Neutral Citation: 2006 ONFSCDRS 116

FSCO A04-000346

BETWEEN:

DORETTE WATSON

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before: Edward Lee

Heard: February 28, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ms Watson on her own behalf Norma Priday for TTC Insurance Company Limited

Issues:

The Applicant, Dorette Watson, was injured in a motor vehicle accident on February 26, 2002. She applied for and received statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ TTC terminated weekly income replacement benefits on August 29, 2002. The parties were unable to resolve their disputes through mediation, and Ms Watson 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 Ms Watson entitled to receive a weekly income replacement benefit in the amount of $257.82 a week from August 27, 2002 and ongoing, pursuant to section 4 of the Schedule?
Is Ms Watson entitled to attendant care benefits in the amount of $339.10 a month from the date of the accident and ongoing, pursuant to section 16 of the Schedule?
Is Ms Watson entitled to payments for housekeeping and home maintenance services in the amount of $100 a week from the date of the accident and ongoing, pursuant to section 22 of the Schedule?
Is TTC liable to pay Ms Watson's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms Watson liable to pay TTC's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms Watson entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?

Result:

Ms Watson is not entitled to receive a weekly income replacement benefit in the amount of $257.82 a week from August 27, 2002 and ongoing.
Ms Watson is entitled to attendant care benefits in the amount of $339.10 a month from the date of the accident to August 15, 2002.
Ms Watson is entitled to payments for housekeeping and home maintenance services in the amount of $100 a week from the date of the accident to August 15, 2002.
TTC is liable to pay Ms Watson's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Ms Watson is not liable to pay TTC's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Ms Watson is entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule.

EVIDENCE:

Ms Watson was unrepresented at the hearing. She testified that she was in a motor vehicle accident in 2002 while riding on a TTC bus. During the ride, the bus and a car almost collided, causing the bus to brake sharply. The braking motion of the bus caused her to strike against a seat. She stated that she had torn rotator cuffs on both her left and right side. She underwent surgery last year.

After her accident Ms Watson had people helping her while she was at home sick, but she had no money to pay them. She had been on disability before the accident, and she had been helping her son, Omar, for three months at his restaurant immediately before the accident.

Ms Watson called no other witnesses and provided no further evidence apart from a letter from Ismet Jacquesson dated February 26, 2006 (Exhibit A-2), and a copy of a business registration for the business her son owned (Exhibit A-1). The letter had not been disclosed within the time frames required by the Dispute Resolution Rules of Practice, but I allowed Ms Watson to enter it into the evidence. TTC did not seek an adjournment to respond to this letter.

In cross-examination, TTC questioned Ms Watson at length in regard to her housekeeping and attendant care claims. TTC also questioned Ms Watson about earlier inconsistent statements she had made to TTC, and statements before the Workman's Safety and Insurance Tribunal and the Statutory Benefits Tribunal.

TTC then presented its case, entering Exhibit R-1, which were Arbitration briefs composed of volumes I, II, and III. These included Insurer's Medical Examinations, DAC reports, and forms completed by Ms Watson in regard to her claim. TTC also filed Exhibit R-7, a letter sent to Ms Watson confirming the service of the Arbitration Briefs on Ms Watson, as well as a note informing Ms Watson that she should advise TTC should she wish to cross-examine any of TTC's witnesses. The same letter also informed Ms Watson that TTC was attempting to subpoena Omar Watson (Ms Watson's son and employer), Marlene Young and Marvelette Ashley (Ms Watson's housekeeping and attendant care providers).

Ms Watson did not advise TTC that she wished to cross-examine any of TTC's witnesses. TTC also filed Exhibit R-2, a set of Affidavits of Attempted Service for Omar Watson, Marlene Young, and Marvelette Ashley. Based on these affidavits, TTC had been unable to locate Omar Watson, Marlene Young, and Marvelette Ashley. Consequently, none of the summons had been served on those three potential witnesses.

ANALYSIS:

Is Ms Watson entitled to receive a weekly income replacement benefit in the amount of $257.82 a week from August 27, 2002 and ongoing, pursuant to section 4 of the Schedule?

Ms Watson's Income Replacement Benefits were terminated based upon the Insurer's Medical Examination prepared by Dr. Platnick, dated May 7, 2002. The report did not identify any accident-related impairments that would prevent the applicant from returning to work. The Disability DAC report, prepared on August 16, 2002 by Dr. Pecora, also confirmed that Ms Watson had not suffered significant accident-related impairments that substantially disabled Ms Watson from performing all of the essential tasks of her pre-accident employment as a cook.

