Neutral Citation: 1999 ONFSCDRS 145

FSCO A97-000716

BETWEEN:

IHSAN A. EL-SAYED

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Shari L. Novick

Heard:

December 21, 22 and 23, 1998 and January 29, 1999, at the Offices of the Financial Services Commission of Ontario

Appearances:

David MacDonald for Ihsan El-Sayed

Aldo Picchetti for Zurich Insurance Company

The Applicant, Ihsan A. El-Sayed, was injured in a motor vehicle accident on July 14, 1994. She applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated the caregiver benefits it had been paying her on January 22, 1996. Zurich reimbursed Mrs. El-Sayed for half of the cost she incurred for housekeeping services until late December 1995. The parties were unable to resolve their disputes through mediation, and Mrs. El-Sayed 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:

Is Mrs. El-Sayed entitled to receive caregiver benefits under section 18 of the Schedule beyond January 22, 1996?
Is Mrs. El-Sayed entitled to receive additional payment for housekeeping expenses she incurred under section 55 of the Schedule?
Is Zurich liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, because it unreasonably withheld or delayed payments to Mrs. El-Sayed?

Mrs. El-Sayed also claims interest on any amounts owing and her expenses of the arbitration.

Mrs. El-Sayed is entitled to receive caregiver benefits from January 22, 1996 to August 1, 1997.
Mrs. El-Sayed is entitled to payment for housekeeping expenses as set out in the body of this decision.
Zurich is not liable to pay a special award.

Background:

Ihsan El-Sayed was injured in a motor vehicle accident on July 14, 1994 when a car travelling in the opposite direction made a sudden U-turn and struck the vehicle that she was driving. Two of Mrs. El-Sayed's children were in her vehicle at the time of the accident, but did not sustain any injuries. Mrs. El-Sayed began to experience headaches and pain in her neck, shoulders and lower back shortly after the accident. She consulted her family doctor a few days later and was referred to physiotherapy, which she attended for 10 months. The medical evidence establishes that the Applicant sustained soft tissue injuries to her cervical, thoracic and lumbar spine as a result of the accident. She claims that these injuries continue to impede her functioning as a caregiver and a homemaker.

The Applicant had four children at the time of the accident and has since had a fifth. She was paid caregiver benefits by Zurich from one week after the accident until January 22, 1996, following a disability Designated Assessment Centre ("DAC") report that determined that she was no longer substantially disabled from performing her caregiving duties. Mrs. El-Sayed disagrees with the results of this assessment.

The parties agree that the Applicant is owed an additional $4,100 in any event, as the Insurer incorrectly paid caregiver benefits on the basis of her having only three children at the time of the accident.

Mrs. El-Sayed lived in a large home at the time of the accident. Shortly after the accident she hired Iman El-Wardani, her sister-in-law who had recently arrived in Canada from Lebanon, to perform the housework that she was unable to do as a result of her injuries. Zurich reimbursed the Applicant for half of the amounts claimed for these services until December 25, 1995, and denied payment of any subsequent claims made for housekeeping expenses. Mrs. El-Sayed seeks payment of the balance of the amount owing before Zurich terminated these benefits, as well as full payment for the housekeeping duties performed by Ms. El-Wardani until April 30, 1998, when she ceased working for the Applicant.

The statutory tests:

Section 18 of the Schedule provides that an insured who is a primary caregiver to children under the age of 16, and who is not employed, is entitled to a weekly caregiver benefit if she suffers an impairment as a result of an accident that renders her substantially unable to engage in the caregiving activities in which she engaged at the time of the accident. Alternatively, it provides that caregiver benefits are payable within two years of an accident if the insured person suffers a "partial or complete inability to carry on a normal life," and beyond two years only if she suffers a "complete inability to carry on a normal life."

Section 2 of the Schedule sets out five different types of activities, and provides that a substantial inability to perform any one of them will qualify an insured as someone who suffers a "partial inability to carry on a normal life." Section 3 provides that a person suffers a "complete inability to carry on a normal life" if the impairment she suffers as a result of the accident continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

The Applicant is not alleging that she suffers a complete inability to carry on a normal life. She claims that she is entitled to caregiver benefits up to July 14, 1996, being two years after the accident, on an application of either the "partial inability to carry on a normal life" or the substantial inability to engage in her pre-accident caregiving activities test, and that she continues to qualify for weekly benefits beyond the two-year point as a result of the latter test.

Entitlement to housekeeping expenses is determined by a different test. Section 55 of the Schedule provides that an insurer shall pay for additional expenses reasonably incurred by or on behalf of an insured person who sustains an impairment as a result of an accident for housekeeping and home maintenance services.

