Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 5
FSCO A04-000034
BETWEEN:
AKUA AFRIYIE
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
REASONS FOR DECISION
*Minor error on page 1 corrected on February 3, 2006 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.
Before: Rosemary Muzzi
Heard: June 27, 2005, 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
Issues:
Akua Afriyie, the applicant, claimed to have been injured while riding on 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 any benefits to Ms. Afriyie, asserting that it could not confirm that she had been involved in an accident as defined in the Schedule and that, in any event, she was precluded from proceeding to arbitration because she had failed to make herself reasonably available for required insurer's examinations.
By preliminary decision dated March 21, 2005, I concluded that Ms. Afriyie had been injured as a result of an accident on a TTC streetcar. I also concluded that she could proceed to arbitrate her accident benefits claims because, while I was satisfied that she received notice of the insurer's examinations, she was justified in having refused to attend because no reasonable efforts had been made to schedule the examinations for a time that was convenient for her.
The issues of Ms. Afriyie's entitlement to the benefits she has claimed remain in dispute. The parties were unable to resolve these 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.
The specific issues in this hearing are:
Is Ms. Afriyie entitled to income replacement benefits (IRBs) of $400 per week from June 11, 2003 to October 27, 2003?
Is Ms. Afriyie entitled to payments for housekeeping services from June 11, 2003 to October 27, 2003?
Is Ms. Afriyie entitled to payments for the costs of the following assessments:
$1,048.60 for an In-Home Assessment conducted August 23, 2003;
$1,273.30 for a Functional Capacity Evaluation (FCE) conducted August 29, 2003; and
$1,432.07 for a Psychological Assessment dated October 3, 2003?
Is Ms. Afriyie entitled to interest on any outstanding payments?
Is Ms. Afriyie entitled to a special award?
Are the parties entitled to their expenses of this arbitration?
Result:
Ms. Afriyie is not entitled to IRBs.
Ms. Afriyie is not entitled to housekeeping expenses.
Ms. Afriyie is not entitled to the costs of the three examinations.
Ms. Afriyie is not entitled to interest or a special award.
The parties should attempt to resolve their claims for expenses, failing which they can request an appointment before me to determine expenses.
EVIDENCE AND ANALYSIS:
Ms. Afriyie claims she injured herself in the accident of June 4, 2003 and therefore could not work or fulfill her regular housekeeping duties for a period of time following the accident. Ms. Afriyie says that she saw her doctor the day after the accident and that he sent her for x-rays. The x-rays disclosed no major injuries. Rather, Ms. Afriyie was diagnosed with a muscle strain for which her doctor prescribed Tylenol 3. Ms. Afriyie returned to work until June 11, 20032 and then stopped working on account of the pain.
Ms. Afriyie applied for accident benefits by application dated July 22, 2003.
Ms. Afriyie did not undergo any insurer's examinations. Instead, on her own referral, Ms. Afriyie submitted to the following examinations:
an In-Home Assessment on August 23, 2003;
a Functional Capacity Evaluation (FCE) on August 29, 2003; and
a Psychological Assessment on October 3, 2003.
Ms. Afriyie returned to work on October 28, 2003.
The burden is on Ms. Afriyie to prove her claims on a balance of probabilities.
I find in general that Ms. Afriyie has failed to satisfy me that she sustained an impairment that either prevented her from working or from fulfilling her housekeeping tasks during the period claimed. Ms. Afriyie's oral evidence lacked significant detail. Furthermore, much of that evidence was contradicted or seriously discredited by the medical evidence, the information contained in the assessments and the other documentary evidence before me. I did not find Ms. Afriyie's testimony on her impairments and other areas of her evidence persuasive. Ultimately, I am left with insufficient credible evidence to satisfy me that Ms. Afriyie's claims are proved on a balance of probabilities. I arrive at this conclusion for the following reasons.
Income Replacement Benefits
Ms. Afriyie claims that she is entitled to IRBs of $400 per week from June 12, 2003 to October 27, 2003 because the pain in her left knee and low back, caused by the accident, made it impossible for her to work during this time. As a registered practical nurse, employed from February 12, 2003 by an agency called MS Employment Consultants, her work is physically demanding in that it requires her to assist patients with bathing, dressing, using facilities, and other personal needs.
In order to award her IRBs, I must find that she was substantially unable to perform the essential tasks of her employment during the time for which she claims entitlement.
First, I am not satisfied that Ms. Afriyie was substantially unable to perform the essential tasks of her employment during this time because the evidence does not support her contention that she did not work.
