Neutral Citation: 2012 ONFSCDRS 19 FSCO A09-001602

BETWEEN:

YIU TING (JASON) HUNG Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Richard Feldman Heard: May 2, 3 and December 12, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Darryl Singer for Mr. Hung Richard Horst for Allstate Insurance Company of Canada

Issues:

The Applicant, Yiu Ting (Jason) Hung, was allegedly injured in a motor vehicle accident on July 20, 2007. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Disputes arose concerning the Applicant's entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Hung applied for arbitration at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this hearing are:

Is Mr. Hung entitled to receive the following medical benefits: a. $1,066.75 for the cost of outstanding treatment at Optimum Health Clinic provided in accordance with a treatment plan dated August 15, 2007? and b. $1,259.86 for the cost of treatment provided at Carlan Physiotherapy Centre in accordance with a treatment plan dated July 9, 2008?
Is Mr. Hung entitled to attendant care benefits at the rate of $272.14 per month from July 21, 2007 through July 20, 2009?
Is Mr. Hung entitled to payments for housekeeping and home maintenance services at the rate of $81.00 per week from July 21, 2007 through July 20, 2009 (less amounts paid by Allstate)?
Is Mr. Hung entitled to payments for the cost of examinations in the outstanding amount of $100.22 ($424.67 claimed less $324.45 paid by Allstate) for an assessment at Optimum Health Clinic submitted in form OCF-22 dated January 28, 2008?
Is Mr. Hung entitled to interest for the overdue payment of benefits?
Is either party liable to pay the other's expenses in respect of the arbitration?

The Applicant also originally claimed entitlement to a non-earner benefit at the rate of $185.00 per week from January 18, 2008 onwards but purported to withdraw that claim approximately two weeks prior to this hearing. The Insurer did not oppose the Applicant's request to withdraw this issue and so I permitted the Applicant to withdraw this issue.

Result:

The Applicant's claims for accident benefits are dismissed.
The decision on expenses is reserved, to be resolved in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Overview

At the time of the accident (July 20, 2007), the Applicant was seventeen years old. He was a full-time high school student who had just completed Grade 11 and was off for the summer. The Applicant lived in a two-bedroom apartment with his mother, father, younger brother (who was 15 years old at the time) and cousin (who was 14 years old at the time). To earn money during the summer, he was stocking shelves at a grocery store.

The Applicant was driving a Toyota Corolla, making a left-hand turn at an intersection when his vehicle was struck by a mini-van that was proceeding through the intersection. He allegedly suffered soft tissue injuries as a result of this accident.

According to the Applicant, he returned to his full-time studies in September 2007 and completed Grade 12 by June 2008 with high grades (a 91% average according to the testimony of the Applicant). He was accepted into a program at McMaster University in Hamilton, Ontario. He moved into residence at the University in or about September 2008. He continues his studies there at the present.

Unusual Circumstances

There are a number of unusual features to this case, which raise suspicions about the veracity of the Applicant's claims. Examples of these unusual features include (but are not limited to) the following:

Despite living with several other people in this household, the Applicant contends that he did virtually all of the housekeeping in this household prior to the accident;
The Applicant contends that, prior to the accident, in addition to attending school full-time, participating at a high level in sports (badminton) and working part-time, he also did 10-20 hours per week of housekeeping;
The Applicant did not seek any medical attention on the day of the accident or for about a month thereafter;
The Applicant testified that he did not seek medical attention because he had no symptoms for the first three weeks or so following the accident;
Almost immediately after this accident, the Applicant went on vacation to Niagara Falls with his mother and other family members and noticed no symptoms during this time;
There was no explanation provided for the delayed onset of symptoms;
According to the Applicant, when he did begin to notice symptoms about three weeks after the accident, he did not go to see his regular family physician (Dr. Lo) and never consulted his family physician concerning any accident-related symptoms;
Instead, the Applicant's mother took him to see a different doctor (Dr. Cheng), who then sent him to Optimum Health Clinic where, commencing in mid-August 2007, he started receiving treatment two to three times per week;
The Applicant testified that he continued to perform his housekeeping duties until two or three months after the accident but then he stopped doing anything but light duties because the pain was too great;
The Applicant advised Candice Silver (who conducted an in-home insurer's examination on September 27, 2007) that he was essentially independent in his personal care and that the reason he was doing much less housework since September 2007 was primarily because he was very busy with his schoolwork (and not primarily due to functional limitations);
Despite a lack of supporting medical documentation² and despite returning to many of his pre-accident activities, the Applicant advanced a claim to the Insurer for non-earner benefits³ and did not withdraw that claim until shortly before this hearing commenced; and
The Applicant also advanced (unchanging) claims for housekeeping in the amount of $81.00 per week (9 hours per week at $9.00 per hour) for services allegedly provided by his mother from July 21, 2007 through July 20, 2009 and attendant care benefits at the rate of $272.14 per month (over 21 hours per month related primarily to bathing, dressing/undressing and meal preparation) for services allegedly provided by his mother from July 21, 2007 through July 20, 2009.

Misrepresentations, Inflated Claims, Omissions and Assessment of Credibility

If the Applicant's credibility were unimpeached, it is conceivable that the Applicant's testimony would be accepted at face value and he could succeed on some or all of his claims, despite the somewhat unusual features of this case. Unfortunately, I find that the Applicant's credibility has been severely compromised by the fact that the Applicant: has made a number of material misrepresentations to the Insurer; has submitted wildly exaggerated claims to the Insurer; and has failed to provide important information to medical professionals upon whose opinions he now seeks to rely.

I shall now provide examples of important misrepresentations and omissions by the Applicant:

The Applicant submitted claims for both attendant care and housekeeping during the period of July 21, 2007 through August 17, 2007, a period during which the Applicant admitted at this hearing that he had no symptoms or functional limitations and during which his mother admitted on cross-examination that she provided no services to the Applicant.
The Applicant submitted numerous claims for attendant care between August 2007 and February 2008 in which it is alleged that the Applicant consistently required one hour of care (related to dressing/undressing and bathing) every single day whereas both the Applicant and his mother admitted before me that the Applicant only required very occasional assistance (maybe two or three times per week shampooing his hair or putting on a shirt) and, according to the Applicant and his mother, his need for assistance completely ceased about six months after the accident.
The Applicant's mother (whose skills in English appear to be quite limited) finally had to admit under cross-examination that she has no idea what is in the forms she signed (at Tab 18 of Ex. 1) to support her son's claims for housekeeping and attendant care, that she signed all of these forms at one time, that the Applicant just put them in front of her and told her to sign and she did, and that these forms are not accurate and cannot be relied upon.
Although the Applicant stopped submitting expense forms in February 2008, he maintained claims for both attendant care and housekeeping up to July 2009. From September 2008 to the summer of 2009, the Applicant was living in residence in Hamilton and admitted at the hearing before me that he neither required nor received any housekeeping or attendant care services.
The Applicant relies heavily upon the opinion of Dr. Peter Counti to support his case. Dr. Peter Counti testified, however, that the Applicant never told him (or anyone else at Optimum Health Clinic according to the records) that the Applicant did not first notice any symptoms until about three weeks after the accident. The Applicant also apparently failed to advise Dr. Counti that he continued doing housework for about a month after the accident. On cross-examination, Dr. Counti agreed that it would be unusual for symptoms to first appear about three or four weeks after an accident and that, had he been advised of this fact, he would have asked more questions and this information would likely have affected both his assessment of the Applicant and the treatment he recommended.

It is possible that Mr. Hung legitimately required some assistance as a result of impairments he sustained in the July 20, 2007 accident. Through his conduct, however, the Applicant has severely undermined his own credibility and raised questions as to the cause of any impairments he experienced from August 2007 onwards.

