Neutral Citation: 2005 ONFSCDRS 36

FSCO A04-000034

BETWEEN:

AKUA AFRIYIE

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Rosemary Muzzi

Heard:

November 8, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Richard Gordon for Ms. Afriyie

Norma Priday for TTC Insurance Company Limited

Akua Afriyie, the Applicant, claims to have been injured while riding a Toronto Transit Commission ("TTC") streetcar on the evening of June 4, 2003. She applied for statutory accident benefits from TTC Insurance Company Limited ("TTC Insurance"), payable under the Schedule.¹ TTC Insurance refused to pay her benefits on the basis that it could not confirm the occurrence of the accident. The parties were unable to resolve their disputes through mediation, and Ms. Afriyie applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On May 31, 2004, a pre-hearing was held where the parties agreed that two preliminary issues were to be decided before the merits of Ms. Afriyie's claims could be arbitrated. Those issues are:

Is Ms. Afriyie precluded from proceeding to arbitration because she failed to attend an Insurer's Examination pursuant to section 42 of the Schedule?
Was Ms. Afriyie injured as a result of an "accident" as defined in section 2(1) of the Schedule?

Result:

Ms. Afriyie is not precluded from proceeding to arbitration.
Ms. Afriyie was injured as a result of an accident.

Is Ms. Afriyie precluded from proceeding to arbitration because she failed to attend an Insurer's Examination?

Section 42 of the Schedule deals with the issue of Insurer Examinations. In part, it states:

(1) For the purpose of determining whether an insured person is entitled to a benefit for which an application is made, an insurer may give the insured person notice requiring the insured person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

And,

(4) The insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person.

Section 50(1)(b) of the Schedule states that:

An insured person shall not commence a mediation proceeding under section 280 of the Act unless the insured person made himself or herself reasonably available for any examination required by the insurer under section 42, other than in relation to a medical or rehabilitation benefit under section 14 or 15.

In this case, Ms. Afriyie did not undergo any insurer's examinations. She claims that she was never given any advance notice of the examinations either from the TTC or from the examiner, Seiden Health Management Inc. She claims that the first time she heard about the necessity to submit to examinations was on the very day two examiners from Seiden arrived at her home to conduct the first examination, August 22, 2003. Ms. Afriyie says that she told the women that she should have been given notice. She then asked them why they were there given that TTC Insurance had denied her benefits. Then, Ms. Afriyie contacted her representative who advised her that he had not been notified of the examinations either and that she should therefore refuse to do them. She says that a week or two later, another person came to her home claiming he had been sent by TTC Insurance. She also turned him away as she had been given no prior notice. She says no one from Seiden ever called her to reschedule the examinations. She says that she would have submitted to the examinations if she had been notified properly.

There is other evidence, too. There is a letter from the TTC dated July 25, 2003 informing Ms. Afriyie that she will be contacted about examinations by Seiden² and then a letter from Seiden dated August 8, 2003 informing Ms. Afriyie that appointments have already been set for her for August 22, 26 and 27, 2003.³ From this point forward, the exchange of correspondence between the TTC and Ms. Afriyie's representative is somewhat antagonistic. After the aborted first appointment, Ms. Afriyie's representative sent a letter to the TTC (dated August 26, 2003)⁴ declaring that a proper section 42 referral had yet to be given to Ms. Afriyie and that there would be no consent to examinations until a proper referral was forthcoming. The TTC responded in a similar tone.⁵ Ultimately, new examination appointments were never set.

Counsel for TTC Insurance submits that because Ms. Afriyie failed to do the examinations, the TTC was precluded from assessing her disability and, as a result, has been prejudiced.

Ms. Afriyie's representative submits that TTC's letter of July 25, 2003 is improper notice and that no proper notice was ever provided in this case. Furthermore, after the first missed examinations, TTC Insurance failed to make further efforts to reschedule the appointments.

With respect to the section 42 provisions, the onus is on TTC Insurance to prove that it gave notice and made reasonable efforts to schedule the examinations for a time that is convenient to Ms. Afriyie.

