Neutral Citation: 2005 ONFSCDRS 82

FSCO A03-001311 and A03-001312

BETWEEN:

THANH THUY THI PHAN

Applicant

and

WATERLOO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Suesan Alves

Heard:

June 15, 2004, at the offices of the Financial Services Commission of Ontario

Appearances:

Brent Vickar for Ms. Phan

Helen Friedman for Waterloo Insurance Company

Thanh Thuy Thi Phan was injured in motor vehicle accidents on November 13, 2001 and June 22, 2002. In this arbitration, she claims caregiver benefits and housekeeping and home maintenance benefits from Waterloo Insurance Company ("Waterloo"), payable under the Schedule.¹ Waterloo disputes all of Ms. Phan's claims, and claims its expenses as well as an award in respect of its assessment.

The issues are:

Is Ms. Phan entitled to weekly caregiver benefits from November 13, 2001 to June 21, 2002 at the rate of $200 per week, and from June 22, 2002 to November 22, 2002, if she is permitted to amend her claim, at the rate of $300 per week, pursuant to section 13 of the Schedule?
Is Ms. Phan entitled to payments of $100 per week for housekeeping and home maintenance services from November 20, 2001 to November 22, 2002 pursuant to section 22 of the Schedule?
Is Ms. Phan entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is Ms. Phan liable to pay Waterloo an award in respect of its assessment under section 282(11.2) of the Insurance Act, R.S.O. 1990, c.I.8 as amended because she commenced an arbitration which was frivolous, vexatious or an abuse of process?
Which party is liable to pay the other's expenses in respect of the arbitration pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8 as amended?

Ms. Phan's claims for caregiver benefits and housekeeping and home maintenance benefits and interest are dismissed.
Ms. Phan is not liable to pay Waterloo an award in respect of its assessment.
If the parties are unable to agree, the issue of expenses may now be addressed.

Caregiver and housekeeping benefits

Ms. Phan was injured in motor vehicle accidents on November 13, 2001 and June 22, 2002. She alleges that at the time of the November 2001 accident, she was responsible for housekeeping and the primary caregiver of her two children, aged three and one.

Ms. Phan alleges that she sustained soft tissue injuries to her neck and low back in the first accident, and was therefore unable to care for her children and do her housekeeping. She alleges that following the accident, she hired Ms. Thi Tinh Le to care for her children and do the housekeeping. Ms. Phan alleges that Ms. Le performed these duties five days per week, Mondays to Fridays, between 8:00 a.m. and 4:00 p.m. between November 13, 2001 and November 22, 2002, based on her promise to pay Ms. Le once she received payment from Waterloo.

On June 22, 2002, Ms. Phan was injured in another motor vehicle accident. Ms. Phan alleges that at the time of the second accident, she had almost recovered from her injuries, however, she had difficulty caring for her children and doing the housekeeping because she was in the last trimester of her pregnancy with her third child. Ms. Phan's third child was born on August 18, 2002. Ms. Phan claims caregiver benefits in relation to that child from June 22, 2002 and seeks to amend her claim for caregiver benefits to $300 from that day forward.

Waterloo disputes that Ms. Phan was the primary caregiver of her children at the time of the first accident. Waterloo also disputes that Ms. Le provided care for the children following the motor vehicle accidents. Waterloo opposed the Applicant's request to amend the amount claimed as the caregiver benefit following the second accident, because the $200 amount had been claimed in all the invoices submitted to Waterloo, and had been identified as the amount in dispute at mediation.

Ms. Phan submits that she re-applied for mediation in relation to the $300 per week caregiver benefit, however, the Commission rejected her application on the basis that she had already applied for mediation of this issue at the rate of $200 per week I do not need to resolve the issue of whether the Applicant may amend the amount of her claim because I have concluded that Ms. Phan has not established on a balance of probabilities that she hired Ms. Le to care for her children and provide housekeeping as a result of these accidents.

Analysis

For the reasons which follow, I find there are unresolved conflicts in the evidence as to whether Ms. Phan had been the primary caregiver of the children, and as to whether she hired one or more caregiver/housekeepers and who provided caregiving and housekeeping services.

