Neutral Citation: 1999 ONFSCDRS 185

FSCO A97-001327

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FATEMEH ASMAND

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

July 27, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David F. Longley for Mrs. Asmand

Gregory P. Heckel for Zurich Insurance Company

Issues:

The Applicant, Fatemeh Asmand, was injured in a motor vehicle accident on June 18, 1996. She applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly caregiver benefits on February 1, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Asmand applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The parties agree on the quantum of the weekly caregiver benefit claimed.

The issues in this hearing are:

Is Mrs. Asmand entitled to receive weekly caregiver benefits from February 1, 1997 to June 25, 1998 in the amount of $260.10, pursuant to section 18 of the Schedule?
Is Mrs. Asmand entitled to payments for housekeeping and home maintenance services, pursuant to section 55 of the Schedule?
Is Mrs. Asmand entitled to interest on overdue payments pursuant to section 68 of the Schedule?
Is Zurich liable to pay Mrs. Asmand's expenses in respect of the arbitration under section 282(11) of the Insurance Act R.S.O. 1990, c. I.8?

Result:

Mrs. Asmand is entitled to receive weekly caregiver benefits from February 1, 1997 until June 25, 1998 in the amount of $260.10, pursuant to section 18 of the Schedule.
Mrs. Asmand is entitled to payments for housekeeping and home maintenance services, pursuant to section 55 of the Schedule.
Mrs. Asmand is entitled to interest on overdue payments pursuant to section 68 of the Schedule.
Zurich is liable to pay Mrs. Asmand's expenses in respect of the arbitration under section 282(11) of the Insurance Act R.S.O. 1990, c. I.8.

BACKGROUND:

Mrs. Asmand claims caregiver benefits from February 1, 1997 to June 25, 1998, two years after the motor vehicle accident, at the rate of $260.10 per week.

The provisions relevant to the dispute between the parties are set out in section 18(1) of the Schedule as follows:

18 (1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly caregiver benefit if the insured person meets the following qualifications:

.........
..........
As a result of and within two years of the accident the insured person.

i. suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident, or

ii. suffers a partial or complete inability to carry on a normal life.

At the time of the accident and for the whole of the two-year period for which this benefit is claimed, Mrs. Asmand resided with and was the primary caregiver for her youngest daughter. For the entire period claimed, this daughter was less than 16 years of age.

There is no real issue that Mrs. Asmand suffered impairments as a result of the motor vehicle accident. Zurich paid caregiver benefits from June 25, 1996 to February 1, 1997. Housekeeping expenses were paid as well although the parties were not able to be precise about when those benefits were terminated. The dispute in this arbitration is about whether or not these benefits ought to have been continued beyond February 1997.

Mrs. Asmand asserts that she is entitled to a caregiver benefit because she was substantially unable to perform the tasks of a caregiver for the period claimed, February 1, 1997 to June 25, 1998. Mrs. Asmand did not explicitly argue that she had suffered a partial inability to carry on a normal life although it was submitted that she was not asserting that she had suffered a complete inability to carry on a normal life. Zurich says that after February 1, 1997, Mrs. Asmand was no longer substantially unable to engage in the essential tasks of a caregiver. Zurich also argues that Mrs. Asmand failed to meet the alternative basis for entitlement — that she was suffering a partial inability to carry on a normal life for the period February 1, 1997 to June 25, 1998.

Section 2 of the Schedule defines a partial inability to carry on a normal life as follows:

For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

In addition, Mrs. Asmand claims housekeeping expenses for the period January 13 to September 22, 1997 pursuant to section 55 of the Schedule:

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.

The parties were unable to resolve whether this or any part of this claim has already been paid and therefore the precise amount in dispute is not certain.

EVIDENCE:

The evidence led by the Applicant respecting her claims for caregiver benefits and the housekeeping expenses was by and large the same. As well, many of the section 2 activities respecting a partial inability to carry on a normal life are relevant to a claim for caregiver benefits and housekeeping expenses. Given the overlap in the evidence as it relates to these issues, I will consider all of the evidence concerning Mrs. Asmand's functional abilities together.

Functional Abilities:

Mrs. Asmand was, at the time of the accident, a 41-year-old mother of three daughters, Mellissa, Shary and Shiva; aged 12, 15 and 16 respectively. Mrs. Asmand, her husband, and their three daughters lived in a three-bedroom, two-bathroom apartment. Mrs. Asmand was responsible for the general cleaning of the apartment and did all of the cooking and kitchen clean-up. An important focus of family life was the breakfast meal, which was taken as a family. Mrs. Asmand prepared breakfast for the family as well as lunches and dinners. She did all of the grocery shopping, typically a weekly task. She was responsible for all laundry, including stripping the beds and washing the sheets weekly. The unit had a clothes washer in it. Prior to the accident Mrs. Asmand had taken the bulk of the laundry to a clothes dryer located in the basement of the building. Light laundry items were sometimes dried on racks on the balcony.

