Neutral Citation: 1999 ONFSCDRS 30
FSCO A96-001838
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
FATIMA ELYASSIR
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Stewart McMahon
Heard:
February 3, 4 and 5, 1998, and May 19, 20 and 21, 1998, at the Financial Services Commission of Ontario, Toronto
Appearances:
Michael J. Henry for Mrs. Elyassir
Philippa G. Samworth for Co-operators General Insurance Company
Issues:
The Applicant, Fatima Elyassir, was injured in motor vehicle accidents on April 7, 1995, and August 17, 1995. She applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.1 Mrs. Elyassir was paid a weekly caregiver benefit until April 26, 1996. Mrs. Elyassir seeks the reinstatement of the weekly benefit and payment of various supplementary medical benefits that were either terminated in the spring of 1996 or were refused. She also seeks reimbursement of housekeeping services. The parties were unable to resolve their disputes through mediation, and Ms. Elyassir 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. Elyassir entitled to a caregiver benefit for any period beyond April 26, 1996, pursuant to section 18 of the Schedule?
Is Mrs. Elyassir entitled to reimbursement of housekeeping expenses, pursuant to section 55 of the Schedule?
Is Mrs. Elyassir entitled to reimbursement for cranio-sacral therapy, and chiropractic expenses, pursuant to section 36 of the Schedule?
Is Mrs. Elyassir entitled to reimbursement of the cost of various trips taken by taxi?
Result:
Mrs. Elyassir is not entitled to further caregiver benefits.
Mrs. Elyassir is entitled to housekeeping expenses to September 7, 1996 plus an additional sum equal to the cost of four hours of housekeeping per week for six months, followed by a further four hours per month for an additional six months.
Mrs. Elyassir is entitled to be reimbursed for the cranio-sacral, and chiropractic accounts.
Mrs. Elyassir is entitled to interest on the outstanding benefits in accordance with section 68 of the Schedule.
Mrs. Elyassir is entitled to be reimbursed the sum of $1,141.60 for mileage and taxi expenses.
EVIDENCE AND ANALYSIS:
Weekly caregiver benefit:
Mrs. Elyassir was born in Lebanon in 1948. She is now 50 years old. Mrs. Elyassir immigrated to Canada in 1974. She is married and has two children; Laila who was 15 at the time of the accidents, and Randa who was 9. Mrs. Elyassir and her family live in a two-bedroom apartment style condominium. Mrs. Elyassir was not employed outside of the home at the time of the accidents. She testified that she was responsible for virtually all of the cooking and housekeeping, and was an active participant in her daughters' lives, including recreational activities such as tennis, skiing and rollerblading.
In the spring and summer of 1995, Mrs. Elyassir was involved in two motor vehicle accidents. The first was on April 7. The second was approximately four months later, on August 17.
In the first accident, Mrs. Elyassir's car collided with another vehicle which had exited a driveway. The damage to Mrs. Elyassir's car was to the front left corner. Mrs. Elyassir was belted, but she claims to have struck her head on the steering wheel and to have lost consciousness. Mrs. Elyassir's car required $2,341.98 worth of body work. Mrs. Elyassir was transported to hospital by ambulance where she complained of pain in her back, head, and neck. Mrs. Elyassir's claim that she was knocked unconscious is supported by the testimony of her eldest daughter who was a passenger in the car at the time. Laila testified that her mother was slumped over the steering wheel and was non responsive.
In the second accident, on August 17, Mrs. Elyassir collided with another car when she was attempting a left hand turn. The front right hand side of the car was damaged, the repairs cost $3,371.00. Mrs. Elyassir struck her head on the door window. Mrs. Elyassir has indicated to a number of people that she also lost consciousness in this accident. She was transported to the hospital by ambulance where she complained of neck and back pain and a severe headache.
The suggestion that Mrs. Elyassir was literally knocked unconscious in either accident must be questioned.
With respect to the first accident, the Emergency Report 'triage' note refers to a "low speed collision" and there is no complaint of loss of consciousness. In addition, the examining physician made a note of no loss of consciousness, and the discharge summary refers only to soft tissue injury. Nor is there any reference in the family doctor's clinical note made a few days later to any complaint of loss of consciousness.
With respect to the second accident, the ambulance call report notes that Mrs. Elyassir was alert and oriented. While there is a note that the ambulance attendant did not know if she had struck her head, he did record that there was no loss of consciousness. There is no indication in either the ambulance call report or the emergency record of any physical signs of trauma to the head. There is a note of a complaint of loss of consciousness for five minutes, but on cross-examination Mrs. Elyassir stated it was only momentary.
Finally, one must question in general the accuracy of Mrs. Elyassir's use of the term "unconscious." In that regard, I refer to a slip and fall incident that occurred a couple of days before the April car accident. Mrs. Elyassir was vociferous in her testimony that the slip and fall incident was minor and certainly did not cause her to lose consciousness. However, the emergency record concerning that event notes that she complained of losing consciousness for two minutes.
I find that at most Mrs. Elyassir suffered a momentary dazing in these two incidents and that the complaints I refer to later in these reasons cannot be attributed to any form of closed head injury.
