Neutral Citation: 2002 ONFSCDRS 79

FSCO A01-000514

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SHARIFA SHIRZAD, KHALID SHIRZAD, ALI AKBARI and ANGELA AKBARI

Applicants

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

February 25, 26, 27 and 28, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Manoucher Baradaran, agent, for Khalid Shirzad, Sharifa Shirzad, Angela Akbari and Ali Akbari

Mark Sones, Barrister and Solicitor, for RBC General Insurance Company

Interpretation at the hearing:

The Applicants's first language is not English. A party is entitled to the assistance of an interpreter when he or she does not understand or speak the language in which the proceeding is conducted. The Applicants were born in Afghanistan. Mr. Baradaran submitted that the main languages of Afghanistan are Pashto and Farsi, which are similar, and that his clients' first language was Pashto. He requested a Pashto interpreter for each of them. At the outset of the hearing, I questioned the Applicants to determine whether they could understand and speak English and how each could most fairly participate in this proceeding.

Mr. Ali Akbari said that Farsi was his first language. He arrived in Canada with his wife, Angela Akbari, on January 23, 2000. They did not speak English when they arrived and both have studied English as a second language ("ESL"). From my discussion with Mr. Akbari, I was satisfied that he could best participate in the hearing without interpretation. However, when he started to testify, it appeared that he was translating in his own mind the questions and his answers. I directed that he use the Farsi interpreter when he felt more comfortable, and he used the interpreter for the remainder of his testimony.

Mrs. Akbari said that Farsi was her first language. From my discussion with her I was satisfied that she could best participate in the hearing without interpretation.

Khalid Shirzad and his mother, Sharifa Shirzad, arrived in Canada in 1998. Khalid Shirzad said that his first language was Farsi. From my discussion with him, I was satisfied that he could best participate in the hearing without interpretation.

I could not communicate clearly with Sharifa Shirzad in English and I determined that she could best participate in the hearing with a Farsi interpreter.

I note that these determinations relate only to the abilities of the Applicants to communicate in English at the time of this hearing. The Akbaris arrived in Canada four months before the motor vehicle accident and their ability to communicate in English has improved since then. The issue of each Applicant's ability to communicate arises again in connection with their dealings with the police, health care providers and the Insurer.

Issues:

The Applicants, Sharifa Shirzad, Khalid Shirzad, Ali Akbari and Angela Akbari claimed they were inj ured in a motor vehicle accident on May 28, 2000. They applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ RBC refused to pay certain benefits. The parties were unable to resolve their disputes through mediation, and they applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitrator who conducted the pre-hearing in this matter generally described the issues as entitlement to benefits for physiotherapy and psychological counselling for each of the Applicants and housekeeping and caregiver benefits for Mrs. Akbari. At the outset of the hearing, I questioned Mr. Baradaran and Mr. Sones in an attempt to narrow these issues and obtain particulars, such as amounts and dates, for these claims. I thought I had done so, however, as the hearing progressed I found that the evidence did not relate to the issues as framed.

For example, Khalid Shirzad claimed $1,597.69 for physiotherapy expenses incurred at Doctors' Rehabilitation Clinic ("Doctors' Rehab"). The uncontradicted evidence was that the Insurer agreed to fund the first treatment plan proposed by Doctors' Rehab. Doctors' Rehab submitted an invoice for $2,735 and the Insurer paid $2,415 and gave written reasons for not paying the balance of $320. I heard no evidence or argument whether the Insurer should pay the balance of $320. The Insurer denied Mr. Shirzad's request that it fund the second treatment plan and a Designated Assessment Centre ( "DAC") agreed with that denial. The Insurer's records disclose that Doctors' Rehab billed a total of $4,965. The outstanding amount is therefore $2,550, not $1,597.60. The Insurer also argued that Mr. Shirzad's group insurer at work should have paid this amount. I heard no argument or evidence to support Mr. Baradaran's submission that $1,597.60 was outstanding. As with many of the claims, the amount claimed did not relate to the evidence.

