Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 12

FSCO A04-001427

BETWEEN:

ALETT OLIVARES

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: November 28, 29 and 30, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David Carranza for Mrs. Olivares

Lorraine Takacs for ING Insurance Company of Canada

Issues:

The Applicant, Alett Olivares, was injured in a motor vehicle accident on July 29, 2003. She applied for and received statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ ING paid Mrs. Olivares for her expenses related to housekeeping and home maintenance services and weekly caregiver services, both provided by her husband, Denis Mendez, up to January 27, 2004; ING refused to pay for such services beyond that date. The parties were unable to resolve their disputes through mediation, and Mrs. Olivares 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 Mrs. Olivares entitled to receive weekly caregiver benefits in the amount of $3,180.00 for the period from January 28, 2004 through January 24, 2005, pursuant to section 13 of the Schedule?
Is Mrs. Olivares entitled to payments for housekeeping and home maintenance services in the amount of $2,460.00 for the period from January 28, 2004 through February 9, 2005, pursuant to section 22 of the Schedule?
Is Mrs. Olivares entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is ING liable to pay Mrs. Olivares' expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mrs. Olivares liable to pay ING's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

Mrs. Olivares is not entitled to receive weekly caregiver benefits for the period from January 28, 2004 through January 24, 2005.
Mrs. Olivares is not entitled to payments for housekeeping and home maintenance services for the period from January 28, 2004 through February 9, 2005.
The Application is therefore dismissed and no interest is owing to Mrs. Olivares.
The decision on expenses is deferred at the request of the parties.

PROCEDURAL MATTERS:

At the outset of the hearing, the Applicant sought to introduce into evidence a Document Brief (Volume II) and the clinical notes and records of Dr. Del Pozo (her family physician). From the pre-hearing conference onwards, ING made numerous requests for the Applicant to identify and to deliver all documents upon which she intended to rely at least 30 days prior to the commencement of the hearing. Such disclosure is required by Rule 39.1 of the Commission's Dispute Resolution Practice Code, Fourth Edition, Updated October 2003 (the "Code") and this obligation was explained to the Applicant in the pre-hearing reporting letter of Arbitrator Alves dated June 15, 2005. Despite these repeated requests, the Applicant failed to deliver to counsel for ING copies of the documents contained in the said Document Brief (Volume II) or copies of the clinical notes and records of Dr. Del Pozo until the business day immediately preceding the commencement of the hearing. Although it is true that ING may well have had in its possession some of the documents contained within Document Brief (Volume II),² prior to November 25, 2005, the only documents the Applicant indicated that she would rely upon at the hearing were those contained in her pre-hearing arbitration production brief. The Commission's disclosure rules insist upon full and fair disclosure of documents, which includes advising the opposing side, in a timely manner, of the documents upon which a party intends to rely at the hearing. This is designed to ensure fair and expeditious proceedings.

Rule 39.3 of the Code states that where a document was not served in accordance with the provisions of Rule 39.1 (or 39.2), the hearing arbitrator will not admit such evidence at a hearing unless satisfied that extraordinary circumstances exist to justify an exception. Mr. Carranza candidly admitted that no such extraordinary circumstances exist. The apparent confusion over whether or not ING had paid for the clinical notes and records of Dr. Del Pozo does not constitute extraordinary circumstances.³ It is also alleged by counsel for ING that when ING was seeking (about one week prior to this hearing) an adjournment of the hearing (because of the failure of the Applicant to fulfill undertakings with respect to productions), the Applicant opposed any adjournment and undertook (through her representative) to refrain from attempting to introduce into evidence at the hearing any documents that had not already been produced by her. Ms. Takacs' understanding of Mr. Carranza's undertaking in this regard was confirmed by way of letter dated November 23, 2005. Mr. Carranza has not denied making such representations.

