TTC Insurance Company Limited v. Dorette Watson, 2007 ONFSCDRS 181

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 181

Appeal P06-00027

Appellant

and

Respondent

BEFORE:

David Evans

Norma Priday, representing the TTC

Dorette Watson, representing herself

On March 21, 2007, the parties agreed that the matter should proceed on the record

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

TTC Insurance Company Limited’s appeal of the arbitrator’s order, dated July 18, 2006, is dismissed.

September 24, 2007

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

TTC Insurance Company Limited (the TTC) appeals the arbitrator’s order of July 18, 2006, awarding Ms. Watson attendant care and housekeeping benefits pursuant to the SABS–1996¹ and her expenses of the arbitration.

Although Ms. Watson was originally represented by Mr. Harry Kopyto, who filed submissions on her behalf, he was not a SABS representative and withdrew. However, Ms. Watson relied on those submissions, and the parties agreed to proceed on the record.

II. BACKGROUND

The arbitrator briefly set out Ms. Watson’s testimony about the February 26, 2002 accident:

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.

The TTC paid weekly income replacement benefits (IRBs) until August 29, 2002. Ms. Watson claimed further IRBs as well as attendant care and housekeeping expenses.

The arbitrator noted that Ms. Watson called no witnesses and that, despite repeated attempts, the TTC had not been able to serve summonses on her son Omar, or on Marlene Young and Marvelette Ashley, Ms. Watson’s housekeeping and attendant care providers. He noted that the cross-examination of Ms. Watson included questions about her statements before the Social Benefits Tribunal.²

The arbitrator denied Ms. Watson further IRBs based on the lack of medical evidence. He referred to the Insurer’s Examination prepared by Dr. H. Platnick, dated May 7, 2002, as well as the Disability DAC report, prepared on August 16, 2002 by Dr. C. G. Pecora, chiropractor. These reports were contained in volume I of the three volumes of arbitration briefs filed by the insurer as Exhibit R–1. They confirmed that Ms. Watson had not suffered significant accident-related impairments that substantially disabled her from performing all of the essential tasks of her pre-accident employment as a cook. The arbitrator noted that Ms. Watson filed no rebuttal medical evidence, that her own statements in regard to the injuries she sustained from the accident were vague, and that none of the medical reports documented a link between a right shoulder rotator cuff injury —which she claimed required surgery due to the accident — and the accident.

As for the attendant care and housekeeping claims, he acknowledged credibility and accuracy problems regarding the attendance by Ms. Ashley at Ms. Watson’s home to provide those services, based on the investigative material in volume III , Tab 10 of Exhibit R-1. He also drew a negative inference from the witnesses’ absence, since Ms. Watson had not explained why she did not call these witnesses to respond despite knowing that the TTC was seeking to cross-examine them. “Nevertheless,” he wrote,

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.

While he found that the amount of care claimed in the log notes of the two providers was exaggerated, he accepted the evidence as to quantum set out in an attendant care needs report from Ms. Deborah Melamed, whose report was summarized in a designated assessment centre (DAC) report:

I accept the findings of the In-home Occupational Therapy and Attendant Care Needs Assessment Report [prepared by Ms. Melamed, occupational therapist] dated July 5, 2002, referred to in the [August 15, 2002, West Park Healthcare Centre Designated Assessment Centre] 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…. 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, 2002.³

On that basis, the arbitrator awarded housekeeping benefits at $100 a week and attendant care benefits at $339.10 a month to August 15, 2002, a period of just under 6 months. I calculate the total benefit awarded at approximately $4,350.00. He also awarded Ms. Watson her expenses.

III. ANALYSIS

The TTC’s submissions fall into two broad categories. The first relates to the arbitrator’s reliance on the Melamed report and his application of it in determining entitlement under the SABS. The second relates to his alleged error in accepting testimony the TTC characterized as incredible, unreliable, and vague, and then applying an “adamancy” test instead of properly considering Ms. Watson’s credibility.

With respect to the Melamed report, the TTC submits that:

The Melamed Report was not in evidence at the hearing and relying upon a section of it which was excerpted in a DAC report … constitutes an error on the face of the record…. The Insurer, putting it bluntly, was completely blindsided by the acts of the Learned Arbitrator in respect of this report and such brings this entire process into disrepute and is a denial of natural justice…. The Melamed Report was not only not inadmissible, but, in fact, was not admitted or even the subject of an attempt to admit and instead was introduced into the proceedings only by the Learned Arbitrator acting on his own initiative. There was no notice to the Insurer, there was no opportunity for cross examination, and only part of the report was ever reviewed by the Learned Arbitrator.⁴

However, the TTC was aware of the Melamed report, which was provided to the DAC. While Ms. Watson should have filed the report, I do not believe the arbitrator breached natural justice by considering the excerpts contained in the DAC report on which the insurer relied. In any proceeding with an unrepresented applicant, it will be difficult to conduct an ideal hearing. The excerpt was in a report that was admitted. The Melamed report provided evidence that supported Ms. Watson’s case, and the TTC should have been aware that the arbitrator might consider the excerpt. The TTC was on notice of the report’s contents; it could have filed the entire report; and, it could have called Ms. Melamed for cross-examination.