(i) $1,066.75 for the cost of outstanding treatment at Optimum Health Clinic provided in accordance with a treatment plan dated August 15, 2007

Dr. Counti is a chiropractor at Optimum Health Clinic. On August 15, 2007, Dr. Counti examined the Applicant for the first time. He diagnosed that the following were the direct result of the July 20, 2007 accident: (1) left-sided rotator cuff strain/tendinitis; (2) cervical sprain/strain; (3) costovertebral sprain/strain; and (4) lumbar sprain/strain. He found that this did not fall within the pre-approved framework ("PAF") and recommended eighteen 1.5 hour sessions of physiotherapy at a total cost of $2,506.50. This treatment plan was submitted to the Insurer in form OCF-18 on or about August 15, 2007.

On August 31, 2007, the Insurer referred this issue for an independent assessment by Dr. Stanley N. Bacso. Dr. Bacso prepared a report dated September 12, 2007 which found that the Applicant's injuries did fall within the PAF and recommended treatment in accordance with the PAF. The Insurer then issued an Explanation of Benefits Payable on September 13, 2007 indicating that, in accordance with the report of Dr. Bacso, the Insurer would pay for treatment provided but only up to the total amount required under the PAF.

Optimum Health Clinic ignored this and provided the treatment Dr. Counti had recommended. The dispute between the parties is over the difference between the $2,506.50 incurred by the Applicant and the amount paid by the Insurer.

In order to succeed on this part of the claim, the Applicant must establish (on a balance of probabilities) that the treatment in question was reasonable and necessary. I find that he has failed to meet this onus because I can give little weight to Dr. Counti's treatment plan of August 15, 2007 for two main reasons. First, as previously described in this decision, I find that the Applicant misrepresented or omitted important information (such as the fact that he had no symptoms for the first three weeks or so post-accident) which Dr. Counti testified could have affected his assessment as to causation and his treatment recommendations. Second, based upon statements made by Dr. Counti during his cross-examination, I am satisfied that his own biases against the PAF⁴ tainted his opinion and also severely diminish the weight I can attribute to his opinion. For both reasons, I find that I can give little weight to the opinion of Dr. Counti and I am not persuaded that the disputed treatment was reasonable and necessary for impairments sustained directly as a result of the July 20, 2007 accident.

(ii) $1,259.86 for the cost of treatment provided at Carlan Physiotherapy Centre in accordance with a treatment plan dated July 9, 2008

Approximately one year after the accident, in July 2008, the Applicant was seeking another 14 sessions of physiotherapy, this time at Carlan Physiotherapy Centre. Although the Applicant was reporting 70-90% improvement in his symptoms by that point in time, he was still complaining of pain in his lower back, neck and shoulders. The Insurer obtained an independent assessment by Marie Dowding, physiotherapist, who concluded that the treatment in question was not reasonable and necessary in all of the circumstances. Accordingly, the Insurer denied this treatment plan. At the hearing before me, no witness was called from Carlan Physiotherapy Centre. The Applicant testified that the treatment he got at Carlan Physiotherapy Centre was very helpful in relieving his residual pain but the relief he obtained was of a limited duration. The clinical notes from Carlan Physiotherapy Centre in July 2008 record that the Applicant was reporting that he was feeling much better and that he was able to do almost all pre-accident activities. No other evidence was adduced in support of this treatment plan. Given all of the circumstances of this case, including issues of causation and the credibility of the Applicant, I find that the Applicant has failed to prove that, on a balance of probabilities, the treatment in question was reasonable and necessary for impairments sustained directly as a result of the July 20, 2007 accident.

Attendant Care Benefits

The Applicant originally claimed entitlement to attendant care benefits at the rate of $272.14 per month from July 21, 2007 through July 20, 2009. He maintained this claim right up to closing arguments on the last day of this hearing, at which point, based upon the evidence presented at this hearing, the Applicant was forced to concede that he could not advance any claim for attendant care after September 1, 2008. He submitted that he should be entitled to attendant care at the rate of $272.14 per month from July 21, 2007 (the date of the accident) through September 1, 2008 (when the Applicant went off to study in Hamilton). In the alternative, he submits that he should be awarded attendant care benefits from July 21, 2007 until October 10, 2007 (the date of the Insurer's Assessment of Attendant Care Needs). In the circumstances of this case, I do not accept either submission.