Furthermore, ING asks that I grant relief under section 34 of the Code as a result of the alleged breaches of the Applicant of her undertakings to produce certain documents. Notwithstanding the allegation that the Applicant undertook to deliver all documents listed in the letters from Ms. Takacs dated September 7, 2004 and June 23, 2005, I find that the Applicant did not undertake to produce the documents listed in the letter of June 23, 2005 (other than an undertaking referred to in a letter from Mr. Carranza, dated August 29, 2005, to obtain the Applicant's employment records and provide particulars of any collateral benefits to which she was entitled). While the requests made in the letter of June 23, 2005 from Ms. Takacs may or may not have been reasonable, that does not mean that the Applicant promised to produce the documents listed therein. If ING felt that it was entitled to those documents, it could have sought an order to this effect and, in fact, was invited by Arbitrator Alves in her letter of August 30, 2005 to seek such an order. ING failed, until shortly before the hearing, to make any further efforts to obtain documents from the Applicant or from any third party.

According to the correspondence produced, the Applicant did undertake to use her best efforts to produce:

The clinical notes and records from Austin Albion Rehab and Sports Injury Clinic (Austin Rehab.)
A decoded OHIP summary from one year prior to the accident to "the present";
The clinical notes and records of any other treating medical professional;
Particulars about any collateral benefits to which she was entitled;
The clinical notes and records of Dr. Tasker;
The clinical notes and records of Dr. Del Pozo from one year before the accident to "the present";
The prescription history from one year before the accident to "the present";
The clinical notes and records (i.e. the complete chart) from Humber River Regional Hospital; and
The ambulance call report (if not contained in the records from the said hospital);
The records of her employer (in particular, with respect to attendance during the relevant time period).

The first five undertakings were fulfilled. The records from Austin Rehab. were produced on September 14, 2004, a decoded OHIP summary was produced on October 20, 2004, the clinical notes and records of Dr. Chan were produced on September 14, 2004, the Applicant advised that she had no collateral benefits and Dr. Tasker's records were produced on September 3, 2005. It should also be noted that where an undertaking was given to produce documents to "the present", that meant an undertaking to produce records current as of the date of production. There was no specific undertaking to later obtain further records or updates of the records originally produced. The Applicant has failed to demonstrate that she has complied with the last five undertakings. With respect to the hospital records and ambulance call report, Mr. Carranza states that there are no records but he has failed to adduce any evidence to confirm this fact and has failed to adduce evidence as to what efforts, if any, he made to retrieve such documents. Similarly, there is no evidence as to what efforts the Applicant has made to retrieve her prescription history or records from her employer. She has, therefore, failed to show compliance with these undertakings.

Before ruling on these issues, I indicated to the parties that my preference was to adjourn the hearing to permit full and fair disclosure and a more complete hearing on the merits of the application. I also suggested that the issue of any costs thrown away could be reserved until the conclusion of the hearing. Both the Applicant and the Insurer opposed an adjournment of the hearing.

After considering the submissions made on behalf of the parties and after reviewing the documentation in question, I made the following rulings:

As a result of the Applicant's failure to comply with Rule 39.1 and in the face of the Applicant's admission that there are no extraordinary circumstances justifying an exception to this Rule, the Document Brief (Volume II) and the clinical notes and records of Dr. Del Pozo are not admitted into evidence; and
During the course of this hearing, should the absence of the records from Humber River Regional Hospital, the ambulance call report, the prescription history or the employment file relating to the Applicant prove to be relevant, pursuant to s. 34.1 of the Code, I may draw an adverse inference against the Applicant for her failure to produce these documents in accordance with her undertakings.

The parties agreed that, given these rulings, the only documents for me to consider on this hearing would be those contained in the Applicant's Pre-Arbitration Hearing Production Brief filed May 16, 2005 (Exhibit "1") and in the Insurer's Arbitration Brief filed January 25, 2005 (Exhibit "2"). The only person to testify at the hearing was the Applicant. A Spanish interpreter was provided by the Commission to assist Mrs. Olivares throughout these proceedings.