Other evidence belies Ms. Afriyie's contention that she stopped working on June 11, 2003. Ms. Afriyie claims she visited her doctor the day after the accident and then returned to work until June 11, 2003 before she was forced to stop. The OHIP summary3 of her medical visits discloses no visit to a doctor on or around June 6, 2003. It actually shows a series of x-rays having been taken on June 20, 2003. The disability certificate4 signed by Dr. Nhan T. Tong that accompanied Ms. Afriyie's Application for Accident Benefits5 (Application), indicates that her first examination was held on June 6, 2003 and that she was unable to work or carry out normal daily activities as of June 4, 2003. Ms. Afriyie's Application indicates in Part 8 that she was employed as at the date of the Application. Also in the Application, she answered "No" to the question "Do your injuries prevent you from working?". The Employer's Confirmation of Income6 (Confirmation), dated July 21, 2003, does not specify a last date worked and indicates that Ms. Afriyie was employed as of the date of that Confirmation.
Second, I am not satisfied that Ms. Afriyie remained out of work for the approximate four months claimed (from June 11, 2003 to October 26, 2003). There are discrepancies in the evidence about Ms. Afriyie's earnings during the year of her accident that discredit her statements that she did not work for over four months. I have no evidence that Ms. Afriyie worked for any employer other than MS Consultants in 2003, for whom she began to work in February 2003. The Confirmation states that, in the 52 weeks prior to the accident, she worked 14 weeks for a total earnings of $9,229.50. Had she then been off work for over four months, she would have only worked another nine full weeks at most before the end of 2003. Yet, Ms. Afriyie's Income Tax Return Information for 20037 reveals that she earned a total of $20,471 in 2003. The Confirmation indicates that she earned almost $900 per week for two out of the last four weeks of earnings. The other employer records before me were scant, and did not include any attendance or time sheets. A representative of the employer did not attend to corroborate Ms. Afriyie's oral testimony, nor did they respond to a summons to witness obtained by TTC Insurance. Even assuming that she earned $900 per week for the last nine weeks of the year, under the circumstances, Ms. Afriyie could not have earned a total of over $20,000.
Moreover, there was no medical evidence corroborating the fact that Ms. Afriyie actually remained out of work for the entire period claimed. Besides the initial disability certificate, the only other evidence from Ms. Afriyie's doctor was a certificate indicating that she could return to work on Monday, October 27, 20038. The records of the physiotherapy clinic show that while she attended once on June 6, 2003, a regular regimen of treatment did not begin until July 22, 2003.
Finally, the information contained in the reports from the three examinations to which Ms. Afriyie submitted further undermines Ms. Afriyie's claims of impairment and an inability to work. I examine these reports in more detail below.
Section 24 Examinations
Ms. Afriyie seeks reimbursement for the costs of three assessments pursuant to section 24 of the Schedule: an In-Home Assessment, an FCE, and a Psychological Assessment.
Ms. Afriyie submits that these assessments were done at her request for the purpose of the Schedule. She submits that the In-Home Assessment was necessary to identify any potential dangers to her while she was temporarily disabled and to quantify her entitlement to a housekeeping benefit. She further asserts that the FCE was used by her treating chiropractors to gauge her impairment and also to aid in the ongoing monitoring of her recovery. She made no particular submissions related to the Psychological Assessment.
I have considered the reports produced in connection with these examinations to assist me in determining whether the fees for these reports are reasonable and whether TTC Insurance is obligated to pay. Section 24 requires the insurer to pay reasonable fees charged by a member of a health profession for conducting an assessment or examination and preparing a report, if the assessment or examination and the report are reasonably required in connection with a benefit claimed or the preparation of a treatment plan.
I find that the reports do little to corroborate Ms. Afriyie's claims. Further, I am not satisfied that these assessments were reasonably required in connection with the benefits claimed. In each case, the assessment was conducted so long after the accident that the report could not accurately assess impairment as a result of the accident. The assessments also fail to account for the passage of time and its impact on her impairment and treatment. Finally, the absence of reflection upon and commentary about Ms. Afriyie's particular circumstances, in combination with the other factors, leads me to find the assessments unreliable as evidence in support of Ms. Afriyie's claims.
For example, the In-Home Assessment Report was requested by Pro-Norm Assessment Centre, in part:
to determine the Applicant's pre-accident functional status and responsibilities; and
to develop appropriate measures, which are reasonable and necessary to reduce or eliminate the effects of any disability resulting from accident-related impairments.
This assessment was conducted on August 23, 2003. This was almost 3 months after the accident and during this time Ms. Afriyie had already been availing herself of housekeeping and caregiving services. In fact, Ms. Afriyie submitted expense forms to TTC Insurance for both housekeeping9 and caregiving10 (albeit not until October, 2003) indicating that she had a housekeeper who had been providing housekeeping services since the date of accident for only 10 hours per week and caregiving services for a range of 14 to 28 hours per week. The assessors recommended housekeeping for 12.5 hours per week and caregiving for 34 hours per week.
However, the assessors failed to comment on the effect on their recommendations, if any, of the assistance that Ms. Afriyie claims she had been receiving since the date of the accident. This failure in the context of their recommendations leads me to question the reliability of the report. I also question whether the expense forms submitted by Ms. Afriyie reliably establish the provision of housekeeping services.
