Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 145

FSCO A12-000191

BETWEEN:

KENISHIA BROWN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: James Robinson

Heard: March 24, 2014, April 21, 22 and 23, 2015 and December 10, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on November 18, December 2 and December 3, 2015

Appearances: Rita M. Gratsias and Kwaku Bona for Ms. Brown John Lea and Robert Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Kenishia Brown, was injured in a motor vehicle accident on July 1, 2009. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly caregiver benefits on or before July 7, 2010. The parties were unable to resolve their disputes through mediation, and Ms. Brown applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act², R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Brown entitled to receive weekly caregiver benefits at the rate of $400.00 for the period from July 7, 2010 and ongoing?
Is State Farm liable to pay Ms. Brown’s expenses in respect of the arbitration?
Is Ms. Brown liable to pay State Farm’s expenses in respect of the arbitration?
Is Ms. Brown entitled to interest for the overdue payment of benefits?

Result:

Ms. Brown’s application is dismissed.
Ms. Brown shall pay State Farm its expenses in respect of the arbitration.

EVIDENCE AND ANALYSIS:

Introductory

At the commencement of the hearing the Applicant withdrew her claims for attendant care and for housekeeping expenses. I had previously ruled that insofar as the Applicant had failed to provide timely particulars of the basis of her claim for a Special Award that issue was no longer before me (subject, of course, to any residual discretion under subsection 282(10) of the Insurance Act).

Therefore, the only issues which remained to be adjudicated were the issues of caregiver benefits, interest and expenses.

Section 37 of the Schedule

It was not disputed at the hearing that the insurer had failed to request a Disability Certificate from the Applicant pursuant to subsection 37(1) of the Schedule prior to discontinuing her benefits.

Applicant’s counsel submitted that the language of subsection 37(1) is mandatory. Counsel further submitted that the decision of Director’s Delegate Blackman in Yogesvaran and State Farm Mutual Automobile Insurance Company³ is authority for the proposition that the discontinuance of benefits was unlawful and that the Applicant’s claim for benefits ought to be allowed on that ground alone.

Subsequent arbitral and judicial authority have cast doubt upon that interpretation of the Yogesvaran decision.

The leading authority upon this issue is the decision of the Ontario Court of Appeal in Stranges v. Allstate Insurance Company of Canada:

The inadequacy of the refusal notice did not entitle the respondent to payment of benefits in perpetuity until proper notice was given or a proper DAC assessment was carried out. The respondent was still required to prove that she was entitled to the continued payment of IRBs…⁴

That principle was subsequently applied by Arbitrator Lee in Bisnath and State Farm Mutual Automobile Insurance Company.⁵ Bisnath has been subsequently been approved and followed by FSCO arbitrators in Shanmuganathan and State Farm Mutual Automobile Insurance Company⁶ and in Robinson and State Farm Mutual Automobile Insurance Company.⁷

I am of the view that Bisnath represents the proper statement of the law and I specifically adopt the reasoning in that decision. Nothing in subsection 37(1) can be taken as relieving the Applicant of her duty in law under section 13 of the Schedule to prove her entitlement to caregiver benefits. The apparent failure of the insurer to request a Disability Certificate does not relieve the Applicant of the necessity to prove her entitlement nor does it represent any impediment to the insurer in defending its decision to deny benefits.

The Applicant must accordingly prove that she meets the relevant tests set forth in section 13 of the Schedule, including but not limited to the proof of a “substantial inability” to perform her duties as a caregiver during the period for which she claims benefits are outstanding.

Credibility of the Applicant

It appeared from the evidence that the circumstances of the Applicant’s life are difficult. Be that as it may, I find that her testimony failed the test of credibility on any number of crucial points.

(i) The Impugned Expense Reports

The Applicant filed expense reports with the insurer from and after the date of the accident confirming that child care services had been performed on the Applicant’s behalf during her recovery. Among the persons purported to have signed the reports was the Applicant’s maternal cousin, Shineille Henry.

Ms. Henry gave evidence before me, under summons from the insurer. She testified that she had never provided child care services to or at the request of the Applicant. She further testified that the signature “Shineille Henry”, which appears on certain of the expense reports was not hers and that she had never seen the reports. Finally, she testified that the address which the Applicant noted in those expense reports was not an address at which the Applicant had ever lived with her.

