Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 198

FSCO A13-005383

BETWEEN:

OPHELIA OFORI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: March 29-31, 2016, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Semone Coghiel and Aisha Streete for Ms. Ofori Michelle Friedman and Lina Grasso for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ophelia Ofori, was injured in a motor vehicle accident on July 31, 2010. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm denied certain of Ms. Ofori’s claims. The parties were unable to resolve these matters through mediation, and Ms. Ofori 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 in this hearing are:

1. Is Ms. Ofori entitled to caregiver benefits, from July 31, 2010, onward, at a rate of $250 per week, less amounts already paid by State Farm, pursuant to section 13 of the Schedule?

2. Is Ms. Ofori entitled to housekeeping services, from July 31, 2010 to July 31, 2012, at a rate of $100 per week, less amounts already paid by State Farm, pursuant to section 22 of the Schedule?

3. Is Ms. Ofori entitled to attendant care benefits, from July 31, 2010 to July 31, 2012, at a rate of $638.77 per month, less amounts already paid by State Farm, pursuant to section 16 of the Schedule?

4. Is Ms. Ofori entitled to medical benefits for the balance of treatment plans from Kentai Rehab Centre Inc., dated June 2 and July 19, 2011, in the amounts of $149.76 and $144.48, respectively, pursuant to section 14 of the Schedule?

5. Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Ofori, pursuant to section 282(10) of the Insurance Act?

6. Is Ms. Ofori entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?

7. Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

1. Ms. Ofori is not entitled to caregiver benefits.

2. Ms. Ofori is not entitled to housekeeping and home maintenance benefits.

3. Ms. Ofori is not entitled to attendant care benefits.

4. Ms. Ofori is not entitled to medical benefits.

5. State Farm is not liable to pay a special award.

6. Ms. Ofori is not entitled to interest.

7. If required, the parties may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background – Ms. Ofori’s Accident and Injuries

Ms. Ofori was involved in a motor vehicle accident on July 31, 2010, while riding as a passenger in the rear seat of a car. Ms. Ofori was asleep at the time of the accident, and so does not recall the specifics of the collision. However, based on information she received following the accident, Ms. Ofori advised that the car in which she was riding had been struck by an oncoming vehicle on the driver side while attempting to make a left-hand turn at a 4-way stop. An ambulance attended the scene of the accident, but Ms. Ofori advised them that she could not go to the hospital because she had to pick up her daughter from the babysitter. Ms. Ofori testified that she visited the office of her family doctor, Dr. F.M. Cianfrone, a “few days later” (which was August 3, 2010), and was examined by the locum there, who prescribed medication for her pain. In her Application for Accident Benefits, Ms. Ofori reported that she sustained injuries to her neck, back, knee, nose, forehead and shoulders in the accident, and that she subsequently suffered from “headaches, photophobia, nightmares, sleeplessness and riding anxiety.”

On August 19 and September 30, 2010, as well as on March 10, 2011, Dr. R. Laughlin, a chiropractor to whom Dr. Cianfrone had referred Ms. Ofori, submitted Disability Certificates to the Insurer indicating that Ms. Ofori’s accident-related injuries included sprains to her cervical, thoracic and lumbar spine, headaches, and a sleep and anxiety disorder.

On May 6, 2011, Dr. B. Reimann, a psychologist, and Ms. Yana Shcherbina, a psychotherapist, both of whom assessed Ms. Ofori at the request of the Insurer, reported that Ms. Ofori suffered from “Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic and Specific Phobia, Situational Type (Driver and passenger anxiety)” and that, according to the American Medical Association Classification Table of Impairments Due to Mental and Behavioural Disorders, Ms. Ofori’s condition was consistent with “Class 3: Moderate Impairment (Impairment levels are compatible with some, but not all, useful functioning).”

On January 24, 2012, Dr. F. Abuzgaya, an orthopaedic surgeon who assessed Ms. Ofori at the request of the Insurer, reported that Ms. Ofori’s “accident related diagnosis is consistent with cervical sprain, soft tissue injury of bilateral shoulder, thoracic sprain, lumbosacral sprain and soft tissue injury of left knee.”