In the wake of the two accidents, Mrs. Elyassir developed chronic pain in her neck and back. Associated with this pain were sleep problems, psychological and cognitive difficulties, and persistent headaches. Mrs. Elyassir has also complained that she is anxious while driving.
Shortly after each accident, Mrs. Elyassir answered questionnaires concerning her activities of daily living. Her answers suggested she was severely disabled and was incapable of attending to many of her own personal care needs, such as dressing and showering.
Immediately after the first accident, Mrs. Elyassir stopped doing virtually all housework and hired a housekeeper. Mrs. Elyassir stated that there was little if any improvement in her condition prior to the accident in August. She also stated that as of the time of the hearing, she had resumed very few of her household responsibilities. In December 1997, Laila, the eldest daughter, took over many of the housekeeping duties and the services of the housekeeper were terminated.
In addition, Mrs. Elyassir claims that her condition has resulted in a substantial inability to care for her daughters. As the eldest daughter turned 16 prior to the termination of the caregiver benefit, Mrs. Elyassir's entitlement rests upon proof that she remains substantially unable to provide the same level of care to the younger daughter Randa, that she provided before the accidents. Mrs. Elyassir claims that because of pain in her back and neck and persistent headaches, lack of sleep, and difficulty concentrating, she can no longer respond to her daughter's emotional needs, or support her in her various school and social endeavours.
An analysis of Mrs. Elyassir's condition and entitlement to benefits is complicated by prior traumatic events. In 1988, a mannequin fell on Mrs. Elyassir and in 1991, she was involved in a car accident. After both incidents she developed the same chronic conditions as complained of today, and in each case hired a housekeeper. Both recoveries were slower than would normally be expected given the nature of the accidents. Mrs. Elyassir contends that she had recovered fully from the 1988 incident prior to the car accident in 1991, but admits that she had not fully recovered from the effects of the 1991 car accident at the time of the accident in April 1995. She was, however, adamant, that the residual difficulties did not interfere with her household or family obligations.
Mrs. Elyassir's pre-accident history makes it more difficult to ascertain what housekeeping duties she was in fact performing, and what level of interaction she had with her children. In addition, the cumulative effect of all of the accidents may make Mrs. Elyassir more susceptible to chronic complaints.
Finally, both the 1988 mannequin incident and the 1991 motor vehicle accident resulted in litigation. The Insurer submitted that in her dealings with health care providers after the 1995 accidents, she was "litigation conscious" and that the histories she provided are suspect.
As with many cases of this sort, credibility plays a crucial role. I will deal with credibility and the reliability of the Applicant's evidence at some length in the body of these reasons.
Co-operators, which was also the insurer responsible for paying no-fault benefits arising out of the 1991 accident, had concerns about Mrs. Elyassir's claim from the outset of the 1995 accidents and arranged for surveillance almost immediately. In the Insurer's mind, the surveillance bore out their initial scepticism. The initial surveillance, conducted over the spring and summer of 1995, which showed Mrs. Elyassir out in the community driving her children home from school, or shopping for wedding dresses and groceries, is on its face inconsistent with the Applicant's reported limitations.
As a result of the surveillance, the Insurer arranged for a multidisciplinary Insurer's Medical Examination (IME). The assessment was comprised of orthopaedic and psychiatric examinations, and a functional abilities examination. The orthopaedic surgeon concluded that Mrs. Elyassir could return to her pre-accident activities. The psychiatrist concluded that Mrs. Elyassir was malingering. The functional abilities evaluators recorded that she was unable to complete her pre-accident activities, but concluded that due to concerns about the truthfulness of the effort being demonstrated, the results were unreliable. The Insurer relied upon the general conclusion that Mrs. Elyassir was no longer disabled to put her on notice that it intended to terminate her benefit.
A further IME conducted by a neurologist a couple of months later also concluded that Mrs. Elyassir was no longer disabled.
In the face of the threat to terminate benefits, Mrs. Elyassir requested an assessment at a Designated Assessment Centre (DAC). The multidisciplinary assessment was conducted in the spring of 1996. The psychiatrist concluded that Mrs. Elyassir was consciously exaggerating her difficulties. The occupational therapist noted that Mrs. Elyassir refused to perform most of the housekeeping tasks they asked her to undertake, and showed no interest in incorporating modified ways of completing household tasks, on the grounds that she no longer undertook those responsibilities. The general medical assessor recorded a number of inconsistencies and contradictions in Mrs. Elyassir's presentation, when contrasted with the surveillance videos. The consensus conclusion was that Mrs. Elyassir was not disabled.
The Insurer terminated benefits upon the release of the DAC report.
Two additional IMEs were conducted subsequent to the DAC report. Dr. Collings, Psychologist, concluded in July 1996, that Mrs. Elyassir exaggerated and in some cases feigned her difficulties so as to appear more disabled than she in fact was. An earlier neuropsychological examination undertaken at the request of the Applicant's treating psychiatrist, at the Centre for Traumatic Brain Injury Rehabilitation, concluded that an accurate assessment of Mrs. Elyassir's capabilities could not be ascertained because she did not put forward a true effort.
