Neutral Citation: 2005 ONFSCDRS 160

FSCO A04-000939

BETWEEN:

JOSEPH OFORI

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Rosemary Muzzi

Heard:

May 2, 3, 4, 5 and 26, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Richard Levin for Mr. Ofori

Thomas H. Clemenhagen for ING Insurance Company of Canada

Issues:

Joseph Ofori, the Applicant, was injured in a motor vehicle accident on April 19, 2003. He applied for and received income replacement benefits (IRBs) and payments for housekeeping expenses for a period of time from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ ING terminated IRBs on September 5, 2003 and payments for housekeeping services on July 13, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Ofori 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 dispute are:

Is Mr. Ofori entitled to receive weekly IRBs, in the amount of $260.30, beyond the period paid by ING?
Mr. Ofori is entitled to housekeeping benefits in the amount of $7.00 per hour from the date of accident and ongoing?
Is Mr. Ofori entitled to receive a medical benefit:

in the amount of $2619.06 for chiropractic and other treatment to have been provided by Dr. Boudreau; and
in the amount of $433.54 for assistive devices recommended by the insurer's examiner,

pursuant to Section 14 of the Schedule?

Is ING liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Ofori?
Is Mr. Ofori entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Are the parties entitled to their expenses of the arbitration?

Result:

Mr. Ofori is entitled to weekly IRBs of $260.30 from September 6, 2003 to November 30, 2003.
Mr. Ofori is entitled to housekeeping benefits in the amount of $7.00 per hour for 13 hours per week from April 19, 2003 to July 29, 2003 (less any payments already made by ING) and for 6.5 hours per week from July 30, 2003 until November 30, 2003.
Mr. Ofori is entitled to payments for treatment in the amount of $2,619.06.
Mr. Ofori is entitled to a payment of $433.54 for assistive devices.
Mr. Ofori is not entitled to a special award.
Interest is payable on all amounts owing in accordance with section 46(2) of the Schedule.
Mr. Ofori is entitled to his reasonable expenses of the arbitration.

EVIDENCE AND ANALYSIS:

Mr. Ofori's motor vehicle accident of April 19, 2003 involved three passengers in addition to himself. Directly following the accident, the three passengers made applications for benefits all of which were being handled by the same ING adjuster, Ms. Brenda James. A property damage adjuster for ING interviewed Mr. Ofori about the accident on April 29, 2003 and Mr. Ofori told him that no one had been injured as a result of the accident. At some point, ING pursued an investigation into the accident and a report, dated June 24, 2003, was prepared.

Mr. Ofori did not return to work after the accident and, in fact, saw his family doctor and then began attending at a chiropractor. Mr. Ofori did not file his own application for benefits until May 15, 2003. Mr. Ofori did not work again until June 2004. ING paid Mr. Ofori both IRBs and housekeeping benefits for a period of time.

Entitlement to Further IRBs

Mr. Ofori has both a history of chronic back pain, and a history of car accidents: three, in fact, prior to the subject accident. Despite his chronic back pain, Mr. Ofori has generally worked full-time in the past. Indeed, his injuries and pain from a 2002 accident had completely resolved before the April 2003 accident and he had been working full-time since February 2003 at Wall Street Motors where he performed detail work on reconditioned automobiles.

The test for IRBs is whether Mr. Ofori suffered a substantial inability to perform the essential tasks of his employment on account of injuries suffered as a result of the accident. There is no doubt from the evidence that Mr. Ofori suffered injuries as a result of the accident and there is also no doubt that he was entitled to receive IRBs; ING paid him weekly IRBs of $260.30 from April 28, 2003 to September 5, 2003, less the period from July 14, 2003 to August 4, 2003 because Mr. Ofori failed to provide an updated disability certificate.

The question for me is for how long was Mr. Ofori entitled to IRBs.

ING argues that benefits were appropriately terminated on September 5, 2003 based on the medical evidence at hand. Mr. Ofori submits that I should find that he was unable to work until June 2004, the date when he was first able to obtain suitable employment. He argues that I should project his recovery date into the future because ING did not fund his treatment and cut him off IRBs prematurely with the effect that it prolonged his recovery.

The question of when Mr. Ofori was able to return to work is one of fact and must be answered having regard to all of the evidence. The evidence of Mr. Ofori and his daughter, Sandra, in the context of the medical evidence, suggests that it is more likely than not that Mr. Ofori recovered sufficiently to be able to return to work well before June 2004.

Mr. Ofori saw a number of doctors for treatment of the injuries suffered as a result of the accident and, generally, all of them report that Mr. Ofori's injuries were resolving in late summer 2003.