Ms. Ofori principally claims caregiving, housekeeping and attendant care as a result of the injuries she suffered in the accident. At the time of the accident, Ms. Ofori lived in a two bedroom apartment with her daughter, Thalia, who was then one and a half years old. Ms. Ofori had been attending Ryerson University until 2008, when Thalia was born, at which time she stayed home to take care of her. Ms. Ofori testified that she had planned on returning to school until prevented from doing so by the injuries she sustained in the 2010 accident. Ms. Ofori’s husband, Marcus Hyde, joined her in Canada after the accident, in December 2010. Ms. Ofori became pregnant with her second daughter, Micheline, in 2011. Ms. Ofori testified that, as a result of the accident, she was very limited in the things she could do for Thalia, was unable to do her usual housekeeping tasks, and required assistance with her personal care tasks.

Prior to the accident, Ms. Ofori suffered from low back pain, migraine headaches, impaired memory and cognition, as well as depression and post-traumatic stress disorder, from a motor vehicle accident in October 2003. Ms. Ofori was treated by Dr. B. Miller, a psychiatrist, who on October 20, 2006, reported that Ms. Ofori suffered from a “frontal lobe syndrome secondary to an acquired brain injury” sustained in the 2003 accident. Ms. Ofori reported that, with therapy, her symptoms improved, but were still present at the time of the 2010 accident, and were aggravated by that incident. Ms. Ofori testified that, as a result of the 2003 accident, she began receiving Ontario Disability Support Programme (“ODSP”) payments, continued to be in receipt of those payments at the time of the 2010 accident, and is still in receipt of those payments.

Ms. Ofori maintained that she was independent in her caregiving, housekeeping and personal care tasks prior to the 2010 motor vehicle accident.

1) Ms. Ofori’s Claim for Caregiver Benefits

Ms. Ofori claims caregiver benefits in respect of her daughter, Thalia, from the date of the accident, onward, at a rate of $250 per week, less amounts already paid by the Insurer. Pursuant to section 13 of the Schedule, an insurer is required to pay reasonable and necessary expenses incurred by an insured person as a result of an accident-related impairment in caring for a person in need of care, and with whom the insured person resided at the time of the accident. Pursuant to section 13(1)2, a person is entitled to caregiving benefits if, within the first two years of the accident, the person suffered a “substantial inability” to perform their pre-accident caregiving activities. Pursuant to section 13(4), caregiving benefits are payable beyond the two-year mark if the person suffers a “complete inability to carry on a normal life.” Caregiving benefits are to be paid at a maximum rate of $250 per week for the first person in need of care, and $50 per week for each additional person in need of care. Section 2(1) of the Schedule defines “person in need of care”, in part, as a person who is “less than 16 years of age.”

(i) Evidence

Ms. Ofori testified that, before the accident, she would take her daughter to the library, and to other activities, and that the motor vehicle accident “set me back.” Ms. Ofori testified that Ms. Soliyate Mazou, the daughter of a friend of hers, assisted her with caring for Thalia. Ms. Ofori said that Ms. Mazou assisted her every day with taking care of her daughter, and that she did this until her husband, Mr. Hyde, came to be with her in Canada in December 2010. Ms. Ofori testified that she paid Ms. Mazou part of what she was owed for her services with money she received from the Insurer, as well as with what she received for her daughter’s “child tax.” Ms. Ofori submitted receipts to the Insurer for caregiving expenses from August 1, 2010 to October 31, 2011. The receipts were co-signed by Ms. Mazou, and indicated 100 hours worked each month, at a rate of $10 per hour. Ms. Ofori testified that she filled these forms out with Ms. Mazou each month, and that it was just a coincidence that the handwriting on many of the forms is identical.

On November 21, 2012, the Insurer interviewed Ms. Mazou, who stated that she was “not sure” when she started helping Ms. Ofori, but thought it was a week after the accident. Ms. Mazou stated that she helped Ms. Ofori with her daughters, by changing their diapers, dressing them and bathing them. She said that she did this five days a week. Ms. Mazou stated that she worked “like eight, nine hours a day.” She then said that she works “like six, seven” hours a day. Ms. Ofori did not call Ms. Mazou to testify.