The FCE11, conducted on August 29, 2003 to determine her ability to return to her position as a nurse, does not support Ms. Afriyie's contention that she was unable to work until the end of October. Furthermore, because of the nature of the evaluation and the fact that it was conducted a full three months after the accident, it cannot practically be used in connection with the benefit claimed. The evaluation indicates that Ms. Afriyie had been receiving various forms of therapy since June 6, 2003, such as chiropractic, massage and acupuncture/TENS. One of the assessor's recommendations is that Ms. Afriyie continue with the treatment plan as required. Nowhere in the report does the assessor comment on the therapies and their efficacy in the treatment of Ms. Afriyie's physical symptoms. Also, while the assessor concludes at page 5 that, based on her performance in the evaluation, she was at that time able to meet all of the physical demands of her job as an RPN (emphasis mine), the report sheds no light on when Ms. Afriyie might have become impaired, if at all. It does not monitor her progress and recovery and therefore cannot comment on the exact date of her recovery.
The Psychological Assessment, conducted on October 3, 2003, appears to have no connection to Ms. Afriyie's case at all. While the report itself indicates that Ms. Afriyie's physician, Dr. Tong, recommended a psychological assessment, there is no other evidence before me that he made such a recommendation. If the purpose of the assessment was as it was stated, to determine the nature and extent of psychological and emotional difficulties that are a direct consequence of Ms. Afriyie's accident and to make recommendations for treatment, there is no reasonable explanation for why the assessment was conducted a full four months after the accident and just weeks before Ms. Afriyie's return to work. Furthermore, I heard no evidence from Ms. Afriyie about the accident having a psychological impact on her that either required treatment or prevented her from working. There was no other evidence that Ms. Afriyie engaged in any psychological treatment after the accident. Ms. Afriyie's evidence was predominantly about physical pain.
Housekeeping Benefits
As the single mother of three children, aged 14, 13 and 11, at the time of the accident, Ms. Afriyie was responsible for most of the housekeeping tasks in her three-bedroom townhouse.
She claims that she was unable to undertake her regular housekeeping chores and care for her children during this time because of the persistent pain she endured as a result of the accident. She claims that she was prevented from climbing stairs and from sitting, walking or standing for any length of time. Therefore, she hired a housekeeper to assist her.
In general, Ms. Afriyie adduced very little reliable evidence with respect to this claim. She provided little, if any, evidence on any impairment that prevented her from performing her housekeeping duties. She provided no detail about her housekeeper's identity beyond her name. Further, the housekeeper herself failed to respond to a summons to witness served by TTC Insurance. The only documentation that provided some detail about the claims and might have supported the claims were the housekeeping expenses claim sheets12, which were signed and initialled by Ms. Afriyie herself. In other words, nowhere is it acknowledged by the housekeeper, or anyone other than Ms. Afriyie, that a housekeeper provided and was paid for performing these services.
Furthermore, given my findings that the evidence was insufficient to demonstrate impairment or to establish that a service was even rendered, I am not satisfied that Ms. Afriyie required or incurred housekeeping expenses as she claims.
Interest
In light of my findings that there are no benefits payable to Ms. Afriyie, no interest is owing.
Special Award
Consideration of insurer conduct only arises if entitlement is established. An order for a special award under subsection 282(10) of the Insurance Act is based on a finding of entitlement. Since I made no such finding, this is not an appropriate case for a consideration of a special award.
EXPENSES:
The parties did not argue the issue of expenses before me. The parties should attempt to resolve their claims for the expenses of this arbitration process by reviewing Rules 75 to 79 of the Dispute Resolution Practice Code. If the parties are unable to resolve the issue of expenses, either party may request within 30 days of receipt of this decision, an appointment before me to determine expenses.
January 13, 2006
Rosemary Muzzi Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 5
FSCO A04-000034
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:
Akua Afriyie is not entitled to income replacement benefits.
Akua Afriyie is not entitled to payments for housekeeping services.
Akua Afriyie is not entitled to the costs of an In-Home Assessment conducted August 23, 2003; a Functional Capacity Evaluation conducted August 29, 2003; and a Psychological Assessment conducted October 3, 2003.
Akua Afriyie is not entitled to interest or a special award.
The parties should attempt to resolve their claims for the expenses of this arbitration process by reviewing Rules 75 to 79 of the Dispute Resolution Practice Code. If the parties are unable to resolve the issue of expenses, either party may request within 30 days of receipt of this decision, an appointment before to determine expenses.
January 13, 2006
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Exhibit 2 indicates that Ms. Afriyie worked until June 12, 2003.
- Exhibit 7, Tab 13
- Exhibit 1, Tab 3
- Exhibit 1, Tab 3
- Exhibit 1, Tab 3
- Found in Exhibit 2
- Exhibit 3
- Exhibit 4
- Exhibit 5
- Exhibit 7, Tab 7
- Exhibit 4