Ms Watson presented no medical evidence to rebut the findings of the Insurer's Medical Examinations or the DAC assessments. Her own statements in regard to the injuries she sustained from the accident were vague. She stated only that she had torn right and left rotator cuffs and that she had undergone surgery. None of the medical reports documented a link between her right shoulder rotator cuff injury and the accident, and Ms Watson gave no other details or explanation for the surgery that she had undergone.

I accept the opinion of Dr. Pecora that as of the date of his assessment, Ms Watson did not have direct accident-related impairments that significantly or substantially physically disabled her from carrying on with all her essential pre-accident activities as a cook. I am not satisfied that Ms Watson met her burden of proof. She is not entitled to receive any further income replacement benefits.

Is Ms Watson entitled to attendant care benefits in the amount of $339.10 per month from the date of the accident and ongoing, pursuant to section 16 of the Schedule?

Ms Watson's evidence in regard to her attendant care and housekeeping claims was also sparse. She testified that she had received such services but she gave little description of them. She also did not specify the dates on which she received the services, although invoices and lists of dates had been provided to the Insurer by her housekeeping and attendant care providers, Marvelette Ashley and Marlene Young.

The invoices for personal care and housekeeping provided by Marvelette Ashley were entered at Tab 4 of Exhibit R-1, vol. III. Invoices for care provided by Marlene Young were entered at Tab 5 of Exhibit R-1, vol III. Ms Watson did not call either of these persons to testify in regard to these services. TTC had informed Ms Watson that they wished to have these persons appear as witnesses to clarify their invoices and log notes, but they had been unable to locate them.

Ms Watson did not indicate to TTC that she wished to cross-examine any of the persons who had prepared reports on TTC's behalf. According to an investigative report filed at Tab 10 of Exhibit R-1, vol. III, Marvelette Ashley did not attend at the home of Ms Watson on at least one occasion during which she claimed to have provided housekeeping and attendant care services. Ms Ashley also admitted to an investigator that the notes in her log were not necessarily accurate.

The onus is on Ms Watson to prove her claim. In addition to the credibility problems highlighted in Marvelette Ashley's notes, the log invoices provided by Marlene Young give little description of the services rendered. Ms Watson did not explain why she did not call these witnesses to respond to these questions, and she knew, previous to this hearing, that TTC was seeking to question these persons. I draw a negative inference from their absence.

Nevertheless, Ms Watson was adamant that she had received both attendant care and housekeeping services from these two individuals. Further, the medical evidence in Exhibit R-1 convinces me that Ms Watson did indeed sustain injuries as a result of her motor vehicle accident. I accept Ms Watson's evidence that she received such services from these persons. What is less convincing is the amount of service she received. Given the Investigator's report, I find that the amount of care or services claimed in the log notes of the two providers was exaggerated.

I accept the findings of the In-home Occupational Therapy and Attendant Care Needs Assessment Report dated July 5, 2002, referred to in the Attendant Care Needs DAC Report. This report found that Ms Watson needed 7.83 hours of attendant care per week (which translated to $339.10 per month), and 8-10 hours of housekeeping per week. Based on her testimony, I accept that Ms Watson needed and received such care or services until August 15, 2002 when the Attendant Care DAC assessment took place. After this date, there is no medical or other evidence to lead me to conclude that Ms Watson required further attendant care or housekeeping. Therefore I find that Ms Watson is entitled to attendant care at the rate of $339.10 per month from the date of her accident to August 15, 2002.

Is Ms Watson entitled to payments for housekeeping and home maintenance services in the amount of $100 a week from the date of the accident and ongoing, pursuant to section 22 of the Schedule?

For the reasons stated above, I find that Ms Watson is entitled to ten hours of housekeeping per week from the date of her accident to August 15, 2002.

Is Ms Watson entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?

Ms Watson is entitled to interest for the overdue payments of benefits, pursuant to section 46(2) of the Schedule.

EXPENSES:

I exercise my discretion and find that TTC is liable to pay Ms Watson's reasonable expenses in respect of this arbitration. If the parties are unable to agree on this amount they may seek to make submissions before me in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

July 18, 2006

Edward Lee Arbitrator

Financial Services Commission of Ontario