Ms. Ofori testified that her mother and father, Felicia and Anthony Ofori, did not help her with Thalia after the 2010 accident, but did take her second daughter, Micheline, to live with them when she was born (in November 2011), since her injuries rendered it too difficult for her to care for both a toddler and a new born. Mr. Ofori testified that he and his wife cared for their granddaughter, Thalia, on the weekends after the 2010 accident, but that that stopped when they took Micheline to live with them. Ms. Ofori testified that her husband was initially very supportive, but eventually left in 2012 because of financial pressures and difficulties in taking care of the children and housework. Ms. Ofori said that it was a lot of work being a single parent.

In his three Disability Certificates (in August and September 2010 and March 2011), Dr. Laughlin reported that Ms. Ofori suffered a substantial inability to engage in her normal pre-accident caregiving activities.

On January 8, 2011, Mr. A. Gupta, an occupational therapist who conducted an in-home assessment at the request of the Insurer, recommended that Ms. Ofori receive 20 hours per week of caregiving assistance (for “grooming”), for 8 weeks, for her 2 year old daughter, Thalia. Mr. Gupta reassessed Ms. Ofori in March 2011, and on March 6, 2011, reported that Ms. Ofori required 12 hours per week of caregiving assistance (for “grooming/personal care/hygiene”) for 8 weeks.

On March 29, 2011, Dr. A. Ghouse, a physical medicine and rehabilitation specialist who assessed Ms. Ofori at the request of the Insurer, reported that Ms. Ofori “will require assistance…in looking after her two year old daughter.”

On the basis of a March 28, 2011 in-home assessment requested by the Insurer, Ms. Nataine Clarke, an occupational therapist, on April 8, 2011, reported Ms. Ofori as saying that she was “limited in performing her self-care, housekeeping and care giving responsibilities” and “has assistance daily for 4-5 hours.” Ms. Clarke concluded as follows:

During the assessment, Ms. Ofori demonstrated difficulty with low access and with prolonged and heavy lifting/carrying due to reports of pain. Though she may be limited with bathing and lifting her daughter, it is the opinion of this therapist that, overall, Ms. Ofori does not suffer a substantial inability to perform her pre-accident care giving responsibilities.

Ms. Clarke testified that, although Ms. Ofori had been provided certain assistive devices, she had reported that she had not been taught how to use them, and that Ms. Ofori would, therefore, benefit from an educational session on the proper use of those devices, as well as on strategies to improve her caregiving activities.

By an Explanation of Benefits (OCF-9), dated April 20, 2011 and November 23, 2011, the Insurer denied Ms. Ofori caregiver benefits as of April 25, 2011, on the basis of Ms. Clarke’s March 28, 2011 assessment.

On October 13, 2011, Ms. Sharleen Cainer, a social worker who assessed Ms. Ofori at the request of her previous counsel, reported that Ms. Ofori “feels unable to meet perform [sic] the day to day tasks she had been responsible for, prior to the MVA”, that it “appears that she has become overwhelmed with the issues presently facing her” and that she is “isolated and has not been able to maintain the quality of her life since the advent of the MVA.” Ms. Cainer testified that she simply reported Ms. Ofori’s condition on the basis of Ms. Ofori’s own description of her symptoms, and that she did not test or observe her performing her daily caregiving tasks.

On March 11, 2016, Dr. M. Mamelak, a psychiatrist who assessed Ms. Ofori at the request of her current representative, reported that Ms. Ofori was suffering from a “major depressive disorder with psychotic features”, a “somatic symptom disorder predominantly due to pain”, and “elements of a posttraumatic stress disorder with poor sleep and nightmares.” Dr. Mamelak reported that the 2010 accident “exacerbated [Ms. Ofori’s] myofascial complaints and added to her level of emotional disability.” Dr. Mamelak stated that he was “left with the impression that [Ms. Ofori] is currently having a simply terrible time” and that her life “sounds as if it has been perfectly dreadful since the 2010 accident.”

(ii) Findings

I find a number of problems in Ms. Ofori’s claim for caregiving benefits.

Although Ms. Ofori maintained that she was independent in her caregiving tasks prior to the 2010 accident, she provided virtually no evidence as to what those tasks were, saying only that she used to take her daughter to the library and other activities. She also did not describe how the accident prevented her from caring for her daughter, other than to say that the accident “set her back.”