While Mr. Ofori reported the accident to Dr. Kainth on April 21, 2003, complaining of pain in his back and neck, he did not attend the physiotherapy to which Dr. Kainth referred him and did not see Dr. Kainth again until July 14, 2003. Between July 2003 and June 2004, Mr. Ofori visited Dr. Kainth's clinic 9 times but was not reporting any pain. Rather, he was treated for other ailments. Dr. Boudreau, the chiropractor who treated Mr. Ofori at Advanced Rehabilitation, the clinic he attended rather than do physiotherapy, concluded that Mr. Ofori could return to work in late August 2003. Dr. Boudreau provided Mr. Ofori with a disability certificate on July 29, 2003², indicating that Mr. Ofori still required treatment until August 15, 2003, which could be undertaken contemporaneous with modified, light duties at work after which, Dr. Boudreau projected, Mr. Ofori could return to work full time. In addition, Dr. Boudreau noted that Mr. Ofori had reported feeling 70% better as of July 21, 2003. Mr. Ofori also regularly visited Dr. Otto between April 28, 2003 and June 28, 2003, reporting pain from the accident.

The evidence indicates that Mr. Ofori did not see any doctors about pain between mid-August 2003 and June 2004. He did return to see Dr. Kainth, however, on June 14, 2004, after he had commenced work, reporting back pain. He did not visit Dr. Otto again until August 6, 2004, reporting that his back pain was better. Dr. Otto found him 90% resolved. These renewed reports of pain seem to coincide with his return to work in June 2004.

On August 7, 2003, Dr. Orsini examined Mr. Ofori for ING.³ He noted that Mr. Ofori was reporting feeling only 55% better. Dr. Orsini concluded that no further treatment was required.

These facts in addition to other evidence lead me to find that Mr. Ofori was recovered some time before June 2004. Both Mr. Ofori and his daughter, Sandra, testified that he had improved somewhat by August 2003 when, for example, he began to pick up some of his housekeeping tasks again. Furthermore, Dr. Boudreau reported in August 2003 that Mr. Ofori could return to light duties at that point and that with another four weeks of treatment could likely return to his full-time job. Additionally, Mr. Ofori admitted that, while he could not recall when exactly he was ready to work and began looking for work, he did look for quite a while, inquiring about ten jobs or so, before actually finding work in June 2004.

Furthermore, given that Mr. Ofori reported to Dr. Orsini that he only felt 55% better in August when just a few weeks before he had reported feeling 70% recovered, I am prepared to accept that his recovery was hampered and that, in fact, he regressed to some extent because of the lack of treatment during this period. During treatment he appeared to have been progressing at the rate of about 20% per month. Without treatment, it would have taken him longer to recover to his usual condition. Bearing this in mind and considering all of the other evidence, I find it likely that Mr. Ofori was able to perform the essential tasks of his employment by December 1, 2003 and should have been paid his IRBs, therefore, to that point.

Entitlement to Further Housekeeping

As for IRBs, the test for the housekeeping benefit is whether Mr. Ofori was substantially unable to perform the housekeeping tasks that he normally performed before the accident. Again, as with his ability to work, it is clear that Mr. Ofori was unable to perform his regular housekeeping duties for a period of time. He hired his daughter Sandra to take them on. He paid her $7 per hour to partially compensate her because she would normally have earned $9 per hour at her part-time job at McDonalds. Sandra Ofori's evidence was that she performed housekeeping tasks for 18-19 hours per week. Mr. Ofori paid her by giving her his bank card and PIN number so she could withdraw her money.

ING paid for housekeeping at the rate of $6.85 per hour for 11.66 hours per week, as recommended in an In-Home assessment conducted by St. Clair Assessment Center Inc., until July 13, 2003. The St. Clair assessment clearly recommends that Mr. Ofori obtain assistance with his housekeeping tasks for at least 11.66 hours a week for the first 4-6 weeks, after which time he might be re-evaluated in order to monitor his improvements and thus gradually decrease his assistance requirements.

Given all of the evidence, I find that Mr. Ofori should have been paid for more than the minimum 11.66 hours per week for housekeeping services and beyond ING's July 13, 2003 termination date. Comparing Sandra's actual duties to the findings of the St. Clair assessment, and considering her admission that some of her tasks probably overlapped, I find that Mr. Ofori should have received payments to reimburse him for 13 hours per week of housekeeping at a rate of $7 per hour (that which he actually paid Sandra) until July 29, 2003 (the date upon which Dr. Boudreau recommended a return to light duties at work). To reach the 13 hours, I find that 2 hours per week would be sufficient to clean a bathroom used by two people and laundry duties could, for the most part, be overlapped with other duties like cooking (for a total of 4 hours together). To clean and maintain a two-bedroom apartment is probably closer to 5.5 hours per week. Finally, shopping would likely take the 2 hours per week estimated by the assessor. Again, as per the St. Clair assessment, which recommended a weaning off period, I find that from July 29, 2003 until December 1, 2003 (the date upon which I find he could have returned to work), he should have received some partial assistance with housekeeping, for 6.5 hours per week.