I found Ms. Henry to be an intelligent and credible witness. She testified under oath in a manner that made it abundantly clear that the truth was important to her. She was consistent in her testimony, and unshaken in a cross-examination which was notably brief. She is the Applicant’s maternal cousin. She did not manifest any animus against the Applicant that would alert the listener to caution. I specifically disagree with the suggestion of Applicant’s counsel that Ms. Henry was in any way threatened or intimidated by the approach of insurer’s counsel. I am satisfied that Ms. Henry testified truthfully and without duress.

I am satisfied on the basis of the available evidence that Ms. Henry did not sign the impugned expense reports, did not provide the childcare assistance alleged in those reports and did not authorize the use of her name or reputation for the preparation of those reports.

Applicant’s counsel argued forcefully that I should disregard these impugned expense reports because they did not relate to a period of time at issue in the application, but to a prior time for which benefits had already been paid. In my opinion, that submission cannot be accepted.

The delivery by the Applicant of the impugned expense reports means that she tendered false documents to the insurer, knowing that they would be relied upon and intending that they be relied upon. It is not simply the case that the Applicant didn’t update her reports, nor is it the case the insurer must be deemed in any way to have waived any right to complain about the impugned reports.

Something that did not happen was presented to the insurer as the truth. That creates a serious difficulty because it gives rise to a reasonable inference that I cannot rely upon the uncorroborated evidence of the Applicant in any material particular.

(ii) Inconsistent Testimony by the Applicant

The contradictions in the Applicant’s testimony were numerous and troubling. There were inconsistencies between the Applicant’s evidence at the hearing and the statements, attributed to the Applicant, which various assessors recorded in their reports. There were also inconsistencies in the Applicant’s testimony at the hearing. Without rendering an exhaustive list of each, I will provide the following examples of which I took particular note.

On the one hand, the Applicant denied that she had ever lived with S.W., her boyfriend at the time of the accident.⁸ In October, 2009 she reported to Dr. William Kuch in the course of an in-home assessment that she was living with a common-law partner. In December 2009 she told an assessor, S.L., in the course of a psychological assessment that she had been living with her boyfriend until he moved out, a month and a half prior to the accident. In April 2010 she told Dr. Bernstein that her boyfriend had moved out after the accident. These represent four separate and irreconcilable accounts of what ought to be a simple fact.

Similarly, the Applicant could not give a straightforward account of where she was living at the time of the accident. In her examination in chief she testified that she was living at an address in Ajax.⁹ In her cross-examination she testified that she was living in Brampton at the time of the accident¹⁰ Although the latter address is consistent with that given in an expense report filed by the Applicant with the insurer in July 2009, it is nonetheless the case that, under oath, she gave two separate and irreconcilable accounts of what ought to be a simple fact. This did not appear to me to arise from simple confusion.

The Applicant offered inconsistent accounts of where certain of her children lived in 2009.¹¹ The Applicant offered inconsistent accounts of her education and training.¹² The Applicant offered inconsistent accounts of her work experience.¹³

These various inconsistencies were unexplained and inexplicable. In some cases one could take a position of skepticism about a deponent’s testimony and disbelieve it unless it was corroborated by other, independent evidence. Unfortunately in this case such other evidence is scarce.

Medical Reports, Notes and Records

In the absence of any helpful testimony from the Applicant, I am remitted to a careful consideration of the available medical evidence. The documentary evidence provided by the Applicant is not extensive.

There are notes from the Emergency Medical Service confirming the nature of the Applicant’s injuries at the scene of the accident. The Applicant was not treated at that time.

The notes of Dr. K. C., whom the Applicant consulted at a walk-in clinic five days following the accident, confirm her complaints of pain in her head, neck and pelvis. No other complaints were noted. There is no evidence in the notes of a referral for physiotherapy, as was asserted by the Applicant. No medications were prescribed.

The Applicant testified that she attended at Peel Memorial Hospital and that she followed up with her family doctor, Dr. O, for treatment after the accident. No notes or records were produced in evidence before me with respect to attendance for accident-related symptoms. Such evidence as there was, including the evidence of the OHIP summaries produced at the hearing, was consistent with non-accident-related pre-natal examinations.

The Applicant testified that she attended physiotherapy on a continuing basis for accident-related symptoms at Ontario Physio One after her initial assessment on July 13, 2009. No records were produced at the hearing to corroborate such attendances.