The children were responsible for their own hygiene and cleaning up their own rooms. The remainder of the household tasks were entirely Mrs. Asmand's responsibility.

Mrs. Asmand's spouse was a self-employed mechanic and worked long hours. In addition to her other household responsibilities, Mrs. Asmand assisted her husband by occasionally picking up things for his business.

Mrs. Asmand often took the three girls shopping with her and sometimes took Mellissa to the park to play, although she conceded that this latter activity became less frequent as her youngest got older.

Mrs. Asmand was trained as a nurse in Iran and planned to return to the workforce in that occupation. Prior to the accident, she had attended Victoria Park Collegiate where she successfully completed a high school equivalency program. Mrs. Asmand did volunteer work at the Baycrest Centre in the months prior to the accident.

The motor vehicle accident of June 18, 1996 occurred on Highway 401. Mrs. Asmand has no recollection of the accident. She lost consciousness for a brief period of time, and was transported to the hospital by ambulance. Her injuries were serious, and, as documented by her family physician, Dr.A. Hadian,² included:

Closed head injury/concussion
Left sided rib fractures (4 through 8)
Left pulmonary contusion, left pneumothorax
Right pulmonary contusion
Pneumo-midias contusion
Lateral compression pelvic fracture of the pubic bone and right side sacrum
Closed fracture of the left humerus

Mrs. Asmand underwent open reduction surgery for her left arm fracture on June 20, 1996. She was in the hospital for almost two weeks. She was then transferred to St. John's Rehabilitation Hospital (St. John's) from which she was discharged as an inpatient approximately seven weeks later, on August 26, 1996. Mrs. Asmand was discharged as an outpatient at St. John's on November 21, 1996.

Mrs. Asmand began seeing her family physician on September 11, 1996, complaining of headaches, anxiety, depression and right hip pain. At that time, she could not walk and was using a wheelchair. Dr. Hadian prescribed Relafen, Paxil and Ativan to treat her depression and anxiety. He referred Mrs. Asmand to Dr. M. Showracki, a psychologist who diagnosed a Major Depressive Episode. He recommended increasing the dosage of Paxil and referred her to Dr. F. Aghamohsenie for psychotherapy.

Upon discharge from its rehabilitation program in November 1996, St. John's Hospital³ reported that Mrs. Asmand had been motivated and cooperative throughout and that she had progressed well. By that time she was no longer wheelchair-bound and was able to ambulate throughout her apartment without crutches or canes. Mrs. Asmand complained of lower back pain but this pain was reportedly relieved by stretching. St. John's reported that Mrs. Asmand was able to complete all homemaking tasks but still required assistance with heavy bags of groceries and heavy loads of wet laundry. When asked to comment on this report of her functional abilities, Mrs. Asmand testified that she wanted to please her physiotherapists and may have told them what they wanted to hear. She also responded that from the beginning of her rehabilitation she did try to do as much as she could of all of her pre-accident activities.

Mrs. Asmand currently complains of low back pain, right and left arm pain and occasional right knee pain and contends that these difficulties have prevented her from performing many of her pre-accident household tasks. Mrs. Asmand's complaints of low back pain are consistent and well documented.⁴ The difficulties with her right knee and left arm have also existed since the accident. The right arm pain is a more recent development and, in Mrs. Asmand's view, has been caused by her favouring her left arm with the resulting overuse of the right.

Mrs. Asmand testified that when the caregiver benefits were terminated in February 1997, she was still unable to perform most of her pre-accident housekeeping activities although she tried to do as much as possible. Mrs. Asmand understood that it was important that she be as active as possible as a remedy for her depression. She was concerned to avoid becoming "mentally sick." However, despite her efforts, she could not cook, vacuum, mop, sweep or make beds. Mrs. Asmand particularly noted that she was unable to cook the family breakfasts. She could do some light laundry but the heavy laundry was beyond her. She could not reach into the washing machine to retrieve large and heavy items. Any laundry that required the use of the dryer was difficult for her as well because the dryer was in the basement of the building. Although a cart was provided for the transport of wet laundry, it was of limited use because there were stairs in the basement that Mrs. Asmand could not get down with the cart. The housekeeper who has continued to assist Mrs. Asmand after housekeeping benefits were terminated, did the heavy cleaning, vacuuming, laundry and some cooking. In addition, Mrs. Asmand's husband and daughters took on more of the household tasks.