I find that the TTC's letter of July 25, 2003 does constitute notice to Ms. Afriyie that TTC Insurance was requiring her to undergo examinations. I am not satisfied, however, that either TTC Insurance or Seiden made any reasonable efforts to schedule the examinations for a time that was convenient for Ms. Afriyie, as required by section 42(4). Mr. Steve Cummins, accident benefit claims adjuster, testified for TTC Insurance that Seiden was given the task of scheduling the appointments, and I have no evidence before me that they made any efforts to do so for a time that was convenient for Ms. Afriyie. Instead, she was sent a letter with the arrangements already made, which, she testified, she did not receive and was therefore taken by surprise by the arrival of the examiners on August 22. The evidence suggests that the examiners told Ms. Afriyie of the two upcoming appointments scheduled for August 26 and 27.⁶ In my view, simply informing Ms. Afriyie of these upcoming appointments does not constitute reasonable efforts to schedule a convenient time. Furthermore, in these circumstances, where some of the examinations were to be conducted in Ms. Afriyie's own home, making reasonable efforts to schedule them for a convenient time should have included, at a minimum, some degree of consultation with her.

It is evident that the tone of the correspondence between Ms. Afriyie's representative and TTC Insurance was not helpful in setting straight the matter of examinations. However, unlike in the case of Brako⁷, to which TTC Insurance referred me, Ms. Afriyie's representative did not frustrate the process of setting examination dates; he did nothing to preclude the rescheduling of those examinations. Upon learning that Ms. Afriyie was not available for the examinations already set and was taking issue with the lack of notice, TTC Insurance should simply have had Seiden reschedule the examinations in consultation with Ms. Afriyie. The evidence before me is that Ms. Afriyie would have attended further examinations. Indeed, Ms. Afriyie's representative sent a letter to the TTC dated December 15, 2003⁸ indicating that they were waiting for the rescheduled examinations.

In my view, this situation is similar to that faced by the arbitrator in the case of Fernihough and Guarantee⁹ In that case, the arbitrator found, in part, that Ms. Fernihough's counsel had clearly asked for a postponement of the examinations and was prepared to reschedule the examinations, that Ms. Fernihough had a reasonable explanation for missing examinations, in that she was not reasonably available for the examinations due to her state of health at the time, and that Ms. Fernihough's only duty was to respond appropriately to another reasonable examination notice. As a result, the arbitrator decided in Ms. Fernihough's favour even though, as at the time of the decision, no useful examination could have been scheduled. The arbitrator noted, "I know of nothing that would have prevented Guarantee from simply serving another IE notice well within the benefit period."

In this case, while I am satisfied that she received some notice that she would have to undergo examinations, Ms. Afriyie was justified in refusing to do the examinations because no reasonable efforts had been made to schedule the examinations for a time that was convenient for her. Furthermore, I find that she did make herself reasonably available for the possibility of rescheduled examinations.

Was Ms. Afriyie injured as the result of an "accident", as defined in the Schedule?

In order to be eligible for SABs, Ms. Afriyie must show that she was injured in an accident as that term is defined in subsection 2(1) of the Schedule, which states:

Accident means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eye wear, denture, hearing aid, prosthesis or other medical or dental device.

Ms. Afriyie claims that she was injured when she fell while riding on a TTC streetcar. TTC Insurance asserts that the accident did not occur. TTC Insurance raises discrepancies in Ms. Afriyie's testimony to discredit her as a witness. It also presents the results of its own investigation, conducted by Mr. Garry Leary, senior adjuster, which, in its view, prove that the accident did not, in fact, occur.

The onus is on Ms. Afriyie to prove that this accident occurred and, in that regard, her credibility as a witness is central.

I find that Ms. Afriyie has sufficiently proved that an accident occurred as she described it because I find her to be a credible witness and her account believable. While TTC Insurance elicited some discrepancies in her evidence, in my view this evidence was insufficient to discredit Ms. Afriyie. Furthermore, I am not persuaded by counsel's argument that Ms. Afriyie's claim must fail because she has presented no independent evidence to support her story.

I believe Ms. Afriyie's account for the following reasons.

First, Ms. Afriyie's description of the specific events has not changed through successive recountings of the story. Ms. Afriyie has consistently provided the same details about the accident whether in the statement she gave in her Application for Benefits, her statement to Mr. Leary, her Statutory Declaration of October 18, 2003, or her testimony under oath before me, which was subjected to cross-examination. Moreover, Mr. Leary testified that while he has come across people who claim to have been injured on the TTC but have not, and while every claim is questionable to a degree, he was not overly suspicious of Ms. Afriyie.

