Neutral Citation: 2001 ONFSCDRS 158

FSCO A99-000033

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MOHAMED RASHID

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Judith Killoran

Heard:

September 25, 26, 27 and 28, 2000, May 7, 8 and 9, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on June 25, July 20, August 7 and August 13, 2001.

Appearances:

David Levy for Mr. Rashid

Robert S. Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mohamed Rashid, was injured in a motor vehicle accident on March 19, 1997. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Rashid 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. Rashid entitled to receive a non-earner benefit of $185 per week from September 19, 1997 and ongoing pursuant to section 12 of the Schedule?
Is Mr. Rashid entitled to payment of the treatment accounts of Drs. Sarrafian, Filsoofi and Ally claimed pursuant to section 15 of the Schedule?
Is Mr. Rashid entitled to receive a medical benefit for transportation expenses to Dr. Filsoofi's office pursuant to section 14 of the Schedule?
Is Mr. Rashid entitled to payment of attendant care benefits from March 19, 1997 to March 19, 1999 pursuant to section 16 of the Schedule?
Is Mr. Rashid entitled to housekeeping and home maintenance services from March 19, 1997 to March 19, 1999 pursuant to section 22 of the Schedule?
Is Mr. Rashid entitled to interest on any overdue payments, pursuant to section 68 of the Schedule?
Is Mr. Rashid entitled to a special award pursuant to subsection 282(10) of the Insurance Act?
Is either party liable to pay the other's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Result:

Mr. Rashid is not entitled to receive a non-earner benefit pursuant to section 12 of the Schedule.
Mr. Rashid is not entitled to receive payment of the treatment accounts for Drs. Sarrafian, Filsoofi and Ally.
Mr. Rashid is not entitled to receive a medical benefit for transportation expenses for trips to Dr. Filsoofi's office.
Mr. Rashid is not entitled to receive payment of attendant care benefits from March 19, 1997 to March 19, 1999.
Mr. Rashid is not entitled to receive payment for housekeeping and home maintenance services from March 19, 1997 to March 19, 1999.
As no benefits are due, Mr. Rashid is not entitled to any interest on overdue payments, pursuant to section 68 of the Schedule.
Mr. Rashid is not entitled to receive payment of a special award, pursuant to subsection 282(10) of the Insurance Act.
The issue of expenses may now be spoken to.

BACKGROUND

Mr. Rashid has an extensive medical history from 1979 to date. In 1979, Mr. Rashid sustained a serious head injury at work; he had a series of work-related accidents in the 1980s; his wife died in 1990; and he was involved in motor vehicle accidents in 1994 and 1995. Understandably, the cumulative effect of these injuries had an adverse effect on every aspect of Mr. Rashid's health.

On March 19, 1997, Mr. Rashid was involved in another motor vehicle accident. He was driving northbound on Midland Avenue in the left-hand lane. As he came up beside a pick-up truck, the truck was struck on the passenger's side by an eastbound car. The truck was pushed into his lane and he was unable to avoid a collision. Extensive damage was caused to Mr. Rashid's vehicle and Mr. Rashid was taken by ambulance to Scarborough General Hospital.

Mr. Rashid's family physician, Dr. Omarali, completed a disability certificate,²in which the primary diagnosis was:

Severe whiplash injuries. Flexion extension and possible injury to his head when he hit the steering wheel. Tenderness across the forehead.

As his secondary diagnosis, Dr. Omarali states:

Sleeplessness because of flashbacks and pain. Acute anxiety and apprehension when he sits in a car because of constant flashbacks.

Dr. Omarali diagnosed a Grade III whiplash associated disorder. In the disability information section, Dr. Omarali specified that Mr. Rashid had sustained an impairment as a result of the accident and listed accident-related injuries to Mr. Rashid's neck, head (forehead), back and shoulder.

The issues of causation and remoteness are important in this case. In Correia v. TTC Insurance Company Limited,³ the arbitrator found:

Remoteness questions can arise where there is no dispute that the insured person was involved in an "accident," but the insurer disputes the extent of its responsibility for the consequences of the accident ... In other cases, factors unrelated to the accident played a role, for example: personality factors, family or marital problems, or an unrelated illness or injury. In both types of cases, FSCO adjudicators have found entitlement where the accident significantly or materially contributed to the insured person's disability (in the case of weekly benefits) or impairment (for other types of benefits). The significant or material contribution test is consistent with common law principles of causation.

Mr. Rashid's position is that he had fully recovered from his previous accidents but sustained an impairment from the 1997 accident resulting in a complete inability to carry on a normal life.

The Insurer's position is that Mr. Rashid's disability is a result of the 1979 head injury at the workplace and the subsequent pre-1997 injuries. State Farm submits that Mr. Rashid experienced no significant improvement in his health in the months or years preceding his accident of March 19, 1997. Therefore, the car accident did not cause any significant exacerbation of his pain or impairments, such as to entitle him to the benefits claimed

EVIDENCE AND ANALYSIS:

Non-earner Benefit:

Mr. Rashid's entitlement under section 12 of the Schedule to a non-earner benefit commencing at 26 weeks following the accident depends on him showing that he suffers a "complete inability to carry on a normal life" as a result of the accident. In Morelli v. Zurich Insurance Company,⁴ the arbitrator held that: "the test of a 'complete inability to carry on a normal life' is strict. It represents a higher degree of disability than 'substantial disability.' The arbitrator found that Mrs. Morelli's abilities to carry out her activities of daily living were not significantly altered by any impairments she may have suffered as a result of the accident. The test in Mr. Rashid's case is applied to his abilities as of mid-September 1997.

Any impairment in mid-September 1997, resulting from the March 1997 accident, must be measured against any "impairment" pre-accident. Mr. Rashid must show an increase in his impairment as a result of the accident, resulting in an inability to carry out his pre-accident level of functioning.

Mr. Rashid submits that the phrase "complete inability to carry on a normal life" must be considered within the context of the individual insured and must relate to the life he was leading prior to the accident. State Farm claims that prior to the 1997 accident, Mr. Rashid was already disabled, as he was unable to work since 1992. Mr. Rashid asserts that, prior to the 1997 accident, his normal life involved carrying out his functions within the community while taking care of his home, including the cooking, shopping and housekeeping and home maintenance tasks. According to Mr. Rashid, this is the "normal life" by which his entitlement to a non-earner benefit must be judged.

The thrust of Mr. Rashid's case is that, just before the March 1997 accident, he was more active than he had been for many years, despite a long history of severe pain and total disability. State Farm considers these alleged improvements to be implausible in the context of his protracted medical problems.

Pre-Accident Medical History:

In a consultation as early as November 10, 1981, Mr. Rashid reported to Dr. Veidlinger, a neurologist who examined him at the Workers' Compensation Board (WCB) Hospital and Rehabilitation Centre in Downsview, that he had "fallen down on several occasions because everything would go black in front of him." Mr Rashid had symptoms of imbalance and dizziness, blurred and dulled vision, insomnia, numbness in his feet, hearing impairment and sexual impotency.⁵

A social worker assigned by the WCB reported on November 30, 1981 that Mr. Rashid had lost his instrumental and effective functioning in the home and although licensed to conduct marriages in the Muslim religion, he had ceased this and other church activities.⁶

In a report to the WCB dated April 6, 1983 from Dr. Murray, a psychiatrist, Mr. Rashid is quoted as saying that he spends his days in total idleness and makes no attempt to help with any household tasks. In Dr. Murray's opinion, it was very difficult to attribute Mr. Rashid's condition entirely, or even to a major degree, to a compensable workplace accident because of "the passive, dependent and manipulative attitudes of his personality chronicled by more than one psychologist."⁷

Mr. Rashid's medical history continues in a similar vein through the years. A report of September 19, 1986 from Dr. McGrath, an orthopedic surgeon, to Dr. Omarali, documents complaints of pain in the right side of the head with some dizziness, loss of hearing together with loss of taste⁸ As well, Dr. McGrath noted that Mr. Rashid experienced post-traumatic unremittent headaches related to work and a soft-tissue injury of his neck and spine related to a motor vehicle accident in 1984.

On October 26, 1988, Dr. Gawel, a consultant neurologist, reported to Dr. Omarali that Mr. Rashid had fainted and fallen through a plate glass window lacerating the right side of his head.⁹ On August 12, 1989, Dr. Rothbart reported to the WCB that Mr. Rashid was receiving occipital steroid blocks at the Pain and Headache Clinic under general anaesthesia due to severe headaches.¹⁰

A report of Dr. Rothbart of the Pain and Headache Clinic, to Dr. Gawel, a Consultant Neurologist, on March 3, 1990 documents Mr. Rashid's fall on the ice at work where he had immediate severe pain in the right hip, right low back and right shoulder with marked exacerbation of his headaches.¹¹

On June 26, 1990, Dr. Arbitman, a psychiatrist with the Complex Case Unit at the WCB, reported that there had been little progress since Dr. Murray interviewed Mr. Rashid in 1983 and 1987. Mr. Rashid was spending most of his time sitting and watching TV; he did not have any special interests or hobbies; he was missing work frequently; he was not performing marriages; he did not feel like doing anything.¹²

Beginning on September 11, 1992, Dr. Rothbart has several notes to file which document Mr. Rashid's suicidal feelings and inability to cope. In a note to file dated January 14, 1993, Dr. Rothbart describes Mr. Rashid's pain as "constant and very debilitating." In February 1993, a note to file indicated that Mr. Rashid was only getting a few hours of relief after each nerve block. In fact, Mr. Rashid's pain complaints were so severe that he had a "continuous infusion catheter" placed in his periotemporal area. He was infusing Marcaine every few hours but only noticing mild improvement.

From this time forward, Mr. Rashid was receiving a host of very strong analgesic medicines, in addition to the nerve blocks. Nothing was giving him any significant relief except for the nerve blocks, which only gave him relief ranging from a few hours to a day or two.

In an Occupational Therapy report of May 11, 1994, Mr. Rashid is described as wearing a collar and using a cane with minimal range of motion in the neck or low back. In a social work report of May 19, 1994, Mr. Rashid is described as dependent on others to take care of him. In a discharge summary of June 9, 1994, Mr. Rashid is described as no longer involved in any leisure activities and in a neuropsychological report of Dr. Celinski's dated June 15, 1994, Mr. Rashid is described as unable to do anything.

Dr. Pflug, a neurologist, reported to the WCB on July 25, 1995 that Mr. Rashid was unable to do anything in the house or function in the community. Dr. Pflug concludes by saying: "From a rheumatological point of view, I do not have anything to add to his management at this time. He is totally and permanently disabled."¹³

In a report of March 13, 1995 from a social worker in the Clinical Resources and Consulting Services Branch of the WCB, Mr. Rashid described sleeping only 2 to 3 hours per night with the aid of Amitriptyline and being unable to look after his basic activities of daily living so that he was totally disabled and dependent on his wife and son. Mr. Rashid claimed to have spent most of his time at home lying down, sitting and crying and taking medications. He stated that he had tried many times to return to work but could not function adequately because his physical condition precluded him from returning to gainful employment.¹⁴

Dr. Rothbart of the Rothbart Pain Management Clinic saw Mr. Rashid from 1988 onwards. In a report dated September 29, 1995, Dr. Rothbart diagnosed Mr. Rashid with chronic pain and concluded that he was totally disabled from any type of work. In a note to file by Dr. Rothbart of January 5, 1996, the weekly nerve blocks received by Mr. Rashid are described as the only thing that provide him with relief.

None of the medical records refer to any real improvement in Mr. Rashid's condition. In fact, in a report of Dr. Pflug to Dr. Omarali dated February 8, 1997, he is described as "totally disabled." The Rothbart Pain Management Clinic records of March 5, 1997 describe Mr. Rashid as having severe headaches, neck pain and painful shoulders.

Dr. Pflug's report of March 5, 1997 does not suggest any improvement in Mr. Rashid's health. Rather, it lists a series of complaints including crying spells, inability to concentrate on his prayers, and need for a cane. Dr. Pflug's diagnosis suggested head injury, post-traumatic stress syndrome, reactive depression, chronic pain syndrome and post-traumatic fibromyalgia.

This was just two weeks before the accident.

In a memo to Mr. Rashid's WCB file dated March 25, 1999, Dr. Pao, a medical consultant, summarized Mr. Rashid's WCB claims from 1979 to 1992 numbered 12112307, 16051985, 17227881, 17744241, 16051985, 12425362, 17538429, 184769096, 18730879, 18648821, 14796591, 18117392, 17389088, 14796591 for compensable work injuries to his head, right knee, left knee, low back, left shoulder, and both hands.¹⁵

Post-Accident:

The hospital and ambulance reports do not corroborate Mohamed Ansari Rahsid's evidence about his father's condition following the accident. Although Mr. Rashid's son claimed that his father spent a week in bed, never leaving his room, the entries of the Rothbart Pain Managment Clinic show that Mr. Rashid attended there on the day following the accident and on March 25, six days following the accident. The chart entries do not show the same level of impairment claimed by Mr. Rashid's son. In fact, the chart states that Mr. Rashid was informed that he could expect to be better in six to eight weeks.

On March 26, 1997, during her in-home assessment, Terry Honigsberg, an occupational therapist, reported that Mr. Rashid told her that he had osteoarthritis in his right knee from a previous car accident but suggested that the symptoms had resolved at the time of the car accident. Despite his pre-accident complaint, Mr. Rashid described himself as the primary caregiver in his house responsible for cooking, cleaning dishes and doing laundry.

In the OCF-12 (Activities of Normal Life), Mr. Rashid described no limitations in personal care, mobility, homemaking or home maintenance tasks, cognitive activities or other abilities prior to the 1997 accident. Dr. Omarali confirms this in his report of April 16, 1997 where he referred to previous car accidents and work injuries but states that his patient was independent with self-care activities and able to carry out all homemaking and community living skills. Dr. Omarali attributed all of Mr. Rashid's symptoms to injuries sustained in the 1997 accident.

In the Med/Rehab DAC report of October 23, 1997,¹⁶ Dr. Notkin commented that Mr. Rashid described the relief he experienced from any of the health care professionals as "transient". According to Mr. Rashid, the sessions with Dr. Ally, an acupuncturist and psychotherapist, only helped him for "a few hours" and then all of his depressive symptoms would return.

With his lawyer present, Mr. Rashid reported to a WCB claims investigator on December 4, 1997, that all of his injuries were related to his workplace accidents. The only car accident that he referred to was the 1994 car accident.

In an April 15, 1998 report, Dr. Omarali advised the Workers' Compensation Board of Mr. Rashid's serious disabilities following the 1979 workplace accident. Dr. Omarali described Mr. Rashid's inability to bathe himself and to cook meals. He did not refer to any car accidents but described Mr. Rashid as totally disabled.¹⁷

I find that the 1997 accident did not significantly or materially contribute to Mr. Rashid's disability or impairment. I concur with State Farm's submission that Mr. Rashid's alleged improvements prior to the 1997 accident are implausible in the context of his protracted medical problems. A review of Mr. Rashid's medical history reveals that he complained of, and was diagnosed with, a degree of disability and impairment prior to the 1997 accident which resulted in an inability to participate in employment, household and recreational activities.

MEDICAL AND REHABILITATION BENEFITS:

The standard for compensation of medical and rehabilitation benefits is that they must be "reasonable and necessary." The appeal decision in Violi v. General Accident Assurance Company of Canada¹⁸ ruled that pain relief is a legitimate goal of rehabilitative treatment, and that in some cases, pain relief might be the only goal. Director's Delegate Draper also held that while insurers should not be expected to fund ineffective treatment, effectiveness need not be proven to a level of scientific certainty.

In Violi, Director's Delegate Draper agreed that to qualify for prolonged treatment, an insured person must establish, at a minimum that:

a) The treatment goals, as identified, are reasonable;

b) These goals have been met to a reasonable degree; and

c) The overall cost (not just financial but investment of time, etc.) of achieving these goals is reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.

Mr. Rashid and his three treatment providers claim that his treatments were reasonable because they were palliative, alleviated pain and thus improved function.

Dr. Sarrafian:

Dr. Sarrafian, a physiotherapist, completed an initial assessment report dated March 27, 1997 which listed Mr. Rashid's complaints including a constant, sharp pain in the neck and left shoulder which radiated to the left arm and hand, low back pain and stiffness and bilateral leg numbness, limitation of movements and difficulty walking, lifting, sitting and standing, occasional headaches, dizziness, anxiety, general muscle stiffness, chest pain and sleep disturbance.

Dr. Sarrafian provided physiotherapy treatments to Mr. Rashid. and recommended active stretching and exercise. His prognosis was recovery within six to eight weeks but he anticipated that it might take longer due to the severity of the injuries.

In Dr. Sarrafian's progress report dated July 4, 1997, he acknowledged that Mr. Rashid had made some gains but that he had all of the symptoms and limitations that he had immediately following the accident. Dr. Sarrafian stated that he intended to treat Mr. Rashid for a further six weeks at which time he anticipated being able to discharge him. He completed a treatment plan recommending further physiotherapy modalities as well as active exercises.

Dr. Sarrafian eventually discharged Mr. Rashid in November 1998, after 139 visits. His account was in the amount of $18,126 for physiotherapy, active stretching and exercises. He testified that Mr. Rashid was obtaining tangible benefit from the treatments in that they provided relief, decreased his pain and increased both his range of motion and function. He thought that all of his patient's complaints were related to the car accident, including problems with dizziness, sleeplessness, low back pain and neck pain.

Dr. Sarrafian's treatments were for a duration of time and at a cost far in excess of any treatment plan submitted by him. He did not know about Mr. Rashid's prior history.

Dr. Filsoofi:

Dr. Filsoofi provided chiropractic treatments to Mr. Rashid between April 1 and December 23, 1997. State Farm paid for the first 15 treatment sessions as required by the Schedule. Dr. Filsoofi's chiropractic treatments were recommended in Dr. Sarrafian's treatment plan of March 30, 1997. The treatment plan was to provide two chiropractic treatments a week over a period of six to eight weeks for an estimated cost of $1,800. The goal of the treatment plan was to reduce pain, inflammation and the possibility of short/long term disability.

Despite the treatment plan, Dr. Filsoofi provided more than 60 treatments from May 7, to December 23, 1997. No treatment plan was submitted for subsequent treatments.

Dr. Filsoofi testified that Mr. Rashid was improved by November 1996 as a result of his pre-accident course of treatment for an earlier car accident but there was no discharge note in his file. It was his opinion that Mr. Rashid was back to his normal activities by that time with very little, if no limitations. He could resume his normal daily activities and his religious duties at the mosque.

However, the Workers' Compensation and Rothbart Pain Management Clinic records do not confirm this finding. Dr. Filsoofi had little knowledge of Mr. Rashid's pre or post-accident history. He did not know about the nerve blocks that Mr. Rashid was receiving at the Rothbart Pain Management Clinic nor did he know that Mr. Rashid was receiving physiotherapy treatments.

Dr. Filsoofi provided treatment to Mr. Rashid before and after the 1997 motor vehicle accident. He testified that he began treating Mr. Rashid after the 1994 motor vehicle accident and that he treated him again after the 1995 motor vehicle accident. In a letter dated May 29, 1997, Dr. Filsoofi stated that he discharged Mr. Rashid in November 1996. In fact, Dr. Filsoofi testified that by late 1996, Mr. Rashid had recovered from the previous motor vehicle accident sufficiently to resume his activities of daily living, including all his housekeeping and home maintenance functions and his personal care.

Dr. Bruce Ally:

Dr. Ally claimed $3,342 for acupuncture treatments and $5,513.68 for psychotherapy. By correspondence dated August 15, 1997, State Farm acknowledged receipt of Dr. Ally's invoices and letters of June 1 and July 2, 1997 for psychotherapy and acupuncture treatments. State Farm requested production of the March 13 and April 17, 1997 treatment plans referred to in the letter of June 1, 1997.

By letter dated November 4, 1997,¹⁹ State Farm advised Dr. Ally that it was relying on the conclusions of the Med/Rehab DAC, when denying payment for any treatment provided by Dr. Ally. Dr. Notkin, one of the assessors at the Med/Rehab DAC, found no evidence of psychiatric disorder linked to the March 1997 accident.

Dr. Ally provided driver desensitization, relaxation therapy, guided imagery and ongoing counselling to Mr. Rashid between May 1995 and January 1996. Dr. Ally testified that he discharged Mr. Rashid in January 1996 stating that he had made significant gains such as being able to drive and not suffering any nightmares or flashbacks. This contradicts the evidence of other treatment providers; for example, the reports of Dr. Filsoofi, Dr. Omarali and Dr. Rathbone dated January 3, 4 and 5, 1996. In fact, Dr. Filsoofi testified that it was not until November of 1996 that Mr. Rashid showed a remarkable improvement.

Dr. Ally saw Mr. Rashid next on March 31, 1997 following the motor vehicle accident. Mr. Rashid had pain in his head, neck and back, tingling in his arms, insomnia, was not able to eat properly, could not care for himself and required someone to drive him. Dr. Ally testified that Mr. Rashid manifested signs of significant depression which was the result of a number of things, most notably that he was repeatedly involved in car accidents, he was unable to perform his daily functions, and he could not deal with the everyday circumstances of life. According to Dr. Ally, Mr. Rashid's condition was worse than following his previous accidents.

Dr. Ally testified that Mr. Rashid had shown little improvement from March 1997 to March 1998. This contradicts Mr. Rashid's evidence and that of his son Ansari. Dr. Ally was only aware that Mr. Rashid was seeing his family doctor, Dr. Omarali before the December 1994 accident and was oblivious to the many treatment providers seen by Mr. Rashid since his 1979 workplace accident.

Dr. Ally discharged Mr. Rashid in September 1998 because he had improved as much as possible and would not recover completely. Dr. Ally's final acupuncture account was sent with a letter dated September 18, 1998.²⁰

Dr. Ally also testified that Mr. Rashid responded positively to psychotherapy which decreased his depression, equipped him to drive and eat regularly, helped him sleep better, allowed him to re-establish relationships that he had prior to the accident and helped him handle the stresses of everyday life. Dr. Ally discharged Mr. Rashid from psychotherapy on December 29, 1997.²¹

Payment of Treatment Accounts:

I find that Mr. Rashid is not entitled to payment of the accounts of the three treatment providers, Drs. Sarrafian, Filsoofi and Ally's account. The treatment sessions provided by these treatment providers were not reasonable and necessary. Mr. Rashid, in his own testimony, claimed to have experienced very little relief as a result of his sessions with any of the treatment providers. The treatment providers and other medical experts were unable to determine the extent of any disability or impairment caused by the 1997 accident because they were not fully aware of Mr. Rashid's pre-accident level of impairment nor the extent and number of his treatment providers. By March 1997, Mr. Rashid had a long medical history of receiving no significant benefit from any treatment (whether to improve function or give pain relief) with the exception of the nerve blocks he was recovering from Dr. Rothbart's Pain Management Clinic for many years pre-accident. Therefore, the chiropractic, acupuncture, physiotherapy and psychotherapy sessions offered by the treatment providers in question were not reasonable and necessary even to assist Mr. Rashid with temporary pain relief.

Transportation Expenses:

As I have found that Dr. Filsoofi's treatments were not reasonable and necessary, the insurer is not obligated to fund the mileage expenses claimed for Mr. Rashid's travel to these treatment sessions.

Attendant Care Benefits:

By correspondence to Mr. Rashid dated April 21, 1997, State Farm advised that he should sign and return the enclosed OCF-14 form so that an attendant care designated assessment could be arranged. On March 10, 1998, State Farm wrote to Mr. Rashid's counsel and enclosed an Assessment of Attendant Care Needs.²²

No application was submitted for Attendant Care benefits as required by subsections 32(1) and 33(1) of the Schedule. Subsection 16(4) of the Schedule requires an attendant care benefit to be determined in accordance with a "Form 1". Mr. Rashid has never filled out a Form 1 nor has he given State Farm the particulars required to complete a Form 1.

Mr. Rashid claimed in his Application for Mediation that he was provided with 10 hours a week by his son since the date of the accident. There was no record kept of actual attendant care services provided.

Terry Honigsberg, an occupational therapist, conducted an in-home assessment of Mr. Rashid on March 26, 1997, one week following the accident. Ms. Honigsberg was not made aware of Mr. Rashid's pre-accident needs but noted that Mr. Rashid was holding onto the wall for support and walking with a slow, shuffling gait. He was short of breath after several minutes of walking and could not attempt to climb the stairs.²³

Ms. Honigsberg observed that Mr. Rashid could transfer to and from a chair independently. The only assistance offered by his sons was transferring him to and from the bathtub, to and from the car and assisting him in showering, washing and dressing. Ms. Honigsberg recommended homemaking assistance 3 times per week for 4 hours at a time to assist with cleaning, laundry and meal preparation.²⁴

Ms. Honigsberg apparently had a discussion with Dr. Omarali on April 16, 1997 to review Mr. Rashid's function following the 1994 and 1995 motor vehicle accidents prior to the 1997 motor vehicle accident.²⁵ While Dr. Omarali refers to the previous motor vehicle accidents, he indicates that although Mr. Rashid sustained neck and back injuries in each accident, his symptoms had resolved with treatment. Dr. Omarali's opinion was that Mr. Rashid was independent with regard to all activities of daily living prior to the motor vehicle accident of March 19, 1997 and that his present symptoms were all attributable to injuries sustained in the 1997 accident.

In a further report of August 25, 1997, Ms. Honigsberg reported no problems with mobility or transfers but noted that Mr. Rashid claimed that since July 1997 he had been assisted by a male friend three times a week with bathing (transferring to and from the tub and washing his back).²⁶ By September 25, 1997, Ms. Honigsberg concluded that no assistance was required for bathing and there is no mention of assistance required for transfers.

In the Med/Rehab DAC report of October 23, 1997, at page 17, Mr.Rashid claims that he is unable to dry the upper part of his back although he can dress himself and complete his personal care needs. In his letter of November 5, 1998, Ansari, suggested that as of that date, he continued to bathe and shave his father every day. None of the reports from the treatment providers mention the need for attendant care benefits and Dr. Filsoofi testified that there was no such need. Dr. Sarrafian testified that there was such a need but only for a short period of time in the beginning.

Mr. Rashid testified that he needed help to rub, wash and dry off his back, and to use the toilet. He also needed help shaving and dressing. He testified that he needed similar help following the car accident and that Ansari provided that help. However, he admitted that prior to Ansari's November 5, 1998 letter, he never gave particulars of his attendant care needs nor did he submit a Form 1, the attendant care claim form.

Ansari testified that his attendant care obligations were greater than following the two earlier car accidents. He said that he assisted his father for about six months following the accident, which is not consistent with Ansari being involved in an accident in July 1997. However, Ansari did explain that his cousin, Fyzul, helped with the bathing for a short period of time.

None of this explains why on September 14, 1999, Mr. Rashid saw Dr. Sharma and claimed that he needed help putting on his socks, doing up his shoelaces, shaving, drying himself and had severe limitations with household activities. It contradicts Ansari's evidence that his father was back to his pre-accident activities about a year after the accident.

I find that Mr. Rashid is not entitled to attendant care benefits. The evidence of the need for attendant care was unreliable and contradictory. To the extent that Mr. Rashid had any attendant care needs, it appears that they were of a limited nature and remained consistent both pre and post accident.

Housekeeping and Home Maintenance Benefits:

Medex Health and Rehabilitation Services Inc. conducted in-home assessments for the Insurer. Ms. Terry Honigsberg, an occupational therapist, conducted the assessments. Ms. Honigsberg, prepared an occupational therapy closure report dated October 20, 1997.²⁷ She said in the report that she would reasonably expect Mr. Rashid to be able to engage in light meal preparation and to resume his pre-accident functional level at home. However, her progress note of September 5, 1997²⁸concluded that there was still room for "significant gains" with respect to his functional level at home in terms of selfcare and homemaking.

Ansari testified that his father was substantially disabled from performing his pre-accident housekeeping and home maintenance duties for at least one year following the 1997 accident and he was then able to gradually resume those duties. Ansari gave evidence about the housekeeping and home maintenance work that he did because his father was incapacitated, and that his cousin Fyzul Ishmael did when Ansari was recovering from injuries sustained in his own motor vehicle accident.

Ansari described how his father paid for cooking assistance done primarily by Fyzul's mother-in-law, Babbi, because neither Ansari nor his brother could cook. However, Babbi continues to provide cooking services for Mr. Rashid today. There are letters from Mr. Rashid and Ansari which attempt to quantify the services provided.²⁹

State Farm asked for particulars of Mr. Rashid's housekeeping claim on April 21, 1997.³⁰No proper claim was ever advanced and the only response was two letters dated November 1, 1998 and November 5, 1998 by Mr. Rashid and his son respectively which do not calculate what expenses were actually incurred for homemaking or housekeeping benefits.³¹

At the hearing, neither Mr. Rashid nor his son had notes or records of services or payments. The documentary evidence was contradictory at best. The medical records indicate that Mr. Rashid had withdrawn from carrying out housekeeping duties prior to the car accident. Ms. Honigsberg, in her occupational therapist's report of March 26, 1997, conveys the impression of a neglected home and homemaking that had not been done on a regular basis.

In his letter of November 5, 1998, Ansari claimed that as a result of his father's 1997 accident, he was performing the following tasks: cleaning the yard, cutting the grass once a week, watering the lawn every other day, picking up leaves, shovelling snow and throwing salt, washing the driveway and sides of the house and putting out the garbage. This contradicted Mr. Rashid's report to Ms. Honigsberg where he stated that his sons were responsible for mowing the lawn and snow shovelling prior to the 1997 accident due to his osteoarthritis in the right knee. It also contradicts Mr. Rashid's reporting to the physiotherapist at the Med/Rehab DAC assessment that one of his sons "did all of the exterior household chores, such as the gardening and maintenance."³² At the hearing, Mr. Rashid testified that before the accident, Ansari did all of the yard work and garbage removal because Mr. Rashid could not grip with his hand.