The Applicant's evidence:

I find that the evidence establishes the following general facts: Mrs. El-Sayed left Lebanon to join her husband in Canada in 1980. They have since had five children, who now range in age from 3 to 17 years old. In keeping with the cultural traditions of her community, her primary focus has been on caring for her children, cooking meals for her family and looking after their home. She did not have any health problems that affected her ability to do so prior to the accident.

In addition to acting as a caregiver and homemaker, Mrs. El-Sayed pursued upgrading courses required to receive her grade 12 diploma. She also performed volunteer work for various organizations and was involved first in organizing and subsequently teaching Arabic language classes for children in her community on Saturday mornings. She had also completed the Early Childhood Education program at Humber College a few weeks before the accident.

Pre-accident caregiving and homemaking activities:

The evidence indicated that Mrs. El-Sayed's husband worked long hours and did not do any housework or play a significant role in raising the four children the family had at the time of the accident. The children were 12, 9, 6 and nine months old at the time of the accident. The two oldest children attended school full days, while the six-year old attended half days and the baby remained at home with Mrs. El-Sayed. She testified that before the accident she bathed her two younger children each day, and fed the baby and changed his diapers as required. She also spent a large amount of time with her other children, helping them with homework and reading them stories. She explained that she usually spent three hours each day preparing a large dinner for the family, consisting of several courses. In the warmer weather she occasionally took the children to the park to play, and on other outings.

Mrs. El-Sayed also performed all of the usual household chores, including vacuuming the home, cleaning the kitchen and bathrooms, doing the laundry, ironing and grocery shopping. She stated that she was an avid gardener, and planted and harvested vegetables in their back yard. She also bought fruit and vegetables at a nearby farm and made preserves from them.

There is clearly some degree of overlap between caregiving and housekeeping activities. Tasks such as cleaning the children's rooms and other areas of the house to ensure that the children have a clean and pleasant environment in which to play and live, as well as washing and ironing their clothes and cooking their meals could arguably fall under both categories. While the Schedule sets out different tests for entitlement to "caregiving activities" and "housekeeping services," neither term is defined in the Schedule. To the extent that is possible to do so, I will attempt to distinguish between these types of activities when applying the relevant tests.

Medical evidence:

The Applicant consulted her family doctor, Dr. Rashida Alvi, at regular intervals after the accident. Dr. Alvi's notes and records were filed into evidence. They indicate that Mrs. El-Sayed complained of neck pain, headaches and pain in her lower back shortly after the accident and that she was prescribed muscle relaxants, anti-inflammatories and analgesics for pain relief. Dr. Alvi also referred the Applicant to physiotherapy. A review of Dr. Alvi's notes around the time

Mrs. El-Sayed's benefits were terminated in early 1996 reveal a focus on her pregnancy and subsequent lactation.² Dr. Alvi herself was away on maternity leave during this period, and there are consequently few entries around this time. An entry dated August 6, 1996 notes a complaint of "low back pain" and a reported difficulty with household activities and caring for her new baby.

Dr. Alvi reported to Applicant's counsel in February of 1997 that Mrs. El-Sayed remained substantially unable to engage in the caregiving activities in which she engaged at the time of the accident. In May 1997 Dr. Alvi reported that the Applicant continued to suffer from back pain and continued to experience difficulty in performing her housekeeping and child rearing duties."

Dr. Lori Martyn conducted an Insurer's Medical Examination ( IME") on Mrs. El-Sayed in March of 1995, eight months after the accident. Her report recorded the Applicant's complaints of headaches and pain in the neck, shoulders, mid-and lower back and legs. The report states that Mrs. El-Sayed advised that she was only able to perform approximately 30 percent of her regular activities. She indicated that she could feed and dress her baby and put him to sleep, and that she could prepare breakfast, wash a few dishes and prepare meals involving less than one hour of preparation. She was unable at that point to do any cleaning around the house, or to vacuum, mop, do laundry or clean windows. Mrs. El-Sayed also reported that she was not able to drive.

Dr. Martyn reported that she was unable to detect any objective clinical findings on physical examination to account for the Applicant's degree of alleged disability. She stated that there is certainly a very large component of functional overlay and symptom magnification, and much of her reaction to physical examination is supportive of a significant pain behaviour response." She described the Applicant as being well entrenched into a chronic pain syndrome" and allowing her perception of pain to control her functional level and limit her daily activities. She opined that there was no medical basis for Mrs. El-Sayed's claim that she was unable to perform her usual pre-accident activities, and stated that she should be encouraged to increase her level of activity at home as much as possible.

I did not find Dr. Martyn's comments to be helpful. She did not testify at the hearing and I was not advised what her area of specialty is, and whether the above comments fall within it. She does not define terms such as functional overlay" and symptom magnification," nor does she clarify whether she believed Mrs. El-Sayed's pain focus to be legitimately held, or whether she is malingering. Further, Dr. Martyn did not have the benefit of a subsequent CT scan that revealed a herniated disc in Mrs. El-Sayed's lumbar spine. Consequently, I do not place much weight on the opinion expressed in this report.

