Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 47

FSCO A05-001598

BETWEEN:

ERICA FRANCIS Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: September 25 and 26, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Brian Leila for Ms. Francis Norma Priday for TTC Insurance Company Limited

Issues:

The Applicant, Erica Francis, sustained minor soft tissue injuries when a bus struck her while she was attempting to cross the street on April 7, 2004. 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 October 27, 2004. Her claim for ongoing benefits was not resolved through mediation, and Ms. Francis applied for arbitration² 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:

1. Is Ms. Francis entitled to payment of weekly income replacements benefits after October 27, 2004 under Part II of the Schedule?

2. Is the TTC entitled to be repaid $1,741.28 income replacement benefits under section 47 of the Schedule?

Result:

1. Ms. Francis is not entitled to payment of weekly income replacement benefits after October 27, 2004 under Part II of the Schedule.

2. TTC is not entitled to repayment of $1,741.28 income replacement benefits under section 47 of the Schedule.

The parties' claims for their expenses of this arbitration are deferred.

EVIDENCE AND ANALYSIS:

In order to be eligible to receive income replacement benefits after October 27, 2004, Ms. Erica Francis must establish on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of her job as a marketing hostess as a result of her accident-related injuries.

Ms. Francis' Job Duties:

Ms. Francis' hostess job at the time of the accident was not complicated. She greeted patrons, made and served coffee and snacks, cleaned up and used the dishwasher, handled telephone calls/FAX/photocopier and the reception desk, unpacked supplies, prepared trays and handouts, moved and set up chairs/tables/TV/VCR. Arranging furniture is the only job requirement that required moderate physical strength.

The Accident and Health Care Evidence:

Ms. Francis was carrying her young daughter in her arms when she stepped off the curb in front of the bus she had exited. As she turned to look around the bus for roadway traffic, it moved slowly forward and struck her left shoulder and arm. The bus stopped, and Ms. Francis remained standing after letting her daughter down.

Ms. Francis decided to see her family doctor after work that day rather than attend the hospital by ambulance. Dr. Linda Ingber, diagnosed upper and lower back strain, and referred her for physiotherapy, massage and chiropractic treatments. Ms. Francis admitted in her evidence that she did not have any bruises on her arm or shoulder from this accident, and x-rays did not reveal any physical problems.

Despite lengthy treatment, Ms. Francis continued to complain to Dr. Ingber of neck and back pain, and she was referred in late summer 2005 for assessment to Dr. Veronica Kekosz, a specialist in physical medicine. Dr. Kekosz did not find any significant physical problems or abnormalities, determining Ms. Francis demonstrated moderate neck restrictions. She referred Ms. Francis to a pain management program that could help her anxiety, but the program's physiotherapist rated her attendance as poor and motivation as fair during sessions in the first three months of 2006.

Dr. Edward Chandran, a psychiatrist who assessed Ms. Francis in that time period, diagnosed her condition as an adjustment disorder with depression and anxiety due to chronic pain from the accident. Results from psychological tests indicate that Ms. Francis perceived herself as severely injured or crippled.

Neither Dr. Chandran, Dr. Kekosz nor Dr. Ingber provide a written opinion that Ms. Francis is unable to resume her work duties as a hostess for the market research facility. They did not testify and the documentary evidence from Ms. Francis' health care experts clearly does not support her claim for further disability benefits.

Evidence from Ms. Francis' employer establishes that she returned to her hostess job immediately after the accident at reduced days and hours. During the month prior to the accident, Ms. Francis worked 18, 15, 31 and 40 hours per week. This contrasts with her working four pay periods before she left this employment in July 2004, during which time she worked 13, 9, 14 and 6 hours per week.

Ms. Francis' return to part-time work and her cessation of that job ties in with her commencement in May 2004 of a full-time broadcast television degree at Seneca College. Ms. Francis earned good grades in almost all courses, and she graduated in August 2005. She received government loans to cover her education and living expenses throughout this time period.

Ms. Francis admitted during her testimony that she did not report her resumption of employment to any of the examining health care practitioners, or divulge her post-accident income to TTC either. She also admitted that in her college courses in television broadcasting she was lifting lighting pods and moving equipment around. Her frank admission about the physical aspects of her school work and her failure to divulge her work resumption renders her evidence unreliable.

Dr. Garson Conn, the TTC's examining orthopaedic surgeon, determined Ms. Francis suffered no significant disability. She complained of neck and back pain, but her body moved in a full range without muscle spasm. Dr. Conn reported she could still be symptomatic from the accident, although there was no evidence of any impairment.

The examining psychologist at the September 2004 Designated Assessment Centre (DAC) found Ms. Francis suffered mild stress, moodiness and felt "down" periodically. He opined this did not significantly affect the performance of her job duties. The examining DAC physiatrist found nothing wrong with Ms. Francis except for a mild pulling sensation at the extreme end of lateral flexion and mild tightness of her hip muscles. In functional testing at the DAC, Ms. Francis demonstrated the ability to move up to 30 pounds.

Disability Conclusion:

Ms. Francis' health care evidence does not establish that she suffered a substantial inability to perform her essential job tasks as a hostess. The paucity of supporting medical evidence together with the fact she resumed her job, albeit reduced, attended full-time college courses that entailed significant physical activity and hid these facts from health assessors leads to my finding Ms. Francis does not meet the requisite entitlement test. I find that Ms. Francis is not entitled to further payment of income replacement benefits under Part II of the Schedule.

Repayment:

TTC claims that under subsection 47(1)(d) of the Schedule, Ms. Francis must repay the $1,741.28 income replacement benefits she was paid between the September 2004 insurer examination and the October 2004 DAC disability report. This subsection requires Ms. Francis to repay these benefits if the TTC sent her a repayment notice within twelve months of its last payment of income replacement benefits.³ TTC did not introduce any documents indicating it met this procedural requirement, and I find that it did not provide Ms. Francis with the required notice of its repayment claim.

A repayment notice is not necessary if the benefits were paid as the result of wilful misrepresentation or fraud.⁴ However, TTC did not argue Ms. Francis committed a wilful misrepresentation or fraud, and the parties did not make submissions on the application of this subsection to this case.

I find that Ms. Francis is not required to repay the $1,741.28 income replacement benefits under section 47 of the Schedule.

EXPENSES:

The parties should attempt to resolve their respective claims for expenses of this arbitration through references to Rules 75 through 79 and the Expense Regulation in Section F of the Dispute Resolution Practice Code before they contact the case administrator to arrange an assessment of their expense claims.

March 7, 2007

Fred Sampliner Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 47

FSCO A05-001598

BETWEEN:

ERICA FRANCIS 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:

1. Ms. Francis' claim for income replacement benefits after October 27, 2004 under Part II of the Schedule is dismissed.

2. TTC's claim for repayment of income replacement benefits in the amount of $1,741.28 under section 47 of the Schedule is dismissed.

March 7, 2007

Fred Sampliner Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Ms. Francis withdrew her claims for medical benefits and housekeeping expenses under the Schedule at the commencement of the hearing.
3. 3Subsection 47(3) of the Schedule
4. 4Subsection 47(4) of the Schedule```