When the benefits were terminated Mrs. Asmand was feeling depressed, easily irritated and anxious. She had difficulty in her relations with her family and frequently lost her temper with her children and husband. She also reported poor concentration and forgetfulness. She claimed to be unable to read for pleasure as she had done before the accident.⁵

Mrs. Asmand testified that in June 1997 she was doing light housekeeping tasks, and because she was driving again, she could do a little shopping. Otherwise, her physical ability to function was little changed from February and she remained unable to cook, vacuum, do the heavy laundry, do sweeping/mopping or weekly grocery shopping.

Mrs. Asmand reported to Dr. F. Aghamohseni an increased tolerance for her children and generally improved relations with them. However, she continued to complain of difficulties with cognitive functioning and sleep and driving anxiety.⁶

By June 1998, approximately two years after the accident, Mrs. Asmand had regained some function but still could not perform the heavier household tasks. She claimed that any task that required her to bend at the waist was extremely difficult for her. She testified that she continued to need assistance with vacuuming and heavy laundry. Mrs. Asmand testified that she did not cook in June 1998 and that her daughters, who were now older, had taken over much of that work.

Mrs. Asmand's efforts to requalify as a registered nurse were interrupted by the accident. Six or seven months after the accident, Mrs. Asmand enrolled in what she described as a refresher course. She left after two or three sessions because of her inability to concentrate.

The evidence of her daughter, Shary Asmand, generally confirms that of her mother. Shary was just under 16 and a student in high school at the time of the accident. She testified that prior to the accident, her mother was responsible for all homemaking activities. The children did little but keep their rooms clean. After the accident and her discharge from St. John's Hospital, Shary testified that her mother was able to do very little. Nevertheless, her mother pushed herself and tried to help out with the housework. Her mother was often frustrated and when frustrated, would scream at the children.

The caregiver and housekeeping benefits at issue in this arbitration were terminated on the basis, in part, of medical examinations conducted for Zurich by AssessMed in December 1996.

Dr. Katherine Isles of AssessMed conducted an assessment of Mrs. Asmand at the request of Zurich. In her report dated January 8, 1997, Dr. Isles concluded that if pain were not considered, Mrs. Asmand was capable of performing the essential tasks of daily living and the essential tasks of a caregiver, although she was limited with respect to some of the heavier tasks. Dr. Isles did not discuss the duties of a caregiver in her report. She noted that Mrs. Asmand appeared to be pain-focused and presented as depressed.⁷

Mrs. Asmand was also assessed on behalf of Zurich by Dr. J. E. Siegal, a psychologist. Dr. Siegal concluded that Mrs. Asmand exhibited "symptoms of depressive symptomology" which reflected her difficulties in adjusting to pain and perceived limitations in her ability to function. He was also of the opinion that there were other factors independent and unrelated to the accident which were contributing to Mrs. Asmand's psychological difficulties. Despite these views, Dr. Siegal concluded that Mrs. Asmand was psychologically capable of resuming her activities as a homemaker on a full-time basis.⁸

Mrs. Asmand was assessed by Dr. A. Katchooie on April 30, 1997. In a report dated May 6, 1997,⁹ Dr. Katchooie offered a diagnosis of Mrs. Asmand that adds little to the report of Dr. Hadian cited earlier.

Mrs. Asmand was also assessed by a Medical and Rehabilitation DAC in March 1997. In a report dated April 3, 1997, the DAC assessors concluded that the fractures that Mrs. Asmand had suffered had healed and that despite her ongoing complaints of lower back pain, her prognosis for recovery was considered good.¹⁰

Dr. R. Rathbun conducted the medical (orthopaedic) assessment and concluded that Mrs. Asmand was making an excellent recovery from significant and life-threatening injuries. He opined that in "the long term she will be able to return to her previous duties." Dr. Rathbun noted Mrs. Asmand's tendency to minimize her difficulties.¹¹

Dr. H. Scher, who conducted a neuropsychological assessment as part of the DAC, diagnosed Mrs. Asmand as suffering "a Major Depression and Pain Disorder (associated with psychological factors)." Dr. Scher concluded that while Mrs. Asmand may have suffered a mild cerebral concussion, this would not account for what was described as a "severe level of impairment" in cognitive functioning demonstrated in her neuropsychological testing. Dr. Scher felt that further psychological treatment was reasonable and necessary to deal with Mrs. Asmand's driving phobia as well as her depression. It was his opinion that this therapy could be completed in six months.

Zurich conducted video surveillance of Mrs. Asmand. Based upon the date and time registers on the videotape, the surveillance took place on two days in August 1997.

On August 7, 1997 Mrs. Asmand is seen driving and doing several errands. Her activity in this segment is unremarkable; she is able to drive the vehicle normally and her exit and entry to and from it are normal. She does appear to favour her left arm to some degree. Mrs. Asmand is right handed. Later that same day, Mrs. Asmand is seen on her balcony, first mopping it and then hanging and folding laundry. In manipulating the mop, Mrs. Asmand uses both arms although she again favours her left arm over her right. Mrs. Asmand is seen removing items of laundry from drying racks, shaking and folding them. In performing this task, she bends over at the waist on two occasions to retrieve unidentified items from the balcony. She does not remove folded laundry from the balcony.

