Ophelia Ofori (Hyde) v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 338

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 338

Appeal P16-00062

OFFICE OF THE DIRECTOR OF ARBITRATIONS

OPHELIA OFORI (HYDE)

Appellant

and

STATE FARM MUTUAL AUTOMOBILE NSURANCE COMPANY

Respondent

BEFORE:

Edward Lee

REPRESENTATIVES:

Ophelia Ofori (Hyde) was self-represented Susan Keenan for State Farm Mutual Automobile Insurance Company

HEARING DATE:

November 1, 2017

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. The appeal is dismissed.

2. The parties did not address themselves to the issue of expenses, but they may contact the Financial Services Commission of Ontario in accordance with the Dispute Resolution Practice Code.

December 28, 2017

Edward Lee Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves the SABS–1996.¹

This is an appeal of a decision of Arbitrator Bayefsky, issued July 18, 2016. In his decision, the Arbitrator rejected the claim of Ms. Ophelia Hyde Ofori (“the Appellant”) in its entirety.

II. BACKGROUND

The Appellant was injured in a motor vehicle accident on July 31, 2010, and applied for and received statutory accident benefits from State Farm Mutual Insurance Company (“State Farm”). Disputes arose in regard to those benefits and the Appellant applied for arbitration at the Financial Services Commission of Ontario.

The arbitration was heard by Arbitrator Bayefsky, and he determined the following:

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.

This is the decision the Appellant seeks to reverse.

After the commencement of the appeal process, Delegate Feldman, who previously had carriage of this matter, issued a preliminary decision on September 22, 2016. In his preliminary decision, Delegate Feldman rejected the Respondent’s arguments that the appeal had not been filed in a timely manner. He ruled that the Appellant had made allegations concerning the lack of procedural fairness that if proven, could constitute an error of law. Accordingly, he deferred making any findings on this issue until all written submissions had been delivered.

Delegate Feldman also excluded a document from Victim Services Toronto sent by the Appellant, because the Appellant had not established that the document was “… sufficiently reliable, probative and relevant to the issues in this appeal that it ought to be accepted, or that it, or some similar evidence, could not, with due diligence, have been introduced at the original arbitration hearing.”

On October 5, 2016, Delegate Feldman wrote the Appellant again, informing her he was also excluding a document from the Humber River Hospital’s Outpatient Mental Health and Addictions Program for the same reasons mentioned above.

On November 10, 2016, Delegate Feldman provided the Appellant with further information about the appeal process. He wrote as follows:

In her latest letter, Ms. Hyde [Ofori] states that she was under the impression that “Once I was given a date for a hearing then I will prepare to come in with my evidence to support my claim.” I am concerned, Ms. Hyde, that you may not appreciate the nature of this appeal. On this appeal, you must demonstrate that the original arbitrator erred in law or that there was a breach of the principles of fundamental justice in the manner in which the original hearing proceeded. This appeal may well be decided upon the record (that is, upon the documents filed) and without any oral argument from you or counsel for State Farm. Even if the appeal is conducted orally, you will not be entitled to testify or introduce any documents that were not part of the original hearing. To establish an error in law or a denial of natural justice, you will have to rely entirely upon the documents filed at the original hearing and the transcript from that hearing.

Your written submissions must point out, with reference to the exhibits from the original hearing and/or the transcript, exactly how the arbitrator erred in law and/or what evidence exists that you were denied a fair hearing. An appeals officer does not have the jurisdiction to consider allegations concerning findings of fact and an appeal must be based upon more than simply disagreeing with the findings of the hearing arbitrator.

The Appellant has since filed her written submission and a written reply. I have also received a set of written submissions from State Farm.

III. ANALYSIS

The arguments of the Appellant are contained in her nine page written submission, entitled “Misappropriation of Evidence.”

I note the Appellant attached with her written submissions the documents from Victim Services Toronto and the Humber River Hospital which had already been excluded from the appeal record by Delegate Feldman. I agree with his decisions and find that those documents may not form part of the appeal record.

Further, the Appellant also attached a one-page document which appears to be a job description for the position of “Correctional Peace Officer”, as well as a fifteen-page document that appears to provide general information on depressive disorders. Both of these documents are new evidence that was not made available to the Arbitrator at the initial hearing, and I find no reason to admit them at this appeal for the same reasons Delegate Feldman excluded the two other documents.

In addition, at various points in her written submission, the Appellant introduced other evidentiary details which had not been presented to the Arbitrator at the initial hearing. For the same reasons mentioned above, I am excluding from the appeal record any evidence that had not been presented to the Arbitrator at the initial hearing.

Turning now to the Appellant’s written submissions, I find that a review of those submissions suggests she framed her issues on appeal on three grounds:

1. An error of law in the Arbitrator’s decision

2. Lack of procedural fairness

3. A misapprehension or failure to consider evidence.

The Appellant’s submissions are dense, and to simplify, I have grouped those submissions addressing similar issues together.

