Neutral Citation: 1995 ONICDRG 171

File No. A-008905

BETWEEN:

KEVIN BEHBAHANI

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION

The Applicant, Kevin Behbahani was injured in a motor vehicle accident on April 20, 1991. In this arbitration Mr. Behbahani claimed the cost of a Vigano couch with an adjustable head support or, alternatively, a chair under section 6(1)(f of Ontario Regulation 672¹. Co-operators General Insurance Company claimed the repayment of the monies paid to Mr. Behbahani for the purchase of an extra firm orthopaedic mattress under section 27(1) of the Schedule. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Behbahani entitled to the cost of a Vigano couch with an adjustable head support? Alternatively, is Mr. Behbahani entitled to the cost of a chair?
Is the Insurer entitled to repayment of amounts advanced to Mr. Behbahani for the purchase of an extra firm orthopaedic mattress?

Mr. Behbahani claimed interest on overdue benefits and his expenses of the arbitration. The Insurer claimed interest on any amounts found to be repayable in this arbitration.

Present at the Hearing:

Applicant:

Kevin Behbahani

Applicant's

Joyce Stothers and Kaarina Stiff

Representative:

Senior Benefits Advisers, Action Accident Benefits

Insurer's

Ivan Luxenberg

Representative:

Barrister and Solicitor

Witnesses:

Mr. Kevin Behbahani, Dr. Raphael Chow

Exhibits: Nine exhibits were filed at the hearing. The exhibits and other documents before the arbitrator are detailed in Appendix A.

Mr. Behbahani is not entitled to the cost of a Vigano couch. Mr. Behbahani is not entitled to a chair.
The Insurer is entitled to repayment in the amount of $388.48. The Insurer is entitled to interest commencing on November 29, 1995, pursuant to section 27(4) and (5) of the Schedule.
The Applicant is not entitled to his expenses in respect of the arbitration.

The hearing was held in North York, Ontario, on August 31, 1995, before me, Suesan Alves, Arbitrator.

1. The claim for the couch:

Mr. Behbahani sustained soft tissue injuries to his neck and low back on April 20, 1991, when his Chevette was struck from behind by another motor vehicle. At the time of the accident, Mr. Behbahani was 41 years of age and employed as a security guard. Mr. Behbahani returned to his job six days following the accident. He has received physiotherapy and chiropractic treatments, but continues to complain of chronic neck and back pain.

Mr. Behbahani testified that he leads a sedentary lifestyle; his primary recreation is watching television. Mr. Behbahani sits on his couch to watch television and during regular family gatherings. He finds that sitting on this couch aggravates his neck and back pain.

Mr. Behbahani wished to purchase seating which would provide additional support for his back and neck and prevent the onset of pain while watching television. He lives in a small apartment with his family. While this additional support could be provided by a chair, Mr. Behbahani takes the position that he would have to remove the couch in order to accommodate the chair. This would deprive his family of seating because the couch is the only seating in the living room. He therefore felt that he was entitled to purchase a new couch.

Mr. Behbahani ordered a black leather Vigano couch manufactured by Jaymar. He submitted his claim to the Insurer in the amount of $2,954.35, including taxes and delivery, as a supplementary medical and rehabilitation benefit, under section 6(1)(f) of the Schedule. When the Insurer declined to pay the claim, Mr. Behbahani cancelled the order for the couch applied for mediation and then arbitration.

Section 6 of the Schedule provides for the payment by an Insurer of all reasonable expenses for "other goods and services," incurred within the benefit period, and required as a result of the accident. Before paying such an expense, the Insurer may require Mr. Behbahani to submit a statement signed by his qualified medical practitioner or psychological advisor that the expense is necessary for his treatment or rehabilitation.

Mr. Behbahani's chiropractor provided him with a note stating: "Requires a firm couch to reduce the neck and low back pain because of prolonged sitting. The neck and low back pain are felt as a result of April 20, 91 motor vehicle accident." Co-operators pointed out to Mr. Behbahani that under the provisions of the Schedule, he would need to provide an opinion from a physician that the couch was reasonable and necessary.

Mr. Behbahani obtained a note from his family doctor: "Essential to provide him firm couch to control his chronic pain." His physiatrist, Dr. Chow, gave him a prescription: "Chronic neck and back strain. Need: Firm couch; Firm mattress." Mr. Behbahani submitted this documentation to Co-operators. The Insurer declined to pay for the couch on the ground that the couch was neither reasonable nor necessary.

Dr. Raphael Chow, a physiatrist, testified at the hearing. Dr. Chow testified that Mr. Behbahani asked him to prescribe various devices, including a couch, which would assist in relieving his pain. Dr. Chow testified that pain is the most common complaint made by patients to physiatrists. Dr. Chow agreed that he advocates active treatment; nevertheless certain external aids or devices which assist in relieving pain or preventing the onset of pain are reasonable and necessary. On the basis of Dr. Chow's evidence, I accept that devices which assist in relieving or preventing pain are reasonable and necessary within the meaning of section 6 of the Schedule.

Dr. Chow stated that he took a history, examined Mr. Behbahani, and used his "tricks and stratagems" to determine whether Mr. Behbahani's complaints of pain were genuine. Dr. Chow concluded that Mr. Behbahani's complaints of pain were legitimate, that Mr. Behbahani was suffering from soft tissue injuries to his cervical and lumbar spines, most likely as a result of the accident on April 20, 1991.

Dr. Chow recommended a regimented exercise program and noted that Mr. Behbahani would "also benefit from external devices, such as a back-support cushion, a firm orthopaedic mattress, which will be necessary and reasonable."² The purpose of these devices was to contour to his spinal curvature and to decrease strain in Mr. Behbahani's neck and back.

In an addendum to his report dated July 18, 1995, Dr. Chow noted the extent of Mr. Behbahani's use of the couch, some of the problems which the couch presented and concluded "It may be reasonable and necessary for him to have a couch, that contours to his spinal curvature, to help with his neck and back pain."

Mr. Behbahani produced a photograph of the couch in his home at the hearing.³ Dr. Chow was asked to comment on the problems which this couch posed for Mr. Behbahani in light of his injuries. Dr. Chow testified that the couch presented three problems for Mr. Behbahani. Firstly, the seat of the couch was so low that Mr. Behbahani's legs would not support his back while he was seated. Secondly, the back of the couch slanted backwards and would not provide support for Mr. Behbahani's spine while he was seated. Thirdly, the back of the couch did not conform to the contours of his spine. Dr. Chow was asked whether in his opinion these problems could be remedied by placing an obus-forme on the couch. Dr. Chow stated that the obus forme would not remedy the problems since it would not change the height of the seat, and would not address the backward slant of the back of the couch.

Dr. Chow stated that he accepted Mr. Behbahani's statements about his cramped accommodation and his lifestyle, and in those circumstances, concluded that the purchase of a new couch was reasonable. He agreed that he had seen hundreds of patients since he examined Mr. Behbahani and had not recommended a couch for any of them. He agreed that he had no specific couch in mind, and that he did not know whether a couch such as he prescribed was in fact available on the market. Dr. Chow testified that Mr. Behbahani informed him that he had tried a firm couch which relieved his pain, and he had prescribed a firm couch. Dr. Chow testified that he did not find it necessary to state more than "firm couch" on the prescription; he was satisfied from their discussion that Mr. Behbahani knew what to purchase.

Mr. Behbahani testified that he engaged in a lengthy search for a suitable couch. The stores he visited included Doncaster Medical Supplies, Leon's, The Brick, The Bay and Eaton's. Mr. Behbahani testified that the only couch he found which met his prescribed needs was the Jaymar Vigano couch, which is only available in leather. Mr. Behbahani testified that he had not tried the couch himself; he had simply handed the prescription to a salesman and relied on the salesman's skill and expertise to find him the couch.

The Insurer alleged that the Vigano couch claimed by Mr. Behbahani was not a firm couch as had been prescribed. In this regard the Insurer tendered into evidence a statement from the customer service manager at Jaymar, the manufacture of the couch, that the Vigano couch which Mr. Behbahani ordered was not a firm sofa. "I would not show the Vigano style if they asked to see a sofa that was firm .... Our recliners are made to be a soft seating so I can not say that they are firm ....We do not have a firm sofa with a ratchet, or an adjustable head support..."⁴

I accept the statement of the manufacturer's representative. I find a customer service representative of a manufacturer of couches is likely to know the characteristics of the couches made by the manufacturer. The evidence in the statement was not disputed by Mr. Behbahani, who took the position that he had not tried the couch but relied on the salesman's skill and judgment in finding him a firm couch.

I find that the couch claimed by Mr. Behbahani in this arbitration was not a firm couch which had been recommended and that the Insurer is not obliged to pay for this couch under the provisions of the Schedule.

The Insurer submitted that it was not reasonable for Mr. Behbahani to purchase a top of the line leather couch for $2,954.35 to replace his existing couch. The Insurer tendered in evidence an estimate from The Brick, for a high back sofa, retail cost, inclusive of taxes of $1,264.98 and commercial cost, inclusive of taxes of $1,006.25 which could provide support for Mr. Behbahani's neck.⁵ There was no evidence, however, that this couch was a firm couch or that it met the other requirements set by Dr. Chow, of firmness, of seat height and of contouring to his spinal curvature. There is no evidence before me of the reasonable cost of such a couch.

I will deal next with Mr. Behbahani's alternative claim for a chair. At the pre-hearing, the Insurer objected to Mr. Behbahani's ability to present an alternative claim for a chair at the arbitration.⁶ No such objection was made before me. Mr. Behbahani's estimates for the costs of three chairs formed part of the Applicant's brief which was made an exhibit without objection. In addition, counsel for the Insurer briefly addressed the issue of Mr. Behbahani's claim for the chair in his submissions. On the basis of the foregoing, I conclude that the Insurer consented to the arbitration of the substance of Mr. Behbahani's claim for seating, instead of taking a narrow view. I therefore find that I have jurisdiction to deal with Mr. Behbahani's claim for a chair.

Mr. Behbahani provided cost estimates of three chairs: one Obus Forme chair multi-tilt high back model 4430K priced at $499, one Obus Forme model 4432 priced at $449, and one Back Buddy chair high back tilter priced at $495. Taxes and delivery charges were not included in these estimates. There is a note to the Applicant's representative on the copy of the brochure: "I believe Mr. Behbahani was interested in these two models..." There are two arrows next to the Obus Forme chairs, and I conclude that Mr. Behbahani had expressed interest in the two Obus Forme chairs. Mr. Behbahani did not testify that any of the chairs shown in the brochure relieved his pain or met his needs. Dr. Chow was not asked to comment whether any of the chairs portrayed in the brochure met Mr. Behbahani's needs and would alleviate or prevent the onset of pain.

I find Mr. Behbahani's alternate claim puzzling. The reason he wanted a couch was because an additional chair would not fit in his living room. He stated that he would have to remove his existing couch which would deprive his family of seating in order to accommodate the chair. He was not prepared to do this during an eleven month period while he searched for the couch. During his cross-examination he spoke of the closeness of his family. In my view, it is unlikely that he would now be prepared to get rid of the couch to accommodate the chair. I am not persuaded on the basis of the evidence before me that any of these chairs would meet Mr. Behbahani's needs or that the purchase of a chair in these circumstances is reasonable.

The photographs of Mr. Behbahani's living and dining room show straight backed dining room chairs. The parties may wish to consider whether an obus forme used with one of these chairs might assist Mr. Behbahani without the need to replace or dispose of his existing furniture.

Mr. Behbahani claimed interest on any overdue benefits. I have not found that either of the items claimed by Mr. Behbahani as a supplementary medical benefit is to be paid by the Insurer. No amounts are therefore payable as interest.

2. The Insurer's claim for repayment:

On July 9, 1992, Mr. Behbahani ordered a queen sized Sealy Signature mattress, box spring and deluxe rug roller from The Brick. The cost of these items, inclusive of taxes and delivery was $1,429.05. Mr. Behbahani submitted the invoice from the Brick in the amount of $1,429.05 along with a prescription dated July 10, 1992 for an "extra firm orthopaedic mattress." The Insurer accepted the claim and issued a cheque dated August 7, 1992, in the amount of $1,492.05 payable to Mr. Behbahani.

On August 17, 1992, Mr. Behbahani cashed the cheque from the Insurer, but cancelled the order from The Brick. On August 29, 1992 Mr. Behbahani ordered a number of items from The Brick. The notations on the invoice are somewhat cryptic.⁷ Mr. Behbahani testified that he ordered two twin beds, two twin sized Sealy Signature mattresses and rails for himself and his wife, and a bunk bed for his children, for delivery on October 6, 1992. The total amount of these purchases were $1,246.28, inclusive of taxes and delivery.

At the beginning of the arbitration, Mr. Behbahani admitted that he owed the Insurer the amount of $388.48. In this arbitration, the Insurer claims repayment of the entire amount of $1,492.05 paid to Mr. Behbahani. This issue was not mediated, but was raised at the arbitration with Mr. Behbahani's consent.

Section 27(1) of the Schedule provides : "A person must repay to the Insurer any benefit that is paid to the person through error or fraud." Counsel for the Insurer submitted that there is no evidence that Mr. Behbahani used the funds advanced by the Insurer to purchase what was presented or prescribed and that the entire amount is therefore repayable. He submitted that it was still not certain that the mattresses were purchased. In my view, the onus with respect to establishing the claim for repayment does not rest with Mr. Behbahani. When a claim is made under section 27, the onus is squarely on the Insurer to establish either error or fraud as the basis for the claim for repayment.

There was no suggestion of error in this case; I must determine whether the Insurer has established fraud. The Insurer relied on documentary evidence and the cross-examination of Mr. Behbahani with respect to this issue.

Mr. Behbahani testified that prior to the accident he and his wife slept on a queen sized bed. He testified that he decided to substitute the twin beds so that his sleep would not be interrupted by the movement of the mattress when his wife gets up at night to check on the children. Except for the size, the replacement mattresses were of the identical type and name brand as that originally paid by the Insurer as an extra firm orthopaedic mattress.

Technically what was prescribed was a mattress in the singular, not mattresses in the plural.

Given cramped accommodation, it appears unlikely that both their queen sized bed and a twin sized bed for Mr. Behbahani could fit in their bedroom. In similar circumstances an insurer was required to pay for a replacement king sized water bed.⁸ Mrs. Behbahani should not be left without a bed. The Insurer, quite reasonably, was prepared to accept Mr. Behbahani's claim for a queen sized mattress, box spring and rug roller. Mr. Behbahani's purchase turned out to be more economical; the benefit of this belongs to the Insurer, not to Mr. Behbahani.

Clearly, it was fraudulent of Mr. Behbahani to pocket the difference between the amount paid for the twin beds and the funds advanced to him by the Insurer. Mr. Behbahani admitted at the outset of the hearing that there is an overpayment of $388.48. The Insurer has not established that additional amounts are to be repaid by reason of fraud.

The Insurer is entitled to interest on the amount to be repaid under section 27(4) and (5) of the Schedule, commencing on November 29, 1995.

Expenses:

The Applicant seeks an award of his expenses. An arbitrator has a discretion to award these expenses pursuant to section 282(11) of the Insurance Act In exercising my discretion I have considered the intent and purpose of the legislative scheme, the circumstances of Mr. Behbahani's claims, his fraudulent conduct, his admission that he owed the Insurer the overpayment, and the submissions made on behalf of the parties. I exercise my discretion to deny the Applicant his expenses in respect of this arbitration.

Order:

Mr. Behbahani is not entitled to the cost of a Vigano couch. Mr. Behbahani is not entitled to the cost of a chair.
The Insurer is entitled to repayment in the amount of $388.48. The Insurer is entitled to interest commencing on November 29, 1995, at the bank rate on that date established by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to the banks listed in Schedule 1 to the Bank Act (Canada).
The Applicant is not entitled to his expenses in respect of the arbitration.

November 29, 1995

Suesan Alves

Arbitrator

Date

APPENDIX A

Exhibit 1:

Copy of the clinical notes and records of Dr. Barry Ehrlich in relation to Mr. Behbahani

Exhibit 2:

Medical Documentation Brief of the Applicant

Exhibit 3:

Insurer's Brief of Documents

Exhibit 4:

Statement from the Brick dated August 17, 1995 regarding Invoice 071024ccce58, and Employer's Confirmation of Income and covering letter from counsel for the Insurer.

Exhibit 5:

Job Requirements of Kevin Behbahani

Exhibit 6

a-g: Bundle of seven photographs of Mr. Behbahani's home

Exhibit 7:

Copy of Visa Statement of Mr. Behbahani dated July 24, 1992

Exhibit 8:

Target Rehab Centre Patient Health Questionnaire

Exhibit 9:

Correspondence to Dr. Chow dated June 1, 1995 and July 5, 1995.

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule1 will be used to refer to Regulation 672.
Report dated June 14, 1995
Exhibit 6 G
Exhibit 3, page 31
Exhibit 3, page 20
Pre-hearing letter dated May 26, 1995
"Exhibit 3, page 12 "1 Black T/F Bunk Bed, 1 Black 39" two piece bed, 1 black 39" HD/PT BD, 1 75" bolt on rails, 2 SIG 3 LUX FI TW MT"
Tony W. Nelson and Canadian General Insurance Company, July 19, 1995, OIC File No. A-006686

Kevin Behbahani v. Co-operators General Insurance Company, 1995 ONICDRG 171

Case Summary