Second, I do not find that Ms. Afriyie's failure to report two previous motor vehicle accidents and a medical condition known as hip dysplasia to TTC Insurance are, in these circumstances, omissions that are so significant that they completely discredit Ms. Afriyie's story. The same conclusion applies to the seemingly conflicting information about Ms. Afriyie's marital status.

One of the reported accidents occurred almost a decade ago and the failure to report it does not lead me to conclude that Ms. Afriyie is attempting to defraud the TTC in this case. Regarding the second omitted accident, I am satisfied that Ms. Afriyie genuinely forgot about its occurrence. In fact, at the arbitration, she did not recollect this accident until well into the testimony of one of the other witnesses, at which point she interrupted the proceedings to tell me so.

The fact that Ms. Afriyie failed to report her hip dysplasia also does not lead me to think that she was not telling the truth about this accident. Ms. Afriyie admitted that she became aware of the condition in 1987 at the age of 25. As a child, she had worn a cast but the bones did not heal properly. She also admitted that the condition does cause her pain on occasion. She has been sent to a specialist and her family doctor's records show that she has complained about pain in the right hip recently in 2003 and 2004. She has been told to do exercises to help ease the pain and in winter, when she feels more pain, she takes Tylenol. On the other hand, she asserts that the pain has not been chronic and debilitating. She explained that her work as a personal aide is physically demanding in that it requires her to assist patients with bathing, dressing, using facilities, and the like, but that she has never had to take time off due to the condition. She had no problems with the birth of her three children.

Additionally, I do not see a contradiction in Ms. Afriyie's reference to her marital status as single when in fact she is still legally married. While Ms. Afriyie was legally married at the time of her report of the accident, it is clear from the evidence that she and her husband had been permanently separated for a year. She remains separated and is pursuing a divorce. She explained that in her view she was single when she completed her Application for Accident Benefits. When confronted with the fact that an earlier passport application showed her to be married, she explained that, at that time, the relationship with her husband was unstable. When she returned from a trip to Ghana in 2002, her husband left the home permanently. When asked if she put her correct marital status on the forms for the TTC, she agreed that perhaps technically she had not.

I find that these omissions, whether considered individually or together, are insufficient to call into question Ms. Afriyie's credibility and her otherwise consistent account of the accident.

Third, the evidence led by TTC Insurance to refute her account is less reliable than Ms. Afriyie's own evidence. I do not come to this conclusion because I think that the drivers questioned by Mr. Leary were lying about whether this accident occurred on their vehicle. I find the evidence less reliable because it has not been tested to the same degree as has Ms. Afriyie's evidence: none of the drivers' statements is a statement given under oath and/or subjected to the scrutiny of cross-examination. Mr. Leary did not interview the drivers in person. Those interviews that were conducted were done by telephone. He also indicated that though there are various methods by which a driver can report an accident on their vehicle, it is possible that drivers would not report accidents that occur on their vehicles. Drivers are given some degree of discretion. Furthermore, the evidence before me is that the entire incident took only 3 to 4 minutes. The drivers' occurrence reports filed before me¹⁰ were dated well after the incident, the first being six days later and the last more than two weeks later. It is entirely possible that the drivers might have forgotten what amounts to a minor incident in the course of their shift.

Finally, while I agree with counsel for TTC Insurance that the occurrence of the accident is Ms. Afriyie's to prove, I do not agree, and, in my view, it is not correct to maintain that Ms. Afriyie's claim must fail if she does not provide supportive evidence. Counsel for TTC Insurance asserts that the appeal case of TTC Insurance Company Limited and Wootton, (FSCO P04-00004, November 2, 2004) supports this view. In my opinion, the case of Wootton does not stand for the proposition that in all cases an applicant is required to provide independent evidence to corroborate the details of her account. Instead, the case of Wootton is directive to arbitrators rather than applicants. It suggests that where credibility is at the core of the dispute, such as was the case in Wootton, and is the case here, an arbitrator must clearly explain why she relies on and accepts the testimony of the applicant in the face of other evidence before her.

Consequently, I find that Ms. Afriyie may proceed to arbitration.

EXPENSES:

The parties did not address the issue of expenses. If the parties are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

March 21, 2005

Rosemary Muzzi Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 36

FSCO A04-000034

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

AKUA AFRIYIE

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

ARBITRATION ORDER

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

Ms. Afriyie's application may proceed to arbitration.