I find significant conflicts between the statements given by the Applicant and by the alleged caregiver/housekeeper concerning the children's routines and housekeeping duties performed. The Insurer's surveillance evidence repeatedly contradicts Ms. Phan's allegation that a caregiver/housekeeper attended her home on a daily basis. Given these conflicts, I find it was incumbent on Ms. Phan to have the alleged caregiver/housekeeper testify at the hearing. However, Ms. Phan failed to secure her attendance. I infer that her evidence would not have been helpful in clarifying the discrepancies. On a balance of probabilities, I am not persuaded that Ms. Phan hired Ms. Le or anyone else to care for her children and provide housekeeping and home maintenance services following either accident.

Identity of the service provider

One of the conflicts relates to whether Ms. Phan hired anyone or as many as four persons to care for the children and provide housekeeping services. In my view, in the ordinary course of events, a parent would be able to identify the person or persons she hired to come into her home to look after her children and perform her housekeeping.

The invoices the Applicant submitted to the Insurer identify Ms. Le as the only provider of caregiving and housekeeping services. However, Ms. Phan also identified other service providers to Waterloo. Ms. Phan identified Boc Hy, as the service provider when she gave a statement to Waterloo in the presence of an interpreter and a law clerk in the offices of her counsel.² When Waterloo's representative attended at Ms. Phan's home with a Vietnamese interpreter, Ms. Phan identified Thien Nguyen as the service provider. I also note that the Report of Mediator, dated June 6, 2003, reflects the Applicant's claims for caregiving provided by Thi Tinh Le and Hoa Tran from June 22, 2002 to the present and ongoing.

In March 2002, Waterloo wrote Ms. Phan and her representative and asked them to clarify the discrepancy with respect to the three different names of service providers. Ms. Phan's representative wrote Waterloo that in essence Ms. Le and Boc Hy were one and the same person. He explained that Ms. Phan's statement to the Insurer, that she hired "Boc Hy, an old lady to care for her children 8-5 every day" was an incorrect translation or transcription. He stated that "Boc" means aunt in Vietnamese. "Hy" was an incorrect translation or transcription of Thuy. According to Ms. Phan's representative, the Applicant was communicating that she hired the aunt of her friend Thuy to do the caregiving and housekeeping. However, according to Ms. Phan's testimony at the hearing, the caregiver and housekeeper, Ms. Le, was the mother of her friend Thuy.

Ms. Phan and her representative did not explain to Waterloo why she had identified Thien Nguyen as a service provider, noting only that this was the name of a male person. I find the extensive correspondence filed at the hearing fails to shed any light on how as many as four persons were identified as service providers, or on the discrepancy between this information, and the invoices and Ms. Phan's testimony that she hired only one service provider, Ms. Le.

Routines & rooms

I reject the evidence that Ms. Le provided caregiving or housekeeping expenses as claimed because of the cumulative effect of the discrepancies between Ms. Phan's statements and those of Ms. Le with respect to the children's routine, the Applicant's activities, the number of rooms occupied and the location of the bathroom cleaned.

Ms. Le appears to be unaware of Ms. Phan's absences from the home and whether the children were present or absent in the household. At the time of the first accident, Ms. Phan had two children. In her statement, Ms. Phan stated that the children went to day care at Family Gateway for three hours, one day per week. According to Ms. Le's statement of November 28, 2002, the children were always in the house.

According to Ms. Le's statement, the Applicant never left the house, as she was quite weak from her injuries. When asked if Ms. Phan ever left the house to attend treatment, Ms. Le stated that Ms. Phan attended treatment only on weekends, not during the week while she was there, and that Ms. Phan's husband took her to the clinic for treatment.

According to Ms. Phan's statement, she attended CN Rehabilitation Centre three times a week and either drove herself there, or was driven by a female friend or her husband. She saw Dr. S. Mok, a physician, for her injuries once or twice a week. There she attended four to five appointments a week. I find it unlikely that all her appointments took place on the weekends. Ms. Phan acknowledged that her appointments took place on weekdays.

Waterloo interviewed Mr. N. Co, a physiotherapist at CN Physiotherapy who treated Ms. Phan. According to him, Ms. Phan was brought to the facility by a female friend, and, when she attended she brought her children to the clinic and the children played with toys in the waiting area during treatment.