The most recent IME was conducted by Dr. Ameis, a physiatrist, in January 1998. Dr. Ameis summarized his findings as indicating that "she is healthy, other than in regard to the typical problems associated with morbid obesity and inactivity induced deconditioning."
In opposition to this evidence, Mrs. Elyassir relies upon the opinion provided by Dr. Jamal, her family physician, and particularly upon the evidence of Dr. Mamelak, her long time treating psychiatrist. To a lesser extent the Applicant relied upon the opinions of Nagi Iskander, who provided cranio-sacral therapy, and Barry Brown, who provided family counselling.
While the above-noted experts' reports and testimony do not exhaust the medical and quasi medical evidence, they represent the core of the voluminous briefs filed by the parties.
However, as with many of these cases which turn on largely subjective complaints, the key evidence comes from the Applicant herself. As a general comment, I found the histories provided by the Applicant to be unreliable, both in the context of the oral evidence given before me, and in the context of statements made to the numerous experts who examined her. I think it is significant to note that Mrs. Elyassir's tendency to exaggerate was not restricted to doctors retained by the Insurer, but also extended to her own doctors and health care providers.
While testifying, Mrs. Elyassir complained on a number of occasions that she could not remember details, or was unable to follow questions, and she would apologize for her lapses. She appeared tired during her testimony, and during breaks she could often be seen curled up on a couch. In addition, she consumed both analgesics and antidepressants during the course of the hearing, and I have no doubt that the experience was difficult and that on occasion it was easier to say that she could not remember than to reply in a meaningful way. However, when it suited her purposes, Mrs. Elyassir was able to provide ample detail and to argue against propositions with which she did not agree. I was left with the distinct impression that when Mrs. Elyassir made the effort she was quite capable of following the questions posed to her and to answer appropriately.
This same pattern is exhibited in a number of the medical reports. The Applicant's husband attended most of the examinations conducted at the request of the Insurer, and Mrs. Elyassir frequently relied upon Mr. Elyassir to answer questions, claiming that she could not remember. The most marked examples of Mrs. Elyassir not replying in a meaningful way occurred during the two sets of neuro-psychological testing. Dr. Collings reported that it quickly became apparent that Mrs. Elyassir was not "giving a genuine effort" and that her performance would not "typically be found even among the very severely injured, or even, for example, an individual suffering from the most severe of cognitive and memory deficits." In the "Summary and Conclusions" section of the report, Dr. Collings writes that; "it was clear that she exaggerated and in some instances feigned her difficulties with the test items so as to appear more disabled than she in fact is. Performance on one particular test in fact raised the strong statistical likelihood of knowing the correct answer and intentionally choosing the incorrect one." This evidence suggests to me that some of Mrs. Elyassir's presentation during the hearing was not merely due to fatigue and the consumption of medication but also in part due to lack of effort and a conscious overstating of her difficulties.
Mrs. Elyassir's case rests to a significant extent on claims that she cannot meet her family's needs because she is very forgetful, and in a perpetual state of confusion. Mrs. Elyassir and members of her family testified about specific instances where she forgot things such as a pot boiling on the stove, or her daughter's birthday celebration. I have no reason to doubt these specific instances, and I accept that chronic headaches and poor sleep have had some dulling effect on Mrs. Elyassir's memory, concentration, and organizational capabilities. However, in the face of conscious attempt to overstate her cognitive difficulties upon formal testing, I must conclude that Mrs. Elyassir's evidence concerning these same difficulties must be viewed as containing a significant element of exaggeration. Mrs. Elyassir has not presented reliable evidence to satisfy me that any cognitive impairments associated with her headaches or difficulty sleeping, are sufficient to cause a substantial inability to care for her daughter.
Given the close relationship between Mrs. Elyassir's claims of cognitive disfunction and depression, I must also question the reliability of Mrs. Elyassir's claims that she is significantly depressed. In that regard, I make reference to the report of Dr. Notkin, who was part of the DAC team. Dr. Notkin reported that if he were to have arrived at a diagnosis solely on his clinical interview, he "might have given her a diagnosis of a Major Depression, Post-traumatic Stress Disorder, and an Amnesic Syndrome." However, upon a review of the medical brief, and the surveillance, he concluded that "secondary gain motives are most likely perpetuating her ongoing report of pain and perceived disabilities."
As mentioned above, Mrs. Elyassir's treating psychiatrist, Dr. Mamelak, was critical of both the Insurer's approach and evidence. Dr. Mamelak portrayed himself as the patient's "quarterback." He defined his principal goal as getting individuals back to work. To that end, he conducts regular clinical interviews and prescribes medication as needed. He also refers his patients to other specialists for such things as pain palliation, counselling and cognitive training.
Notwithstanding that Dr. Mamelak did not review the surveillance tapes, he dismissed their significance, stating that they represent only a snap shot, and provide no insight into the price that the patient pays for making the attempts depicted in the tape. This general criticism is closely tied to Dr. Mamelak's comment that when an injured person indicates in a post accident interview that they are incapable of performing a physical movement or completing a task, the answer cannot be taken literally. According to Dr. Mamelak, what the patient really means is that they cannot do it "like they did before the accident." As Dr. Mamelak put it, "they do not expect to be cross-examined on what they say."