The Insurer sponsored the Applicant's participation in a six-week rehabilitation program at the Canadian Back Institute in May and June of 1995. The CBI reports note that Mrs. El-Sayed was complaining of pain in her neck, low back and coccyx area at that time, and that sitting, standing, lifting and walking were difficult due to the symptoms that she was experiencing. The initial report notes that the Applicant continues to care for her children but can only perform the required tasks at a very slow pace. It also notes that she is pain focused and limits her activities due to her symptoms.

The report discharging Mrs. El-Sayed from the program states that she demonstrates sufficient movement of the cervical spine to perform her normal activities of daily living, and that her reported neck and back symptoms "do not follow a mechanical pattern of pain suggesting discogenic or facet joint irritation." It goes on to state that when completing the functional activities tests, Mrs. El-Sayed did not demonstrate the biomechanical changes expected of someone performing at a maximal level. The report also states that Mrs. El-Sayed continually verbalised complaints of pain and limited her activities due to her symptoms. It concludes that she is physically capable of performing her normal activities of daily living and that the main limiting factor in her recovery is her pain-focused behaviour.

Mrs. El-Sayed underwent a disability DAC in October of 1995. Dr. Rajka Soric, a physiatrist, noted the Applicant's reports of headaches, neck pain and pain in her low back, but found that she had a fully functional active range of movement as well as a full passive range of movement upon examination. She opined that Mrs. El-Sayed had sustained a mild soft tissue trauma to the cervical and lumbar region as a result of the accident, but stated that she was not substantially disabled at that time from managing "all of the usual activities of daily living including her duties as a caregiver." The Applicant's benefits were terminated as a result of this assessment. Dr. Alvi referred the Applicant to Dr. Julie Kovacs, a specialist in rheumatology and internal medicine. Dr. Kovacs saw the Applicant on four occasions between May 1995 and January 1997 and diagnosed her as having sustained a myofascial strain to the neck and low back and suffering from post-traumatic fibromyalgia. Dr. Kovacs reported to Dr. Alvi in February 1996 that the Applicant was unable "to do housework such as vacuuming" due to her musculoskeletal symptoms and that doing laundry and mopping floors were extremely difficult due to the pain she experiences on forward flexion. Dr. Kovacs also noted the Applicant's complaints of pain when bathing her two-year-old son.

Dr. Kovacs saw Mrs. El-Sayed again in September of 1996. Based on her findings on examination that the Applicant continued to experience mechanical low back pain, she arranged for a CT scan of the lumbosacral spine. The scan was taken in November of 1996 and revealed a small central disc herniation at the L4-5 level.

Mrs. El-Sayed's final visit with Dr. Kovacs was in January of 1997. She noted her continuing complaints of pain in her low back and coccyx region, resulting in her reported inability to stand or walk for more than 30 minutes. Upon physical examination Dr. Kovacs found that Mrs. El-Sayed had limited range of movement of her lumbosacral spine on forward flexion, and that extension was also significantly limited by pain. She stated that the Applicant had mechanical low back pain and recommended a weight-reducing diet and program to improve her abdominal tone, to help reduce the strain on her lumbar spine. She also provided the following opinion on Mrs. El-Sayed's level of impairment:

She is functionally impaired, in that she is no longer able to do much (sic) of the household activities she did prior to the motor vehicle accident. She has great difficulty bathing the children, she is unable to clean the washrooms, (scrub the bathtub) mop the floor, vacuum the rugs, prepare and cook her Middle Eastern cuisine, sew and make alterations on her families (sic) clothes, do the laundry or ironing or go grocery shopping. She states that she is unable to take the children out for their daily activities.

Dr. Kovacs states later in the report that the reason Mrs. El-Sayed cannot perform the activities outlined above is because they aggravate her low back symptoms. She further states that it would be reasonable for her to have a housekeeper to help her with these duties.

Dr. Soric, the DAC doctor, was subsequently provided with the results of the CT scan and asked to reconsider her opinion. She stated that the scan revealed only a small disc herniation that she did not consider to be clinically significant, as there was no evidence of a compromised dural sac or nerve root. Dr. Soric reaffirmed her opinion that Mrs. El-Sayed was not substantially disabled from performing caregiving activities at the time of the DAC assessment.

Dr. Joseph Wong, a physiatrist, prepared a detailed medical-legal report after examining Mrs. El-Sayed at the request of her counsel in March of 1998. He also testified at the hearing on the Applicant's behalf. Dr. Wong diagnosed Mrs. El-Sayed as having sustained a chronic myofascial injury of the cervical spine and a moderate myofascial injury of the thoracic and lumbar spine. He also diagnosed her as suffering from post-traumatic depression, insomnia and cervicogenic headaches, which he stated in his report were caused by an impingement of the greater occipital nerve. Dr. Wong conceded under cross-examination, however, that he had no objective evidence upon which to base this latter finding.

Dr. Wong testified that he should have also included the Applicant's herniated disc at the L4-5 level as a cause of her back pain in his report, explaining that he had omitted this from his list of diagnoses by oversight. He opined that the Applicant's herniated disc was caused by the trauma of the accident.

Dr. Wong also stated that Mrs. El-Sayed's continuing symptoms cause her to experience difficulty in performing her caregiving tasks. He characterized these caregiving tasks as "heavy," given the number of children that she has and the fact that she has sole responsibility for maintaining the family's home. His report notes her complaint of frequent headaches and the fact that the pain worsens when the children are loud, which limits her ability to care for them. He also reports that while Mrs. El-Sayed tries to do light chores around the home and can do some grocery shopping, she is not able to engage in any activities which require prolonged standing, heavy lifting, repetitive bending, repetitive forward reaching of her arms or any repetitive arm movements. He sets out that she relies on her two older children and a babysitter to take care of the majority of the housework, as well as bathing and caring for her two younger children.

Dr. Wong stated in his report that Mrs. El-Sayed is not totally disabled, but she is partially disabled from performing the essential tasks of her work as a caregiver." When asked at the hearing to explain what he meant by partially disabled," Dr. Wong testified that he had used the adjective partially" because the Applicant was not totally paralysed, and that in his view, anything other than total disability can be described as partial. He stated that Mrs. El-Sayed was disabled from performing the majority of her caregiving and household tasks, and that while she might be able to do light housework and the odd heavy activity, she cannot do these regularly, as she had in the past. As an example, he explained that while the Applicant was able to go grocery shopping, she would not be able to carry bags weighing more than 20 pounds.

In his testimony, Dr. Wong estimated that Mrs. El-Sayed was 80 percent disabled from performing her pre-accident activities. When cross-examined on how he had arrived at this figure, he responded that the Functional Capacity Evaluation undertaken the day following his examination of the Applicant revealed that she was able to perform the relevant duties on an occasional level, which he quantified as 20 percent, resulting in an 80 percent level of disability.

Dr. Wong disagreed with the findings of the IME doctor, Dr. Martyn, stating that he had not detected any symptom magnification when he had examined the Applicant. He noted that Dr. Martyn did not have the benefit of the CT scan when she provided her opinion, and stated that would have impaired her ability to diagnose the source of Mrs. El-Sayed's ongoing pain. He also disagreed with the conclusions contained in the CBI reports, stating that some of the tests administered to the Applicant did not address her actual caregiving duties, such as only testing her ability to lift 20 pounds when her young son actually weighed 24 pounds. He opined that there would be many homemaking activities that Mrs. El-Sayed could not perform, as a herniated disc causes pain when bending, reaching or sitting for extended periods.

The Applicant was referred for a Functional Capacity Evaluation ( FCE") in late March of 1998 by her counsel. The results indicate that she can lift items that are fairly heavy but has difficulty with repetitive lifting and carrying. She also demonstrated maximum sustained sitting and standing/walking tolerance at a frequent level, but had difficulty when asked to perform activities requiring her to stoop, crouch and kneel. The "Recommendations" section of the report contains the following paragraph:

...Client is currently limited in lifting/carrying heavy groceries, lifting her youngest child to and from the stroller and participating in some of her pre-accident family outings, e.g. picking strawberries for a sustained period with the children. Client, however, demonstrated the ability to perform the majority of her pre-accident homemaking and care-giving tasks. It would be reasonable that Client will have to change her strategies and perform the same activities at a slower pace. She may experience pain during task performance and will require to take breaks or alternate tasks/postures regularly. She would accomplish less in a day and will need to prioritize her daily tasks.

The FCE report lists various homemaking and caregiving activities and sets out the Applicant's ability to perform each one. Without going through the entire list, I note that Mrs. El-Sayed reported that she is no longer capable of gardening or making the preserves that she used to, due to her inability to crouch and stoop and the discomfort associated with sitting for several hours at a time. She can prepare breakfast and light lunches and will occasionally make a quick dinner or prepare a larger meal in various stages. She no longer cooks for larger family groups or entertains friends, as she did prior to the accident. She is able to perform light homemaking chores but has deferred many of the heavier chores, such as washing floors, vacuuming, and cleaning bathtubs to her oldest daughter.

In terms of caregiving activities, the report notes that the two younger children, who were four and one-half and two years old at the time of the assessment, require assistance in bathing, but that this task is "deferred to the homemaker." Mrs. El-Sayed is able to change the baby's diapers and can dress both of the younger children. While she is unable to lift or carry these two younger children, they were able to walk and climb stairs on their own at the time of the report. The report also notes that the Applicant can drive the children to school, to the library and to Saturday morning language classes but cannot play outdoors in the park with them.

Applicant's evidence on disability:

Mrs. El-Sayed testified that while some of her symptoms have improved, she still experiences regular headaches of varying intensity and continues to have constant low back pain and occasional pain in her shoulders. She stated that this pain worsens with bending or lifting and that she takes Robaxacet for her back and shoulders and Tylenol 3 when she gets a headache. She also takes medication to help her sleep. She testified that she "pushes herself to the limit," but pays the price of constant pain.

Mrs. El-Sayed explained that the DAC assessment performed by Dr. Soric in October 1995 only lasted 15-20 minutes. She also stated that her pregnancy in late 1995 and the first half of 1996 was very difficult and that she had frequent back pain and headaches, whereas her previous four pregnancies had all been without difficulty. She recalled that for a few months after giving birth to her son in May 1996 she generally spent most of the day lying on the couch with the baby, until the other children returned from school.

Mrs. El-Sayed resumed teaching Arabic to children on Saturday mornings in November 1996. She testified that during the two-and-one-half hours that she is in class she alternates between standing, sitting and walking around the classroom, and explained that she usually has one or two volunteers who assist her with the children during the class. She testified that she usually goes home and lies down for the rest of the day after teaching on Saturdays.

Mrs. El-Sayed stated that her activities and the way in which she moves around continue to be limited. She explained that she has great difficulty lifting and bending, and that it hurts to crouch or kneel. She testified that if she stands for a while she feels pain radiating down her leg and has to rest for two or three days. She can sit for up to 30 minutes at a time, but then begins to feel pain in her back and shoulders. She claims that any repetitive activity causes pain and that she has difficulty cleaning the house, doing laundry and ironing. She cannot garden any longer. She stated that she can climb stairs but cannot carry laundry upstairs and that while she can shop for certain things, she cannot carry bags weighing more than 20 pounds.

She admitted under cross-examination that since her sister-in-law stopped doing the housework in April 1998, she has resumed mopping the floors, doing the dishes and generally tidying up.

Finally, Mrs. El-Sayed testified that she can dress her younger children but that it takes her much longer than it used to. She is able to attend to their basic needs, but cannot bathe them. She stated that she spends on average 50 percent less time with her children than she did before the accident, and that she can no longer take them to the park to play or on outings as she had done in the past, as a result of the injuries she sustained in the accident. Overall, she estimated that she has lost 80 percent of her "capacity" as a caregiver.

Video Surveillance:

The Insurer filed two surveillance videotapes taken of the Applicant -- one taken over the course of two consecutive days in mid-August of 1997, and the second in early March of 1998. The August 1997 tape shows the Applicant driving her minivan around to various stores, accompanied by her eldest daughter and young son. Mrs. El-Sayed appears to open and close the doors of the van without effort, and is seen leaning into the vehicle in a slightly bent position on a few occasions. In one sequence, she is shown lifting a large box and placing it at the rear of the van, and then lifting her right arm up well over her head to close the rear "hatchback" door, without any visible signs of discomfort. She is seen leaving various stores carrying a few bags in her right hand, and at a later point, in her left hand.

In another sequence, she lifts a plastic outdoor table or stand, and places it at the back of the van. She subsequently rearranges several large items at the back of the vehicle and attempts to close the rear door three or four times before successfully managing to do so. On one occasion, she is seen bending over and crouching to fix a rack that she has placed on the ground, in a fluid and seemingly effortless manner.

The video footage taken on one day in March of 1998 shows Mrs. El-Sayed walking and driving in the area of the school at which she teaches language classes on Saturdays.

Conclusions on entitlement to caregiver benefits:

Mrs. El-Sayed received caregiver benefits from one week after the accident until January 22, 1996, a period of approximately 18 months. As stated earlier, an applicant who sustains an impairment as a result of an accident has two ways in which to qualify for these benefits for the first two years after an accident -- she must either suffer a partial or complete inability to carry on a normal life as a result of the accident" or a substantial inability to engage in the caregiving activities in which...she engaged in at the time of the accident." In order to qualify for benefits after the two-year point, an applicant must either prove that she remains substantially unable to engage in the relevant activities or that she suffers a complete inability to carry on a normal life." The parties agree that Mrs. El-Sayed has not been impaired to this latter degree and I find that she does not meet the complete inability" test.

Entitlement from January 22 to July 14, 1996 (pre-104 weeks):

On the evidence, I find that Mrs. El-Sayed is entitled to receive benefits during this six-month period. There is limited medical evidence relating to this time frame, possibly because the Applicant was pregnant with her youngest child until giving birth in May 1996 and the medical focus was on her pregnancy. Dr. Alvi, her family doctor, was herself away on maternity leave for part of this period. The Insurer had terminated paying benefits at this point and did not therefore continue to assess Mrs. El-Sayed's medical condition and abilities.

Dr. Kovacs' report to Dr. Alvi in February 1996 is the most useful evidence of the Applicant's abilities during this period of time. Dr. Kovacs reported that Mrs. El-Sayed continued to complain of neck and low back pain and was unable to do her housework due to the musculoskeletal symptoms she was experiencing. She also reported that the Applicant complained of pain when bathing her son. Dr. Kovacs specified that activities such as mopping floors, vacuuming, and doing the laundry would be especially difficult for Mrs. El-Sayed, as they all involved forward flexion. I note that Dr. Martyn, who performed an IME in March of 1995 reached a different conclusion. For the reasons I have already expressed, I find that her opinion on this point does not carry much weight.

I find that Mrs. El-Sayed suffered a "partial inability to carry on a normal life" during this period, as set out in subparagraph 18(1)(3)(ii) of the Schedule, as she was substantially unable to engage in both the mobility and household activities in which she engaged prior to the accident. These two types of activities are contained in section 2 of the Schedule, and comprise part of the definition of the term "partial inability to carry on a normal life."

Arbitrator Palmer considered the meaning of "mobility activities" as set out in subsection 2(b) of the Schedule in her decision in Gray and Zurich Insurance Company (OIC A95-000412, August 2, 1996). She based her finding that the applicant in that case was entitled to benefits during the relevant period on the basis of her inability to engage in mobility activities, and more specifically, the fact that her ability to sit, stand, walk long distances, move quickly, squat and kneel were substantially impeded by the injuries she suffered in the accident. I agree with Arbitrator Palmer's views on what constitutes "mobility activities" and find that the evidence in this case similarly supports the conclusion that the pain in Mrs. El-Sayed's lower back resulting from the accident, hampered her ability to lift, bend, crouch, climb stairs, walk for long distances and sit for extended periods to the extent that it can be said that she could not engage in her prior mobility activities during the relevant period.

While an applicant need only show that she meets one of the conditions set out in section 2 to support a finding that she suffers a "partial inability to carry on a normal life" and is therefore entitled to caregiver benefits up to the two-year point, I am also persuaded that the Applicant was substantially disabled from performing the household activities that she had performed prior to the accident. When Mrs. El-Sayed's pre-accident ability to perform all of the household chores and related activities such as gardening, growing vegetables and making preserves is contrasted with her incapacity to perform the large majority of these tasks after the accident, it is evident that she was substantially unable to carry on her previous household activities during the time frame in question.

Dr. Soric, the DAC assessor, concluded in October of 1995 that Mrs. El-Sayed was not substantially disabled from managing all of the usual activities of daily living including her duties as a caregiver." This is inconsistent with Dr. Kovacs' findings expressed above. It also does not address the "partial inability" branch of the pre-104 week test. In my view, Dr. Soric's general finding that the Applicant can manage the usual activities of daily living" is of limited use in the context of the required comparison between the mobility activities and household activities that Mrs. El-Sayed was capable of performing prior to and after the accident. Accordingly, I find that Mrs. El-Sayed meets the test for entitlement to caregiver benefits from January 22, 1996 when her benefits were terminated, until July 14, 1996, two years after the accident.

Entitlement after July 14, 1996 (post-104 weeks):

In order to qualify for continuing benefits after the 104-week point, an applicant must prove that she suffers either a complete inability to carry on a normal life, which is not being alleged by Mrs. El-Sayed, or that she suffers a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident.

Having considered the evidence presented, I find that Mrs. El-Sayed met the "substantial inability" test for some period of time after July 14, 1996 but ceased to exhibit that level of disability at some point in the middle of the following year. Many arbitrators have commented on the level of impairment required to meet this test. The general consensus is that a moderate amount of inability will not suffice, and that the impairment must be sizeable or significant. While it may not be possible to specify exactly when the Applicant's level of disability decreased from "substantial" to a more moderate or lesser degree, the evidence suggests that this occurred during the summer of 1997.

The Insurer relied on Dr. Martyn's IME report, the opinions expressed in the reports following Mrs. El-Sayed's attendance at the Canadian Back Institute, Dr. Soric's findings at the DAC assessment, and the fact that the Applicant had returned to teaching Arabic on Saturday mornings in November of 1996 in support of its position that she was not disabled to the extent required under the Schedule. As indicated above, I do not place much weight on the opinion expressed by Dr. Martyn. I do not find the reports generated by the CBI to be persuasive either, as they were also not aware that the Applicant had sustained a herniated disc in her lower back. As well, some of the testing administered at the CBI did not correspond with Mrs. El-Sayed's actual caregiving requirements, which causes me to question some of the conclusions reached. The fact that

Mrs. El-Sayed was able to teach for a few hours on Saturday mornings as of November 1996 similarly does not persuade me that she was able to resume her pre-accident caregiving activities.