Ansari's testimony about the household work done by his father before and after the accident was inconsistent with the above and with the testimony of his father. Ansari claimed that prior to the car accident, Mr. Rashid was doing all the cooking while his father testified that his son did most of the cooking and a women named Lucille may have been helping with the cooking before the accident. Ansari claimed that he shared yard work 50/50 with his father and the same for snow shovelling and taking out the garbage. Ansari testified that it was only after March 1997 that he noticed that his father had problems with his knees yet Dr. Pflug notes that just two weeks before the 1997 accident, Mr. Rashid was using a cane to help him walk. Ansari did not seem to know that his father had several arthroscopic surgeries to his knees before March 19, 1997.

The evidence about cooking was contradictory and inconsistent. Mr. Rashid told Ms. Honigsberg on March 26, 1997, that he was paying a lady $25 per day to cook while he testified at the hearing that he was paying a lady $200 per week to cook. He suggested that this lady, whose full name and address he could not provide, was coming four days a week and in addition to the cooking, she was doing the cleaning, laundry and vacuuming. This contradicts Ansari's evidence that he was doing the cleaning, laundry and vacuuming post-accident, which was not mentioned in his November 5, 1998 letter. It is also inconsistent with Mr. Rashid's evidence that before the accident, much of the food was take-out. Contrary to what he told Ms. Honigsberg, he testified that he cooked perhaps once or twice a week before the accident and Ansari made the rest of the meals.

In his letter of November 1, 1998³³, Mr. Rashid indicated that he was paying $100 per week to a woman who was cooking Monday, Wednesday, Friday and Saturday and doing laundry once a week. He changed the amount to $200 per week at the hearing and could not say over what period of time she attended. When Mr. Rashid discussed cooking done by Lucille, he suggested that he paid her $50 per week but then said he could not remember.

Mr. Rashid did admit in testimony that before the accident, Ansari helped give him food, washed dishes, picked up medication and helped him clean the yeard. He denied, as suggested in Ms. Honigsberg's report that he cooked two meals a day. He suggested that "Indy," who turned out to be his wife, provided housekeeping services but he was unsure about the period of time.

Ansari's evidence was quite different from that of his father. He claimed Lucille came in three times a week for a few months and was paid cash. Ansari said that his cousin's mother-in-law named "Babbi" was paid $25 a day in cash. Ansari did concede that his father was back to his regular activities including cooking meals. However, he went on to say that Babbi was still coming in to cook once or twice a week. Mr. Rashid admitted that he paid Babbi $125 a week following the accident to make two meals a day but he was still paying her $125 a week at the time of the hearing. There was no reference to Babbi in the letters of November, 1998.

Dr. Filsoofi wrote a brief report suggesting that Mr. Rashid needed four hours' help with housework but Dr. Filsoofi testified that he was unaware of Mr. Rashid's pre-accident condition. Dr. Filsoofi was not in a position to distinguish Mr. Rashid's household needs following the accident with those pre-accident.

Mr. Rashid told Dr. Notkin, the psychiatrist at the Med/Rehab DAC that he had a housekeeper who prepared the meals, washed the dishes, did the laundry, made the bed and another woman who did most of the cleaning. When Dr. Welsh, an orthopaedic surgeon, conducted an independent examination of Mr. Rashi for State Farm,³⁴ he concluded that Mr. Rashid had no ongoing impairment as a result of the accident. His post-accident state was similar to his pre-accident state.

There is no reliable evidence on which to base an award for housekeeping or home maintenance benefits. The evidence of Mr. Rashid and Ansari is contradictory, inconsistent and unreliable. When compared with the documentary evidence, it is even more stark in its inconsistencies. I can only come to the conclusion that Mr. Rashid was doing little housekeeping or home maintenance prior to the accident due to his pre-accident disabilities which had existed for many years and this continued to be the situation following the 1997 accident.. Therefore, he is not entitled to any compensation for housekeeping or home maintenance.

SPECIAL AWARD:

A special award under subsection 282(10) of the Insurance Act is predicated upon a finding of entitlement to benefits. As Mr. Rashid is not entitled to benefits, I need not consider the issue of a special award.

EXPENSES:

No submissions were made with respect to expenses of the hearing. The parties are encouraged to resolve the issue of expenses but if unable to do so, they may arrange for an expense hearing before me.

November 2, 2001

Judith Killoran Arbitrator

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