Neutral Citation: 2004 ONFSCDRS 67

FSCO A03-000438

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

Ms. C

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

March 1, 2, 3 and 4, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David S. Wilson, Barrister and Solicitor, for Ms. C

J. Lynne Frank, Barrister and Solicitor, for Liberty Mutual Insurance Company

Issues:

The Applicant, Ms. C, was injured in a motor vehicle accident on October 16, 1999. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty"), payable under the Schedule.¹ Liberty terminated weekly income replacement benefits on November 23, 2002. The parties were unable to resolve their disputes through mediation, and Ms. C 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:

1. Is Ms. C entitled to income replacement benefits pursuant to sections 4 and 5 of the Schedule after November 23, 2002?

2. Is Ms. C entitled to a special award pursuant to section 282(10) of the Insurance Act?

3. Is either party entitled to their expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?

Result:

1. Ms. C is not entitled to income replacement benefits after November 23, 2002.

2. Ms. C is not entitled to a special award.

3. The issue of entitlement to expenses of the arbitration proceeding is deferred.

EVIDENCE AND ANALYSIS:

Background:

Ms. C is now 41 years old. She immigrated to Canada with her husband, Mr. C, on July 1, 1990. Since her arrival, she has attended school and worked at a variety of jobs. She had her first child in February 1997. In January 1999, Ms. C's mother, Mrs. D, immigrated to Canada. Since then, Mrs. D has lived with her daughter and son-in-law. All three testified at the hearing.

Ms. C was a passenger in a vehicle driven by her husband when the collision occurred. She described a car coming in front very fast. She held the console with her left hand and endured a very heavy force. Mr. C testified that he was waiting at the centre line on Finch Avenue in Toronto when a person hit his car. He described an intense contact and that his vehicle was "written off." The hospital emergency department report describes a head-on collision.

Ms. C was taken by ambulance to a hospital emergency department and discharged the same day with a diagnosis of cervical thoracic strain.

Ms. C testified that the most pain she suffered was in her head and that a few months after the motor vehicle accident she felt numbness in the palm of her left hand and that her hand is her worst condition now. She said that her head pain has not improved in the last two years and that her left arm and shoulder have gotten worse. She sleeps twice a day for one and a half to two hours each time and takes a sleeping pill so that she can sleep at night.

Mr. C said that his wife's main problem is that she cannot lift her left hand. She doesn't have the energy she used to have and lies or sits around most of the day. Except for trying to walk in the house, she doesn't walk.

Mrs. D confirmed that her daughter suffers from problems with her arm and head and often lies down.

Ms. C and Mrs. D testified that Ms. C continues with physiotherapy but without improvement. Ms. C said that she expects her hand and head pain will get worse.

Legal test for entitlement:

The test for entitlement to income replacement benefits more that 104 weeks from the onset of disability is set out in section 5(2)(b) of the Schedule as follows:

. . .the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

Mr. Wilson argued that as a result of the decision of the Supreme Court of Canada in Caisse Populaire de Maniwaki v. Giroux, 1993 CanLII 151 (SCC), [1993] 1 S.C.R. 282, an insurer that makes disability payments and stops, has the onus of proving that it was entitled to stop making disability payments. Mr. Wilson also referred to Ritch v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 2266, June 2, 1998 in which Epstein J. held that "the burden of proof arises only in those situations where the process of weighing the evidence has produced no result." In this case, I was not left with any doubt as to whether Ms. C was disabled within the meaning of section 5(2), and so I did not have to consider burden of proof in making my decision.

Education, training and experience:

The question is what was suitable employment for Ms. C when Liberty terminated benefits in November 2002. Her work history included both part-time and full-time work. Although Ms. C was working full time at a restaurant at the time of the accident, the test is not necessarily whether she can engage in full-time employment.

Ms. C finished grade 12 in Sri Lanka. She went to technical college and took a stenographic course. She also started what she described as a chef course. She said she was in this course one and a half years. I heard no other evidence about this course. In Canada, Ms. C took an English course and one semester of another secretarial course in a co-operative programme.

In Sri Lanka, Ms. C worked as an assistant teacher in a nursery school. In Canada, she did some secretarial work as part of the co-operative programme.

In November 1992, Ms. C obtained part-time employment at United Parcel Service ("UPS"), Monday to Friday, four to five hours a day. She described her work as calling customers to correct address details. David Antflick, a "vocational evaluation specialist" hired by Mr. Wilson, described her job as "an administrative clerk assistant (NOC 1441) doing scanning and packing with UPS, ground trac auditing and hub administration." Ms. C did this work until January 1997 when she took maternity leave for the birth of her first child. She returned to UPS, again part-time, after seven months. She left UPS on January 9, 1998 because her babysitter could not accommodate her irregular work hours.

