Financial Services Commission of Ontario
Neutral Citation: 2012 ONFSCDRS 155 FSCO A10-002751
BETWEEN:
CRYSTAL NG Applicant
and
INTACT INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: John Wilson Heard: January 16, 17, 18, 19 and 20, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Miguel Maruszki for Ms. Ng Anna-Marie Musson for Intact Insurance Company
Issues:
The Applicant, Crystal Ng, was injured, along with her mother, Mrs. Chor Fong Chung, in a motor vehicle accident on August 22, 2008. She applied for and received statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.1 Intact declined to pay some of the balance of the claimed benefits. The parties were unable to resolve the disputes arising from these refusals through mediation, and Ms. Ng, through her litigation guardian, Chor Fong Chung, 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 referred to this arbitration are:
- Non Earner benefit
- Attendant Care benefit
- Medical Benefits
- Cost of examinations
Counsel for Ms. Ng advised at the outset of the hearing that Ms. Ng was withdrawing her claim for non-earner benefits, as well as the bulk of the examination and medical expenses. What remains for the most part is a series of assessments with Toronto Healthcare Inc., Fairview Assessment Centre, Pacific Assessment Centre, psychological treatment by Dr. Steiner, and a blend of massage/chiropractic treatment, exercise, passive modalities and acupuncture from Toronto Healthcare Inc.
I note that even with the unilateral withdrawal of issues from arbitration, without the consent of both parties elements of those claims may remain before an arbitrator. In this case, the Insurer was not consulted on the withdrawal of any issues, and did not consent to the withdrawal. In the aim of efficiency, however, the hearing concentrated on those issues remaining in dispute as identified by counsel.
Ms. Ng’s claims were heard concurrently with those of her mother, Mrs. Chung.
Result:
- Ms. Ng’s further claims for statutory accident benefits are dismissed.
EVIDENCE AND ANALYSIS:
There is no issue that Ms. Ng was involved as a passenger in a relatively serious accident in a car driven by her mother, Mrs. Chung. Indeed, the real issue driving this hearing was whether Ms. Ng was rightfully entitled to payment for a plethora of assessments and treatment that was claimed subsequent to the accident.
Although the Insurer claims to have received some 41 OCF-22s and paid around $121,000 for assessment costs to date (on both Ms. Ng’s and her mother’s case), Ms. Ng’s Application lists some thirty-eight further claims ranging from $63.72 to $2,463.72 in her Application for Arbitration. (These were reduced significantly at the hearing itself.)
Principal among Ms. Ng’s remaining claims was $4,316.32 for treatment at Toronto Healthcare. There also remained a claim for orthotics prescribed and provided by Dr. Calicchia in association with the Pacific Assessment Centre and a claim for a variety of rebuttal reports and treatment plan preparation.
The Insurer characterized these further treatment and assessment claims as not only excessive and unreasonable, but also inappropriate and an abuse of process. Counsel for Ms. Ng on the other hand presented the claims as simply a reasonable and necessary response to Ms. Ng’s problems that arose from the undisputed accident.
Although the accident in question was far from minimal (two vehicles collided at speed in an intersection), Ms. Ng complained of little more than pains and a ringing in the ears in the period immediately after the accident. She also identified bruising to her lower abdomen which, in her words, disappeared after a few weeks.
Ms. Ng’s limited recall:
Accidents are not fun. Naturally Ms. Ng referred in testimony to psychological sequelae, mentioning headaches, some nervousness in revisiting the accident scene, and some loss of concentration, although she had not mentioned these when she was queried directly about the consequences of the motor vehicle accident.
Indeed, other than a generalized appreciation of discomfort following the accident, Ms. Ng was unable to identify her impairments with any clarity as to timing, duration or intensity. To say that her inability to clearly identify her impairments made her testimony as to the reasonableness of treatment somewhat lacking would be a fair summary.
When questioned on cross-examination, Ms. Ng demonstrated an impressive memory lapse with regard to such questions as her referral to treatment, the date of commencement of treatment, the identity of assessors, the length of treatment sessions, whether there was a sign-in procedure at the treatment facility, whether treatment was gradually reduced and on what timetable, and statements that she allegedly made to assessors and treatment providers.
Such statements included one recorded by Dr. West during a February 2, 2010 psychological examination in which Ms. Ng was alleged to have stated that she had no significant symptoms and didn’t need counselling. When asked to comment at the hearing on Dr. West’s report, Ms. Ng merely stated that she did not remember but that if the report said so it could well be true.
Although the remaining claims brought in Ms. Ng’s name are treatment provider and assessment accounts, it goes without saying that those claims are personal to Ms. Ng and may not be brought forward in the name of the various service providers. Consequently, Ms. Ng’s evidence is crucial in deciding whether both the medical expenses and the related assessment expenses were reasonable and necessary in the context of this claim, and hence payable.
Unfortunately, Ms. Ng’s evidence as to treatment and assessment is that she went where and when her parents told her. She has virtually no independent recollection of the timing, duration and the nature of either assessments or treatment.
In addition to her own testimony, Ms. Ng has merely filed the treatment plans and related correspondence. She has produced no witnesses to speak to the reasonableness or the necessity of each treatment plan. Rather, counsel merely asked Ms. Ng if certain treatment plans helped her in some way.