At the conclusion of the hearing the representatives for the parties were permitted to make their closing arguments. They were then permitted to file written versions of those arguments (if they wished) and any case law upon which they intended to rely by December 2, 2005.

EVIDENCE AND ANALYSIS:

On July 29, 2003, Mrs. Olivares was walking in a parking facility when a vehicle backed into her, knocking her to the ground. As a result, she sustained injuries to her right arm, shoulder and hand and experienced pain in the right shoulder and lower back. A few days after the accident, Mrs. Olivares began physiotherapy at Austin Albion Rehab & Sports Injury Clinic. (Austin Rehab.) Her family doctor (Dr. Del Pozo) was not available so Mrs. Olivares went to see Dr. Vadasz who, on August 10, 2003, issued a Disability Certificate (Ex. 1, Tab 1) which stated that Mrs. Olivares suffered the following impairments as the result of the accident: (1) right shoulder injury; (2) rotator cuff tendinitis; (3) triceps strain; and (4) forearm sprain.

At the time of the accident, Mrs. Olivares' two daughters, Soila and Oriana, were 3 and 5 years old. With respect to caregiving activities, Dr. Vadasz stated in the Disability Certificate that Mrs. Olivares could not take care of her children and that she could not perform the following caregiving activities: "no lifting - no bending - no repetitive movements - no above shoulder lifting." With respect to housekeeping activities, Dr. Vadasz stated in the Disability Certificate, "no above or under shoulder lifting - no repetitive movements right shoulder."

Mrs. Olivares testified that before the accident, she did virtually all of the caregiving and housekeeping activities in her household and that, after the accident, her husband, Denis Mendez, reduced his hours of work and assumed most of these duties. She alleges that she promised to pay him $10.00 per hour for providing these caregiving and housekeeping services. She applied for and was paid by ING housekeeping and home maintenance benefits and caregiver benefits up to January 27, 2004. The question on this arbitration is whether the Applicant is entitled to such benefits beyond that date.

Initially, the termination of these benefits was based upon the fact that the Applicant failed to attend an insurer's medical examination that had been scheduled for January 28, 2004 (Ex. 2, Tabs 16 and 27). Ultimately, this examination was re-scheduled and was conducted by Dr. Soric (a physiatrist) on May 13, 2004. Based upon the report of Dr. Soric and the lack of any medical evidence to the contrary, ING refused to pay any housekeeping or caregiving benefits beyond January 27, 2004.

In order to prove entitlement to caregiver benefits in this case, Mrs. Olivares must prove that, after January 27, 2004: (1) she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident; and, (2) she incurred reasonable and necessary expenses as a result of the accident in caring for her children (s. 13 of the Schedule).

In order to prove entitlement to payment for housekeeping and home maintenance services in this case, Mrs. Olivares must prove that, after January 27, 2004: (1) she sustained an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident; and, (2) she incurred reasonable and necessary additional expenses as a result of the accident in relation to housekeeping and home maintenance services (s. 22 of the Schedule).

With respect to the claim for both types of benefits, this application fails for two main reasons: (1) the applicant failed to prove that, after January 27, 2004, she was substantially unable to engage in her pre-accident caregiving or housekeeping activities; and (2) the applicant failed to adduce sufficient details to prove what (if any) housekeeping and caregiver expenses she incurred after January 27, 2004 as a result of the accident and that any such expenses were reasonable and necessary.

Failure to Prove Substantial Inability

The Applicant's evidence was insufficient to permit me to conclude that she was substantially unable to perform her pre-accident housekeeping and caregiving duties.