Ms. C started work for Key Man Engravables on February 25, 1998. She worked full time 3:00 p.m. to 11:00 p.m. at a computerized machine which transferred designs and printing onto consumer wares. She stopped this work on July 9, 1998 because of a difficulty she had with babysitting. She and Mr. C. also said it was too far and too expensive to commute.

In January 1999, Ms. C's mother, Mrs. D, came to Canada to live with her daughter. Ms. C was rehired by Key Man Engravables on May 5, 1999 and worked full-time to June 25, 1999. About three months before the motor vehicle accident, she quit that job to do housekeeping for a woman who was disabled as a result of a motor vehicle accident. She also tutored the woman's two children. She did that job for two months. She then obtained full-time work in a restaurant in Mississauga as a chef. She said that she was able to work full-time because her mother looked after her child. She did that job for five weeks and was then involved in the motor vehicle accident.

Although Mr. Antflick reported that Ms. C could not find work as a chef in Sri Lanka, I heard no other evidence that Ms. C tried to find work as a chef in the 15 year period after she finished the chef course. It was not clear whether she got the restaurant job in Mississauga through luck or because she was searching for full-time employment. She testified that she got the job as a result of a sign in front of the restaurant. She also said that she got it because someone told her to apply and she had experience. I heard no evidence that she ever worked in a restaurant. She described the job as not difficult and as cutting and preparing and sometimes washing dishes. Others describe the restaurant as a take-out restaurant and as an eat-in and take-out restaurant. Ms. C worked eight to ten hours during the day. She said she worked five days a week. She did not know if the job was still open. Mr. C did not know if Ms. C worked more than five days a week. Ms. C made $762.50 per week at the restaurant. According to Mr. Antflick, a cook in Toronto earns $7.00-$13.88 per hour, an average $9.45 per hour, which is about one-half of what Ms. C made. This is all the evidence I heard on the restaurant job.

I do not believe that the restaurant job was important to Ms. C. She was able to express herself in a believable manner in many parts of her testimony. She expressed genuine shame and embarrassment about fertility treatments she underwent. She expressed what I found as genuine indignation at her thought that Liberty was saving money because her husband drove her to psychotherapy sessions and then waited outside with the children. She also expressed what I found as genuine disappointment that the OHIP-paid physiotherapists did not seem to care about her as much as the therapists paid by Liberty. Therefore, if the full-time job at the restaurant was important to her, I would have expected some believable expression of a sense of loss or disappointment or anger from either Mr. or Ms. C arising from the loss of this particularly well-paid job. I did not hear any reliable evidence from Mr. or Ms. C that this job was important to Ms. C. Neither did Mrs. D express any sense of loss. When I asked Mrs. D about her daughter's work at the restaurant, she replied that she did not know that her daughter worked in a restaurant at the time of the accident.

As well, Ms. C testified that she quit the Key Man Engravables job in Concord because it was too far to commute from her condominium apartment at Keele and Finch. The restaurant job was in Mississauga and a longer commute both from Keele and Finch and from her new home in Markham.

Ms. C's income from employment up to the year of the motor vehicle accident were as follows: 1991 - $2,443; 1992 - $7,658; 1993 - $11,067; 1994 - $11,902; 1995 - $10,079; 1996 - $11,036; 1997 - $5,581; 1998 - $4,068; and 1999 - $5,896. She filed an Employer's confirmation of income which indicated that the chef's job in Mississauga paid $762.50 per week.

In November 2002, Ms. C gave birth to her second child.

In the seven years prior to the motor vehicle accident Ms. C worked over five years at part-time work and about ten months at full-time work.

Ms. C left work several times because of problems with babysitters. Mr. C said that the only reason his wife could work full time was because Mrs. D took care of their one son. Although Ms. C testified that she thought her babysitting problems were over with the arrival of her mother, by November 2002, Mrs. D was away from the house three days a week taking dialysis treatment, Mr. C was trying to get back to part-time work at his drapery business and Ms. Cs second child had arrived. I find that babysitting was still an issue in November 2002 and still presented a problem to Ms. C working full time.

Ms. C was able to express her feelings about losses and what was important to her. Neither she nor her family members presented any reliable evidence that full-time employment was important to Ms. C.

Having regard to Ms. Cs education, training and experience, I find that part-time employment is suitable employment.

