Neutral Citation: 2000 ONFSCDRS 66
FSCO A99-000685
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SENAN HERNANDEZ
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
March 20 and 21, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Roland Spiegel, Agent, for Mr. Hernandez
Mark H. Fonseca, Barrister and Solicitor, for Kingsway General Insurance Company
Issues:
The Applicant, Senan Hernandez, was injured in a motor vehicle accident on May 14, 1998. He applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.1 Kingsway continues to pay some benefits, however, it refused to pay housekeeping expenses after March 19, 1999. The parties were unable to resolve their dispute through mediation, and Mr. Hernandez 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 Mr. Hernandez entitled to housekeeping expenses pursuant to section 22 of the Schedule after March 19, 1999?
Is either party entitled to the expenses of the arbitration proceeding?
Result:
Mr. Hernandez is not entitled to housekeeping expenses after March 19, 1999.
The issue of entitlement to expenses of the arbitration proceeding is deferred.
EVIDENCE AND ANALYSIS:
Mr. Hernandez was seriously injured on May 14, 1998 when he was struck by a vehicle as he attempted to cross the street. His most serious injuries were severe comminuted displaced fractures of the tibia and fibula of the left leg and a small fracture in the right tibial plateau. His treatment included internal fixation with an intra medullary nail in the tibia. He was confined in a hospital for three weeks and a rehabilitation centre for six weeks. He underwent surgery in September 1999 to remove the hardware from his leg.
He was 39-years-old at the time and lived with his wife and two of his children, a seven-year-old daughter and three-year-old son. Another child was born in September 1999.
Kingsway paid housekeeping expenses of $120 every two weeks up to March 19, 1999 for services provided by Mrs. Lidia Suarez, Mr. Hernandez' mother-in-law. Kingsway terminated housekeeping expenses because Mr. Hernandez' counsel rejected Kingsway's request for an assessment to determine Mr. Hernandez' ability to perform his pre-accident activities.
Law:
Section 22 sets out the criteria for entitlement to housekeeping and home maintenance expenses. The relevant subsection provides:
The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
Pre-accident housekeeping and home maintenance services:
Mr. Hernandez continues to live in a three-bedroom, one-and one-half bathroom apartment with his wife and children. The first question is what housekeeping services did he normally perform before the accident.
Mr. Hernandez testified that before the accident, he worked as a chef and left the apartment at 11:00 a.m., to start work at 11:30 a.m. His wife left for work at 6:30 a.m. He prepared breakfast for his two children and took his daughter to school. He returned and "cleaned the house", vacuumed, prepared lunch for the children and did laundry. A babysitter came at 11:00 a.m. or noon. Mr. Hernandez also testified that he did the shopping by himself and that he helped his wife clean the apartment. This is the only evidence he gave in examination-in-chief concerning his pre-accident housekeeping and home maintenance services.
In cross-examination he admitted that a statement he gave to Kingsway shortly after the accident that he did not drive and that he and his wife shopped together before the accident was true and that his testimony that he used to do the grocery shopping by himself was not true. When asked how long it took to vacuum he answered that he did not know how to answer the question, that it could take one-half hour, but not five minutes. When asked how long it took to do the laundry he answered that counsel should know how long it took and that he did not know how to answer. He also testified that he cleaned the bathroom and the floors.
Mrs. Suarez testified that occasionally before the accident she visited Mr. Hernandez and the children in the morning and that Mr. Hernandez helped Mrs. Hernandez a lot. He cleaned, vacuumed, did the dishes and prepared lunch. She thought that Mrs. Hernandez cleaned the bathrooms.
Mrs. Hernandez testified that before the accident her husband made the bed, helped the children dress and made breakfast and lunch. She also said that they shared housekeeping chores. She confirmed that they shopped together and that she drove.
Mr. Hernandez' family doctor arranged an in-home assessment by an occupational therapist to determine Mr. Hernandez' post-accident ability to function in the home as compared to his pre-accident ability. In September 1998, she reported that: "Prior to the accident he was responsible for cooking, laundry and grocery shopping, banking and taking care of his children; taking them to social and recreational activities."