1. The Appellant raised arguments about the weight the Arbitrator gave to the testimony and report of Ms. Clarke. The Appellant also challenged the Arbitrator’s rulings in regard to Ms. Mazou and the totality of the evidence (numbers 1, 3, 9, 13, and 16 of the Appellant’s submissions).

The Appellant challenged the Arbitrator’s findings concerning the evidence of Ms. Clarke, an occupational therapist hired by State Farm, and Ms. Mazou, who provided the caregiving services to the Appellant. The Appellant also challenged his findings in regard to the totality of the evidence.

The Arbitrator’s analysis of the caregiving claim commences at page 5 of his decision. First, he correctly set out the legal test to determine entitlement to the caregiving benefit. He then summarized the testimony of the Appellant, including the Appellant’s testimony concerning Ms. Mazou.

He then discussed the evidence and reports of Dr. Laughlin, Dr. Gupta, Dr. Ghouse, Ms. Clarke, Ms. Cainer, and Dr. Mamelak at page 8 of his decision.

The Arbitrator’s decision clearly demonstrates he made findings in regard to the Appellant’s testimony. He noted “she provided virtually no evidence” as to her caregiving activities before her accident, and she did not describe how the accident had prevented her from caring for her daughter. He noted that none of the medical histories by the relevant assessors had made mention of the fact that the Appellant had been on ODSP at the time of the accident, although the Appellant testified that she had told “every single doctor” about it.

The Arbitrator then noted discrepancies between the Appellant’s testimony and the evidence in the reports where the caregiver, Ms. Mazou, had been interviewed by State Farm. He noted Ms. Mazou had not been called to clarify those discrepancies.

The Arbitrator then assessed and noted “important limitations” in the reports of Dr. Gupta and Dr. Ghouse. He then considered the Appellant’s assessors, Ms. Cainer and Dr. Mamelak, and noted deficiencies in those reports, including Ms. Cainer’s admission that she had not tested or observed the Appellant’s ability to engage in caregiving tasks, and that Dr. Mamelak had not been called to elaborate on his report which was a “repetition of the Appellant’s general psycho-emotional complaints.”

Finally, the Arbitrator noted Ms. Clarke had conducted a physical examination of the Appellant and he determined that her assessment was the most “helpful”.

I find that the Arbitrator’s reasons clearly demonstrate he conducted an assessment and weighing of the many sources of evidence presented to him at the hearing, and he arrived at reasoned conclusions concerning the credibility, probative value, and reliability of those witnesses and reports. These were findings of fact, based on evidence that was properly before the Arbitrator.

In her submissions, the Appellant referred to pages 110-117 of the transcript of the hearing, but nothing on those pages suggests to me that the Arbitrator was “unfair” to the Appellant, or committed errors of law in his assessment of credibility and weighing of the probative value of the sources of evidence before him.

I find no error of law, lack of procedural fairness, or misapprehension or failure to consider essential evidence in the Arbitrator’s assessment of the Appellant’s evidence or her credibility, or in his assessment and weighing and conclusions in regard to any of the other sources of evidence, including that of Ms. Mazou and Ms. Clarke, or to the “totality of the evidence.”

2. The Appellant raised arguments about the Arbitrator’s findings concerning the Appellant’s ODSP records (numbers 5, 11, and 25 of the Appellant’s submissions).

The Appellant argued in her submissions that she had told her family doctor that she had been on ODSP, and re-argued that she had never once been asked by any of these doctors about her ODSP.

The Arbitrator’s finding in regard to the Appellant’s ODSP history is found at page 8 of his decision, where he determines it was “significant” that the Appellant had been on ODSP at the time of the accident, and despite testifying that she told “every single doctor” about this, not one of the medical histories recorded by the relevant assessors had made mention of it.

The Arbitrator specifically noted that the Disability Certificates, prepared by Dr. Laughlin to support the Appellant’s claim, also did not mention this fact.

Most of this submission consists of an improper attempt to re-argue this issue before me. The Arbitrator based his decision regarding ODSP on evidence which was properly before him, and I find no error in law in the Arbitrator’s findings or the conclusions he drew from his analysis.

3. The Appellant raised arguments about Dr. Gupta’s evidence (number 7 submission).

These reports were discussed and reviewed by the Arbitrator in his decision at pages 7, 9, 12, 14, 16, and 17. I find no error in law in the Arbitrator’s assessment and evaluation of these sources of evidence. The Appellant’s argument again consists entirely of an attempt to reargue this issue.

4. The Appellant raised arguments about Dr. Ghouse’s reports and evidence (number 8 of the Appellant’s submission).

These reports and evidence were reviewed, assessed, and discussed by the Arbitrator in his decision at pages 7, 9, 12, 16, and 17. I find no error of law in the Arbitrator’s assessment and weighing of this evidence. The Appellant’s submissions are another attempt to reargue the case.