The Applicant relied primarily upon three rebuttal reports: (a) the Occupational Therapy Rebuttal Assessment Report of G. Paul Chugh, Occupational Therapist, dated July 13, 2010 (b) the Psychological Assessment Report of Dr. Stephen M. Bernstein, dated April 26, 2010; and (c) the neurologist’s report of Dr. Richard M. Gladstone, dated July 22, 2010.

Mr. Chugh, the occupational therapist, commented:

During the physical examination, Ms. Brown’s demonstrated cervical and back mobility that was mild to moderately restricted and accompanied by end range and stretching pains.

Functionally, Ms. Brown’s current abilities are at a light level of activity.

In terms of activities of daily living, Ms. Brown currently required assistance for her select personal care tasks, including, partial help with donning and doffing her upper and lower body clothing; shampooing and drying her hair, toe nails; and partial help with bathing in washing her back. She remains unable to participate fully in her everyday housekeeping tasks at her pre-accident level…

Dr, Gladstone, the neurologist, commented:

She has not yet reached maximum medical recovery and requires ongoing rehabilitation. Because she is a single parent of five children all of young age, including infants, toddlers and baby, she requires assistance for housekeeping and home maintenance activities because of the magnitude of effort required…She continues to have a substantial difficulty to perform her pre-accident housekeeping and home maintenance and caregiver duties although she is able to partake of light to early moderate activities in this regard from time to time.

These rebuttal reports must be weighed against the evidence of Shineille Henry, the Applicant’s cousin. In her examination-in-chief by Insurer’s counsel, Ms. Henry gave the following testimony:

Q. Can you tell me about any instances, in and around the summer of 2009, that you saw the Applicant at all?

A. In the summer of 2009 she had…she was pregnant at the time, and there was a birthday party for her two year old daughter. And that was the last time I went to her, was at her house, in 2009…

Q. Do you remember when, with any more specificity, that was in 2009?

A. It was in August, September, that time, August, September. September, yes.

Q. The Applicant was still pregnant at the time?

A. No. She had the baby already.

Q. Did you make any observations of the Applicant at that party?

A. Yes, she was fine to me. She didn’t look like she was in an accident, that she came out of an accident. She didn’t look hurt. She wasn’t limping. She was fine.

Q. When you say “fine”, was she doing anything, in particular, that gave you the impression she was fine?

A. She was holding her baby. She was playing with her other kids. She was talking with people.¹⁴

Ms. Henry’s account of the Applicant’s physical condition, many months prior to the date of the examinations conducted by Mr. Chugh and Dr. Gladstone, respectively, is entirely at odds with the accounts given by these specialists. Ms. Henry, as I have indicated, was a credible and consistent witness. Her account of the Applicant’s physical condition and functional abilities in 2009 is completely at odds with the rebuttal reports of Mr. Chugh and Dr. Gladstone from 2010. They are irreconcilable.

The psychological report of Dr. Bernstein is also problematic. There is no reason to disbelieve the diagnosis of depression. But accepting that the Applicant is depressed is different from attributing the cause of such depression to the accident. That attribution depends entirely upon the acceptance by Dr. Bernstein of the Applicant’s own assertion that the depression was caused by the accident. Apart from the Applicant’s own testimony, there is no objective evidence that this was the case. Given the concerns that I have previously raised, that assertion – unsupported by compelling corroborative evidence - is insufficient.

I do not accede to the argument of Applicant’s counsel that a medical report - with respect to which no rebuttal report is obtained or produced – must be accepted for the truth thereof. Insurer’s counsel correctly states the legal position which is that the arbitrator is the finder of fact.

The Applicant bears the burden of proof in this application. She must prove her case on the balance of probabilities. This she has failed to do. Having found, as I have, that I should not accept her uncorroborated evidence with respect to any material fact, I must also find that there is nothing in the medical reports produced by her in this proceeding that bears sufficient weight to contradict the testimony of Ms. Henry and of the insurer’s experts. The Applicant’s case falls short of the necessary legal standard. She has not met her burden of proof.

EXPENSES:

If the parties are unable to reach an agreement on expenses, they may request an appointment before me in accordance with Rule 79 of the Dispute Resolution Practice Code.

May 16, 2016

James Robinson Arbitrator

Date