I have already referred to the very general manner in which Dr. Soric's opinion is expressed. Her report does not mention what Mrs. El-Sayed's caregiving activities were at the time of the accident. That fact, coupled with the Applicant's statement that she only spent 15-20 minutes with Dr. Soric, suggests that the assessment performed was cursory and did not involve much detail. Given that this part of the test for entitlement to caregiver benefits also requires an in-depth comparison between an applicant's pre and post-accident activities, I do not find Dr. Soric's general opinion that Mrs. El-Sayed was not substantially disabled from managing "all of the usual activities of daily living including her duties as a caregiver" to be determinative of this issue.

I accept that Dr. Alvi, the family doctor, would have had a better understanding of the Applicant's caregiving activities at the time of the accident. She opined in February 1997 that Mrs. El-Sayed was substantially unable to engage in the caregiving activities in which she engaged at the time of the accident, due to her continuing low back pain. Dr. Kovacs also reported in early 1997 that the Applicant's mechanical low back pain prevented her from performing many of her pre-accident caregiving activities such as bathing her children, preparing meals, grocery shopping, doing the laundry, cleaning the house and taking the children out for their daily activities. On the basis of this medical evidence, I find that Mrs. El-Sayed remained substantially disabled from performing the caregiving activities that she had performed prior to the accident at this point in time.

I find, however, that the Applicant ceased to be entitled to receive caregiver benefits by August of 1997. The video surveillance taken on August 12 and 13 shows Mrs. El-Sayed driving around town for a few hours on each day, visiting various stores and performing errands with two of her children. While all of the video was taken outside of the home, as opposed to indoors where the bulk of the Applicant's caregiving activities presumably take place, I could not help but note that Mrs. El-Sayed made various movements in what appeared to be a natural, effortless manner. In my view, this belies her contention that she cannot reach, bend, lift, or crouch without experiencing disabling pain. As outlined above, she is seen at various points in the video repeatedly reaching well over her head to close the rear door of her minivan. She is also seen carrying a large box that she places at the rear of the van, and bending over to fix some type of rack that she then also lifts and places at the rear of her vehicle. In my view, this casts serious doubt on her claim that she is very limited in her activities and the manner in which she moves. Having viewed the video a few times, I simply cannot accept her evidence that she has lost 80 percent of her capacity as a caregiver.

Dr. Wong opined, both in his report and in his testimony at the hearing, that Mrs. El-Sayed met the required threshold of disability for continuing entitlement to caregiver benefits. In his report he stated that she is "partially disabled from performing the essential tasks of her work as a caregiver...as she is not able to perform most of the heavy activities like bathing her child, carrying her child, and performing heavy activities." The overall impression left by this report is that Mrs. El-Sayed continues to experience difficulty performing the heavier or more physically demanding activities that she performed in the past. While this may well be true, it is not sufficient to meet the test of substantial inability set out in the Schedule.

In his evidence at the hearing, Dr. Wong went quite a bit further, however, estimating that the Applicant had lost 80 percent of her capacity. I find it difficult to reconcile these two quite disparate opinions, and I therefore do not place much weight on Dr. Wong's opinion on this question.

I also find Dr. Wong's statement that Mrs. El-Sayed is 80 percent disabled to be inconsistent with both the results of the Functional Capacity Evaluation conducted at the same time as his examination, and the video surveillance discussed above. The FCE assessment identified some limitations in the Applicant's ability to lift repetitively and carry heavy items, but found that she was not limited in her ability to sit, stand and walk and that she demonstrated the ability to perform the majority of her pre-accident homemaking and caregiving tasks. The report notes that Mrs. El-Sayed can dress her children, prepare meals for them (although perhaps not as elaborately as before) and that she can drive them to school and various other places. While she may experience pain while performing some of these activities, the focus of the test in the Schedule is on an applicant's functional impairments, as opposed to the pain suffered.

Accordingly, I find that while Mrs. El-Sayed may have exhibited some degree of inability to engage in the caregiving activities in which she engaged at the time of the accident after August of 1997, she was capable of performing many of her caregiving tasks at that point, and her level of impairment was no longer sufficient to meet the test of "substantial inability" as set out in section 18 of the Schedule.

Housekeeping expenses:

It appears that while Zurich paid housekeeping expenses from the date of the accident until the end of 1995, only half of the $250 per week that was claimed was paid. Mrs. El-Sayed also claims that she is entitled to housekeeping expenses from December 25, 1995 to April 30, 1998. She claims $250 per week for 30 hours of work from December 25, 1995 to June 30, 1997, and $125 per week for 15 hours weekly from that date until April 30, 1998, explaining that from July 1, 1997 onwards, her eldest daughter assumed responsibility for approximately half of the housekeeping chores around the house.

Section 55 of the Schedule reads as follows:

If an insured person sustains an impairment as a result of an accident, the insurer shall pay for additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services.