Both of these comments are valid and care must be taken when reviewing surveillance evidence and post accident questionnaires. However, as with other aspects of Dr. Mamelak's testimony, the comments were overstated. Dr. Mamelak impressed me as an advocate for Mrs. Elyassir. While this in and of itself is admirable, and it was clear that Dr. Mamelak's principal concern was getting Mrs. Elyassir the care and assistance he thought she required, his evidence cannot be treated as disinterested.
For my part, I do not believe that in this case the surveillance can simply be dismissed. For example, shortly after the accident, at a time when Mrs. Elyassir was reporting that she needed assistance dressing, she can be seen shopping for dresses. Notwithstanding that she claimed to be unable to lift items over head, she can be seen lifting dresses up to view them. Mrs. Elyassir could have found many other ways to have viewed the dresses that did not require lifting them up. Instead Mrs. Elyassir chose to do what any able bodied person would do. She held the dress up. This is inconsistent with the rather severe limitations she reported to both her own and the Insurer's physicians and representatives. This is not an instance where Mrs. Elyassir was pushing herself to do a necessary but difficult task.
Mrs. Elyassir has also reported difficulty walking, and on one occasion when asked by a doctor to walk down the hall she supported herself by leaning against the wall. However, in an earlier surveillance tape video clip, Mrs. Elyassir is seen wearing a pair of winter boots with a heel, as she is seen to 'trot' across the parking lot to the mall. There was no apparent reason for Mrs. Elyassir to be running other than the normal wish to be out of the cold. However, if walking was as difficult as Mrs. Elyassir claimed, one would not have expected her to run across the road.
When confronted with a number of these inconsistencies, Mrs. Elyassir testified that she had always maintained that dizziness was her main problem, and that she could complete most of her self-care, except when dizzy. Unfortunately, I must question the reliability of Mrs. Elyassir's claims that she becomes so dizzy that she is in danger of falling down. On one ocassion she complained in the middle of a test about being dizzy, whereupon she closed her eyes and stood perfectly still, which as noted by the examiner, is the exact opposite of what someone complaining of dizziness would be expected to do.
Dr. Mamelak's conclusion that Mrs. Elyassir will be incapable of resuming her caregiver duties in the foreseeable future, must also be questioned in light of Mrs. Elyassir's rapid recuperation after the litigation concerning the 1991 accident was resolved. In early and mid November 1993, Dr. Mamelak recorded in his clinical notes that Mrs. Elyassir was: having terrible nightmares about dying in a car accident, had become overwhelmed and lost her way while driving, could not work, was sleeping poorly, and that medication was not controlling her anxiety. In his November 30 note, he records the settlement of the no-fault dispute with Co-operators and, interestingly, that her mood was much less anxious and that she was driving better. Mrs. Elyassir saw Dr. Mamelak three more times in December, at which point she stopped seeing him. In each note there are indications that she was steadily improving. These notes undermine Dr. Mamelak's suggestion that Mrs. Elyassir "retreated to her nest," and that she was embarrassed to see him because she had not told him she was going to settle with the Insurer. In addition, Dr. Mamelak's suggestion that she no longer needed to see him because she could get the medication she needed from her family doctor does not stand up when one notes that after the settlement, Mrs. Elyassir abruptly stopped seeing her family doctor. I received no explanation from Dr. Mamelak as to why, after the pessimistic outlook prior to the settlement, Mrs. Elyassir was able in the absence of any treatment to make sufficient progress to begin looking for work in late 1994.
I am also troubled by what strikes me as Dr. Mamelak's overly pessimistic outlook after the 1995 accidents. In October 1995, approximately six months after the April accident and only two months after the August accident, Dr. Mamelak was already querying if Mrs. Elyassir "will ever work again."
Dr. Mamelak was adamant that the only way to assess what caregiver and homemaker tasks Mrs. Elyassir was capable of, was to hire an occupational therapist to conduct an in-home assessment, and he was critical of the Insurer for not "working with him" in this regard. In making these comments, Dr. Mamelak either ignored, or was not aware that Mrs. Elyassir had rebuffed earlier attempts to do precisely what Dr. Mamelak was suggesting. When occupational therapists attempted in-home assessments, Mrs. Elyassir either refused to attempt such simple tasks as carrying an empty laundry basket, claiming that the effort was beyond her, or showed no interest in learning less strenuous ways of doing household tasks. Even a cursory review of the numerous physical examinations and functional capacity evaluations makes it clear that Mrs. Elyassir was grossly exaggerating when she said that she was incapable of lifting an empty laundry basket.
