the Insurance Act, I find that Mrs. Owusu is not entitled to her expenses and that she must pay Lloyd's Underwriters' reasonable expenses in this arbitration hearing.

April 2, 2003

Joyce Miller Arbitrator

Date