The Applicant's claim for attendant care benefits relies entirely on his credibility and the assessment of Dr. Counti. If the Applicant's impairments came within the WAD II Guideline⁵, he would not have been entitled to attendant care benefits at all (subsection 16(1.1) of the Schedule). There is no evidence to suggest that Dr. Counti ever gave consideration to this Guideline. Furthermore, by his own admission, Dr. Counti's opinion considering the Applicant's impairments may well have been different had he been provided by the Applicant with an accurate history of his symptoms and been advised that the Applicant had been asymptomatic for several weeks post-accident.

Candice Silver performed an in-home assessment on September 27, 2007 and found that the Applicant required no attendant care. This was based upon not only what the Applicant reported to her but also on her observations of him actually performing realistic household and personal care activities. I find that Ms. Silver's report is more reliable and ought to be given greater weight than that of Dr. Counti.

The Applicant and his mother both testified that the Applicant submitted false claims to the Insurer for periods during which he required no attendant care and that, during other periods, he required less assistance than was claimed.

For all of these reasons, I find that the Applicant's claim for attendant care benefits must be dismissed.

Housekeeping and Home Maintenance Benefits

The Applicant has claimed entitlement to housekeeping and home maintenance benefits at the rate of $81.00 per week from July 21, 2007 through July 20, 2009 (less amounts paid by Allstate). In closing arguments, counsel for the Applicant advanced three alternative positions:

The Applicant is entitled to the entire amount claimed for the full two-year period and it is irrelevant that the Applicant did not require housekeeping assistance or incur any expense with respect thereto after September 1, 2008 (when the Applicant went off to study in Hamilton);
In the alternative, the Applicant is entitled to the housekeeping benefits claimed from July 21, 2007 (the date of the accident) up to September 1, 2008; or
In the further alternative, the Applicant is entitled to the housekeeping benefits claimed from July 21, 2007 up to October 10, 2007 (the date of the report by Candice Silver).⁶

For the same reasons as those related to the Applicant's claim for attendant care benefits, I find that the Applicant cannot succeed in his claim for housekeeping and home maintenance benefits.

Dr. Counti's assessment of the Applicant's needs was based upon incomplete and misleading information provided by the Applicant. For instance, the Applicant did not advise Dr. Counti that, following the accident, he was free of any symptoms for several weeks and continued to perform his housekeeping tasks for at least one month. Also, although Dr. Counti attended at the Applicant's home, he did not have the Applicant actually perform (or attempt to perform) any housekeeping tasks.

Candice Silver performed an in-home assessment on September 27, 2007 and found that the Applicant required no assistance with housekeeping and home maintenance. This was based upon not only what the Applicant reported to her but also on her observations of him actually performing realistic household and personal care activities. I find that Ms. Silver's report is more reliable and ought to be given greater weight than that of Dr. Counti.

The Applicant and his mother both testified that the Applicant submitted false claims to the Insurer for periods during which he required no housekeeping assistance. Unfortunately, through his conduct, the Applicant has severely undermined his own credibility and raised questions as to the cause of any impairments he experienced from August 2007 onwards.

For all of these reasons, I find that the Applicant's claim for housekeeping and home maintenance benefits must be dismissed.

Cost of Examination in Dispute

Mr. Hung is seeking $100.22 for the outstanding cost of an assessment at Optimum Health Clinic submitted in form OCF-22 dated January 28, 2008. Dr. Counti was charging $424.67 for a follow-up assessment of the Applicant and for preparing a report and form OCF-22. This consisted of $202.00 for the actual assessment (approximately two hours of Dr. Counti's time), $152.67 to prepare a report (1.5 hours at $101.78 per hour) and $70.00 to complete and submit the form OCF-22 to the Insurer.