Mrs. Elyassir testified that prior to the accident she did all of the housework and cooking and was active in every aspect of her daughters' lives. She stated that since the accident, she has little time for the girls, as she is preoccupied with her own difficulties, and is in constant pain. Laila echoed her mother's evidence, but one has to wonder how good a position she is in to assess changes in her mother's condition. Laila was only 11 at the time of the 1991 accident, and has only a vague recollection of the incident. More importantly, Laila's evidence did not suggest to me that she was aware that after the 1988 and 1991 accidents her mother was severely depressed and withdrawn or had witnessed a marked improvement in her mother's condition or level of interaction with the family in 1994 and the early part of 1995, as was suggested by Mrs. Elyassir. To the contrary, Laila's evidence suggested a picture of family harmony prior to the 1995 accidents. This is inconsistent with Dr. Jamal's and Dr. Mamelak's notes which reveal that after both the mannequin incident and the 1991 motor vehicle accident, Mrs. Elyassir was seriously depressed, and that she complained to her doctors that she was incapable of responding to her children's needs. Even if one accepts that Mrs. Elyassir enjoyed a fairly rapid recovery after the settlement in late 1993, and was "better" by the end of 1994, it is impossible to reconcile Mrs. Elyassir's history of significant periods of detachment from the family, with the present picture of a family in perfect harmony in the months immediately before the accident. I am left with the impression that either the pre-accident notes exaggerate the extent of Mrs. Elyassir's troubles, or the family members are viewing the months prior to the April 1995 accident through tinted lenses. I suspect that there is an element of both at work.
Barry Brown's report suffers from the same defect. Although he refers to the 1991 accident, and notes that there was a period during which Mrs. Elyassir suffered psychological difficulties, he treats her detachment from the family as a self-contained event, that abruptly ended in late 1994, with the family life thereafter being perfectly normal, with no residual dysfunction. This flies in the face of common sense. This misconstruction of the families pre-accident life is underscored by the fact Mr. Brown was apparently unaware of the mannequin incident in 1988 and the period of withdrawal thereafter. In light of this faulty starting point, one must question his later conclusions, particularly in light of the fact that Mr. Brown relies upon the family's histories, without any apparent critical analysis. While it is clear that there is a level of dysfunction within the family, some of it no doubt longstanding, much of it exacerbated by the accidents, and there is good reason to believe that further counselling could benefit the family, I am not satisfied that Barry Brown's report provides strong support for the contention that, as a result of the accidents, Mrs. Elyassir is substantially unable to care for Randa.
Mr. Elyassir and Laila testified that Mrs. Elyassir does very little around the house. The housekeeper who testified, corroborated this evidence, stating that during the time she was there (spring 1996 to fall 1997), Mrs. Elyassir was usually out at treatments or lying quietly in her room.
Laila also testified that her mother does little with Randa. Laila testified that Randa comes to her rather than the Applicant for assistance with school work and the usual issues faced by a young girl. In light of the pre-accident notes, it would seem that at least to some extent, this was a pattern established before the 1995 accidents.
Mr. Elyassir testified that, in his opinion, his wife was incapable of assuming her pre-accident responsibilities. However, I must question how much weight I can give to his evidence. In late 1993, shortly before the settlement of the 1991 accident, Dr. Jamal told Mrs. Elyassir that he thought it was time for her to return to work. The next day Mr. Elyassir met privately with the doctor and tried to persuade him to continue to support his wife's disability claim. As noted above, shortly thereafter Mrs. Elyassir settled her claim, and then apparently began to enjoy a rapid recovery. This event suggests to me that on that occasion, either Mr. Elyassir was prepared to support an exaggerated claim, or alternatively, significantly overestimated the true extent of his wife's disability. Mr. Elyassir struck me as a very loving and protective husband. He also struck me as an honest individual. I choose to accept that when he confronted Dr. Jamal, it was as a result of a mistaken, but honestly held belief in his wife's disability. The medical and surveillance evidence suggests to me that Mr. Elyassir continues to overestimate the extent of his wife's true limitations.
The Applicant's counsel notes that since the accidents, Mrs. Elyassir has regularly consumed significant quantities of analgesics and antidepressants, and that she has undertaken many different treatment programs, including invasive ones such as injections and regimes that she has found difficult or painful, and that his client and her husband continue to sleep apart. He suggests that Mrs. Elyassir would not have undertaken these treatments, nor consumed these drugs or maintained a separate bed for this length of time if she were not truly in pain. To my mind, this is the most supportive piece of evidence in Mrs. Elyassir's favour. But care must be taken not to overstate its significance.
Notwithstanding that the notes of the physical rehabilitation centres suggest that Mrs. Elyassir was a less than enthusiastic participant in exercise programs that demanded that she push her limits, the sheer amount of treatment suggests to me that Mrs. Elyassir continues to suffer the ill effects of the 1995 accidents, and is searching for some relief. However, the existence of chronic complaints does not automatically translate into a weekly benefit. Section 18 of the Schedule provides that a benefit is only payable for so long as the insured's impairment results in a "substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident." In Steele and Zurich Insurance Company (OIC A-001024, December 3, 1992), an early decision that has been widely cited, Arbitrator Palmer noted that the word "substantial" indicates not merely some inability, but rather a sizeable inability. In addition to this comment, I note that the emphasis is not on pain per se but rather on function.