Mr. Hernandez underwent a medical/rehabilitation assessment at a Designated Assessment Centre in June 1999. A chiropractor reported, "His pre-accident duties at home included: Cooking on weekends, grocery shopping (alone) and vacuuming, 'not much else'. His wife did most of the other house chores." A physiotherapist reported that: "he would cook on the weekends, and do the grocery shopping and the vacuuming."
I heard very little detail of the housekeeping and home maintenance services Mr. Hernandez normally performed before the accident. I find that this was due to lack of preparation for this hearing. I find that he made breakfast and lunch for himself and his two children, five days a week, and that he cleaned the dishes after these activities. I find that he vacuumed and did laundry, although I cannot determine how much time he spent at these activities.
Impairment:
I accept Mr. Hernandez' testimony that he has a lot of pain in his left knee and that it sometimes buckles and that he has low back pain and headaches and that he is depressed and worried about his future. In April 1999, Dr. Brian Alpert, an orthopaedic surgeon, performed an assessment for Kingsway and reported that Mr. Hernandez' restrictions included "no prolonged standing or walking, no climbing, no fast walking or running, no squatting or kneeling, no bending, no repetitive turning and no heavy lifting." These restrictions are consistent with the testimony of Mr. and Mrs. Hernandez and I accept them.
Post-accident ability:
The next question is whether Mr. Hernandez suffers a substantial inability to perform the housekeeping services that he performed before the accident.
I heard evidence concerning the receipts for housekeeping submitted by Mrs. Suarez and the activities she performed after the accident. Mr. and Mrs. Hernandez and Mrs. Suarez testified that Mrs. Suarez spent more days and more hours performing housekeeping services than the receipts indicate. Mrs. Hernandez testified that she wrote on the receipts what Mr. Spiegel told her to write even though it understated the time and days Mrs. Suarez worked. I place little weight on the receipts because they are inaccurate and because I do not find that they tend to establish what Mr. Hernandez did before the accident or what he could or could not do after the accident.
Mr. Hernandez testified that he cannot bend to remove toys from the floor or vacuum under a bed or table and that he cannot squat to get a pot or pan from a kitchen cupboard. He admitted that he told one assessor in April 1999 that he could partially do the cooking, sweeping and vacuuming and that he can make a light lunch. He testified that he makes lunch sometimes.
Mrs. Hernandez testified that Mr. Hernandez cannot stand all day or cook all day and that he helps with the laundry, vacuuming and cooking, although he complains of back pain when he vacuums. She testified that he gets tired and uses a chair in the kitchen for cooking.
Mrs. Suarez testified that she left her apartment at 7:30 a.m. to be at the Hernandez apartment at 8:00 a.m. Mr. Hernandez testified that he took his daughter to school at 8:10. I find it likely that after Kingsway terminated housekeeping expenses, Mr. Hernandez prepared breakfast for himself and his children before Mrs. Suarez arrived.
In June 1999, the physiotherapist at the Designated Assessment Centre wrote that Mr. Hernandez reported that he had "resumed doing light cooking and vacuuming."
I find that after Kingsway terminated housekeeping expenses, Mr. Hernandez prepared breakfast and lunch for himself and his two children five days a week. I heard no evidence to explain why he could not wash the dishes after he prepared breakfast and lunch and I find that he also performed this activity. I find that Mr. Hernandez could vacuum after March 1999, although he had difficulty vacuuming under beds and tables.
I heard no evidence of the amount of time Mr. Hernandez spent doing laundry before the accident, nor any evidence to explain why he could not do laundry after March 19, 1999. Although a person may not know the time it took to perform a particular housekeeping task before the accident, I think that when that person claims that his insurer should pay someone to do that task for him, it is reasonable for the claimant to quantify in some way the amount of time he spent doing that task. I am not satisfied that Mr. Hernandez could not do the laundry after March 1999.
I find that after March 19, 1999 Mr. Hernandez did not suffer a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident.
EXPENSES:
If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding, either party can contact the case worker to arrange for me to determine the issue at a resumption of this hearing.
April 6, 2000
William J. Renahan
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 66
FSCO A99-000685
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SENAN HERNANDEZ
Applicant
and
KINGSWAY 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:
The Application for Arbitration is dismissed.
The issue of entitlement to expenses of the arbitration proceeding is deferred.
April 6, 2000
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.