Neutral Citation: 2019 ONFSCDRS 45 File No.: A14-007171

BETWEEN:

SHELLEY GUAY Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Heard: September 26, 28 and 29, 2017 in St. Catharine's, Ontario by Arbitrator Anita Idemudia¹

Decision Rendered By: Maggy Murray²

Appearances: Shenthuran Subramaniam and Christopher Yan for Ms. Guay Arthur Camporese and Christine Baily for Royal & Sunalliance Insurance Company

Issues:

The Applicant, Shelley Guay, was involved in a motor vehicle accident on February 26, 2010 when a car turned left in front of the car she was a passenger in.³ She sustained soft tissue injuries in this accident. She applied for and received statutory accident benefits from Royal & Sunalliance Insurance Company (“Royal”), payable under the Schedule.⁴ Royal terminated weekly caregiver benefits effective September 5, 2012. The parties were unable to resolve their disputes through mediation, and Ms. Guay 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:⁵

Is Ms. Guay entitled to receive a weekly caregiver benefit from September 6, 2012 onwards?
If Ms. Guay is entitled to receive a weekly caregiver benefit, what is the weekly quantum of her caregiver benefit?

Result:

Ms. Guay’s claim is dismissed.
The issue of the expenses of this proceeding is deferred.

EVIDENCE AND ANALYSIS:

Witnesses

The Applicant testified on her own behalf and called the following witnesses: Brenda Adenson⁶ (Ms. Guay’s friend), Ms. Leslie Hisey (occupational therapist), Nicole Dutchak (social worker), Dr. Allen Greenspoon (family doctor), Ajodele Zapparoli (occupational therapist), and Dr. Patricia Pailing (psychologist).

Scott Ellis (adjuster) testified on behalf of the insurer.

Background

Ms. Guay was 42 years old at the time of the February 2010 accident in which she sustained soft-tissue injuries. She was also involved in two previous motor vehicle accidents, one in September, 2007 and another in December, 2008. Ms. Guay did not return to work after the September 2007 accident. Ms. Guay confirmed when cross-examined that Ms. Murphy, who Ms. Guay allegedly hired to provide caregiving services, was performing more caregiving tasks than Ms. Guay at the time of the February 2010 accident.⁷

In October 2011, Ms. Guay’s two children, (her daughter, S and her son, L) were removed from her care by Family and Children’s Services (FCS) because her male partner assaulted her son L. Despite this, Ms. Guay continued to submit childcare expenses to Royal. Over 10 months after her children were removed from her care, Royal terminated weekly caregiver benefits effective September 5, 2012. Ms. Guay’s children were scheduled to return to her care on October 3, 2017.⁸

I have reviewed the transcripts and all of the documents that were filed and marked as exhibits during this hearing.

Parties’ Positions

According to the Applicant, she was taking care of her two children, S and L (ages 5 and 6) at the time of this accident. She sought caregiving benefits from the insurer in the amount of $300 per week.⁹ Ms. Guay submitted that although she required assistance with caregiving tasks before the February 2010 accident, she was responsible for looking after her kids, providing direction to those who assisted her and made all decisions with respect to their care and custody.¹⁰

According to the insurer, Ms. Guay did not prove that:

i. She was the primary caregiver of her children, S and L, at the time of the February 2010 accident;

ii. She suffered a complete inability to carry on a normal life as a result of the February 2010 accident; or

iii. She incurred the caregiving expenses.

Law

(i) Caregiver Benefits

Section 13 of the Schedule states that:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care … .

As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

(2) The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care (emphasis added).

(3) The amount of the caregiver benefit shall not exceed,

(a) for the first person in need of care,

(i) $250 per week …

(b) for each additional person in need of care,

(i) $50 per week, …

(4) The insurer is not required to pay a caregiver benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life (emphasis added).

(ii) Definition Of A Complete Inability To Carry On A Normal Life

Section 2(4) of the Schedule defines a complete inability to carry on a normal life. It states:

a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

Even if Ms. Guay proves on a balance of probabilities that she met the test for entitlement to caregiver benefits, she must also prove that the expenses were incurred as a result of the February 2010 accident.

Credibility of the Applicant

Important factual inconsistencies, misrepresentations or material non-disclosure of relevant facts by an applicant and lack of corroboration can be fatal to an applicant's claims. In the absence of objective evidence, the credibility of the Applicant is crucial and it is due to a lack of credible evidence that the Applicant's claims fail. As stated in Faryna v. Chorny, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable.”¹¹

The following examples significantly undermine the Applicant’s credibility:

i. Ms. Guay reported to Nicole Dutchak (social worker) that she began using cocaine in December 2011 when her children were removed from her care, at which point she became depressed and began using cocaine to cope with her distress.¹² However, Ms. Guay began using cocaine in 2008;¹³

ii. The emergency department records indicate that there was no loss of consciousness following the February 2010 accident.¹⁴ However, Ms. Guay reported to an assessor that she struck her head on the interior of the car and lost consciousness in the February 2010 accident.¹⁵ She told another assessor that she could not recall hitting her head but she lost consciousness.¹⁶ She told a third assessor that she did not hit her head or lose consciousness as a result of the February 2010 accident;¹⁷

iii. Although Ms. Guay’s children were removed from her care because her son was assaulted by a male friend of hers, she reported to an assessor that her children have not lived with her since December 2011 (not October 2011 as the FCSR indicate) because of home renovations, although the assessor could not see any home renovations taking place;¹⁸

iv. She reported to an assessor in April 2012 that a caregiver came to her house daily to assist with caregiving and that her two children live with her,¹⁹ although her children were removed from her custody and had not lived with her since October 2011;

v. Although Ms. Guay’s children were removed from her care in October 2011 because her son was assaulted by a male friend of hers, she reported to an assessor that her children were removed from her home because her migraines prevented her from looking after them;²⁰

vi. She reported to an assessor that before the February 2010 accident, she was solely responsible for all household chores,²¹ whereas she previously reported to another assessor one month before the February 2010 accident that she hired a housekeeper / caregiver to help with her difficulties with child care duties;²²

vii. Although Ms. Guay’s two children were removed from her care by FCS in October 2011 and not returned to her until October 3, 2017,²³ she continued to submit caregiving expense forms to the insurer for the period November 2011 to January 2017 at a rate of $300 per week;²⁴

viii. She told Dr. Velan Sivasubramanian (psychiatrist at an insurer’s examination) that she sees a psychiatrist every two months,²⁵ but told Dr. Baker (physiatrist at an insurer’s examination) that she sees a psychiatrist once per month.²⁶

The above establishes that Ms. Guay’s evidence was not credible.

Ms. Guay’s Cross-Examination

Ms. Guay testified on cross-examination that:

i. As a result of the injuries that she sustained from the 2008 accident, she had significant limitations in performing caregiving duties at the time of the 2010 accident;²⁷

ii. A care-giver she hired as a result of the 2008 accident spent more time than Ms. Guay did looking after Ms. Guay’s children and providing caregiving (such as feeding, bathing and washing them) at the time of her 2010 accident.²⁸

Dr. Greenspoon (Family Doctor)

Dr. Greenspoon authored a letter in July 2015 stating that Ms. Guay could look after herself and her children.²⁹

Ms. Leslie Hisey and Mr. Ajodele Zapparoli (Occupational Therapists)

Leslie Hisay, an occupational therapist, concluded in her March 2017 report³⁰ (i.e., seven months before Ms. Guay’s children were supposed to return to live with her) that Ms. Guay continues to require caregiving assistance, assisting her children with homework and general supervision and that her children, L & S, do not live with her because of her ongoing pain and migraines.³¹

I place little weight on Leslie Hisay’s opinions because:

i. She noted that before the accident “Ms. Guay reported that she was independent in the performance of all her personal care, homemaking and caregiving tasks.”³² However, Ms. Hisay’s report refers to Ms. Guay’s accidents of 2007, 2008 and 2010,³³ and, it is not clear which accident she is referring to. Moreover, as outlined above, in the month before Ms. Guay’s 2010 accident it was noted that Ms. Guay:

Is unable to participate in play activities (with her kids) due to pain and physical restrictions. Ms. Guay is unable to lift her children for dressing, grooming, and bathing activities and frequently requires assistance. … Ms. Guay has hired a housekeeper / caregiver to help with her difficulties with child care duties.³⁴

ii. Ms. Hisay uses the phrase “the accident”³⁵ throughout her report – for example, stating:

“At this time, she (Ms. Guay) has not resumed either of the above due to her accident related injuries;”
“At the time of the accident, Ms. Guay worked 20 hours per week …;”³⁶
“Ms. Guay reported that she was not taking any medication prior to the accident.”³⁷

Again, it is not clear which accident Ms. Hisay is referring to.

iii. Although Ms. Hisey noted that Ms. Guay’s children, S & L, do not live with her³⁸ she recommended that Ms. Guay have 168 hours of caregiving assistance per week when the kids are not in school (24 hours per day x 7 days a week), and 138 hours per week when the kids are in school (i.e., they attend school between 9 am – 3 pm = 30 hours per week) which included 5 hours per week to walk her children to and from school and 10 hours per week (2 hours per day x 5 days a week) to do homework.³⁹

I place little weight on Mr. Zapparoli’s opinions because he stated in his report of July 2016⁴⁰ that Ms. Guay’s children live with her, which is not correct because FCS removed them from her care in October 2011 and they were not returned to her until October 2017.⁴¹

Neither Mr. Zapparoli or Ms. Hisey:

i. Could opine on Ms. Guay’s level of functioning between her 2008 accident and before her 2010 accident;

ii. Provided an opinion regarding whether Ms. Guay suffers a complete inability to carry out a normal life as a result of the 2010 accident.⁴²

Cocaine Use and Prior Motor Vehicle Accidents

Ms. Guay began using cocaine in 2008.⁴³

In January, 2010 (i.e., the month before the 2010 accident), in a medical report that was commissioned by Ms. Guay, the assessor noted that Ms. Guay:

Is unable to participate in play activities (with her kids) due to pain and physical restrictions. Ms. Guay is unable to lift her children for dressing, grooming, and bathing activities and frequently requires assistance. … Ms. Guay has hired a housekeeper / caregiver to help with her difficulties with child care duties.⁴⁴

Ms. Guay confirmed on cross-examination that the above quotation was correct.⁴⁵ Moreover, as discussed above, a caregiver Ms. Guay hired as a result of the 2008 accident spent more time than Ms. Guay did looking after Ms. Guay’s children and providing caregiving at the time of her 2010 accident.⁴⁶ The aforementioned supports the conclusion that if Ms. Guay was not able to take care of her kids, it was not because of the February 2010 accident.

I note that while Ms. Guay’s use of illegal drugs during the period germane to this matter might cause one to question whether she was able to carry on a normal life, it is important to remember that the inability to carry on a normal life must be as a result of the accident and not other reasons.

Facebook

Ms. Guay is claiming caregiver benefits more than 104 weeks after the February 26, 2010 accident, which requires that she have a complete inability to carry on a normal life.⁴⁷ However, her Facebook posts belie a different story. She travelled to Cuba in March 2012 and Ms. Guay’s Facebook photographs show her:

i. Standing and smiling on the beach with another woman holding a coconut;

ii. At a church altar with a male friend;

iii. At a resort bar, smiling, with her arm around her male friend;

iv. Standing outdoors and smiling with her male friend and a gardener;

v. Standing and smiling outdoors with her male friend;

vi. Standing and smiling in front of a bar with her male friend and another couple.

The above is not consistent with someone who is suffering from a complete inability to carry on a normal life, as is required by s.13(4) of the Schedule.

Family and Children’s Services Records[^48]

The Family and Children’s Services Records (FCSR) indicate that after Ms. Guay’s children were removed from her care in October 2011, she did not see them frequently. The FCSR records support the conclusion that Ms. Guay did not incur the caregiving expenses claimed. The FCSR show that:

On August 25, 2011, it was believed that Ms. Guay was doing street drugs and that her children were not being supervised and were neglected and that the kids are taking care of themselves;⁴⁹
On August 26, 2011, Ms. Guay fell down on her tailbone and was in “extreme pain;”⁵⁰
On September 2, 2011, Ms. Guay’s children looked dishevelled and her son L spent most of the summer with a family friend. A male friend of Ms. Guay’s, who was convicted of armed robbery, was going to live in Ms. Guay’s home upon release. Ms. Guay was still “struggling with drug use,” her house was “quite messy” and needed to be cleaned;⁵¹
On October 14, 2011, Ms. Guay’s mother said that Ms. Guay brought clothing over for the children and she was “still willing to have the children stay with her;⁵²
On October 17, 2011, Ms. Guay was advised that FCS recommended that her children continue to stay with their grandmother because additional investigation into a physical assault was anticipated;⁵³
On October 28, 2011, Ms. Guay had not been able to see her children on a regular basis;⁵⁴
On April 16, 2012, Ms. Guay’s children advised that they saw their mother on the Easter weekend;⁵⁵
On May 4, 2012, Ms. Guay spent two hours with her children on May 3, 2012 and that was the first time since Christmas 2011 that she saw her children. Ms. Guay also reported that and her children were incorrect and she did not see them at Easter 2012;⁵⁶
On May 8, 2012, Ms. Guay’s daughter said that living with her grandmother was “really nice;”⁵⁷
On June 26, 2012, Ms. Guay advised that she went to Cuba in March with a male friend;⁵⁸
On June 29, 2012, it was agreed that Ms. Guay would see her son L twice a week from 3 pm to 7 pm;⁵⁹
On July 9, 2012, Ms. Guay tested positive for cocaine and methadone and confirmed that she was addicted to crack and alcohol;⁶⁰
On July 25, 2012, Ms. Guay’s children, L and S, were still not living with her;⁶¹
On August 3, 2012, Ms. Guay confirmed that she could access her kids twice a week;⁶²
On August 8, 2012, neither of Ms. Guay’s children lived with her;⁶³
On August 14, 2012, FCS placed Ms. Guay’s children with different caregivers;⁶⁴
On August 15, 2012, Ms. Guay’s access to her children changed to one day a week for four hours;⁶⁵
On August 16, 2012, an aunt agreed to look after Ms. Guay’s daughter for six months;⁶⁶
On August 22, 2012, Ms. Guay’s son was not living with her;⁶⁷
On August 29, 2012, Ms. Guay had positive drug screening tests and FCS advised that access visits with her children would be supervised.⁶⁸ Ms. Guay would see her children on alternate Saturdays for four hours and their aunt would also be present;⁶⁹
On September 12, 2012, Ms. Guay did not come to her access visit with her daughter;⁷⁰
On October 4, 2012, Ms. Guay was 30 minutes late for her access visit for her son and she did not see him;⁷¹
On October 9, 2012, Ms. Guay’s son still did not live with her;⁷²
On April 23, 2014, Ms. Guay admitted to IV drug use, more specifically, morphine, and her children were not in her care;⁷³
On April 25, 2014, Ms. Guay was not allowed to have access to her children;⁷⁴
In April 2015, Ms. Guay travelled to the Dominican Republic;⁷⁵
On October 7, 2016, Ms. Guay was losing consciousness and was taken to the hospital where she tested positive for methamphetamine, cocaine and opiates;⁷⁶
On October 26, 2016, Ms. Guay spoke of her access visits;⁷⁷
On November 25, 2016, Ms. Guay said that it is important for all of them to show up for visits. She told her daughter that she waited 30 minutes for them to arrive so she left. Her daughter told her that she “chased” her. Ms. Guay told her daughter that she never saw her;⁷⁸
On December 19, 2016, Ms. Guay indicated that it was “unacceptable” to have her visits at churches and that she would like to have her children on Christmas Day between 12-2;⁷⁹
On January 13, 2017, Ms. Guay called to confirm her access visits because of changes over the holidays. She advised that she is leaving for Mexico on January 14, 2017 for three weeks.⁸⁰