While I accept that the 2010 accident may have aggravated Ms. Ofori’s pre-existing medical condition, I find significant that Ms. Ofori continued to be in receipt of ODSP payments at the time of the accident, and that, despite testifying that she told “every single doctor” about this, none of the medical histories recorded by the relevant assessors make mention of it. Ms. Ofori stated that, if this were not in the assessors’ records, then “maybe they ignored it.” I do not accept that each of the assessors would have failed to mention such an important piece of information. This is particularly relevant to the three Disability Certificates submitted to support Ms. Ofori’s caregiving claim (by Dr. Laughlin), which indicated that Ms. Ofori did not have any pre-existing conditions that affected her ability to perform her previous activities and was not in receipt of any disability benefits.

Assuming, however, that, as a result of the accident, Ms. Ofori required caregiving assistance for her daughter, I find that Ms. Ofori has not established what type of assistance she actually needed. As noted, Ms. Ofori provided no specific evidence of what type of caregiving assistance she required for her daughter. While Ms. Ofori testified that her friend, Ms. Mazou, provided caregiving assistance, the evidence of this assistance is inconsistent. Ms. Ofori stated that Ms. Mazou assisted her every day. However, Ms. Mazou reported that she assisted Ms. Ofori five days a week, and Ms. Ofori’s parents testified both that they took Thalia on the weekends after the accident and that they did not help Ms. Ofori with Thalia. Ms. Ofori and Ms. Mazou submitted receipts for caregiving assistance from a day after the accident to the end of October 2011, but Ms. Ofori testified that Ms. Mazou provided caregiving assistance for Thalia until Ms. Ofori’s husband came to Canada in December 2010. Ms. Mazou’s reports to the Insurer are inconsistent as to the number of hours she assisted with caregiving each day. Ms. Mazou was unable to say when she began assisting Ms. Ofori, although the receipts suggest that it began immediately after the accident. Ms. Mazou also reported to the Insurer that she helped Ms. Ofori with both of her daughters, while Ms. Ofori’s parents testified that they took Micheline to live with them when she was born in November 2011. The caregiving receipts submitted list a variety of duties Ms. Mazou provided in caring for Thalia, but Ms. Mazou only reported to the Insurer that she assisted Thalia with grooming and/or personal hygiene. Ms. Mazou was not called as a witness to clarify these discrepancies. And while not determinative of the matter, I find significant that many of the receipts Ms. Ofori and Ms. Mazou submitted appear to be identical photocopies.

While two of the Insurer’s assessors, Mr. Gupta and Dr. Ghouse, reported that Ms. Ofori required caregiving assistance, their evidence contains important limitations. Mr. Gupta only recommended two relatively brief periods of assistance, only for Thalia’s grooming and personal hygiene (with no indication of what tasks were required prior to the accident, and with the suggestion that Ms. Ofori was capable of all of the other caregiving duties she had), and at the relatively significant amount of 20 hours per week (which is more than Ms. Ofori and Ms. Mazou were claiming in their caregiving receipts). And while Dr. Ghouse recommended caregiving assistance, he simply stated that Ms. Ofori would require help in looking after her two year old daughter, with no analysis of Ms. Ofori’s pre-accident caregiving duties and the extent of her inability to do those duties after the accident.

Similarly, while Ms. Ofori’s own assessors, Ms. Cainer and Dr. Mamelak, reported that Ms. Ofori was experiencing difficulties after the accident, they did not address the extent to which she might be prevented from performing any of her pre-accident caregiving duties. Ms. Cainer acknowledged at the hearing that she had not tested or observed Ms. Ofori’s ability to engage in caregiving tasks, and Dr. Mamelak was not called to elaborate on his report (which appeared, in essence, to be a repetition of Ms. Ofori’s general psycho-emotional complaints following the accident). I note, as well, that the September 23, 2014 report of Ms. Ofori’s family physician, Dr. Cianfrone, in support of her job application at the time to the RCMP, and stating that Ms. Ofori was a “healthy 32 year old woman”, stands in stark contrast to Ms. Ofori’s reports to Dr. Mamelak of severe disability as a result of, and since, the 2010 motor vehicle accident.