Medical Benefits

Assistive devices

The very same St. Clair assessment that ING relied upon to pay Mr. Ofori housekeeping benefits recommended that he also be provided with assistive devices to accomplish some degree of housekeeping for himself. Mr. Ofori submitted an invoice on July 31, 2003 to ING for $433.54 to purchase these recommended assistive devices. Under cross-examination, Ms. James did not deny that the devices were necessary at the time they were recommended. Instead, she asserted that ING denied payment because of concerns with the total cost of the devices and the fact that the amounts had been billed even before the treatment plan had been approved.

While her concerns are not invalid, given Ms. James recognition that the devices were necessary, I find that the reasons for not paying the cost of the assistive devices are overly technical. It is clear that Ms. James relied on the findings of the St. Clair assessment to pay for housekeeping and the recommendations for assistive devices was clearly in keeping with the tone of the rest of that assessment. I am satisfied that Mr. Ofori required these devices to accomplish some light housekeeping tasks and also to prevent further strain given his injuries. In these circumstances, Mr. Ofori should have been paid some amounts to cover the cost of these assistive devices. The amount of $433.54 appears entirely reasonable to cover the cost of the five recommended devices.

Treatment

Mr. Ofori argues that he needed the chiropractic treatment that Dr. Boudreau recommended. There were two treatment plans at issue totalling $3,894.06⁴ both of which ING refused to fund. ING paid Mr. Ofori for fifteen treatment sessions, for a total of $1,275 plus interest, four days into this arbitration hearing (ING had, in fact, agreed to pay Mr. Ofori this statutory minimum at the time of mediation, but it was left unpaid through oversight or error). The amount outstanding with respect to treatment then is $2,619.06.

ING's adjuster, Ms. James, testified that she rejected the treatment plans because of her concerns about pre-existing impairments (due to his other accidents) and the inconsistency between his report of no injuries and his subsequent claims for benefits.

I find that Mr. Ofori is entitled to the remaining payments for treatment. First, I find that the medical evidence canvassed above supports the reasonableness and necessity of this treatment. Further, it seems inconsistent to me that ING would pay Mr. Ofori his IRBs to September 5, 2003 based on the medical evidence and yet not fund the treatment that was proposed by some of that very same medical evidence. While it is true that Mr. Ofori failed to report pain to Dr. Kainth during this time, it is also true that he was actually being treated for a period by Dr. Boudreau and that Dr. Boudreau was recommending further treatment.

Special Award

If an arbitrator finds that an insurer has unreasonably withheld or delayed payments, in addition to awarding the benefits and interest to which an insured person is entitled under Schedule, she shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

In order to make a special award, an arbitrator must find that the insurer has unreasonably withheld or delayed payments. It is not enough to find that the insurer's decision to withhold or delay payments is wrong. FSCO arbitrators have consistently held that "unreasonable" behaviour by an insurer is behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate; going beyond the limits of what is reasonable or equitable; not guided by or listening to reason. They have also consistently held that arbitrators should look at the total context in which the insurer made the decisions relating to the insured's benefits.⁵ The standard expected of insurers is one of sound and moderate judgment, not perfection, and the insurer's decisions will not be judged with the advantage of hindsight.⁶

Mr. Ofori argues that a special award is appropriate in this case because the ING adjuster did not give him the benefit of the doubt, adopted a narrow view of his entitlements, cut off his benefits as soon as barely justifiable, and made arbitrary decisions despite the evidence before her.

In response, ING argues that its adjuster took a reasonable path of inquiry in this matter, given the particular circumstances. Despite contradictions and discrepancies in the information before her, the adjuster did give Mr. Ofori the benefit of the doubt and did pay him benefits. The adjuster terminated benefits reasonably and on the basis of the medical evidence before her.

I am not satisfied that a special award is appropriate in this case because I do not find that the insurer unreasonably withheld or delayed payments. I am satisfied that the adjuster was not excessive, imprudent, stubborn, inflexible or unyielding in her adjustment of Mr. Ofori's claims, especially when her actions are examined within the total context. The total context of this case includes, in part, contradictory information about injuries resulting from the accident, prior losses and prior injuries, medical information indicating that Mr. Ofori's injuries were of such a nature that they were resolving within a reasonable amount of time, and Mr. Ofori's failure to provide supporting documentation in the case of his IRBs.

While in hindsight it appears that Ms. James approach to the adjustment of the claims may have been inconsistent, a fact which, to her credit, Ms. James admitted, I am satisfied that her approach was reasonable in the entire context of the case.

EXPENSES:

I exercise my discretion to award Mr. Ofori his expenses of this arbitration hearing.

November 9, 2005

Rosemary Muzzi Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario