Neutral Citation: 1993 ONICDRG 22

File No. A-002148

ONTARIO INSURANCE COMMISSION

BETWEEN:

REKHA VASDANI

Applicant

and

THE PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Rekha Vasdani, was injured in a motor vehicle accident on September 24, 1991. She applied for and received accident benefits from the Insurer payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.

The Applicant received weekly benefits and childcare benefits under section 13 of the No-Fault Benefits Schedule until May 19, 1992. The Applicant also received payments with respect to her expenses for household help. After the benefits were terminated, the Insurer claimed an overpayment on the basis that benefits should have been payable only until March 17, 1992. The Applicant claims that her benefits were wrongfully terminated, and that she continues to be entitled to receive benefits.

The issues in this hearing are:

1. Is the Applicant entitled to weekly benefits and childcare benefits from March 17, 1992 onwards?

2. Is the Applicant entitled to payments for her expenses for household help from March 17, 1992 onwards?

3. Is the Insurer entitled to repayment of the overpayment claimed?

The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.

Result:

1. The Applicant is entitled to weekly benefits under section 13 and childcare benefits under section 13(4) of the No-Fault Benefits Schedule, from March 17, 1992 onwards.

2. The Applicant is entitled to be paid for her properly documented housekeeping expenses, from March 17, 1992 onwards.

3. The Insurer is not entitled to repayment of the overpayment claimed.

Hearing:

A hearing was held in North York, Ontario, on December 16, 1992, before me, Frederika Rotter, Senior Arbitrator.

Present at the Hearing:

Applicant:

Rekha Vasdani

Applicant's Representative:

Reginald M. McLean Barrister & Solicitor

Insurer's Representative:

Philippa G. Samworth Barrister & Solicitor

Witnesses:

Dr. C.D. Nguyen, Orthopaedic Surgeon Rekha Vasdani, Applicant Mary Wright, Claim Supervisor Grace Lawrence, R.N.

Exhibits:

Exhibit 1

Medical Brief, filed on behalf of The Personal Insurance Company of Canada

Exhibit 2

Report of Dr. C.D. Nguyen, dated December 3, 1992

Exhibit 3

Application for Accident Benefits, dated September 1991

Exhibit 4

Documents relating to Applicant's housekeeping expenses

Evidence and Findings:

The Applicant, Rekha Vasdani, is a 32 year old married woman and the mother of three children, now aged seven, one and two. She is not employed outside the home. At the time of the accident on September 24, 1991, the children's ages were six, two months and 14 months, respectively.

In her testimony, the Applicant described her tasks and duties prior to the accident. She explained that, at the time of the accident, both younger children were still in diapers. Her oldest child attended school. The Applicant described her essential tasks as caring for her three children and maintaining the home.

Prior to the accident, a large proportion of the Applicant's time was spent looking after her two babies. This included feeding, bathing, dressing them, and changing their diapers, and required frequently lifting and carrying them. At the time of the accident, neither infant was walking well, and the Applicant normally carried them to transport them about the house.

To transport the babies elsewhere, the Applicant would push them in a double stroller.

To feed the older baby, the Applicant would lift her into a high chair. The youngest was still being breast-fed at the time of the accident. They slept in cribs with high railings, and had to be lifted into the cribs.

Prior to the accident, the Applicant was also responsible for all of the housekeeping, including all of the cleaning tasks. She testified that her husband never used to do any housework. The Applicant's husband is a shift-worker and his job involves working three different rotating shifts.

The Applicant and her family live in a two-storey home. The bedrooms and main bathroom are upstairs. The family living space, including the kitchen and family room, is on the ground floor.

The Applicant would vacuum, sweep, mop, and wash the floors on her hands and knees. She was responsible for all the family's laundry. She would handwash heavy pots, pans, utensils and dishes that could not be washed in the dishwasher.

The Applicant was also responsible for food preparation and grocery shopping. She testified that her family was accustomed to a Middle East cuisine, which involves much labour-intensive preparation. For example, she used to make her own bread and knead the dough by hand.

The Insurer did not dispute the Applicant's description of her essential tasks. I find that her essential tasks, therefore, consist of the childcare and housekeeping duties which she described, including general cleaning, laundry, food preparation and shopping, cleaning after meals, and caring for her children.

The Applicant testified that she injured her left arm in the accident of September 24, 1991, and also banged her head. She required stitches in her left upper arm and near her wrist. She suffered quite severe shoulder and neck pain. The Applicant claims that, as a result of her injuries, and specifically because of her ongoing shoulder problems, she is no longer able to perform her essential tasks as a mother and homemaker.

The medical documentation submitted (Exhibit 1-1, and other medical exhibits) confirms that the Applicant sustained soft-tissue injuries in the area of her neck, shoulder and jaw as the result of the accident. She also suffered abrasions in her left arm, and pieces of glass embedded under the skin of her arm had to be surgically removed. Exhibit 1-1 (an Ontario Insurance Medical Report completed by the Applicant's family physician on October 11, 1991) verifies that the Applicant also complained of headaches and difficulty chewing.

The Applicant testified that since the accident she has done very little childcare. Her husband has been responsible for looking after the children when he is at home. The Applicant testified that she is currently able to sit with the children, play with them and supervise them while listening to music, for example. However, she cannot cope with more strenuous child-care tasks.

As a result of the accident, the Applicant is unable to lift and carry her babies. The youngest child now weighs 26 pounds and the older one weighs over 30 pounds. She cannot bathe, change and dress them, nor carry them around, because of her pain and difficulty with lifting and carrying. Her shoulder pain makes it difficult for her to lift the children into the high chair, or put them into the bath. She cannot lift them into the stroller, nor push the stroller with the babies in it. She testified that she has not pushed the double stroller since the accident.

The Applicant testified that her sister-in-law helps her with the children when her husband is not home. The sister-in-law bathes, feeds and changes the two youngest children. She lives in the neighbourhood, about two or three blocks away. Sometimes, she takes the babies over to her own house for a few days.

At the beginning, her sister-in-law would come in every day, twice a day. Now, her sister-in-law attends less frequently -- but still every day, or every other day.

The sister-in-law also does the majority of the heavier food preparation, such as making bread, and preparing large meals. She usually cooks two days' worth of meals for the Applicant and her family. The Applicant testified that after the accident she had difficulty cooking, and could not prepare meals. She testified that her husband helps with the cooking when he is available, although he never cooked prior to the accident.

The Applicant no longer does the grocery shopping -- her husband now does it. She is unable to lift and place heavy items into a shopping cart, nor can she push a loaded shopping cart. She cannot carry heavy bags of groceries to and from the car. She has trouble driving because her car lacks power steering, which makes turning difficult for her.

The Applicant testified that she can buy a few light items, but has not done the regular grocery shopping since the accident.

The Applicant has done very little cleaning since the accident. She stated at the hearing that she has been able to do dusting for about two months. She cannot vacuum for more than a few minutes, since she has trouble pulling the vacuum around. She cannot mop or scrub the floors on her hands and knees as she used to do.

The Applicant testified that her sister-in-law cleans the house for her and does laundry twice a week. She requires help with the laundry, as she cannot carry the clothes up and down the stairs. Her oldest daughter or her sister-in-law must carry the laundry for her. She is now able to put in the laundry and take it out of the washer and dryer.

The Applicant testified that she received a course of cortisone injections from Dr. Nguyen, an orthopaedic surgeon, as treatment for her shoulder pain. She testified that in July 1992, before the first injection, her shoulder was actually worse than it had been in January.

The Applicant stated that, since the second injection in November 1992, her condition has improved so she is now able, with some difficulty, to place dishes into and remove them from the automatic dishwasher. However, she is still unable to wash heavy pots and pans by hand. Since the injection, she has been able to do more light cooking and dusting.

The Applicant contends, however, that, although she is now able to do some light chores, she continues to suffer from a substantial inability to perform her essential tasks.

The Insurer claims that the medical evidence fails to support the Applicant's position.

The medical evidence in this case is problematic. The Applicant was first seen by Dr. Agarwal, her family doctor, who referred her to Dr. Nguyen for treatment of her shoulder problem.

Dr. Nguyen is an orthopaedic surgeon at the Credit Valley Hospital in Mississauga. He prescribed anti-inflammatory medication for the Applicant and referred her to physiotherapy. He subsequently administered the Applicant's cortisone injections.

Dr. Nguyen completed an Ontario Automobile Insurance Medical Report dated January 26, 1992. In this report, under the heading "Examination/Objective Findings", he documents the Applicant's limited range of movement. Under the heading "Duration of Disability", he states "up to 1 year", but notes that the Applicant is a housewife with "no work to return to".

The Insurer sent the Applicant for a medical examination by its own specialist, Dr. Lyndon F. Mascarenhas. Dr. Mascarenhas has had extensive experience in dealing with injured individuals, and is a roster physician for the Ontario Workers' Compensation Board. Dr. Mascarenhas examined the Applicant and prepared a report addressed to the Insurer on March 17, 1992 (Exhibit 1-4).

In his March 17, 1992 report, Dr. Mascarenhas gives the history of the Applicant's injury and treatments, and records that the Applicant continues to complain of left shoulder and upper arm discomfort. She has difficulty with vacuuming and carrying her baby, and requires the assistance of a "homemaker" (sic) with domestic responsibilities.

Dr. Mascarenhas noted that the Applicant did not appear to be in acute distress when he saw her, and he did not think that she was magnifying her symptomatology in any way. He found that she had areas of tenderness and decreased range of movement in her left shoulder and upper arm, which were the residual effects of her reported injuries. He thought that the Applicant "will have symptoms into the future, albeit on a declining frequency and severity".

Dr. Mascarenhas opined that "as to her ability to do her pre-accident activities, I would have to conclude that it would be difficult for her to perform all her pre-accident activities, given her restricted range of movement in her left shoulder". He suggested that a nurse, Ms. Grace Lawrence, be engaged to specifically perform an assessment of the Applicant's ability to perform her pre-accident tasks.

On the recommendation of Dr. Mascarenhas, Ms. Lawrence was engaged by the Insurer. Ms. Lawrence testified that she is a registered nurse who was, at the time in question, employed as the Director of Nursing by Kimberly Quality Care, an agency which provides private nursing care. Her background is in psychiatric nursing and public health nursing. She has also performed assessments of patients for insurance companies.

Ms. Lawrence testified that in order to assess an individual she requires about one half hour, which is approximately the time she spent with the Applicant. She testified that she performs the assessment by observing and conversing with the individual.

Ms. Lawrence testified that, when she performed the assessment in this case, the Applicant and her husband were both present. She noted that the Applicant resided in a large, two-storey home, but did not look around the house. She asked the Applicant about her accident and her complaints, and the Applicant indicated that her shoulder was the main problem. The Applicant stated that she had trouble cooking and chopping food, doing her housework, and lifting and holding the baby for any length of time.

Ms. Lawrence noted that the home was tidy and very well maintained. The Applicant advised her that her sister-in-law came in to help with the cooking and cleaning, and that her husband helped with the childcare. Ms. Lawrence did not observe the Applicant doing anything during the course of the interview, but noted that the Applicant did not appear to be in obvious discomfort. She observed that the Applicant had about 80 per cent mobility of her arm and shoulder.

Ms. Lawrence concluded that the Applicant could have done all her housework and childcare herself if she had to, although this conclusion was not based on her observation of the Applicant performing any task. Ms. Lawrence felt that the Applicant seemed to be managing with the help of her husband, and she saw no need for the sister-in-law to provide additional help. She thought that the Applicant could use her right arm and did not need to use her left arm for her housework.

Ms. Lawrence prepared a reporting letter for the Insurer on April 15, 1992, the date of her visit to the Applicant's home. In her reporting letter (Exhibit 1-5), Ms. Lawrence states:

... I honestly could not see any huge problem. Her husband is on three different shifts, so is often at home. I feel many people have managed with the degree of disability that Mrs. Vasdani claims.

The only task that might be difficult is lifting the one year old child.

This letter was forwarded by the Insurer to Dr. Mascarenhas. Upon receiving Ms. Lawrence's letter, Dr. Mascarenhas responded to the Insurer as follows (Exhibit 1-6, May 13, 1992):

... I note that Ms. Lawrence stated that Ms. Vasdani was able to function independently and as such one can assume that she is perfectly capable of performing "the essential tasks of (her) pre-accident activities".

The Insurer's claim supervisor, Mary Wright, testified at the hearing and stated that the Applicant's benefits were terminated on May 19, 1992, based on the letters from Ms. Lawrence and Dr. Mascarenhas, which indicated that the Applicant was no longer disabled.

I have concluded that the Applicant's benefits were incorrectly terminated based on these documents. It is apparent that Dr. Mascarenhas relied on the opinion of Ms. Lawrence in concluding that the Applicant was not disabled from performing her essential tasks. Dr. Mascarenhas did not himself see or speak to the Applicant after the visit of March 17, 1992.

I do not find the opinions and conclusions of Ms. Lawrence persuasive. Ms. Lawrence offered no objective basis for her view that the Applicant could have managed to do all her housework without help. Ms. Lawrence did not professionally assess or evaluate the Applicant's ability to function in the home. She performed no functional tests, and did not observe the Applicant doing any physical tasks. She therefore had no objective data on which to base her opinion.

Ms. Lawrence felt that the Applicant could do her housework, based on a half-hour conversation with the Applicant, in circumstances where the Applicant manifested no obvious distress or discomfort. She concluded, from the Applicant's demeanour and the appearance of the home, that no "huge problem" existed.

Ms. Lawrence has no background or formal training in assessment, physiotherapy or occupational therapy, or vocational rehabilitation: she is a former public health and psychiatric nurse. She was not qualified before me as an expert witness. Therefore, in my view, her opinion carries no more weight than that of any other lay observer.

Dr. Nguyen also testified at the hearing. As I have indicated above, Dr. Nguyen's medical report dated January 26, 1992 (Exhibit 1-3) states that the Applicant's disability might persist for up to one year. Dr. Nguyen subsequently completed another Ontario Automobile Insurance Medical Report dated August 5, 1992 (Exhibit 1-7). In this report, under the heading "Duration of Disability", he wrote: "unknown, can't do any lifting > 20 lbs, or overhead work".

Dr. Nguyen testified at the hearing that he completed this report after seeing the Applicant again on July 13 and 16, 1992. The Applicant had re-attended at his office with continuing complaints of pain. Dr. Nguyen testified that, although the Applicant's neck condition had improved, the impingement syndrome in her shoulder was worse. On July 16, 1992, Dr. Nguyen injected the Applicant's shoulder with cortisone, which, he testified, is a standard procedure for patients with this problem.

Dr. Nguyen saw the Applicant for follow-up on August 5, 1992, and completed the insurance medical form that day. He testified that, as a result of the cortisone injection, it appeared that the impingement syndrome was settling down somewhat. Dr. Nguyen ordered further physiotherapy to address the Applicant's ongoing neck complaint.

However, he noted that the Applicant still had discomfort from the impingement syndrome and might require another cortisone shot.

Dr. Nguyen wrote a note to the Insurer dated December 7, 1992 (Exhibit 1-11) in which he indicated that, when he filled out the insurance form on August 5, 1992 (Exhibit 1-7), he was under the impression that the Applicant was employed. He stated that he was "incorrect" in writing then that she was unable to do lifting of more than 20 pounds and overhead work.

At the hearing, Dr. Nguyen testified that when he fills out insurance forms he generally gives patients the benefit of the doubt, in order to allow them to be away from work longer. However, he stated that he would not extend the same "benefit of the doubt" to a housewife who wants to be away from her housework.

Dr. Nguyen testified that, in retrospect, he felt that the Applicant could have done her housework, and that her symptoms were not severe enough to prevent her from doing her tasks. He stated that he was wrong to have advised the Applicant not to do lifting or overhead work. However, he also testified that he normally advises patients not to overdo any physical activity after a cortisone injection, in order to maximize the beneficial effect of the injection. He stated that the lifting limitation to 20 pounds was "standard stuff".

Dr. Nguyen filled out a final Ontario Insurance Medical Report form dated November 27, 1992, in which he indicated that the Applicant could return to her work or normal activities "anytime" (Exhibit 1-9). He also wrote a letter to the Insurer's legal counsel on the same day (Exhibit 1-10), stating:

It is my opinion that Mrs. Vasdani is able to perform the essential task as a home maker as of August 5, 1992. Prior to this, I felt that the patient had limitation such that she would not be able to perform any task which involved over head activities, or heavy lifting with the left upper extremity of objects greater than 20 pounds.

At the hearing, Dr. Nguyen stated that this letter (Exhibit 1-10) was "incorrect". He stated that his opinion was that the Applicant was not disabled from doing her housework at any time after January 1992. He explained that he had misunderstood the term "disability" used in the report forms, when he completed the reports of January and August 1992.

He testified that, despite her discomfort, the Applicant should be able to lift a child weighing between 24 and 32 pounds, and could do other household tasks. He maintained that this was the case, despite the fact that the Applicant had been experiencing increasing shoulder pain in November 1992, which led him to recommend a re-injection with cortisone and a further course of physiotherapy.

He confirmed that he completed the report of November 26, 1992 and wrote the letter of that date, after receiving correspondence from the Insurer which included the two reports of Dr. Mascarenhas and the assessment report of Ms. Lawrence. He stated "By November 26, I got the idea of what the insurance company wanted".

I find the views expressed by Dr. Nguyen are so contradictory as to be unreliable. I do not accept his explanation that he misunderstood the term "disability" when he first completed the insurance forms for the Applicant. My impression of Dr. Nguyen, from his testimony and his demeanour at the hearing, is that he originally completed the forms in order to accommodate the Applicant.

Subsequently, he appears to have revised his opinion in the interests of assisting the Insurer.

In my view, Dr. Nguyen never did fully turn his mind to the question of whether the Applicant could do her essential tasks, in her own particular situation. At the hearing, Dr. Nguyen showed limited knowledge of the specifics of the Applicant's daily routine. Therefore, Dr. Nguyen's opinion in this case is of no assistance to me, although I accept the objective evidence of his findings and diagnoses.

In this particular case, therefore, I find that the Applicant herself has provided the most reliable and cogent evidence of what she can and cannot do. The Applicant is a straightforward, credible witness, whose testimony I accept. I accept that her essential tasks, for the most part, are physically onerous and demanding. I accept her evidence that, although she can now do some light chores, she still suffers a substantial inability to do the majority of her essential tasks, including caring for two very young children who are not fully mobile, shopping for the family, cleaning the home, preparing the meals and doing the laundry.

Therefore, I find that the Applicant continues to be entitled to weekly benefits and caregiver benefits under section 13 of the No-Fault Benefits Schedule.

The Applicant also claimed housekeeping expenses under section 6 of the No-Fault Benefits Schedule, which provides for payment for supplementary medical and rehabilitation benefits.

I accept the Applicant's evidence that she continues to require the assistance of her husband and sister-in-law for housework and childcare.

The Applicant's evidence is that, to compensate her sister-in-law for the help that she provided, she regularly gave her payments in kind, which she described as "gifts", of a value of $40.00 weekly. The Applicant claimed this amount as housekeeping expenses when she learned from the Insurer's claims representative that such expenses were recoverable.

The evidence before me was that the Insurer paid the Applicant housekeeping claims of $40 weekly, until it terminated the Applicant's weekly benefits. I heard no evidence or suggestion that this amount was unreasonable or unjustified. Exhibit 4 consists of the Applicant's expense claims and includes a letter from the Applicant's sister-in-law verifying that she provided housekeeping services and received $40 value weekly from the Applicant.

The Applicant testified that her sister-in-law continues to assist with the housework and childcare. Therefore, I find that the Applicant is entitled to her ongoing expenses of $40 weekly for housework and childcare, provided that she can verify these expenses with receipts.

The Applicant is entitled to interest on all benefits that are owing. She is also entitled to her expenses for participating in the arbitration hearing, in accordance with section 282(11) of the Insurance Act and Ontario Regulation 664, R.R.O. 1990.

Order:

1. The Applicant is entitled to weekly benefits under section 13 and childcare benefits under section 13(4) of the No-Fault Benefits Schedule, from March 17, 1992 onwards.

2. The Applicant is entitled to be paid for her properly documented housekeeping expenses, from March 17, 1992 onwards.

3. The Insurer is not entitled to repayment of the overpayment claimed.

4. The Applicant is entitled to interest on all benefits owing, in accordance with section 24(4) of the No-Fault Benefits Schedule.

5. The Applicant is entitled to her expenses incurred in the arbitration hearing, in accordance with Ontario Regulation 664, Dispute Resolution Expenses.

April 27, 1993

Frederika M. Rotter Senior Arbitrator

Date