I find Ms. Clarke’s assessment to be the most helpful. Following a physical assessment of Ms. Ofori, Ms. Clarke stated that, while Ms. Ofori might require some assistance in bathing and lifting Thalia (also reporting Ms. Ofori as saying that she was receiving 4-5 hours per day in caregiving, housekeeping and attendant care, contrary to Ms. Ofori’s and Ms. Mazou’s receipts of approximately 5 hours of assistance each day with caregiving alone), she was not, as the Schedule requires, “substantially unable” to perform her pre-accident caregiving duties. I do not find that Ms. Clarke’s recommendation of providing Ms. Ofori with training on the use of the relevant assistive devices fundamentally alters this conclusion.

In all of the circumstances, therefore, I find that Ms. Ofori has not established, on a balance of probabilities, that, as a result of the 2010 motor vehicle accident, she was rendered substantially unable to perform her pre-accident caregiving duties, and that she received and required the caregiving assistance claimed. I further find that Ms. Ofori has not established that, beyond the two-year mark, and as a result of the accident, she suffered a complete inability to carry on a normal life. I note in this latter regard that Ms. Ofori did not submit any caregiving receipts after the end of October 2011, when her second daughter was born. Ms. Ofori’s claim for caregiving benefits is denied.

2) Ms. Ofori’s Claim for Housekeeping Benefits

Ms. Ofori claims housekeeping benefits from the date of the accident to July 31, 2012, at the maximum rate of $100 per week, less amounts already paid by the Insurer. Pursuant to section 22 of the Schedule, an insurer is required to pay for reasonable and necessary expenses incurred by an insured person if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. Pursuant to sections 22(2) and 22(3), housekeeping benefits are not payable beyond 104 weeks after an accident unless the insured person sustained a catastrophic impairment as a result of the accident. Ms. Ofori did not claim to have been catastrophically impaired by the accident.

The substantive test of entitlement for housekeeping benefits is set out in Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006):

…the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.

(i) Evidence

On January 26, 2011, Dr. R. Dost, a neurologist Ms. Ofori saw at the request of the Insurer, reported Ms. Ofori as saying that, prior to the accident, she was “responsible for all of the indoor housekeeping activities, which she has not been able to resume.”

Ms. Ofori testified that Ms. Mazou assisted her with cooking, cleaning and doing the laundry. When interviewed by the Insurer, Ms. Mazou stated that she helped Ms. Ofori with “basic” housekeeping tasks “like sweeping the floor, dishes, cleaning up.” Ms. Mazou also said she mopped the floor, cleaned the washroom, fixed the beds, did the laundry and wiped down windows. Ms. Ofori submitted receipts to the Insurer for housekeeping expenses from August 1, 2010 to October 31, 2011. The receipts were co-signed by Ms. Mazou, and indicated 80 hours worked each month, at a rate of $12.50 per hour. As noted earlier, Ms. Ofori testified that she filled these forms out with Ms. Mazou each month, and that it was just a coincidence that many of the forms are identical in writing.

In his three Disability Certificates, Dr. Laughlin reported that Ms. Ofori suffered a substantial inability to engage in her normal pre-accident housekeeping activities.

On January 8, 2011, Mr. Gupta recommended that Ms. Ofori receive 13.5 hours of housekeeping assistance per week, for 8 weeks. In his March 2011 reassessment of Ms. Ofori, Mr. Gupta reported that Ms. Ofori required 8 hours per week of housekeeping assistance, for 8 weeks.

On March 7, 2011, Dr. I. Robertus, a general physician who assessed Ms. Ofori at the request of the Insurer, reported that Ms. Ofori suffered from a “Pain Disorder Associated with a General Medical Condition” and that she was prevented from performing heavy housekeeping tasks.

On March 29, 2011, Dr. Ghouse reported Ms. Ofori as saying that she was able to do “light chores of housekeeping including light cooking”, but not “her laundry, vacuuming or cleaning the home.” Dr. Ghouse reported that Ms. Ofori “will require assistance in the form of housekeeping and home maintenance….”

As noted, in April 2011, Ms. Clarke reported Ms. Ofori as saying that she was “limited in performing her self-care, housekeeping and care giving responsibilities” and “has assistance daily for 4-5 hours.” Ms. Clarke concluded as follows:

During functional testing, [Ms. Ofori] was observed to possess and utilize assistive devices to facilitate the performance of her daily living activities. Therefore, it is the opinion of this therapist that Ms. Ofori does not suffer a substantial inability to perform her pre-accident housekeeping and home maintenance responsibilities.

Ms. Clarke testified that Ms. Ofori had apparently not been taught how to use the assistive devices provided, and that she would, therefore, benefit from an educational session on the proper use of those devices, as well as on strategies to improve her housekeeping activities.

By an Explanation of Benefits dated April 20, 2011, the Insurer denied Ms. Ofori housekeeping benefits as of April 25, 2011, on the basis of Ms. Clarke’s assessment.

As noted, in October 2011, Ms. Cainer reported that Ms. Ofori felt “unable to…perform the day to day tasks she had been responsible for, prior to the MVA” and “has not been able to maintain the quality of her life since the advent of the MVA.” Ms. Cainer testified that she simply reported Ms. Ofori’s condition on the basis of Ms. Ofori’s own description of her symptoms, and did not test or observe Ms. Ofori performing her daily housekeeping tasks.

As noted, in March 2016, Dr. Mamelak reported that, based on a diagnosis of “major depressive disorder with psychotic features”, a “somatic symptom disorder predominantly due to pain”, and “elements of a posttraumatic stress disorder with poor sleep and nightmares”, the 2010 accident “exacerbated [Ms. Ofori’s] myofascial complaints and added to her level of emotional disability”, she appeared to be “having a simply terrible time” and her life “sound[ed]…perfectly dreadful since the 2010 accident.”

(ii) Findings

I find that Ms. Ofori is not entitled to the housekeeping benefits claimed.

While I accept that Ms. Ofori may have been independent in her housekeeping tasks prior to the accident (which tasks were described, for example, in Ms. Clarke’s report), the evidence of what assistance Ms. Ofori received and required after the accident is inconsistent. Two important components of both Ms. Ofori’s testimony and the receipts she submitted is the claim for assistance with cooking and grocery shopping. However, in her statement to the Insurer, Ms. Mazou did not include these in the housekeeping assistance she provided Ms. Ofori. Ms. Mazou was not called to address either this or the apparent handwriting similarities in the receipts submitted. The receipts also note that housekeeping assistance was initially provided at the rate of $10 per hour, and then at $12.50 per hour. Caregiving assistance was consistently sought at $10 per hour. Ms. Ofori did not introduce any evidence to address this discrepancy. Ms. Ofori also sought housekeeping benefits until two years after the accident, but only submitted receipts until the end of October 2011, when her second daughter was born.

Even if the 2010 accident aggravated Ms. Ofori’s pre-existing medical condition, her continued receipt of ODSP payments at the time of the accident, and the absence of any mention of this in the medical reports, is relevant, in particular, to Dr. Laughlin’s Disability Certificates, and undermines his conclusion that Ms. Ofori suffered a substantial inability to engage in her usual pre-accident housekeeping tasks.

While Ms. Ofori claimed housekeeping consistently from the accident until the end of October 2011, Mr. Gupta’s recommendations were for only two relatively brief periods of housekeeping assistance, and, for example, included cooking and grocery shopping, neither of which either Ms. Ofori or Ms. Mazou mentioned as actually being provided. Contrary to Ms. Ofori’s more comprehensive claim for housekeeping assistance, and Mr. Gupta’s even broader list of required tasks, Dr. Robertus only concluded that Ms. Ofori was prevented from performing “heavy” housekeeping tasks, but did not say which tasks, and recommended an in-home reassessment for this purpose. Ms. Clarke performed such an assessment, and concluded that Ms. Ofori could use the assistive devices to perform her daily activities, and therefore did not suffer a substantial inability to engage in her previous housekeeping duties. I note, as well, that, contrary to Ms. Ofori’s and Ms. Mazou’s receipts of approximately 2 hours per day in housekeeping assistance, and Mr. Gupta’s comparable recommendation for assistance, Ms. Clarke reported Ms. Ofori as saying that she was receiving 4-5 hours per day in caregiving, housekeeping and attendant care. And, as discussed in connection with Ms. Ofori’s claim for caregiving benefits, neither Ms. Cainer nor Dr. Mamelak supports Ms. Ofori’s claim of substantial inability since their reports appear simply to restate Ms. Ofori’s complaints without addressing the extent to which she might be prevented from performing any of her pre-accident housekeeping duties.