For the reasons set out above, I have found Mrs. Elyassir's evidence largely unreliable. In light of my concerns about relying upon the evidence of Mrs. Elyassir and Dr. Mamelak, the medical reports tendered by the Insurer provide compelling and largely unanswered evidence that there are no physiological or psychological restrictions that would prevent Mrs. Elyassir from resuming her responsibilities, and I am satisfied that Mrs. Elyassir has both exaggerated the physical limitations imposed by pain, and consciously chosen to limit or avoid activities that she could have begun to return to long ago had she chosen to.
Housekeeping expenses:
Mrs. Elyassir has had three different housekeepers come into her home. She testified that for about the first year or so the cleaning ladies came almost daily and would stay for three or four hours. In May 1996, the frequency of visits was reduced to three or four times per week. In November 1997, Laila took over the housekeeping duties.
According to Mrs. Elyassir, the housekeepers did both cleaning and cooking. The housekeepers were paid between $200 and $300 per week. The total bill to November 1997 is just over $30,000. Since that time, Laila has been paid $100 per week.
The Insurer has not paid any of the housekeeping expenses. It does not challenge that the expenses were incurred, but argues that they were not reasonably necessary or in the alternative were grossly excessive.
Under Bill 68, claims for housekeeping expenses were dealt with under paragraph 6(1)(f), the catch-all provision of the supplementary medical and rehabilitation section. Under Bill 164, housekeeping expenses are dealt with as a distinct pecuniary loss, under section 55. The Insurer's counsel argued that, because the opening words of section 55 stipulate that the benefit is only available to a person who has sustained an impairment; which is defined as a loss or abnormality of psychological, physiological or anatomical structure or function, the cases decided under the previous regime are of questionable value. I disagree. While it is trite to say that care must be taken when relying upon cases decided pursuant to a previous regime, I note that under the old regime, supplementary medical and rehabilitation benefits were by the terms of section 6 only available to those "who sustain[s] physical, psychological or mental injury." To my mind, the real distinction between the two regimes is a shift from "injury" to "function." That distinction disappears when one notes that virtually all the "housekeeping" cases decided under Bill 68 start with the premise that there was some impairment or loss of function (be it psychological or physiological) which prevented or made it more difficult for the individual to perform housework. I conclude that many of the older cases are of assistance.
My analysis of Mrs. Elyassir's claim for further weekly benefits would suggest that her demand for housekeeping expenses is questionable. However, there are two important distinctions. First, when addressing the weekly benefit, I needed only concern myself with Mrs. Elyassir's condition from the point of termination (April 1996) onward. Because no housekeeping expenses have been paid, I must go back and examine her condition as of the date of the first accident onward.
Second, the test for a weekly benefit is a "substantial inability" whereas the pre-condition for a housekeeping expense is merely an "impairment." Once that threshold is met, the insurer becomes responsible for payment of expenses "reasonably incurred." What is reasonable, will in large measure depend upon the extent of the impairment.
Notwithstanding Mrs. Elyassir's obvious exaggeration concerning her limitations and activities of daily living, I accept, as noted above, that Mrs. Elyassir was injured in each accident, and that physical activity exacerbates the pain in her back and neck. On that basis, I consider a period of housekeeping assistance reasonable. In addition, I note that attending at treatment sessions may make it more difficult to keep up with household responsibilities, particularly in the acute stage after an accident.
The multidisciplinary IME examination carried out on September 7, 1995 satisfy me that Mrs. Elyassir could have returned to many of her household activities as of that date had she chosen to. I also note that Mrs. Elyassir rejected the Insurer's later attempts to assist her by demonstrating modified ways to perform household tasks. Mrs. Elyassir must bear the responsibility for that decision.
I order the Insurer to reimburse Mrs. Elyassir for the housekeeping expenses incurred to September 7, 1995.
Beyond that date, I am satisfied that Mrs. Elyassir's ongoing condition justifies some limited assistance to assist with more demanding tasks. In the absence of any evidence to assist me in my deliberation as to a reasonable figure, I order the Insurer to reimburse Mrs. Elyassir for a further six months of housekeeping expenses at four hours per week followed by a further six months of housekeeping services at four hours per month. A summary of housekeeping expenses grouped together in various periods was tendered together with some receipts, but I received little evidence that would assist me calculating an hourly rate. If the quantum of this award cannot be agreed upon, I may be spoken to.
The Insurer's counsel submitted that a housekeeping expense pursuant to section 55 could not be awarded concurrently with a caregiver award pursuant to section 18, particularly where much of the caregiving tasks were comprised of housekeeping. I disagree. While clearly there is an overlap, the principal focus of the inquiry in a caregiver claim is the relationship between the caregiver and the carereceiver. The provision of a clean house and food is only one component of that relationship. In addition, a caregiver benefit is not directly tied to a pecuniary expense, whereas the housekeeping benefit is. Finally, and most compelling to my mind, nothing in the wording of section 55 remotely suggests that the legislature intended homemakers who were advancing a caregiver claim to be precluded from receiving housekeeping expenses. Were that the intended effect, it would have been a simple matter to have included that restriction in the wording of section 55.