Consequently, her evidence is important to this claim. Unfortunately, with her evasive answers and limited recall, her evidence only barely establishes that she was in an accident and suffered some relatively minor after-effects that seem to have resolved. Stacked against the volume of assessments both proposed and undertaken, her claimed impairments appear rather limited.
Given that the Insurer claims to have spent upwards of one hundred thousand dollars on assessments and medical expenses for both Ms. Ng and her mother, it would take cogent evidence to suggest that Ms. Ng’s modest injuries created assessment and treatment needs that required even more funding from the Insurer.
Medical Benefit Treatment Plans
According to the Schedule, medical benefits cover “all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident.”
Ms. Ng claims inter alia for “relaxation CDs.” These are said to be a set of CDs containing spoken word and music with the aim to encourage relaxation.
While listening to such a work may have been soothing and pleasant, the case for their “necessity” comes across as tenuous even when examined through Ms. Ng’s testimony.
According to Ms. Ng, the CDs were used occasionally for at most a month or so to assist in sleeping. However, nowhere in her testimony does Ms. Ng even link trouble sleeping to the motor vehicle accident. Nor can she justify the reasonableness of the provision of two complete sets of the CDs to her own family when she admits that she might well have shared her mother’s copies.
Likewise the claim for orthotics seems dubious. Dr. Calicchia supposedly saw Ms. Ng and assessed her for orthotics. Ms. Ng has no recollection of such a visit.
Dr. Calicchia’s report contains references to Ms. Ng’s ongoing foot problems, her inability to undertake activities of daily living and listed her employment status as “unknown” which, together with Ms. Ng’s limited recall, leads one to question whether any type of needs assessment took place before the orthotics were ordered.
Ms. Ng’s health status reported by Dr. Calicchia differs from other records which fail to note either foot problems or an inability in the areas of self-care. Ms. Ng did at least acknowledge that she received orthotics, although her own appreciation of their utility could best be summarized by her belief that they must have been useful or would not have been ordered.
Cost of Examinations:
Ms. Ng claims for a rebuttal report issued by Dr. Tamir through Pacific Assessments. This report related to an in-home assessment and was issued at the same time as a report for Ms. Ng’s mother, Mrs. Chung. Both Ms. Ng and Mrs. Chung lived in the same home at the time of the accident and the assessment.
While the rebuttal report related to attendant care, Intact pointed out that it had terminated such benefits on November 20, 2008 and that Ms. Ng did not dispute the decision at the time that the report was issued.
Non Earner Benefit Claim:
Although this was referred to arbitration by Ms. Ng and confirmed at the pre-hearing, it was withdrawn by the Applicant at the outset of the hearing.
Attendant Care:
This claim was also withdrawn at the outset of the hearing.
SUMMARY:
In the case of Chung and Intact Insurance Company (FSCO A10-002750, July 11, 2012), Ms. Ng’s mother’s claim, which was heard at the same time as this matter, I observed:
With regard to the various medical expenses and assessment fees put forward, principally by Toronto, while “papered” in most cases with the appropriate forms, these just do not seem credible. It is of some significance that Mrs. Chung does not recall most of the treatments and that, when she has recall, there is usually a serious discrepancy between the invoiced information and Mrs. Chung’s testimony.
Unfortunately, although the discrepancies are less striking (indeed, Ms. Ng can remember next to nothing and provided little positive testimony), much the same could be said for Ms. Ng’s claims.
The same treatment providers and the same billing methods are implicated in Ms. Ng’s case as in Mrs. Chung’s case. Consequently, absent some independent corroborative evidence, I am not inclined to accept the billings filed by Dr. Steiner, Dr. Calicchia or Pacific Assessment, among others, at face value. That leaves very little credible evidence that would suggest that any of the claims which went to hearing had any validity.
While no doubt Ms. Ng was shaken up and unsettled by her involvement in the accident, the inevitable conclusion is that any deleterious effects of the accident were fully addressed by the earlier treatment that she received; treatment that was fully funded by Intact.
Consequently, I find that Ms. Ng has not met the burden of proving on the balance of probabilities that the claims brought forward to this arbitration have merit and are properly payable by her insurer under the Statutory Accident Benefits Schedule. Her claims are therefore dismissed.
EXPENSES:
If the parties are unable to agree on the issue of expenses, then brief submissions may be received as to that issue. For the purposes of any award of expenses, this will be dealt with in concert with any claims arising from the arbitration of Ms. Ng’s mother, Mrs. Chung’s claims against Intact.
November 30, 2012
John Wilson Arbitrator
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. Ng has not met the burden of proving on the balance of probabilities that the claims brought forward to this arbitration have merit and are properly payable by her insurer under the Statutory Accident Benefits Schedule. Her claims are therefore dismissed.
If the parties are unable to agree on the issue of expenses, then brief submissions may be received on that issue. For the purposes of any award of expenses, this will be dealt with in concert with any claims arising from the arbitration of Ms. Ng’s mother, Mrs. Chung’s claims against Intact.
November 30, 2012
John Wilson Arbitrator