This issue was referred by the Insurer to an independent assessment (paper review) by Dr. Michael Zabarylo on February 13, 2008. Dr. Zabarylo was of the opinion that the amounts sought by Dr. Counti were excessive. Ultimately, the Insurer took no issue with the hourly rate being charged by Dr. Counti or with his charge for completion of his report or for preparing and submitting the form OCF-22. Based upon the opinion of Dr. Zabarylo, however, and the fact that Dr. Counti treated or supervised treatment of the Applicant between August and January 2008 and ought to have been familiar with the Applicant's progress during this period, the Insurer took the position that this re-assessment should not take longer than one hour. Consequently, the Insurer paid $101.78 for the cost of the actual assessment rather than the $202.00 suggested by Dr. Counti. Thus, the Insurer paid a total of $324.45 ($101.78 + $152.67 + 70.00) related to this re-assessment, leaving the sum of $100.22 in dispute.

When Dr. Counti testified before me, his only evidence on this issue was his statement (near the end of his examination-in-chief) that the amounts submitted represented his standard charges. No evidence was adduced as to why this amount was reasonable in the circumstances of this case. This issue was not addressed by counsel for the Applicant in either his opening or his closing submissions. I find that the Applicant has failed to prove, on a balance of probabilities, that he is entitled to the amount claimed hereunder.

Conclusion:

For all of the preceding reasons, the Applicant's claims for accident benefits are dismissed.

PROCEDURAL ISSUES AND EXPENSES:

This hearing was originally scheduled to take place on May 2, 3, 4 and 5, 2011. On the first two days (May 2 and 3, 2011), I heard testimony from the Applicant, from his mother Mei Ling Guan (through a Cantonese interpreter provided by FSCO), from Dr. Peter Counti (a chiropractor from Optimum Health Clinic) and from Dr. Kieran MacCon (who conducted an orthopaedic insurer's examination and authored a report with respect thereto). Candice Silver, an occupational therapist that also conducted examinations of the Applicant, had a family medical emergency and was unable to testify on behalf of the Insurer during the week of May 2, 2011. Arrangements were made to reconvene the hearing at a later date.

In the meantime, the Applicant raised some concerns about the interpretation services that had been provided during the testimony of the Applicant's mother. While I had concerns of my own about the timing and manner in which this issue was raised on behalf of the Applicant, since the hearing was being adjourned anyway, I invited the Applicant to gather whatever evidence he wished concerning this issue and to bring whatever motion he wished for such relief as he deemed appropriate. The Applicant retained the services of an "expert" (Matthew San) to review the verbatim reporter's recording of these proceedings and to advise the Applicant with respect thereto. Despite having ample time in which to prepare and having been provided with a number of dates for the hearing of this motion, the Applicant ultimately chose not to bring any motion at all with respect to the issue of the quality of the interpretation services.

The Applicant is a full-time student at McMaster University. In order to accommodate his exam schedule, at the request of the Applicant, the final day of the hearing was delayed until December 12, 2011. At that time, I heard the testimony of Candice Silver and I heard closing arguments from counsel for each of the parties.

On the last day of the hearing, the Applicant did seek leave to call Matthew San as a "rebuttal" witness. I denied this request for the following reasons: (1) the Applicant did not provide proper notice in advance of his intention to call this witness; (2) he utterly failed to comply with the other requirements of Rule 42.2 of the Dispute Resolution Practice Code; (3) he did not provide any reasonable explanation for failing to comply with FSCO's procedural rules or provide evidence of any extraordinary circumstances that would justify my waiving of the usual requirements; (4) he did not actually intend to call this witness to rebut any evidence that had been presented by the Insurer; and (5) he was attempting to introduce evidence related to the issue of the interpretation services provided by FSCO after having failed to comply with any of my directions with respect to that issue and after having indicated that he would not be bringing any motion to seek relief with respect to that issue.

Some of these procedural issues may well be relevant to the issue of expenses. At the conclusion of the hearing, however, the parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

February 24, 2012

Richard Feldman Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:

The Applicant's claims for accident benefits are dismissed.
The decision on expenses is reserved, to be resolved in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.