5. The Appellant raised an argument about the medical reports submitted (Number 6 of her submissions).

The Arbitrator’s decision demonstrates he conducted a thorough and detailed review and assessment of the medical evidence before him. The Appellant did not specify any error in law in this submission and I do not find the Arbitrator erred in law in the manner he conducted his assessment and analysis of the medical reports.

6. The Appellant raised an argument about Dr. Laughlin’s disability certificates and Ms. Clarke’s evidence (submission number 9).

The Arbitrator reviewed, weighed, and assessed Dr. Laughlin’s documents at pages 4 and 6 of his decision. The Arbitrator reviewed and assessed the Clarke report and testimony at pages 7, 10, 13, 16, and 17 of his decision. I find no error in law in the manner in which he made his findings on credibility and the probative value he assigned to these reports and evidence. The Appellant’s argument is again an attempt to re-argue the case before me.

7. The Appellant raised an argument about Ms. Caimer’s and Dr. Mamelak’s reports (number 10 of her submissions).

Ms. Caimer’s report was discussed, reviewed and assessed at pages 7, 8, 10, 13, 15, 16, and 17 of the Arbitrator’s decision. I find no error of law in the manner in which the Arbitrator reviewed, assessed and weighed this evidence. The rest of this submission amounts to an attempt to reargue the case before me.

8. The Appellant raised an argument about her children (submission number 12).

The Arbitrator addressed the evidence in regard to caregiving for the Appellant’s children at pages 4 to 11 of his decision. His analysis of the caregiving claim is found at pages 8 to 11, and demonstrates that he reviewed, assessed, and weighed the evidence. The Arbitrator made findings of fact based on evidence properly before him. I find no error of law in the manner in which he made those findings. The rest of this submission is an attempt to reargue the case.

9. The Appellant raised an argument about Ms. Mazou and the photocopying of her forms (numbers 2 and 13 of her submissions).

The Appellant submitted that she had been instructed by Krylov Law to make photocopies of housekeeping and caregiving forms. This was new evidence that was not before the Arbitrator at the initial hearing. Nonetheless, even if it were admissible, I would not find this evidence was particularly relevant to the issues. The Arbitrator’s analysis and reasons for rejecting the Appellant’s claims for caregiving and housekeeping are detailed in his decision, and his only comment about photocopying was at page 9 of his decision: “While not definitive of the matter, I find significant that many of the receipts Ms. Ofori and Ms. Mazou submitted appear to be identical photocopies.”

I find the Arbitrator did not base any decision solely on this point. Further, this was another finding of fact made by the arbitrator on evidence properly before him. I find no error in law in his determination.

10. The Appellant raised arguments related to the Appellant’s substantial inability to perform her tasks as a caregiver (submissions number 14, 15, and 16).

The Arbitrator addressed the issue of caregiver benefits at pages 5 to 11 of his decision. I did not find the Arbitrator ignored any evidence, as suggested by the Appellant, in making his decision. Not reciting all the evidence does not mean the arbitrator failed to consider it.² Further, there was ample evidence before the Arbitrator to support the findings he made. The Appellant’s submissions amount to another attempt to argue the case a second time. I find no error in law in the Arbitrator’s decision on caregiving.

11. The Appellant raised an argument concerning her daughter Taliyah and her second daughter (submissions number 17 and 18).

The Arbitrator dealt with the caregiving claim at pages 5 to 11 of his decision. I find no error in of law in any of the determinations he made.

12. The Appellant raised an argument about the assessments of Dr. Abuzagaya, Dr. Beimann, Dr. Laughlin, Dr. Ghouse and Dr. Gupta (submissions 19, 20, and 21)

These reports and evidence were addressed and discussed in the Arbitrator’s decision at pages 4, 6, 7, 9, 12, and 16). These reports and evidence were not ignored and I find no error of law in the manner in which the Arbitrator assessed, weighed, and considered this evidence. These submissions also amount to another attempt to reargue the case.

13. The Appellant raised an argument about the totality of the medical evidence in her case (submission number 22).

The Arbitrator’s decision clearly demonstrates that the Appellant’s medical evidence was addressed. Medial evidence is addressed, reviewed, weighted, and assessed at pages 3, 4, 6-10, 12-14, and 16-17 of the decision. I find no error no of law, or lack of procedural fairness, in the manner in which the Arbitrator made his findings in regard to the totality of medical evidence.

14. The Appellant raised an argument about Mr. Marcus Nii-Ankrah Hyde (submission number 23).

The Arbitrator noted a fact about Mr. Hyde in his decision, but I do not find that this element of the decision had any bearing on the disposition of the arbitration. Nor did the Arbitrator commit any error of law, or procedural fairness in determining the fact he noted about this person.

15. The Appellant raised an argument about an RCMP screening test. (submission 24)

This argument also relates to evidence that had not been before the Arbitrator at the initial hearing. I have excluded this document from the appeal record, as the appeal is restricted to errors of law, and cannot address new evidence.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

December 28, 2017

Edward Lee Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2State Farm Mutual Automobile Insurance Co. and Movahedi, [2001] O.J. No. 5099