The surveillance of August 19 is similar. Mrs. Asmand is seen folding and hanging laundry on drying racks. The items are small. There are no sheets or blankets. Mrs. Asmand, on one occasion, bends at the waist to retrieve something from the balcony floor. She does not remove the folded laundry from the balcony.

When asked about the fact that the videotape showed her doing laundry and mopping the balcony, Mrs. Asmand reiterated that she did try to do everything and was able to do light housework, including light laundry by the summer of 1997. She was not asked about her ability to bend over from the waist.

ANALYSIS:

I accept Mrs. Asmand's evidence about the nature and extent of her impairments flowing from the injuries sustained in the accident. I find that she was substantially unable to perform the following tasks from February 1, 1997 to June 25, 1998:

Cooking of family meals, including breakfast.
Laundry, other than light laundry.
Cleaning, other than light housekeeping, including an inability to strip beds or remake them, mop, sweep and vacuum.
Grocery shopping.
Managing the household generally, as a result of memory difficulties and other cognitive deficits.
Assisting her husband in the running of his business.

In addition to these tasks, I find that Mrs. Asmand was unable to provide emotional support and nurturing to her daughter, Melissa, for a period of time following her accident. This finding is founded upon the reported difficulties that Mrs. Asmand had in coping with her family responsibilities as well as the evidence of her daughter, Shary, which was not contradicted. This circumstance existed until the summer of 1997 when Mrs. Asmand reported improved relations with her children.

Zurich did not substantially contradict the evidence of Mrs. Asmand respecting her physical abilities at various stages over the period for which benefits are claimed. Her version of events is confirmed by her daughter Shary's evidence. Although the surveillance evidence does contradict her claim that she could not bend over or mop, those brief moments of activity shown in the video are not sufficient to overcome her otherwise credible evidence that she is substantially unable to perform the tasks listed above.

The medical evidence was not very helpful. Dr. Isles' opinion discounts Mrs. Asmand's reports of pain as limiting her ability to function and hence is of limited use in resolving this dispute. The experts appear to agree that Mrs. Asmand was suffering from depression, although Dr. Siegal indicates that other factors, in addition to the car accident, might be contributing to Mrs. Asmand's psychological difficulties. Dr. Scher describes serious cognitive deficits secondary, in his view, to the depression that Mrs. Asmand was suffering at the time. Dr. Scher also concludes that Mrs. Asmand is suffering from a Pain Disorder.

The difficulty in resolving this dispute flows from the very limited evidence presented. The Applicant presented her case as if the essential tasks of a caregiver were the same as those of a housekeeper. I heard no specific submissions on the essential tasks of a caregiver for a 12-year-old girl.

I find that the evidence presented by the Applicant establishes that she was substantially unable to perform most of the essential tasks of a housekeeper/homemaker, which she had performed before the accident. However, I am reluctant to find that the Applicant has established a substantial inability to perform the essential tasks of a caregiver based on the limited evidence presented.

I do find, however, that Mrs. Asmand has suffered a partial inability to carry on a normal life because she is substantially unable to engage in household activities that she had ordinarily engaged in before the accident.

What constitutes household activities in subsection 2(c) is not defined, but has been found to include the activities which I have described above as those of a housekeeper/homemaker.¹²Mrs. Asmand's inability to perform those tasks for the period from February 1, 1997 to June 25, 1998 is sufficient to establish an entitlement to a caregiver benefit for the period.

Entitlement to Housekeeping Expenses:

The claim for housekeeping expenses is for the period January 13 to September 22, 1997. The expenses are documented in a series of Housekeeping Expense Forms which set out the dates and hours worked and the duties performed. These documents were prepared by the housekeeper, according to Mrs. Asmand and accurately reflect the work that was done. The total housekeeping expense documented in these records is $2,329, some of which may have already been paid.

The records show work being done that is consistent with Mrs. Asmand's claims of disability. As I have accepted her claims in that regard, it follows that these housekeeping expenses ought to be accepted if reasonable.

Despite the limited evidence respecting this housekeeping work, Zurich offered no substantial challenge to it. On the face of the records provided, the work done and the amount of time that was spent doing it is consistent with Mrs. Asmand's description of her disabilities.

The claim for housekeeping expenses is allowed. As indicated, the parties were unsure about how much of the amount claimed may have already been paid. If the parties are unable to resolve that issue, it may be raised with me.

EXPENSES:

Zurich made no submissions with respect to expenses. Mrs. Asmand is entitled to her reasonable expenses of the arbitration.

September 27, 1999

David Muir Arbitrator

Date