For the most part, Ms. Cs work in Canada was light duty sedentary work which paid about $10 per hour. The restaurant job paid $762.50 per week or $19.06 per hour for a 40-hour week. I do not consider what Ms. C earned at the restaurant an accurate assessment of what is a reasonable wage for her because it is out of line with other evidence on what cooks make, because she only worked at that job for five weeks and because I am not satisfied that she would have been able to continue to work there full time with her babysitting and transportation issues or that she wanted to continue to work at the restaurant. Considering her work history, including the five weeks she worked as a cook, I find the scanning and packing job Ms. C did part-time at UPS was suitable employment.

Ability to engage in suitable employment:

Ms. C's family doctor since she arrived in Canada, Dr. O'Hara Rampersad, referred Ms. C to a number of specialists. In November 2002, Dr. Kingsley Ratnanather, a psychiatrist, found that Ms. C was performing at 45 to 55 percent of her former self and that "working at a computer station may be the only possibility, if she can tolerate sitting." In December 2002, Dr. Raphael Chow, a physiatrist, reported that Ms. C could do light duties. In January 2003, Dr. Brian Kirsh, a psychiatrist, reported that Ms. C could work up to four hours per day in light duties, five days a week. In November 2003, Dr. Kirsh amended his opinion by adding that Ms. C could manage a light duties job, four hours per day, five days per week, after treatment in a pain programme. Dr. Rampersad agreed with Dr. Kirsh that Ms. C could do a light sedentary type job on a part-time basis with the possibility of increasing to full time. Again, in November 2003, Dr. Chow repeated his opinion that he agreed with Dr. Kirsh that Ms. C could do light duty part-time work.

Mr. Atila Balaban holds a M.Sc. degree in Exercise and Health Science. He performed a functional capacity evaluation for Mr. Wilson on May 15, 2003. He thought that, except for some heavier tasks of lifting and carrying, Ms. C could perform most of her activities of normal living. He did not think she could work full time as a chef.

The only one of Ms. C's doctors who expressed any reservations on Ms. C's ability to work part-time was Dr. Keith Meloff, a neurologist. In December 2002, he reported that "She has primarily soft tissue type injuries. I cannot really detect any neurological type deficits. I do believe that she will have long standing difficulties because these problems have been present for so long and have not really resolved in over 3 years." In January 2004, he reported his opinion that Ms. C could not work on the basis of chronic and debilitating pain with functional impairment of her left upper limb as well as psychological factors.

Most of Ms. C's doctors, including her family doctor, thought she could return to part-time sedentary work. The first of her doctors to report that she could return to part-time work was Dr. Chow who wrote to Mr. Wilson on December 9, 2002 as follows: "She is able to do light duties. . . The functional ability test showed that she is able to perform [a] sedentary to light duties job." Dr. Chow wrote this opinion two weeks after Liberty terminated weekly income replacement benefits. His opinion that Ms. C could perform a sedentary to light duties job was followed the next month by the opinion of Dr. Kirsh that Ms. C could do part-time work and in January 2004 by Dr. Rampersad that she could do light part-time work.

I heard no argument or evidence that the opinions of all but one of Ms. C's doctors that she could perform part-time work were wrong or that Dr. Meloff’s opinion was more reliable than the opinions of Dr. Rampersad, Dr. Chow and Dr. Kirsh. On the basis of the consensus of opinion from her own doctors, I find that Ms. C could have returned to employment, such as the type she did at UPS on a part-time basis, at the time Liberty terminated income repayment benefits. She is therefore not entitled to income replacement benefits beyond November 23, 2002.

Rulings:

During the course of the hearing I made several rulings.

1. At the outset of the hearing, Ms. Frank asked for an order that I add an issue to the arbitration hearing. The issue was whether section 42 of the Schedule barred Ms. C from receiving weekly income benefits because of her failure to attend examinations arranged by Liberty.

On May 22, 2003, Liberty asked Ms. C to attend a psychiatric evaluation and a functional ability evaluation. On May 27, 2003, Mr. Wilson replied that Ms. C would not attend because the request was unreasonable and that any request for medical examinations could be made in the context of the arbitration proceeding. The pre-hearing was held on July 10, 2003. The pre-hearing arbitrator noted the dispute but did not add it as an issue. Ms. Frank wrote Mr. Wilson that she continued to rely on section 42. On the Wednesday before the hearing was scheduled to commence, Ms. Frank wrote the pre-hearing arbitrator and asked that the issue be added. The pre-hearing arbitrator suggested that Ms. Frank raise the issue at the hearing scheduled to commence the following Monday.

At the hearing, Mr. Wilson argued that the application to add an issue was not in the form of a motion under Rule 67 of the Dispute Resolution Practice Code (4th Edition) and as such he was prejudiced in his response.

