Neutral Citation: 2002 ONFSCDRS 32
FSCO A01-000164
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARYAM HEZAVIAN and MONA JAHANGIRVAND (Minor)
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
Beth Allen
Heard:
October 29 and 30, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Manoucher Baradaran for Mrs. Hezavian
Todd J. McCarthy for Allstate Insurance Company of Canada
Issues:
The Applicant, Maryam Hezavian and her daughter, Mona Jahangirvand (a minor), were injured in a motor vehicle accident on August 27, 1999. They applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.1
Mona Jahangirvand incurred an expense for physiotherapy treatment between December 17, 1999 and March 8, 2000 in the amount of $1,865. Before the arbitration hearing, Allstate paid $875 of this amount. Her claim at arbitration was for the outstanding balance of $990 and her expenses of the arbitration. At the start of the hearing, the parties also resolved this outstanding $990 amount.
At the commencement of the hearing, the parties agreed that a number of matters listed as issues in the pre-hearing letters dated May 17, 2001 are not in dispute. In addition to Mona Jahangirvand's claims, they also agreed to settle Mrs. Hezavian's claim for prescription expenses, upon Mrs. Hezavian submitting the original or a copy of the invoice for this expense. Mr. Baradaran undertook to provide a copy of the invoice to Allstate. As well, the parties agreed that the $5,200 account with Metro Assessment & Rehabilitation Centre ("Metro") had not been submitted and refused and, accordingly, this is not at issue in this arbitration.
In dispute is Mrs. Hezavian's claim for benefits for psychological treatment by Dr. Rex Samuel, a registered psychologist, physiotherapy and massage by Doctor's Rehab Clinic Inc. ("Doctor's Rehab"), housekeeping services and the cost associated with an assessment and treatment plan by Dr. Samuel and a functional capacity evaluation by Metro.
Mrs. Hezavian seeks her expenses of the arbitration hearing. Allstate does not seek its expenses from Mrs. Hezavian.
The parties were unable to resolve their disputes through mediation, and Mrs. Hezavian 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. Hezavian entitled, pursuant to subsection 14 of the Schedule, to benefits to cover the account with Dr. Rex Samuel in the amount of $2,550 for psychological treatment and/or to benefits in the amount of $2,060 for physiotherapy and massage treatment rendered by Doctor's Rehab from January 5 to October 31, 2000?
Is Mrs. Hezavian entitled to payment for housekeeping expenses pursuant to section 22 of the Schedule?
Is Mrs. Hezavian entitled, pursuant to section 24 of the Schedule, to $795 for the cost of an assessment and treatment plan by Dr. Rex Samuel, and to $1,500 for the cost of a functional capacity evaluation by Metro?
Is Mrs. Hezavian entitled to her expenses of the arbitration pursuant to subsection 282(11) of the Insurance Act. Allstate does not request its expenses.
Is Mrs. Hezavian entitled to interest on unpaid benefit amounts pursuant to section 46 of the Schedule?
Result:
The parties agreed to settle Mona Jahangirvand's claims for outstanding physiotherapy treatment and arbitration expenses.
Mrs. Hezavian is not entitled to benefits for psychological treatment by Dr. Rex Samuel.
Mrs. Hezavian is not entitled to any further benefits for physiotherapy and massage treatment by Doctor's Rehab .
Mrs. Hezavian is not entitled to benefits for housekeeping services.
Mrs. Hezavian is neither entitled to the cost of an assessment and treatment plan by Dr. Rex Samuel nor a functional capacity evaluation by Metro.
Mrs. Hezavian is not entitled to her arbitration expenses. Allstate does not seek its arbitration expenses from Mrs. Hezavian.
EVIDENCE AND ANALYSIS:
Conduct of the Applicant's Representative
Numerous procedural problems and delays occurred during the course of the hearing due to Mr. Baradaran's lack of preparedness and unfamiliarity with the law and procedure. He describes himself as "counsel" on the application for arbitration, but as I understand it, he is an agent and not a barrister and solicitor.
Mr. Baradaran showed uncertainty about the provisions of the Schedule pertinent to Mrs. Hezavian's claims and demonstrated an obstreperous and uncooperative attitude when objections were raised and orders made with regard to his conduct. Mr. Baradaran displayed a poor grasp of the evidence and inability to conduct himself appropriately during questioning. He persisted in asking leading questions of his witnesses and improperly spoke to Mrs. Hezavian during the course of Allstate's cross-examination of her, despite objections and rulings directed at stopping this conduct. I find that at the end of the day, Mr. Baradaran displayed a poor understanding of the fundamentals of examination and cross-examination.
Particularly troubling was Mr. Baradaran's objection to the production and use in the hearing by Allstate of Mrs. Hezavian's family doctor's clinical notes and records. Mr. McCarthy indicated that it was not able to obtain these records until just before the hearing because of delays caused, in its view, by Mr. Baradaran. Mr. Baradaran denied this, but failed to satisfactorily rebut Mr. McCarthy's allegations. I accepted Allstate's submissions about Mr. Baradaran's uncooperativeness in producing Dr. Virani's records. Mr. Baradaran insisted that these documents were not relevant, but he did not explain why he held this view. I ruled that Dr. Virani's clinical notes and records were relevant to the issues in dispute and, accordingly, they were entered by Allstate as an exhibit. As the hearing proceeded it became obvious that these records contained information potentially damaging to Ms. Hezavian's case and contradicted her oral evidence about her pre-accident health. I will discuss the credibility problems below.
I considered exercising my authority under the Statutory Powers Procedure Act2 to eject Mr. Baradaran from the hearing for his conduct. However, I extended some latitude in deciding not to do this, as I understand that this was Mr. Baradaran's first experience at an arbitration hearing. I find in the end that Mr. Baradaran's presentation of Mrs. Hezavian's case was substandard and I will take this into consideration in my expense award.
Factual Background
On the evening of August 27, 1999, Mrs. Hezavian's vehicle was rear ended by another vehicle. Her minor daughter, Mona Jahangirvand, was a rear passenger in the car. Mrs. Hezavian indicated that after impact she felt shocked and confused and became very concerned about her daughter who was crying in the back seat. The next day, Mrs. Hezavian reported the accident at an accident reporting centre.
Mrs. Hezavian's first post-accident visit to her family doctor, Dr. Mirza R. Virani, was on September 10, 1999. Dr. Virani was Mrs. Hezavian's family doctor for six years before the accident until one year post-accident. On cross-examination, Mrs. Hezavian explained that she did not see her doctor sooner after the accident because he was on vacation at the time. She testified that she complained to Dr. Virani about pain in her left wrist and neck. Mrs. Hezavian stated that she also suffered from psychological and emotional problems after the accident. She testified that she has had difficulty returning to work, meeting spousal obligations and caring for her daughter who has also had emotional problems since the accident.
For about eight years before the accident, Mrs. Hezavian worked at the North York YMCA as a childcare worker with infants and toddlers. She returned to work three days after the accident and continues to work to the present. There is some evidence that Mrs. Hezavian worked part-time after the accident, but it is not clear how long this arrangement might have lasted. It seems from the documentary evidence that she was back to full-time by November 1999. The Metro report dated November 6, 2000 and the occupational therapist assessment report by Fulcrum Consultants dated November 24, 1999 indicate that Mrs. Hezavian reported that she was working full time as a child care worker.
Credibility Problems
Many areas of Mrs. Hezavian's evidence were compromised by credibility problems that arose in particular relation to her evidence about her pre-accident health. Especially troubling is that on examination and cross-examination Mrs. Hezavian denied health problems before the accident, particularly that she was involved in a previous car accident. She also failed to disclose this when asked in interviews with various medical assessors.
Allstate confronted Mrs. Hezavian with the clinical notes and records of her family doctor, Dr. Virani, which contain complaints from August 1995 through 1996 about headaches, neck and back pain, a bruised abdomen due to the seat belt, mild left carpal tunnel syndrome and dizziness and a diagnosis of acute fibromyalgia. She eventually admitted to the previous accident, but denied having been injured, having made an insurance claim and having attended an insurer's examination, at which point Allstate directed her to evidence of a claim involving Adjusters Canada and her attendance at an insurer's medical examination. Mrs. Hezavian also returned to work immediately after that accident.
Medical Claims:
Mrs. Hezavian claims entitlement to psychological and physiotherapy and massage treatment under section 14 of the Schedule.
Section 14 requires an initial threshold finding that Mrs. Hezavian sustained an impairment as a result of an accident. If I find that she sustained an impairment, I must then determine whether the cost of the treatment is reasonable and necessary and incurred as a result of the accident.
I find that Mrs. Hezavian sustained both physical and psychological impairments as a result of the August 27, 1999 accident. I accept Mrs. Hezavian's oral evidence and the conclusions in psychotherapist Dr. Safar Daei's January 18, 2000 report, which are supported by the findings of the psychological Medical/Rehabilitation Designated Assessment Centre ("Med/Rehab DAC") conducted on March 8, 2000 (discussed below), that Mrs. Hezavian has suffered from emotional problems as a result of the accident. I also accept as evidence of her physical impairment, Dr. Virani's medical certificates and clinical notes and records that reveal that she suffered from headaches, and soft tissue injuries to her neck, back and left wrist following the accident.
However, because of credibility problems with Mrs. Hezavian's accounts of her medical history, (as discussed below), she did not succeed in persuading me that the psychological and physiotherapy and massage treatment claimed is reasonably required for the impairments she sustained as a result of the accident.
Claim for Psychological Treatment
Mrs. Hezavian testified at the hearing and told various assessors that she has suffered stress and exhaustion since the accident. She explains that after the accident her daughter awakened in the night crying and clinging to her and refusing to go back to sleep resulting in many nights of sleeplessness. She testified that her daughter attends the daycare where she is employed and continued with her clingy behaviour, making it difficult for Mrs. Hezavian at work. Mrs. Hezavian testified that she finds it difficult to smile and be happy with the parents and children because of her fatigue and stress. She informed her employer that she could not perform all the tasks of working with infants and she was transferred to work with toddlers on a part-time basis. It is not clear from the evidence how long Mrs. Hezavian worked on a part-time basis.
At Allstate's request, Dr. Lawrie Reznek, a psychiatrist, assessed Mrs. Hezavian on December 20, 1999. His opinion was that she did not suffer from a psychiatric impairment as a result of the accident.
On the referral of Dr. Ali Nourali, a health care practitioner with Doctor's Rehab, Mrs. Hezavian saw Dr. Daei for her emotional problems. In a report dated January 21, 2000, he noted that Mrs. Hezavian was mildly depressed and nervous with sleep disturbances and some memory and concentration problems. Mrs. Hezavian stated that she saw Dr. Daei about eight to ten times as he recommended in his treatment plan dated January 18, 2000. Allstate paid for this treatment in accordance with the recommendation of Dr. Deborah Cowman, a registered psychologist at Work Able Centres Inc. ("Work Able"), who conducted the psychological component of the Med/Rehab DAC assessment on March 8, 2000.
Dr. Cowman found some symptom magnification and diagnosed adjustment disorder with associated mild to moderate depression and anxiety. Dr. Cowman agreed with Dr. Daei's recommendation of 10 sessions and suggested these involve cognitive behavioural strategies and be directed at relaxation techniques and parenting skills.
Allstate disputes that Mrs. Hezavian is entitled to the further psychological treatment recommended several months later by Dr. Samuel in a treatment plan dated October 25, 2000 where he recommended 20 one-hour sessions at $180 per hour from October 2000 to March 2001 at a cost of $3,600.3 Allstate argues that Mrs. Hezavian had completed treatment sessions with Dr. Daei and no further treatments had been recommended.
Mrs. Hezavian testified that a friend, not a medical practitioner, recommended Dr. Samuel. Dr. Samuel's assessment on October 23, 2000 lasted two-and-a-half hours and involved an interview and the administration of a number psychological tests. Dr. Samuel did not refer in his report to relying on any background medical documentation, so I assume in arriving at his findings, he relied entirely on Mrs. Hezavian's self-report. The report notes that Mrs. Hezavian suffers from post traumatic stress disorder and phobic anxiety about driving, and he diagnosed adjustment disorder with depression, stress and anxiety and somatoform pain disorder caused by the accident. He recommended pain management therapy and cognitive training. It does not appear from his report that Dr. Samuel was aware that Mrs. Hezavian's had recently completed a similar course of treatment with Dr. Daei.
Mrs. Hezavian testified that she saw Dr. Samuel a number of times for treatment and spoke to him on the phone, but I find she was very vague about the value of Dr. Samuel's treatment. On cross-examination, she stated that she was getting help with problems in her intimate relationship with her husband. I am not able to find from the medical documentation or Mrs. Hezavian's and her husband's, Mr. Shahrokh Jahagirvand, testimonies that this problem is accident-related.
Dr. Samuel was not called as a witness to testify about Mrs. Hezavian's need for further psychological treatment.
After considering the circumstances of this claim, I conclude that Mrs. Hezavian has not established that she reasonably requires the course of psychological treatment recommended by Dr. Samuel. I find this treatment seems to duplicate the treatment she received from Dr. Daei. Moreover, Dr. Samuel's treatment plan lacked the benefit of Mrs. Hezavian's documented medical history, input from her treating doctors and consideration of the Med/Rehab DAC findings and recommendations. As such, I find Dr. Samuel's treatment plan was not prepared as part of a coordinated treatment program for Mrs Hezavian. It appeared to me that Mrs. Hezavian testified with little conviction about the benefits of his treatment for her accident-related problems. As well, given the reliance a psychologist must place in his assessment on a patient's subjective accounts, I also find that Mrs. Hezavian's credibility problems hampered the reliability and strength of Dr. Samuel's assessment and recommendations.
I find that Mrs. Hezavian's case might have been assisted by a recommendation for this treatment by her family doctor. It might also have been helpful to have called Dr. Samuel and/or Dr. Virani as witnesses.
For these reasons, I find that Mrs. Hezavian is not entitled under section 14 of the Schedule to $2,550 for psychological treatment by Dr. Samuel. I am not persuaded that any further psychological treatment by Dr. Samuel is reasonable and necessary.
Claim for Physiotherapy and Massage Treatment
Mrs. Hezavian received massage and physiotherapy treatment at Doctor's Rehab recommended by Dr. Virani, in conjunction with a treatment plan dated November 5, 1999, from about October 28, 1999 to December 28, 1999 which Allstate funded. In a treatment plan dated December 28, 1999 (which is the subject matter of this arbitration), Doctor's Rehab recommended a further seven weeks of physiotherapy and massage, to run from January 5, 2000 to October 31, 2000, three times per week, at $115 per session, at an estimated total cost of $2,415.
It appears that Mrs. Hezavian's attendance at Doctor's Rehab overlapped as between the periods recommended in the November 5, 1999 and December 28, 1999 treatments plans. She testified that she stopped attending on February 28, 2000 because Allstate stopped paying for the treatment, despite the fact that, in her view, the treatment helped her. Mrs. Hezavian claims $2,060 for treatment she received in association with the December 28, 1999 treatment plan.
The December 28, 1999 treatment plan recommends modalities such as IFC/TENS, moist heat, and ultrasound; and postural correction, traction and mobilization of dysfunctional joints, with an emphasis on active exercise and functional restoration rehabilitation, with cardiovascular training. The November 5, 1999 treatment plan, which Allstate funded, recommended exactly the same treatment modalities.
Allstate refused to fund the treatment recommended in the December 28, 1999 treatment plan. It argues that the recommended treatment is not reasonable or necessary. Allstate's counsel argues, and I accept, that there is no evidence that either Dr. Virani, or any health care practitioner aside from those at Doctor's Rehab, referred her for the further treatment. In cross-examination, Allstate's counsel pointed out that in Dr. Virani's clinical notes, there are no records of attendances to his office by Mrs. Hezavian between September 10, 1999 and February 17, 2000 and between March 29, 2000 and July 9, 2001 and there is no referral for further physiotherapy. Mrs. Hezavian insisted in testimony that Dr. Virani had referred her, but she failed to satisfy me that this was the case.
To assess her need for further treatment, Allstate sent Mrs. Hezavian to be assessed by an occupational therapist and an orthopaedic surgeon.
Ms. Carol MacDonald, an occupational therapist with Fulcrum Consultants ("Fulcrum") conducted an initial assessment of Mrs. Hezavian on November 23, 1999 and a follow-up, in-home assessment on December 15, 1999. In the follow-up report dated January 7, 2000, Ms. MacDonald stated:
It should be noted that the client continued to work. When taking care of children there is a great deal of bending, stooping, lifting and carrying involved, both from a standing and a sitting position. It is reasonable to assume if one had the physical status to participate in this type of work, that homemaking would also have been possible. Both tasks require a similar physical status.
Ms. MacDonald noted that Mrs. Hezavian stated that she had not been absent from work due to her accident-related injuries. She concluded that apart from requiring assistance with lifting groceries, Mrs. Hezavian is capable of managing her home and the care of her child.
On January 12, 2000, Ms. Hezavian attended an orthopaedic assessment by Dr. R. Zarnett, an orthopaedic surgeon, at Allstate's request. Mrs. Hezavian did not admit her involvement in a previous accident to Dr. Zarnett and denied any previous problems with her neck, shoulder, left arm and hand. In his report dated January 12, 2000, Dr. Zarnett noted that Mrs. Hezavian sustained a myofascial strain as a result of the accident, but concluded that she did not suffer from a substantial musculoskeletal impairment in her neck. He found that she had symptoms suggestive of carpal tunnel syndrome in her left hand and recommended an EMG examination.
Dr. Zarnett indicated, based on Mrs. Hezavian's self-report, that since the carpal tunnel-like symptoms arose post-accident, he was assuming this was caused by the accident. Dr. Zarnett was not aware that Mrs. Hezavian had suppressed information about her neck, back, left arm and left-hand carpal-tunnel complaints that arose from her previous accident. Dr. Zarnett concluded, in any event, that the three months of physiotherapy since the accident was excessive and should be discontinued immediately. He further concluded that since Mrs. Hezavian returned to work at her pre-accident position immediately following the accident, "her functional abilities are greater than those that she admits to" and further concluded that she was not restricted from engaging in her activities of daily life or employment tasks. Dr. Zarnett concluded that recommendations regarding her left wrist condition could be made once the EMG results are available.
Allstate referred Mrs. Hezavian to Med/Rehab DAC assessments at Work Able, with a physiotherapist on March 21, 2000, a neurologist on March 21, 2000, an orthopaedic surgeon on February 15, 2000, and a psychologist on March 6, 2000. Mrs. Hezavian did not inform the DAC assessors of her previous accident and the injuries she sustained when specifically asked about this. These assessments concluded that the treatment recommended in the December 28, 1999 treatment plan is not reasonable or necessary.
The physiotherapist's report, prepared by Ms. Darlene Stafford, noted that Mrs. Hezavian had carpal tunnel-like symptoms and inconsistent discomfort in her left shoulder girdle and hand. Ms. Stafford concluded that considering the extent of Mrs. Hezavian's treatment to date, the treatment plan is not reasonable or necessary.
In his orthopaedic assessment, Dr. Geoffrey Lloyd concluded that Mrs. Hezavian had sustained soft tissue strain to her cervical spine, causing symptoms in her left neck and left upper limb, which symptoms, according to Dr. Lloyd, are magnified by her psychological and emotional problems. He recommended x-rays of her cervical spine and an EMG study of her upper limb to rule out the existence of another structural pathology. Dr. Lloyd found the recommended treatment did not present reasonable or necessary methods of managing Mrs. Hezavian's condition and concluded that if her tests are normal she should be encouraged to continue her self-directed exercise program.
The neurological assessment by Dr. Robert Yufe concludes that six months of physiotherapy for myofascial soft tissue injuries is sufficient. Regarding Mrs. Hezavian's left hand, Dr. Yufe indicated that he did not believe there were objective signs of neurological impairment. However, he agreed with Dr. Zarnett that x-rays of her cervical spine and an EMG on her left wrist would be reasonable under the circumstances. He suggested a home exercise program as the most reasonable course at the present and further recommended that if any pathology were to be identified, it would have to be addressed on its own merits.
After reviewing the evidence and the parties' submissions, I conclude for a number of reasons that Mrs. Hezavian is not entitled to the physiotherapy and massage treatment recommended by Doctor's Rehab in the December 28, 1999 treatment plan. Mrs. Hezavian has the burden to prove her case and I find she failed to persuade me of the reasonableness and necessity of the treatment.
Mrs. Hezavian relied principally on her own oral evidence, that of her husband and the December 28, 1999 treatment plan by Doctor's Rehab. She did not call her family doctor, Dr. Virani, or any of the treating medical practitioners from Doctor's Rehab to challenge the findings of the insurer's examiners and the Med/Rehab DAC assessors, who found the treatment not reasonable or necessary. In arriving at my decision, I also considered the fact that Dr. Virani, who had treated Mrs. Hezavian for over six years by this time, did not recommend the further treatment for Mrs. Hezavian, although he had recommended the earlier treatment by this facility. I find it is reasonable to infer from this that Dr. Virani might not have recommended further treatment by Doctor's Rehab.
I did not find Mr. Jahangirvand's evidence to be very helpful. He testified little, if at all, about the therapeutic value and usefulness of the physiotherapy and massage treatment for his wife's injuries.
The December 28, 1999 treatment plan did not explain the therapeutic value and usefulness of the recommended treatment modalities to ameliorating Mrs. Hezavian's particular conditions, in the context of her treatment history. Nor was the treatment plan accompanied by a report to this effect. I therefore find the treatment plan of limited assistance to Mrs. Hezavian.
As might be expected, I found Mrs. Hezavian's oral evidence problematic. She was not forthright about her medical history, particularly about her 1995 accident and the related injuries. She gave misleading information to medical assessors and to this tribunal. Understandably, this has affected the weight I have given her evidence. As it turns out, Mrs. Hezavian spoke only in generalities about the value of the treatment at issue. She said little more than that it helped her. I am therefore not able, under the circumstances, to conclude from Mrs. Hezavian's testimony that the treatment proposed in the December 28, 1999 treatment plan was reasonable and necessary.
Allstate's evidence, on the other hand, did persuade me that the treatment in question was not reasonable and necessary. Allstate relied on the findings of the orthopaedic and occupational therapy insurer's examinations and the orthopaedic, neurological and physiological Med/Rehab DAC assessments which basically concurred that the recommended treatment was not appropriate for Mrs. Hezavian's soft tissue injuries and that she had already undergone more than sufficient physiotherapy treatment.
I accept the findings of the insurer's medical assessors and those of the Med/Rehab DAC assessment, as Mrs. Hezavian did not satisfactorily refute their conclusions. I therefore find that Mrs. Hezavian is not entitled to the $2,060 in medical benefits claimed under section 14 of the Schedule for the physiotherapy and massage treatment recommended in the December 28, 1999 treatment plan by Doctor's Rehab.
I note that two Med/Rehab DAC assessors, Dr. Lloyd and Dr. Yufe, while finding that the treatment in question was not warranted for Mrs. Hezavian's soft tissue injuries, recommended further diagnostic investigation of her cervical spine, left arm and wrist to assess the possibility of structural pathology. Once these investigations are conducted and the results available, a determination can be made as to whether further treatment is necessary if any new conditions are diagnosed, and if so, what type of treatment would be beneficial, assuming causation is not an issue.
Housekeeping Claim
Mrs. Hezavian claims, under section 22 of the Schedule, entitlement to the cost of housekeeping services at the rate of $450 per month from September 1, 1999 onwards.
Section 22 provides in its relevant part:
22.—(1) 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.
Mrs. Hezavian testified that initially after the accident she did not require housekeeping services. She stated that she eventually needed help but testified that she did not recall when she actually hired a person. In testimony, she was not specific as to the tasks for which she needed assistance, except to say she needed help with cleaning. Mrs. Hezavian indicated that a man came to her house for three months and helped her a great deal. She seemed unclear on the housekeeper's name, but offered the names "Mike" and "Sam", with no surnames or residential addresses. It appears from the evidence that Mrs. Hezavian paid for this service herself, somewhere in the vicinity of $1,000. But she did not specify the time period this amount covered, the tasks that were done (apart from washing a carpet) and she did not produce an invoice.
Mrs. Hezavian testified that, at some point, an adjuster from Allstate told her that she wanted to meet the housekeeper face-to-face in a coffee shop. Mrs. Hezavian stated that under protest the housekeeper agreed to meet the adjuster at the coffee shop, which Mrs. Hezavian thought would solve any questions Allstate might have had about her housekeeping services. According to Mrs. Hezavian, after meeting the housekeeper, Allstate still refused to pay for housekeeping expenses and has not paid up until the present.
I find for a number of reasons, that Mrs. Hezavian did not establish her entitlement to the cost of housekeeping services. She did not satisfactorily prove that she required housekeeping services for the period she claimed she paid for these services; nor did she establish her need for ongoing services. Mrs. Hezavian failed to provide sufficiently detailed evidence of the pre-accident household tasks that she alleges her injuries have substantially prevented her from performing. Mrs. Hezavian immediately returned to work at the daycare following the accident. As Ms. MacDonald (the occupational therapist with Fulcrum who conducted an in-home assessment) pointed out in her January 7, 2000 report, and I agree, the physical capacity to bend, stoop, lift and carry are common to both child care and general household tasks. I find that Mrs. Hezavian's return to a full-time job requiring these types of physical abilities does not prove, but strongly suggests that Mrs. Hezavian was not substantially unable to do her household tasks. I find Mrs. Hezavian would have had to bring persuasive evidence to rebut this suggestion, and I find she failed to do this. In absence of convincing evidence to the contrary, I accept Ms. MacDonald's conclusion that Mrs. Hezavian is capable of participating in all of her homemaking duties, with some modification to accommodate her left wrist condition and to assist with heavy lifting.
I further find that Mrs. Hezavian failed to satisfactorily prove the amount she claims she incurred for housekeeping services.
For these reasons, I conclude that Mrs. Hezavian is not entitled to the cost of housekeeping services under section 22 of the Schedule.
Cost of Examinations - Section 24
Mrs. Hezavian claims $1,500 under section 24 of the Schedule for the cost of the treatment plan and psychological assessment report prepared by Dr. Samuel, both dated October 25, 2000, as well as the cost of a functional abilities evaluation conducted by Metro on November 6, 2000. Section 24 provides in part:
24.—(1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insurer person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining certificate, report or treatment plan:
(a) fees charged by a person who conducts and examination or assessment or provides a certificate, report or treatment plan
(b) fees charged by a designated assessment centre; and transportation expenses incurred in transporting the insured person to and from an examination or assessment, including transportation expenses for an aid or attendant.
Functional Abilities Evaluation by Metro
I will first deal with Metro's functional abilities evaluation. As noted earlier in this decision, I am not deciding Mrs. Hezavian's entitlement to benefits for the treatment recommended in the Metro report. There is no dispute on this issue as this claim has not to date been submitted by Mrs. Hezavian and denied by Allstate. My decision is restricted to determining whether Allstate is required to cover the cost of the Metro assessment itself.
Allstate contends that the Metro assessment is not reasonable and as such it is not obligated to cover this expense. Regarding a referral for this assessment, on cross-examination, Mrs. Hezavian conceded that neither Dr. Virani (a review Dr. Virani's clinical notes confirms this) nor any other health care practitioner referred her to Metro, but she stated she could not recall who did. The report does not indicate the referral source.
Ms. Victoria Roberts, the certified kinesiologist who assessed Ms. Hezavian on behalf of Metro, indicated that in preparing her report, she reviewed the April 10, 2000 Work Able Med/Rehab DAC assessment, the two Fulcrum occupational therapy assessments dated November 24, 1999 and January 27, 20004 and Dr. Reznek's psychiatric assessment dated December 20, 1999.
By way of background, Metro's report indicates that neither a job description nor a work site assessment was available for the assessment. Mrs. Hezavian reported to Ms. Roberts that she worked full time as a childcare worker. The conclusions arrived at in the Metro assessment relied principally on Mrs. Hezavian's self-report of her work and home duties, her medical history and current complaints, her subjective reactions to the testing and on the kinesiologist's observations of Mrs. Hezavian's physical performance on the tests.
Ms. Roberts indicates in the report that Mrs. Hezavian denied involvement in any previous car accidents. Mrs. Hezavian complained of a poor mood and impatience at work and being less active in lifting and carrying children. She reported left wrist and elbow, cervical and upper back pain. Metro conducted tests on standing, sitting, walking, twisting/turning/pivoting, crawling, carrying and lifting and concluded that Mrs. Hezavian does not meet the requirements of her occupation or her activities of daily living. The report recommended conditioning exercises, an exercise program and a follow-up functional capacity evaluation in four to six weeks.
After reviewing the evidence and submissions, I conclude that Mrs. Hezavian is not entitled to the cost of the Metro assessment.
In looking at the reasonableness of an assessment for the purposes of section 24, the arbitrator in the Tesfai and Allstate5 decision considered three factors, which I agree provide a useful guide in deciding this issue, namely: whether the assessment was "for the purpose of this Regulation" or within the purview of section 24; whether it was reasonable to have conducted the assessment and; whether the fees charged are reasonable.
There is no evidence that a medical practitioner referred Mrs. Hezavian for the Metro assessment. However, I agree with the arbitrator in Tesfai, who found - under circumstances where the referring doctor did not provide reasons for the referral - that the purpose for the assessment can be found in the report itself. The Metro report states in its introduction that its purpose is to produce a document to be used to determine entitlement to benefits under the Act. However effectively or ineffectively Metro might have been in accomplishing its objectives, Ms. Roberts conducted an interview of Mrs. Hezavian and administered tests purportedly directed at assessing her occupational abilities and capacity to undertake her activities of daily living. I therefore conclude, as required by section 24, that the report was prepared for the purpose of the Regulation.
However, I conclude under the circumstances, that it was not reasonable to have conducted this assessment. I find the fact that a health care practitioner did not refer Mrs. Hezavian for the Metro assessment is not determinative of its reasonableness, but this is an important factor to be considered when deciding this issue. According to Dr. Virani's clinical notes and records, Mrs. Hezavian had not visited him (although he had been treating her for over six years) to complain about her injuries for many months before and after the November 6, 2000 assessment by Metro. As well, Mrs. Hezavian presented no other medical documentation of her need for this assessment. I therefore find that Mrs. Hezavian failed to establish a medical basis for Metro's assessment. I have no evidence, aside from Mrs. Hezavian's testimony, that she required an assessment of her capacity to perform her employment tasks and her activities of daily living. I did not find Mrs. Hezavian’s evidence on this issue very persuasive.
I find further support for my conclusions in the fact that she returned to work immediately following the accident and was continuing to work on a full-time basis at the time of Metro's assessment, which I find strongly suggests that an assessment of her daily activities and abilities at work was not reasonably required.
A further assessment might be more reasonable if the results of the diagnostic testing on Mrs. Hezavian's cervical spine and left wrist, as recommended by Drs. Zarnett and Lloyd, require such an assessment.
Since I find that the Metro assessment was not reasonably required, I will not comment on the reasonableness of the associated fee.
I therefore conclude that Mrs. Hezavian is not entitled to the $1,500 she claims for the cost of Metro Assessment & Rehabilitation Centre assessment dated November 6, 2000.
Dr. Samuel's Treatment Plan and Psychological Assessment
Mrs. Hezavian claims the amount of $795 for Dr. Samuel's treatment plan and assessment report, both dated October 25, 2000.
As with the Metro assessment, Mrs. Hezavian was not referred for an assessment with Dr. Samuel by her family doctor or any other health care practitioner. In fact, she had not seen Dr. Virani for months before and after Dr. Samuel's assessment. Nonetheless, I find the assessment report and recommended treatment reflect that they were prepared for the purpose of the Schedule. However successfully or unsuccessfully, the report discusses the psychological and emotional effect the accident had on Mrs. Hezavian and recommends a course treatment.
I find however that Dr. Samuel's assessment and treatment plan are not reasonable. Just months before Dr. Samuel's assessment, Mrs. Hezavian had completed a course of treatment recommended by Dr. Daei and the Med/Rehab DAC psychologist. Above, I found that the treatment recommended by Dr. Samuel seemed to duplicate her previous treatment. In testimony, Mrs. Hezavian did not indicate dissatisfaction with Dr. Daei and in fact she testified that she found his treatment helpful. With no referral from Dr. Virani and no evidence that Dr. Daei thought Mrs. Hezavian needed further treatment, I conclude that Dr. Samuel's treatment plan should not reasonably have been prepared and his assessment conducted.
Given this conclusion, I will not comment on the reasonableness of the associated fees.
For these reasons I conclude that Mrs. Hezavian is not entitled under section 24 of the Schedule to the $795 cost of Dr. Samuel's October 25 assessment and treatment plan.
EXPENSES:
As an arbitrator I have the discretionary authority under subsection 282(11) of the Insurance Act to award an insured person or an insurer such arbitration expenses as are prescribed in the Regulations. Mrs. Hezavian requests that Allstate pay her arbitration expenses. Allstate, however, does not seek its expenses from the Applicant but argues that it should not be ordered to pay Mrs. Hezavian’s expenses.
Mr. Baradaran did not develop an argument on behalf of Mrs. Hezavian for her request for her expenses.
In his submissions, Mr. McCarthy commented on Mr. Baradaran’s behaviour at the hearing which he asserted interfered with the proper conduct of the proceeding. He particularly criticised Mr. Baradaran’s improper lines of questioning and inappropriate objections. Mr. McCarthy argued that he is aware of the arbitration cases that have held that the Insurance Act and Regulations, and the Dispute Resolution Practice Code6 (the "Code") do not authorize arbitrators to award arbitration expenses against non-parties such as lawyers and non-lawyer representatives and agents. He submitted that were arbitrators permitted to award expenses against an applicant's agent, he would seek Allstate’s expenses from Mr. Baradaran personally. Under the circumstances, Mr. McCarthy submitted that Allstate did not wish that Mrs. Hezavian be penalized in this way for the conduct of her agent and asked that she be relieved of an expense award. However, Mr. McCarthy argued that because of Mr. Baradaran’s conduct, Allstate should not be required to pay Ms. Hezavian’s expenses which would include Mr. Baradaran’s agency fees.
I arrive at my decision on expenses for the following reasons:
Rule 75 of the Code sets out the criteria an arbitrator may consider when determining whether an award of expenses to a party is justified. Among these factors are: each party’s success in the outcome of the proceeding; the conduct of the insurer or the insured person that tended to shorten or prolong the proceeding; whether the proceeding or a position taken by the insurer or insured person during the proceeding was manifestly unfounded, frivolous, vexatious or an abuse of process; and any other matter related to the proceeding that the arbitrator considers relevant to whether an award of expenses is justified.
As I noted earlier in this decision, I found Mr. Baradaran’s conduct in the hearing problematic. His uncooperativeness, lack of preparedness and inappropriate interventions tended to lengthen the proceeding, as Allstate was required to respond, and I, to make rulings on these occasions. I also considered that in the result, Ms. Hezavian was unsuccessful on all of her claims. I accept therefore that Allstate should not be required to pay Mrs. Hezavian’s expenses.
Mrs. Hezavian is therefore left with the responsibility of covering whatever arbitration expenses she has incurred, including Mr. Baradaran’s fee. On one level, it is unfortunate that Mrs. Hezavian will likely be expected by Mr. Baradaran to pay for his less than adequate services. On another level, since arbitrators are only empowered to award expenses against parties, in their own interest, parties should take seriously their responsibility to retain a representative who will provide proper representation and conduct himself or herself appropriately in an arbitration hearing. I find that Mrs. Hezavian presented as an intelligent and outspoken person who might have exercised more caution in selecting a representative. In making my decision, I am mindful that Mrs. Hezavian does not have entirely clean hands in this matter as she misrepresented her medical history to medical assessors and to this tribunal.
I accept Allstate’s request that I not award its expenses against Mrs. Hezavian.
Mrs. Hezavian and Allstate shall pay their own respective arbitration expenses pursuant to subsection 282(11) of the Insurance Act.
February 8, 2002
Beth Allen Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 32
FSCO A01-000164
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARYAM HEZAVIAN and MONA JAHANGIRVAND (Minor)
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mrs. Hezavian’s claims for psychological treatment and physiotherapy and massage treatment are dismissed.
Mrs. Hezavian’s claim for housekeeping expenses is dismissed.
Mrs. Hezavian's claims for the cost associated with an assessment and treatment plan by Dr. Rex Samuel and a functional capacity evaluation by Metro Rehabilitation & Assessment Centre are dismissed.
Mrs. Hezavian and Allstate shall pay their own respective arbitration expenses.
February 8, 2002
Beth Allen 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.
- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, section 23.
- Previously, as a settlement gesture at the pre-hearing discussion, Allstate agreed to fund $1,050 of the $3,600, leaving a balance of $2,550 which represents the amount of Mrs. Hezavian's claim for psychological treatment. However, at the hearing, Allstate maintained its position that treatment by Dr. Samuel is unreasonable and unnecessary.
- I have two reports from Fulcrum, one dated November 24, 1999 and the other January 7, 2000. I do not have, and am not aware, of a report from Fulcrum dated January 27, 2000. I assume that the reference to "January 27" is a typographical error meant to refer to "January 7".
- Tesfai and Allstate Insurance Company of Canada (FSCO A99-000321, July 26, 2000), affirmed on appeal by decision (FSCO P00-00048, December 21, 2001).
- Fourth Edition (May 31, 2001).