Other Supplementary Expenses:
During the course of the hearing, a number of these items were resolved, including the payment of prescriptions, and the AIM and Columbia accounts. Counsel were also able to reach agreements on the arithmetic relating to the outstanding expenses. In addition, Ms. Samworth indicated that with the exception of housekeeping expenses, there was no issue as to the reasonableness of the amounts charged, but that the Insurer would argue that pursuing the treatments was not a reasonable decision. Ms. Samworth also indicated that a number of certificates had been requested and not delivered.
On the latter point concerning the certificates, a number of letters from the Insurer and the Applicant's counsel were filed, but no direct evidence was called. It is difficult to follow with precision the chain of events, but it would appear that most of the requests for certificates were with respect to ongoing treatments that the Insurer was paying. On a number of occasions, threats were made to cancel payments if certificates were not received, but on at least two occasions those threats did not materialize. Certificates also appear to have been requested for treatments that were later resolved, and in other cases, reports from the Applicant's doctors would appear to meet the requirements of a certificate. The only clear case in which there is no certificate and there had been no history of dealings between the Insurer and the service provider were the chiropractic accounts of the Canadian Chiropractic College and the Dr. N. Goldstein, D.C.
In this case, there is no issue as to causation and the certificate could have been furnished by the service providers themselves. The affirmation that the services provided by the selfsame people who prepared the certificates, were reasonably necessary, is for all intents and purposes a foregone conclusion. One of the principal purposes of the certificate is to trigger the insurer's right to conduct a DAC assessment if it so chooses. However, notwithstanding some early rumblings about wanting to DAC all treatments, the Insurer showed no real interest in subjecting the chiropractic accounts to a DAC assessment. Nor did the Insurer arrange for an IME to directly address the issue of the chiropractic expense. In all of the circumstances, I am not prepared to foreclose the Applicant's right to bring the outstanding disputes to arbitration.
(i) Cranio-Sacral therapy and Chiropractic care
Dr. Mamelak referred Mrs. Elyassir to Nagi Iskander, a massage therapist, in May 1996. Mr. Iskander provided what he refers to as Cranio-Sacral therapy, until early December 1996. In February 1997, Mrs. Elyassir began a course of chiropractic treatment at the Canadian Chiropractic College, that continued until November 1997, at which point Mrs. Elyassir began to be treated by Dr. Goldstein, D.C. Treatment at Dr. Goldstein's clinic was ongoing as of the date of the hearing. Generally speaking, all three of these treatments may be classified as passive treatments designed to relax muscle tissue and relieve spasm, and to increase mobility in affected joints. Typically, there is a dual goal of relieving pain and increasing function. Relief from headaches associated with muscle tension is frequently cited as an anticipated outcome. Mr. Iskander testified that in addition, one of the long term goals of cranio-sacral therapy is the diminution of depression through the manipulation of bones in the skull. Relief from pain and increased function may have a positive effect on an individual's mood, but I heard no evidence to suggest that there is any scientific validation of Mr. Iskander's theory of a direct correlation between mood and manipulation of the skull and I do not factor this goal into my evaluation of the reasonableness of the treatment.
The Insurer paid Mr. Iskander for the treatment provided during the months of May through October, but has refused to pay for approximately nine treatments in November and December, totalling $770.00. Mr. Iskander stopped treating Mrs. Elyassir because the Insurer refused further funding.
No one from the chiropractic college testified, but Mrs. Elyassir stated that she stopped attending the college because the Insurer refused to fund the treatment. The agreed upon amount of the account is $1,377.45.
Dr. Goldstein D.C. testified that Mrs. Elyassir changed clinics and started seeing her because she was not getting any relief from headaches, and she wanted to try a new approach.
While Mrs. Elyassir testified that each of the three regimes gave her some transitory relief from pain, and Dr. Goldstein D.C. testified that at one point when therapy was discontinued for a month Mrs. Elyassir suffered a set back, these comments must be seen in the context of her general evidence, that she did not perceive any significant improvement in her condition until literally a few weeks preceding the hearing.
I am concerned by the apparent absence of any formalized evaluation system to gauge the effectiveness of the treatments as against the stated goals of pain palliation and improved function. Without such an evaluation, it is difficult to measure whether the continued treatment is appropriate.
However, as I have stated before, I accept that Mrs. Elyassir continued throughout this period to suffer from persistent headaches and back pain, and she cannot be faulted for continuing to seek out new individuals or treatments in an effort to alleviate that pain.
While still keeping in mind my earlier comments about the lack of any apparent effective internal evaluations, I note that the treatments afforded by Mr. Iskander and the chiropractic college lasted only a few months and have ended, and that Dr. Goldstein testified that as of the hearing, she anticipated only another four to six weeks, I find it appropriate to order the Insurer to reimburse the Applicant for the outstanding accounts.