Some of the Applicant's evidence, as well as the testimony of her eldest daughter, Iman El-Sayed, and her sister-in-law, Iman El-Wardani, focused on this part of the claim. That evidence established that shortly after the accident, Ms. El-Wardani, who had recently arrived from Lebanon, started performing most of the household chores in the Applicant's home, including cleaning the kitchen and bathrooms, vacuuming, dusting, cooking, doing the laundry and shopping for groceries. Ms. El-Wardani testified that she also bathed the younger children each day, and helped the Applicant care for her baby when required. She stated that she performed these duties every day of the week, working between 30 to 35 hours each week. She estimated that she spent 75 percent of her time cleaning the home and cooking meals for the family, and 25 percent of the time looking after the Applicant's children.The parties agreed that the time spent looking after the children would not properly fall under housekeeping services."

The evidence indicated that although the Insurer terminated payments for housekeeping at the end of 1995, Ms. El-Wardani continued to perform these duties and was paid $250 weekly by the Applicant until January 19, 1997. She continued working the same number of hours each week until June 30 of that year, despite not receiving any money for her efforts. She then cut back to 15 hours per week after July 1, 1997 once the Applicant's daughter began helping out, until finally quitting on April 30, 1998.

The Insurer took the position that the claim for 30 hours per week of housekeeping was excessive, and that 12 to 15 hours of work per week was a more reasonable estimate of the value of the services required.

I am satisfied that Mrs. El-Sayed meets the test for entitlement to housekeeping services. She has clearly sustained an impairment as a result of the accident and has consequently incurred additional expenses for housekeeping services. I am persuaded by the evidence that it was reasonable for her to incur these expenses both before and after December 25, 1995, given the injuries that she suffered. I find that even though I have determined that she is not entitled to receive caregiving benefits after August of 1997, it would still be reasonable for her to have paid for housekeeping services to assist her in performing various homemaking activities after this date.

The question then becomes how much Mrs. El-Sayed is entitled to receive prior to December 25, 1995, when the Insurer terminated the payments it had been making, as well as after that date. None of the reports filed at the hearing focus on this question. The Insurer retained an occupational therapist in early 1995 to perform an in-home assessment to determine the Applicant's abilities with respect to homemaking activities, and while it appears that the therapist made two visits to the El-Sayed home and recommended that the Insurer provide funding to cover "homemaking assistance for heavy household cleaning tasks, some meal preparation and grocery shopping as required," no hourly estimate was provided.

Dr. Wong commented on this issue in his report. He opined that Mrs. El-Sayed was not able to perform the majority of her household duties, and that it was reasonable for a housekeeper to perform these activities for her. He stated that she required help with heavy activities and caregiving activities and that he believed that 30 hours per week was a reasonable estimate of the time required to fulfill those needs.

At the time of the accident Mrs. El-Sayed lived in a large home with four sets of stairs. She had four children, all under the age of 13. While the 22.5 hours claimed (75 percent of the 30 hours worked weekly) for weekly housekeeping services sounds somewhat high, I find it to be a not unreasonable estimate of what was required until the end of 1995. I find that a more appropriate figure for the period of January 1, 1996 to the end of June 1997, when the Applicant's daughter began assisting, is 15 hours per week. Half of that, or 7.5 hours per week, would then be payable from July 1, 1997 to the end of April 1998. Given the evidence that Ms. El-Wardani received $250 per week for 30 hours of work when she was paid by the Applicant, I find that $8 per hour would be a reasonable rate for the services performed. I leave it to the parties to effect the required calculations, which should include interest.

Special Award:

The Applicant submits that Zurich is liable to pay a special award because the report it received from the occupational therapist was never provided to Mrs. El-Sayed, and in any event, it did not support the termination of housekeeping benefits. Counsel also maintained that the Insurer acted unreasonably when it failed to set up another IME or disability DAC after becoming aware that Mrs. El-Sayed had a herniated disc.

I also heard evidence from Ray Proctor, a dispute resolution specialist at Zurich, concerning the timing of some of the payments made to Mrs. El-Sayed. While this matter was certainly not handled in an ideal manner by Zurich, I am not persuaded that the Insurer's actions (or inaction) were unreasonable to the point where a special award is merited. The Insurer terminated the caregiving benefits it had been paying, as it was entitled to do, based on the results of the disability DAC that assessed the Applicant's level of functioning. And, although the basis upon which the housekeeping benefits were terminated was not clear, it appears that the Insurer relied on some of the medical evidence that had been accumulated to assess Mrs. El-Sayed's level of disability with respect to the performance of her caregiving activities. Given the overlap between her ability to perform caregiving and housekeeping activities, I do not find it unreasonable for Zurich to have done so.

EXPENSES:

I heard no submissions on expenses. I encourage the parties to resolve this issue between themselves, failing which they may revisit me on this issue.

July 26, 1999

Shari L. Novick Arbitrator

Date