In all of the circumstances, therefore, I find that Ms. Ofori has not established, on a balance of probabilities, that, as a result of the 2010 motor vehicle accident, she was rendered substantially unable to perform her pre-accident housekeeping tasks, and that she received and required the housekeeping assistance claimed. Ms. Ofori’s claim for housekeeping benefits is denied.

3) Ms. Ofori’s Claim for Attendant Care Benefits

Ms. Ofori claims attendant care benefits, from the date of the accident until July 31, 2012, at a rate of $638.77 per month, less amounts already paid by the Insurer. Pursuant to section 16 of the Schedule, an insurer is required to pay reasonable and necessary expenses, as a result of an accident-related impairment, incurred by a person for an attendant. Pursuant to section 16(4) of the Schedule, the monthly amount payable for attendant care is to be determined in accordance with an Assessment of Attendant Care Needs (Form 1). Pursuant to sections 18(2) and 18(3), attendant care benefits are not payable beyond 104 weeks after an accident unless the insured person sustained a catastrophic impairment as a result of the accident.

(i) Evidence

Ms. Ofori testified that the motor vehicle accident “affected her self-care ability.” Ms. Ofori testified that Ms. Mazou assisted her with showering and dressing. Ms. Ofori testified that her husband initially assisted her with showering. Despite Ms. Mazou’s interview statement to the Insurer that she did not provide any personal care services to Ms. Ofori, Ms. Ofori testified that Ms. Mazou did help her with attendant care.

On October 8, 2010, Ms. Yonit Nisan, an occupational therapist to whom Ms. Ofori’s counsel referred her, conducted an attendant care assessment, and reported that, as a result of the accident, Ms. Ofori suffered “functional deficits resulting in a partial-mild inability to sufficiently perform activities of daily living”, and, in an Assessment of Attendant Care Needs (Form 1), recommended attendant care benefits at a rate of $638.77 per month. The Form 1 recommended attendant care assistance for dressing and undressing, cutting nails, serving and feeding meals, and bathing.

On March 7, 2011, Dr. Robertus reported that Ms. Ofori was prevented from independently performing her attendant care tasks.

In his March 2011 report, Dr. Ghouse reported Ms. Ofori as saying that she was “independent in eating and drinking, dressing her upper body, toileting and grooming herself”, but as having “difficulty and pain when she is dressing her lower body or put[ting] on her shoes and socks.” Dr. Ghouse reported that Ms. Ofori “should be independent in her personal care….”

As noted, in April 2011, Ms. Clarke reported Ms. Ofori as saying that she was “limited in performing her self-care, housekeeping and care giving responsibilities” and “has assistance daily for 4-5 hours.” However, based on her assessment, Ms. Clarke concluded that “attendant care is not required at this time”, and provided an Attendant Care Needs Form 1 confirming this.

By an Explanation of Benefits dated April 20, 2011, the Insurer denied Ms. Ofori attendant care benefits as of April 25, 2011, on the basis of Ms. Clarke’s assessment.

As noted, Ms. Cainer reported that Ms. Ofori felt unable to perform her usual day to day tasks, and to maintain her previous quality of life. And Dr. Mamelak reported that Ms. Ofori’s psycho-emotional problems as a result of the accident appeared to have severely affected her life.

(ii) Findings

I find that Ms. Ofori is not entitled to the attendant care benefits claimed.

Ms. Ofori’s own evidence of her attendant care needs is problematic in a number of respects. At the hearing, she provided very limited support for her claim. She simply stated that the accident “affected her self-care ability” and that Ms. Mazou assisted her with showering and dressing. Ms. Ofori did not provide receipts for the attendant care assistance she said Ms. Mazou provided. She also did not provide any documentation regarding the assistance she claimed her husband provided. Ms. Ofori’s claim of receiving attendant care assistance from Ms. Mazou (both at the hearing and to Ms. Clarke) is not corroborated by Ms. Mazou, who denied to the Insurer that she provided such assistance to Ms. Ofori, and was not called to testify at the hearing.