(ii) TMJ treatment
Upon the suggestion of Mr. Iskander, who noted a tempomandibular joint (TMJ) disfunction, Dr. Mamelak referred Mrs. Elyassir to Dr. Sigesmund, a dentist who from the notation on his letterhead appears to have a particular interest in TMJ problems. Mrs. Elyassir testified that she was given an appliance to wear, but that after a time she stopped using it because it hurt. Dr. Sigesmund did not testify, but his report of July 16, 1996 was filed. I have some concerns about the evidence tendered in relation to this claim. The report is little more than a pre-printed form with a series of checkmarks indicating the symptoms found by Dr. Sigesmund, the nature of the treatment, and a statement that the treatment is necessary and related to the accident. It does, however, meet the standard of prima facia proof, and in the absence of any rebuttal evidence I allow the claim, which on agreement is $1,891.91.
(iii) Mileage and Taxi expenses
The parties agreed that the outstanding mileage claim is $640.60. It represents travel to a number of the treatments discussed above. Ms. Samworth had indicated that this claim would stand or fall upon the finding that the treatments were reasonably necessary. Accordingly, this portion of the claim is allowed.
The parties also agreed that the outstanding taxi claim is $854.00. Of that, $148 represents six trips to Dr. Mamelak's office and two trips to Mount Sinai Hospital. I allow this amount. The balance, being $706, is made up of approximately 50 trips to and from the children's schools during April and May 1995. Mrs. Elyassir claims that during this period her physical restrictions, and more importantly her anxiety about driving, prevented her from driving the girls to school, as she had routinely done before the accident. Mrs. Elyassir testified that because she could not drive the girls herself, she arranged for them to be driven to and from school by taxi.
Mrs. Elyassir's counsel indicated that the claim was being advanced pursuant to paragraph 40(5)(e), the catch-all phrase in the rehabilitation section.
Prior jurisprudence interpreting paragraph 6(1)(f) the catch-all phrase under Bill 68 suggests, that while the provision is not designed to pay for the replacement of services the injured person provided to others, it should be given a broad interpretation. In awarding a claim for housekeeping expenses as a rehabilitation benefit under paragraph 6(1)(f), Arbitrator Naylor said that the insured person requires the reassurance that her legal and moral obligations to care for his children are being fulfilled — Chamale and Wellington Insurance Company (OIC A-000849, September 25, 1992). I adopt this statement. In addition, I am satisfied that, where a driving phobia is involved, requiring the person to drive may exacerbate their problems and delay their recovery. The key, however, is reliable evidence that driving is not a reasonable option.
Mrs. Elyassir has consistently complained that she is afraid to drive, and that it exacerbates her symptoms. I accept that on occasion payment of a taxi to take the girls to and from school is a reasonable expense.
However, there is evidence to suggest that the taxi receipts are not altogether reliable evidence of when the girls took taxis. All of the receipts are signed by the same driver. Mrs. Elyassir explained that she had a standing agreement with the driver who agreed to drive the girls as necessary. She also admitted that he signed the receipts but that she filled in the details. The Insurer's counsel noted that receipts exist for trips to and from school on May 11. Coincidentally, surveillance was undertaken on that same day. The surveillance report indicates that early that morning, Mrs. Elyassir's husband left the house in the company of two girls. Mrs. Elyassir refused to acknowledge that the girls depicted in the video were her daughters, but offered no other plausible alternative. I find that Mr. Elyassir drove the girls to school that day.
Later that same day, Mrs. Elyassir is seen to drive herself to a local shopping mall, and later to pick up one of the girls. Mrs. Elyassir tried to suggest that she was capable of picking up one, but not the second girl, and that this explained the taxi receipt for the return trip. I reject this notion. If Mrs. Elyassir was quite capable of driving her self to the mall, she could have driven the girls to school, and if she could pick up one girl there is no reason to believe that she could not have picked up the other.
The evidence suggests to me that Mrs. Elyassir prepared these receipts after the fact. If she mistakenly prepared a receipt for May 11, when taxies were not used, I presume it more likely than not, that receipts have been mistakenly prepared and submitted for other days that the girls did not take taxies. In addition, the surveillance showing Mrs. Elyassir driving herself to the mall during the period when she claims that she could not drive the girls, suggests to me that I must further discount this claim. In all of the circumstances I allow one half of the claimed amount.
Interest:
Mrs. Elyassir is entitled to interest on the benefits awarded in accordance with section 68
Expenses:
If expenses can not be agreed upon, I may be spoken to.
February 18, 1999
Stewart McMahon Arbitrator
Date
Neutral Citation: 1999 ONFSCDRS 30
FSCO A96-001838
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
FATIMA ELYASSIR
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mrs Elyassir's claim for weekly income replacement benefits is dismissed.
Co-operators shall reimburse Mrs. Elyassir for the housekeeping expenses incurred to September 7, 1995. In addition, the Insurer shall reimburse Mrs. Elyassir for further expenses based upon six months of housekeeping service at four hours per week, and a further six months at four hours per month.
Co-operators shall reimburse Mrs. Elyassir for the cranio-sacral, and chiropractic accounts.
Co-operators shall reimburse Mrs. Elyassir $1,141.00 for mileage and taxi expenses.
Co-operators shall pay interest on outstanding benefits in accordance with section 68 of the Schedule.
February 18, 1999
Stewart McMahon Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.