In her testimony, Mrs. Olivares described only a few caregiving activities that she was still unable to perform beyond January 2004. Mrs. Olivares testified that she returned to work about two months after the accident and continues to work about three days per week. She admitted that she was able to look after the children on the days she did not work. Arranging her daughters' hair, bathing them and driving them around were virtually the only caregiving tasks that she claimed to be unable to perform during the period under consideration. Her husband helped with bathing and grooming the children and transporting them to and from school and to and from extra-curricular activities. The Applicant testified that she avoids driving but apparently reported to Dr. Soric that, by May 2004, she had already returned to driving (Ex. 2, Tab 30, p. 4); she provided no reasonable explanation as to how any impairment she suffered as a result of the accident prevents her from operating a motor vehicle.

With respect to housekeeping and home maintenance, the Applicant was willing to admit that, within one month of the accident, she was able to perform many of her normal housekeeping activities, with pacing. Her evidence is that her husband has had to help her with some of the heavier tasks such as carrying laundry or with tasks that hurt her arm (such as cutting vegetables or reaching into cupboards that are above shoulder-level). Few other details were provided.

Aside from the failure of the Applicant to provide in her own testimony sufficient details to prove, on a balance of probabilities, a substantial inability to perform her pre-accident housekeeping and caregiving activities, the Applicant also failed to adduce any medical opinion that, during the relevant time period, she suffered a substantial inability to perform such activities.

An in-home functional assessment was conducted by F.I.T. Rehabilitation & Assessment Centres Inc. on August 22, 2003 to determine what assistance Mrs. Olivares required with housekeeping and caregiving tasks. Sabrina Anand, occupational therapist, recommended that the insurer pay for approximately six hours of housekeeping assistance per week and approximately seven and one-half hours of caregiving assistance per week (Ex. 1, Tab 4). As of August 22, 2003, Mrs. Olivares was able to do much of the cooking and cleaning, although these tasks took longer than before to complete and she had to take frequent breaks (see p. 7 of the report). The report concludes (at p. 17) that:

It is anticipated that Mrs. Olivares will continue to progress as she continues to attend therapy. It is recommended that she receive the above-listed assistance for the next 4-6 weeks. No further follow-up is recommended.

No further follow-up was ever done.

In February 2004, Mrs. Olivares was seen by Dr. Tommy K.C. Chan, an orthopaedic surgeon. He found indications suggestive of carpal tunnel syndrome in her right hand which he concluded was the direct result of the accident. Based upon information provided by Mrs. Olivares, Dr. Chan suggested in his report of February 18, 2004 (Ex. 1, Tab 5) that she may require assistance with heavier and more repetitive aspects of her housework and that she still suffered from partial disability with respect to her pre-accident caregiving duties. Dr. Chan was not called as a witness and his report does not conclude that Mrs. Olivares continued to suffer a substantially inability to perform her pre-accident housekeeping and caregiving duties.

In May 2004, Mrs. Olivares was examined by Dr. Rajka Soric at an "Insurer's Examination". Dr. Soric concluded that: Mrs. Olivares did not suffer a substantial inability to perform housekeeping and home maintenance services that she normally performed prior to the accident; there was no "contraindication" for her to drive; and, she had fully recovered from injuries that she may have sustained as a result of the July 29, 2003 accident (Ex. 1, Tab 7). Dr. Soric does not specifically address the issue of the Applicant's ability to perform caregiving activities. He does comment on her ability to perform the essential tasks of her employment even though she had not claimed income replacement benefits. He also stated (at p. 5 of the report) that Mrs. Olivares "currently does not have any impairments."⁴Because Dr. Soric does not specifically address the Applicant's ability to perform caregiving activities, his report is of limited value.

In February 2005, Mrs. Olivares saw Dr. A. Mosannen to investigate her complaints of numbness in her right hand and elbow. He concluded that such neurological symptoms could "have an effect on various functions as an office clerk and mother." Dr. Mosannen was not called as a witness and his report (Ex. 1, Tab 8) does not conclude that Mrs. Olivares continued to suffer a substantially inability to perform her pre-accident housekeeping and caregiving duties.