Waterloo interviewed Mr. Co in relation to physiotherapy treatments provided on July 15, 17, 23 and 25, 2002 and August 1, 2002. In 2002 those days were respectively Monday, Wednesday, Tuesday, Thursday and Thursday—all weekdays. Had the caregiver been at Ms. Phan's home on those days, she would have been aware of Ms. Phan's absences from the home, even if she was unaware that she had gone for treatment. More importantly, as the caregiver of the children, she would be expected to know that the children were absent from the household.

Ms. Phan and her family lived in three different locations during the period over which she claimed benefits. At the second of those locations, on Grange Road, they shared a house with another family. I find that had Ms. Le provided housekeeping at that address, she would be familiar with the rooms she cleaned and the rooms the Applicant's family occupied.

According to Ms. Le's statement, Ms. Phan and her family occupied one room and used the upstairs bathroom. According to Ms. Phan, she, her husband and children had the use of the kitchen and living room, 2 bedrooms upstairs and the bathroom in the basement. According to Ms. Phan: "They wouldn't allow us to use the bathroom upstairs." She also complained of the difficulty she encountered lifting the children upstairs after baths.

Ms. Le is alleged to have cleaned these rooms three times per week over a two month period. Given the discrepancies between her statement and that of Ms. Phan, I find it implausible that Ms. Le provided housekeeping services at that second location.

I am also not persuaded that Ms. Le provided caregiving services at the first, second or third addresses of Ms. Phan. According to Ms. Le's statement, she never missed a day working as a caregiver and housekeeper for Ms. Phan. Her daughter gave her a ride to Ms. Phan's address in the morning and picked her up and drove her home in the afternoons.

The Insurer's surveillance repeatedly contradicts the evidence of Ms. Phan and of Ms. Le that Ms. Le provided caregiving and housekeeping services as they claimed. Waterloo conducted surveillance of Ms. Phan's home on three groups of days. Between January 29, 2002 and February 1, 2002, the insurer conducted surveillance from the early hours of the morning until late afternoon at the Silvercreek apartment. During those four days of sustained observation no-one meeting Ms. Le's description entered or left the apartment building.

Waterloo conducted surveillance at Ms. Phan's second address on Grange Road between July 15 and 20, 2002 in the early hours of the morning and later in the afternoon when Ms. Le could reasonably be expected to be coming into and leaving Ms. Phan's residence. The investigators reported that Ms. Le was not observed to enter or leave the house at which Ms. Phan and her family were residing on any of the six days. During this period Waterloo also conducted surveillance at Ms. Le's address at times she could reasonably be expected to leave and return to her home if she was being picked up and dropped off at her home. No-one who met Ms. Le's description left that residence during those times.

Between September 30, 2002 and October 3, 2002, Waterloo again conducted surveillance at Ms. Phan's Rhonda Road address. Ms. Le was never seen to enter or leave her home. On October 3, 2002, on a day when Ms. Le was allegedly at Ms. Phan's home looking after her children and doing her housekeeping, Ms. Le is seen taking out the trash at her home and looking after her own grandchild. Ms. Phan's children are not seen at that location and, according to Ms. Le's statement, those children never left their own home.

Ms. Le's non-attendance at the hearing

Ms. Le, the alleged caregiver/housekeeper, would have been able to address these discrepancies, but did not attend the hearing. I find her testimony was required in order to clarify some of the discrepancies which I have outlined. Despite this, Ms. Phan did not secure her attendance at the hearing.

Ms. Phan testified that about a week before the hearing, she learned from Ms. Le's daughter that Ms. Le would not be attending the hearing, apparently because Ms. Le's husband had just had surgery, and Ms. Le was caring for him. There was no suggestion that he was near death, or that he could not be left in someone else's care for a few hours while Ms. Le travelled from Guelph where she and Ms. Phan live, and attended the hearing in Toronto.

Ms. Phan did not ask for an adjournment to have Ms. Le attend at a more convenient time, nor did she seek to reconvene the hearing in Guelph. When a hearing is scheduled, the Commission gives the Applicant the choice of the city in Ontario at which the hearing will be conducted. From time to time, arbitrators have also conducted hearings in more than one location in order to accommodate witnesses.