With respect to the arbitrator’s consideration of the Melamed report in determining entitlement under the SABS, the TTC submits that the SABS creates an entitlement based on perceived need and “bona fide proof of actual incurrence of the actual expense to meet the need.” That is too narrow a statement of the law. In this case, the arbitrator relied on the excerpt of the Melamed report in the DAC report, which he was entitled to do, but awarded benefits only up to the date of that DAC and only to the extent set out in the Melamed report, having discounted Ms. Watson’s testimony and her other evidence for any benefits above and beyond.

To expand on the point, the arbitrator found that Ms. Watson was injured in the accident based on “the medical evidence in Exhibit R–1.” The arbitrator should have set out in at least some detail what he relied on, since a party is entitled to know the basis for an arbitrator’s finding. However, the Melamed report was clearly one element. In addition, a report of Ms. Watson’s injury was made immediately to the TTC driver, and the TTC investigated the injury. The IE assessor, Dr. Platnick, set out in his report of May 7, 2002, that Ms. Watson’s family physician of 24 years prepared a disability certificate and that Ms. Watson started receiving passive and active treatments. Accordingly, there is evidence to support the arbitrator’s finding that Ms. Watson was injured in the accident.

The arbitrator, having found Ms. Watson did receive assistance, then relied on the Melamed report to determine the amount of benefits. I see no error in the circumstances. That leaves the remaining point of whether Ms. Watson actually received any assistance, which brings me to the second broad theme of the insurer’s submissions.

The TTC submits that Ms. Watson’s complete lack of credibility means that the arbitrator should have denied her all benefits. The TTC devotes several pages of submissions to the difficulties with Ms. Watson’s IRB claim. For instance, it points out the Social Benefits Tribunal’s comment that Ms. Watson was either defrauding the TTC or defrauding the government when she claimed IRBs for allegedly working during the same period she was receiving social benefits.⁵ That decision also stated: “Throughout this Hearing, the Appellant contradicted herself, and her duplicity was clearly evident to the Tribunal.”⁶ The TTC’s submissions on appeal then set out in great detail the inconsistencies in Ms. Watson’s evidence and claims, relating to such matters as when she started working for her son, whether she was a widow, where she lived, and so on.

However, the credibility problems raised by the TTC relate to either Ms. Watson’s claims for social benefits or for IRBs. The arbitrator did not grant Ms. Watson any IRBs, so these submissions are only relevant to the extent they affect the basis on which he granted the attendant care and housekeeping benefits. The arbitrator did not err in finding Ms. Watson credible with respect to the benefits he granted just because there was evidence of credibility problems regarding the IRBs.

The ultimate issue is Ms. Watson’s credibility about whether she received the claimed services. The TTC’s strongest point is that the arbitrator accepted Ms. Watson’s evidence because she was “adamant.” It submits that in doing so, the arbitrator must have focused on her demeanour, which the TTC submits is an error. Based on cases such as Sorokin,⁷ I agree. As was said in that case, the focus should be on the inherent plausibility, consistency and internal coherence of testimony, and whether it accords with evidence from other sources. However, I take the arbitrator’s use of the word “adamant” to include more than just Ms. Watson’s demeanour at the hearing but also the totality of the evidence. The arbitrator had found that Ms. Watson was injured in the accident, so he found it inherently plausible that she claimed to need assistance at home. She had maintained her claim of assistance since the accident, so to that extent she had been adamant throughout. Finally, he implicitly found her testimony on the issue internally coherent. That is the most difficult part for me to judge at this point. Whether I would have come to the same conclusion as the arbitrator is not the test on appeal. In these circumstances, although the evidence supporting Ms. Watson’s claim is weak, and the arbitrator should have provided more reasons for his decision, I am not persuaded the deficiencies amount to an error of law.

Accordingly, the TTC’s appeal of the arbitrator’s awards of attendant care and housekeeping and home maintenance benefits is dismissed.

The arbitrator gave no reasons for awarding Ms. Watson her expenses. The arbitrator should have at least briefly sketched out why he did so. I assume he only considered success — the first Expense Regulation⁸ criterion. Although conduct hindering the proceeding (criterion 4) was worthy of consideration, I am not prepared to disturb the award. Ms. Watson was unrepresented, so her expenses should be minimal.

IV. EXPENSES

If the parties are unable to agree about the expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

September 24, 2007

David Evans Director’s Delegate

Date

Footnotes

The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
Referred to as the “Statutory Benefits Tribunal” by the arbitrator.
Arbitration decision, p. 7.
Insurer Submissions, from paras. 7, 13, and 18. Emphasis in the original.
According to the Tribunal’s decision of April 22, 2004, Ms. Watson had been receiving benefits since November 1994 as a divorced, disabled person with no dependents.
Tribunal decision, p. 5. The Tribunal confirmed the finding that Ms. Watson was overpaid some $35,000 from June 1999 until September 2002.
Wawanesa Mutual Insurance Company and Sorokin, (FSCO P04-00008, August 9, 2005), p. 28.
R.R.O. 1990, Reg. 664, s. 12(2), as amended.