I ruled that I would not hear the motion because of Ms. Frank's failure to comply with Rule 67. An unjustified failure to attend an insurer's examination has significant consequences to an insured. Mr. Wilson made it clear in his letter rejecting the examinations that if Ms. Frank wanted to pursue any right to an insurer's examination, she should do so in the context of the arbitration proceeding. In view of the significance of the issue, I find his position was reasonable. The parties have input on what are the issues in a hearing, but ultimately, an arbitrator decides what the issues are. Ms. Frank did not ask that the issue be added until shortly before the hearing and should not have been surprised that Mr. Wilson was expecting procedural compliance.

2. I refused Ms. Frank's request for an adjournment so that she could prepare motion material to deal with the section 42 issue. She had sufficient time and warning to apply to add the issue to the hearing and Ms. C had waited more than a year for a determination of her claim and an adjournment would cause a further and unnecessary delay.

3. Under section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, a tribunal may exclude anything unduly repetitious. Under section 23(1) a tribunal may reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.

Several times during the hearing I urged Mr. Wilson to make better use of hearing time. I told him he was spending too much time on non-contentious issues. I told him he was wasting time on having the participants check through documents to confirm résumé type information which he could have easily submitted as a document. Mr. Wilson wanted to argue about the production of surveillance evidence after Ms. Frank had agreed to produce it to him. I told Mr. Wilson that he would have to decide whether to continue his cross-examination of Dr. Serge Shapiro or have Mrs. D testify, as it appeared to me that he would not have time to do both. Mr. Wilson wasted time asking Dr. Shapiro to admit that information was not in his report when it was obvious it was not in his report.

Mr. Wilson argued that the issues were of great significance to Ms. C because, not only was the amount of money at issue significant, the decision might determine other entitlements under the policy. As such, he should take as much time as necessary to present her case. Mr. Wilson argued that he had to cover a great deal of evidence, because he did not know what I thought was important or how I viewed the evidence he presented.

It is not up to a decision maker to tell a lawyer what is important or to prejudge the evidence. The lawyer has to make his own choices and decide how best to present his case.

This process is supposed to be a faster and less expensive alternative to the Courts. It is up to the arbitrator to decide how much time is fair. Had I not given several warnings to Mr. Wilson, I do not believe the hearing would have finished in the four days that were scheduled. In this case, having regard to the complexity of the issues and the amount of money involved, I decided that allowing the process to take more than four days would not only unfairly delay the dispute resolution process, it would cause greater expense to the participants. The cost of lengthy proceedings tends to make this process inaccessible to motor vehicle accident victims. Even if I were to award expenses in favour of Ms. C, at the legal aid rate, they would not compensate her for her legal expenses and she would have to pay the balance herself.

4. Mr. Wilson objected to the admission as evidence of a report by Dr. R. Lexier because Dr. Lexier did not give reasons for his opinion that Ms. C was not disabled. Unlike section 53 of the Rules of Civil Procedure, which requires a party who intends to call an expert witness to provide a document setting out the substance of his proposed testimony, Rule 42 of the Dispute Resolution Practice Code only requires the expert to set out the substance of the facts and opinion which he will present. To me, facts and opinion do not include reasons for the opinion.

I admitted the report and noted that failure to give reasons for an opinion would likely affect the weight I gave to the opinion.

5. Mr. Wilson concluded his examination-in-chief of Ms. C at the end of the second day of the hearing. At the beginning of the third day I allowed him to continue his examination of Ms. C over the objection of Ms. Frank because Ms. Frank had not started her cross-examination.

6. Mr. Wilson objected to Ms. Frank cross-examining Ms. C on her fertility treatments on the ground it was irrelevant to her accident-related injuries. Ms. C continued to undergo fertility treatments after her mother started dialysis three days a week and was unable to care for the first child at a time when Ms. C claimed that she was too disabled to care for the first child, let alone a new baby. I allowed the questions on the grounds that the evidence was relevant to her credibility. I dealt with Ms. C's credibility concerning her claim that the chef job was important to her. I did not deal with other aspects of credibility in this decision because it was not necessary and would not have changed the result.

EXPENSES:

If the parties cannot agree on the issue of entitlement to or amount of expenses of the arbitration proceeding, they may request an appointment before me within 30 days from the date of this decision as provided by Rule 79 of the Dispute Resolution Practice Code.

May 5, 2004

William J. Renahan

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 67

FSCO A03-000438

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

Ms. C

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The application for arbitration is dismissed.

2. The issue of entitlement to expenses of the arbitration proceeding is deferred.

May 5, 2004

William J. Renahan

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.