The only benefits claimed in this hearing are caregiving and housekeeping. Ms. Le is alleged to have rendered those services based on a promise to pay once funds were received from Waterloo. Ms. Le therefore had a significant financial stake in the outcome of the hearing. I infer from the Applicant's failure to secure her testimony at the hearing that her evidence would not have been helpful.

The evidence raises additional concerns. For example, Ms. Le could offer no explanation for her husband's statement to Waterloo that he had been the primary caregiver. Since only the primary caregiver meets the qualifications to claim the caregiver benefit, his statement, if true in relation to the time around each of the November 2001 and June 2002 accidents, would mean that Ms. Phan would not qualify to claim a caregiver benefit.

Ms. Le's husband, Duc Van Tu, was involved in a motor vehicle accident on December 19, 2002 and claimed caregiver benefits. In a statement he gave Waterloo on January 6, 2003, Mr. Tu alleged that he had been the primary caregiver of the children, not his wife, and that Ms. Phan had not hired anyone to provide caregiving and housekeeping services.³ According to his statement he worked afternoons and evenings and looked after the children during the day. His wife worked outside the home. If Mr. Tu's statement is correct that no caregiving or housekeeping services were provided, no expenses were incurred and Waterloo would not be responsible for payment of either of the benefits Ms. Phan claims in the arbitration. Ms. Phan testified that she and her husband had recently separated, suggesting some time in 2004. Absent evidence of marital strife in early 2003, I am not persuaded that this was a satisfactory explanation for Mr. Tu's statement.

Conclusion

Counsel for the Applicant submitted that in the initial months of the claim, this was a simple, uncomplicated case and the Applicant is entitled to the benefits she claimed for at least that period. I disagree.

I accept that aspects of Ms. Phan's testimony, together with the report and disability certificates of Dr. S. Mok, a physician who treated her, if accepted and believed could support entitlement to some caregiver and housekeeping benefits. However, I find that within fifteen days of the Applicant's submission of an application for accident benefits in relation to the first accident, significant questions were raised by the surveillance evidence as to whether anyone was providing caregiving and housekeeping services. Waterloo received Ms. Phan's application for accident benefits as a result of the first accident on January 14, 2002. On January 29, 2002 through February 1, 2002, Waterloo conducted surveillance at Ms. Phan's residence. On January 29, 2002, the investigator was able to confirm Ms. Phan was in her residence. The investigators maintained surveillance on each of the four days between approximately 7:00 a.m. and 5:00 p.m. During those four days of sustained observations, no-one meeting the caregiver's description entered or left the building.

By March 2002, within a further two months of submitting her claim for accident benefits, Waterloo wrote the Applicant and her representative to clarify the discrepancy between the claim that Ms. Le was the sole provider of caregiving and housekeeping services and other evidence that various other persons had been identified as the service providers. This was approximately four months following the first accident and three months before the second accident. I find the conflicts are such that they tarnish the Applicant's claims for accident benefits as a result of both accidents.

In the absence of a satisfactory resolution of the significant conflicts in the evidence, I am not persuaded that Ms. Phan has established on a balance of probabilities that she incurred any of the claimed caregiving and housekeeping services within the meaning of sections 13 and 22 of the Schedule and dismiss her claims for these benefits.

Interest

Since Waterloo does not owe benefits to Ms. Phan, it follows that no payments are overdue and that no interest is payable. I dismiss Ms. Phan's claims for interest.

Section 282(11.2) Award

The Insurer claimed an award in respect of its assessment. The arbitration application was filed on September 23, 2003. At that time an arbitrator had the authority, pursuant to section 282(11.2) of the Insurance Act, to require an insured person to pay an insurer up to $3,000, if the insured person commenced an arbitration which was frivolous, vexatious or an abuse of process. That provision of the Act was repealed as of October 1, 2003.⁴ In the case of Vlado Argirovski and Zurich North America (FSCO A02-001448 November 19, 2003), Arbitrator Muir concluded that as a result of the repeal, an arbitrator no longer has the authority to make such an award. I agree with his analysis and therefore dismiss the Insurer's claim for an award in respect of its assessment.

Expenses:

If the parties are unable to agree on expenses, that issue may now be addressed.

June 14, 2005

Suesan Alves Arbitrator

Date