Post-104 Week Test: Complete Inability to Carry On a Normal Life

In addition to at least three Caribbean vacations Ms. Guay took more than 104 weeks after the February 2010 accident, numerous assessors conducted Insurer’s Examinations and concluded that Ms. Guay does not suffer a complete inability to carry on a normal life, such as:⁸¹

i. Nikki Reavie (occupational therapist), report dated June 4, 2012;⁸²

ii. Dr. Waseem (physiatrist), report dated June 4, 2012;⁸³

iii. Dr. Velan Sivasubramanian (psychiatrist), report dated December 11, 2015;⁸⁴

iv. Dr. Baker (physiatrist), report dated December 11, 2015;⁸⁵

v. Dr. Mark Watson (neuropsychologist), report dated December 11, 2015;⁸⁶ and

vi. Stephanie Bosnyak (occupational therapist), report dated December 11, 2015.⁸⁷

I prefer the evidence of these assessors⁸⁸ to the evidence that Ms. Guay presented because it is more accurate and reliable. For example:

i. Although Ms. Guay advised Ms. Reavie (occupational therapist) that her children did not live with her because of home renovations, Ms. Reavie wisely observed that no home renovations were taking place.⁸⁹ Contrast that to Ms. Hisay (occupational therapist) who concluded in her March 2017 report⁹⁰ (i.e., seven months before Ms. Guay’s children were supposed to return to live with her) that Ms. Guay continued to require caregiving assistance and that her children, L & S, did not live with her because of her ongoing pain and migraines;⁹¹

ii. Dr. Velan Sivasubramanian (psychiatrist) noted in his report that although Ms. Guay denied having any mental health issues before her 2007 accident, this was contradicted by her clinical notes and records which indicated that she was receiving psychotherapy for post-traumatic stress disorder between 2002-2005.⁹²

The Applicant has failed to adduce sufficient, credible evidence to meet her onus of proof. She has failed to produce reliable medical evidence to rebut the opinions of the insurer's assessors.

I also find that the expense forms the Applicant submitted⁹³ are not reliable evidence of the caregiving services allegedly provided to her children because they include periods of time after October 2011 which is when her children L & S were removed from her care because her son was assaulted by her male partner, not because of the February 2010 accident.

Conclusion

I have no reliable evidence that the Applicant was substantially disabled from her caregiving activities as a result of the February 2010 accident and if so, how much help her alleged service provider(s) gave her.

I find that:

i. Ms. Guay was not the primary caregiver of her children at the time of the 2010 accident;

ii. In October 2011, Ms. Guay’s children were removed from her home by FCS and did not reside with her because her son was assaulted by her male partner. Ms. Guay’s children were not removed from her care because of the February 2010 accident;

iii. Although Ms. Guay’s children were scheduled to return to her care effective October 3, 2017, based on the evidence, I find that Ms. Guay was not suffering a complete inability to carry on a normal life as a result of the accident as required by s.13(4) of the Schedule;

iv. Ms. Guay did not provide any reliable evidence that caregiving benefits were incurred.

Therefore, the Applicant's claim for caregiving benefits is dismissed.

EXPENSES:

With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

December 18, 2019

Maggy Murray Arbitrator

ARBITRATION ORDER

Under section 282 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 Ontario Regulation 664, as amended, it is ordered that:

The Applicant's claim is dismissed.
With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.