The medical reports also do not establish, on a balance of probabilities, that Ms. Ofori required attendant care assistance. Ms. Nisan’s report of Ms. Ofori needing help with dressing and undressing, cutting nails, serving and feeding meals, and bathing, is not supported by Ms. Ofori’s own evidence of the attendant care she either needed or received. Dr. Robertus simply indicated that Ms. Ofori was prevented from independently performing her attendant care tasks, but suggested an in-home reassessment to determine how exactly this was the case. Ms. Clarke’s subsequent assessment found that Ms. Ofori did not require any specific attendant care assistance. Dr. Ghouse found Ms. Ofori to be independent in her personal care, and, in any event, reported Ms. Ofori as saying only that she had “difficulty and pain when she is dressing her lower body or put[ting] on her shoes and socks”, contrary to Ms. Nisan’s report and Ms. Ofori’s claim of more extensive attendant care needs. Neither Ms. Cainer nor Dr. Mamelak set out the manner and extent to which Ms. Ofori might require any attendant care.

In all of the circumstances, I find that Ms. Ofori has not established, on a balance of probabilities, that, as a result of the 2010 accident, she required attendant care assistance. Her claim for attendant care benefits is denied.

4) Ms. Ofori’s Claim for Medical Benefits

Ms. Ofori claims medical benefits for the outstanding balance of two treatment plans from Kentai Rehab Centre Inc., dated June 2 and July 19, 2011, in the amounts of $149.76 and $144.48, respectively. Pursuant to sections 14(1) and 14(2)(a) and (b) of the Schedule, an insurer is required to pay a medical benefit for all reasonable and necessary expenses for, in part, medical, chiropractic and physiotherapy services, incurred by or on behalf of the insured person as a result of an accident. Pursuant to section 14(4) of the Schedule, an insurer is not liable to pay a medical benefit for expenses related to these services that exceed the maximum rate or amount of expenses established under the Guidelines applicable to the claim.

Ms. Ofori did not offer any evidence or make any submissions regarding her entitlement to the balances claimed for the two treatment plans. She also did not indicate how the Insurer’s approval and payment of all but very small amounts of the treatment plans was unreasonable, improper or contravened the Superintendent’s Guidelines on professional services fees. Ms. Ofori’s claim for these amounts is denied.

5) Special Award

Pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, where an insurer has unreasonably withheld or delayed payments, an Arbitrator can, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. Ms. Ofori submitted that the delays and interruptions in the Insurer’s payment of her benefits caused her pain and distress, that the Insurer had “malice and intent” to cause her harm, and that the Insurer should be liable to a maximum special award in the circumstances.

Ms. Ofori did not introduce any evidence to suggest that the Insurer’s conduct was either intended to cause, or in fact caused, her harm. The evidence establishes that any delay or interruption in the payment of benefits was actually due to Ms. Ofori’s failure to attend certain medical assessments and that this, in turn, was due either to her having moved a number times and not receiving the notices sent to her or her lawyer not having forwarded the relevant notices to her new addresses. I have also found that Ms. Ofori has not established her substantive entitlement to the benefits claimed. In the circumstances, I find that Ms. Ofori is not entitled to a special award.

6) Interest

Finally, pursuant to section 46(2) of the Schedule, an insurer is required to pay interest on any amounts found to be overdue for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly. Ms. Ofori sought interest on the amounts ordered to be paid. Given that I have denied Ms. Ofori’s claims, I find that no interest is owing.

EXPENSES:

The parties did not address the issue of expenses. If required, they may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

July 18, 2016

Eban Bayefsky Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 198

FSCO A13-005383

BETWEEN:

OPHELIA OFORI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

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. Ofori is not entitled to caregiver benefits.

2. Ms. Ofori is not entitled to housekeeping and home maintenance benefits.

3. Ms. Ofori is not entitled to attendant care benefits.

4. Ms. Ofori is not entitled to medical benefits.

5. State Farm is not liable to pay a special award.

6. Ms. Ofori is not entitled to interest.

July 18, 2016

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.