In conclusion, even if I accept that, after January 27, 2004, Mrs. Olivares continued to experience some difficulties in performing her pre-accident housekeeping and caregiving duties, I find that she has failed to prove, on a balance of probabilities, that she suffered a substantially inability to engage in such activities.

Lack of Details re Services and Expenses

Although it is unrealistic to expect an applicant to record every minute and every service provided in cases such as these, especially where the services are alleged to have been provided by a close family member, the onus remains upon the Applicant to establish at least the general nature, duration and timing of services provided and to prove the amounts the Applicant has incurred with respect thereto. In this case, the Applicant failed to indicate whether the types or duration of services changed over time. She did not provide any written invoices or other records of the services allegedly provided by her husband (other than for August 2003 - Ex. 2, Tab 3).⁵ Mrs. Olivares also chose not to call her husband, the service-provider, as a witness and did not offer any explanation for this. I therefore find that she has failed to meet her onus of proving the expenses she incurred for the periods under consideration and that she has also failed to adduce sufficient evidence to permit me to determine whether such expenses were reasonable and necessary.

Defences Raised by ING under Sections 32, 33 and 34

ING raised a number of defences under sections 32, 33 and 34 of the Schedule.⁶Given my other findings set out above, it is unnecessary for me to deal with these "technical" defences.

Applicant's Submissions with Respect to Termination of Her Benefits

In the letter Mr. Carranza sent to the Commission on December 2, 2005, he indicates that he considers the main issue for the arbitration to be the fact that the test of disability was not properly addressed. By this, I believe that Mr. Carranza is referring to ING's reliance upon the report of Dr. Soric in deciding to terminate (or not reinstate) the benefits in question and the fact that Dr. Soric's report may contain errors or omissions. In particular, Mr. Carranza asserts that the report is flawed because: (1) Dr. Soric fails to address the issue of the Applicant's ability to perform caregiving tasks (which was one of the two issues Dr. Soric was supposed to address); and, (2) Dr. Soric considered the Applicant's ability to perform the essential tasks of her pre-accident employment, which was not an issue at the time since there was no claim for income replacement benefits. Mr. Carranza seems to be taking the position that there was no valid basis for the insurer to terminate the benefits in question and that the Insurer must continue paying benefits to the Applicant until there is a termination based upon a "proper" insurer's medical examination.

Mr. Carranza has not indicated with which section of the Schedule the Insurer allegedly failed to comply or which section would require the Insurer in this case to pay benefits to the Applicant regardless of whether or not the Applicant has proven entitlement thereto. The cases Mr. Carranza submitted were also not helpful. Dicerbo and Citadel General Assurance Company (FSCO A04-000594, May 30, 2005) deals with the obligation of the insurer to continue paying benefits until a valid assessment is conducted by a Designated Assessment Centre ("DAC") pursuant to paragraph 37(3)3 of the Schedule. There is no evidence that a DAC assessment was requested by the Applicant with respect to the issues in dispute. Coutu and Wawanesa Mutual Insurance Company (OIC A97-001916, June 5, 1998) refers to an Applicant's rights under s. 64 of Bill 164; the application of Mrs. Olivares is brought under Bill 59, not Bill 164, and there is no provision under the current version of the Schedule that is equivalent to s. 64 of Bill 164.

The errors and omissions contained in the report of Dr. Soric are certainly factors I have taken into account in deciding the weight to give this report. I do not find, however, that the Applicant has proven that she is entitled to the benefits claimed solely as a result of the reliance of the Insurer on the report of Dr. Soric.

CONCLUSION:

For the reasons set out above, this application shall be dismissed.

EXPENSES:

At the conclusion of the hearing, the parties asked that I defer the issue of entitlement to expenses of this arbitration. If the parties cannot agree on the issue of entitlement or amount, they may make submissions on both issues in accordance with Rule 79 of the Code.

January 25, 2006

Richard Feldman Arbitrator

Date