The Insurer paid for most, but not all, of the physiotherapy treatment recommended in the first treatment plan submitted by each Applicant. I heard no evidence or argument that the Insurer should pay for the balance of the treatment rendered pursuant to those plans. I therefore concluded that the balance of the treatment which was rendered but not paid for under the first treatment plans was not in issue.

Each Applicant claimed 20 sessions of psychological treatment as recommended in four treatment plans prepared by Dr. Rex Samuel. The Insurer submitted that it had agreed to fund 15 sessions of psychological counselling for each Applicant and, initially, it appeared that the issue was entitlement to the remaining five treatments. However, the evidence disclosed that each treatment plan was considered by a DAC. With respect to Khalid Shirzad, the DAC recommended 10 treatments. With respect to Sharifa Shirzad, the DAC agreed with Dr. Samuel’s proposal of 20 treatments. With respect to Ali Akbari, the DAC agreed with the Insurer's position that 15 treatments were reasonable. It also recommended a "Driving Desensitization protocol." With respect to Angela Akbari, the DAC agreed with Dr. Samuel's proposal that 20 treatments were reasonable and recommended an additional 15 treatments for marriage counselling. In his closing argument, Mr. Baradaran made brief submissions and left the hearing for another appointment in Mississauga. He did not hear Mr. Sones' submission that psychological treatment was not reasonable or necessary for any of the Applicants. Although Mr. Baradaran had left the hearing, I did not see any point in writing to him to ask him to respond to Mr. Sones' submissions since he had not demonstrated any ability to assist me with defining the issues. Since the DACs did not find that each Applicant should have 15 sessions of treatment, I accept Mr. Sones' submission that the issue was not an additional five treatments and that all psychological treatment proposed by Dr. Samuel was in issue.

Paragraph 43(6)(b) of the Schedule provides that the DAC report shall include:

recommendations on the future provision of goods and services to the insured person for his or her treatment or recommendation.

The DACs made certain recommendations. For Angela Akbari it recommended a six-month community gym membership and 15 sessions of marriage counselling. For Ali Akbari it recommended a "Driving Desensitization protocol."

Normally, an arbitrator does not deal with whether an Insurer is obliged to pay for treatment which a DAC has stated was reasonable and necessary pursuant to paragraph 43(6)(a) of the Schedule or has recommended pursuant to paragraph 43(6)(b). However, the question arises here because Mr. Baradaran did not advise his clients to undergo the treatment the DACs approved, or the additional treatment the DACs recommended.

The need for the gym membership and the additional psychological treatment which the DAC recommended for Mrs. Akbari were not identified as issues. I therefore do not deal with them except as they relate to the other issues.

Sharifa Shirzad and Angela Akbari both submitted claims to the Insurer for housekeeping expenses at $10 per hour for 40 hours per week. The Insurer paid each housekeeping expenses at $6.85 per hour. It paid Mrs. Shirzad for 10 hours per week and Mrs. Akbari for 40 hours per week. I heard no evidence or argument as to what was a reasonable hourly rate. Nor did I hear any evidence or argument that the amount of housekeeping the Insurer paid for was deficient. At the outset of the hearing I framed the issue as entitlement to housekeeping expenses after the date of termination and in what amount.

Despite my efforts at the commencement of the hearing, I was unable to obtain particulars of the issues from the parties. I had only a general idea of what the claims were. I frame the issues as follows:

Were Sharifa Shirzad, Ali Akbari and Angela Akbari involved in a motor vehicle accident in a vehicle driven by Khalid Shirzad on May 28, 2000?
Is Khalid Shirzad entitled, pursuant to section 14 of the Schedule, to any expenses incurred for treatment rendered at Doctor's Rehabilitation Clinic which were proposed in a treatment plan dated July 19, 2000?
Is Khalid Shirzad entitled, pursuant to section 14 of the Schedule, to any psychological treatment proposed in a treatment plan of Dr. Rex Samuel dated October 26, 2000?
Is Sharifa Shirzad entitled, pursuant to section 14 of the Schedule, to any expenses incurred for treatment rendered at Doctor's Rehabilitation Clinic which were proposed in a treatment plan dated July 26, 2000?
Is Sharifa Shirzad entitled, pursuant to section 14 of the Schedule, to any psychological treatment proposed in a treatment plan of Dr. Rex Samuel dated November 25, 2000?
Is Sharifa Shirzad entitled, pursuant to section 22 of the Schedule, to any housekeeping expenses after November 30, 2000, and if so, in what amount?
Is Ali Akbari entitled, pursuant to section 14 of the Schedule, to any psychological treatment proposed in a treatment plan of Dr. Rex Samuel dated October 27, 2000?
Is Angela Akbari entitled, pursuant to section 14 of the Schedule, to any expenses incurred for treatment rendered at Doctor's Rehabilitation Clinic, which were proposed in a treatment plan dated August 22, 2000?
Is Angela Akbari entitled, pursuant to section 22 of the Schedule, to housekeeping expenses after November 7, 2000, and if so, in what amount?
Is Angela Akbari entitled, pursuant to section 13 of the Schedule, to caregiver benefits after June 30, 2001?
Is either party entitled to expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?

Result:

Sharifa Shirzad, Ali Akbari and Angela Akbari were involved in a motor vehicle accident in a vehicle driven by Khalid Shirzad on May 28, 2000.
Khalid Shirzad is not entitled to any expenses incurred for treatment rendered at Doctor's Rehabilitation Clinic pursuant to a treatment plan dated July 19, 2000.
Khalid Shirzad is not entitled to any psychological treatment proposed in a treatment plan of Dr. Rex Samuel dated October 26, 2000.
Sharifa Shirzad is not entitled to any expenses incurred for treatment rendered at Doctor's Rehabilitation Clinic pursuant to a treatment plan dated July 26, 2000.
Sharifa Shirzad is not entitled to any psychological treatment proposed in a treatment plan of Dr. Rex Samuel dated November 25, 2000
Sharifa Shirzad is not entitled to any housekeeping expenses after November 30, 2000.
Ali Akbari is not entitled to any expenses for psychological treatment proposed in a treatment plan of Dr. Rex Samuel dated October 27, 2000.
Angela Akbari is not entitled to any expenses incurred for treatment rendered at Doctor's Rehabilitation Clinic which were proposed in a treatment plan dated August 22, 2000.
Angela Akbari is not entitled to housekeeping expenses after November 7, 2000.
Angela Akbari is not entitled to caregiver benefits after June 30, 2001.
RBC is entitled to recover $500 from each Applicant as expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS:

Background:

Khalid Shirzad left Afghanistan in about 1994. He worked four years in Pakistan in an automobile garage and then immigrated to Canada in July 1998 with his mother. He now works as a machine operator in a plant which fabricates steel garden sheds. He hopes to obtain an auto mechanic's licence. He is 33 years old and currently lives with his sister, brother and parents in a three-bedroom apartment in Mississauga.

Khalid's mother, Sharifa Shirzad is 56 years old. She has no formal education and has not worked outside of the home.

Ali Akbari and his wife Angela were born in Afghanistan. Ali graduated from Kabul University and worked as a bank manager. Angela taught school. The couple fled Afghanistan in 1999 with their two young children. They stayed in Pakistan about six months and then moved to Canada as refugee claimants. They lived in a family shelter in Toronto for three months and then were moved to Hamilton in April 2000 because accommodation was less expensive. They have studied English as a Second Language since their arrival in Canada.

The Shirzads and the Akbaris came to know each other a month before the accident through a mutual friend from Afghanistan, Mohsima Frevor.

Motor vehicle accident:

The motor vehicle accident occurred on May 28, 2000. Khalid was travelling through an intersection when an oncoming vehicle turned left in front of his vehicle and the vehicles collided. Khalid's 1991 Toyota struck a third vehicle and then a low wall. The Toyota was a write-off. The police report indicated that Khalid was the driver and Mohsima Frevor was the only passenger. The investigating police officer testified that Khalid stepped forward at the scene of the accident and identified himself as the driver. The officer testified that was sitting in the front passenger seat and that an ambulance took her to hospital with a possible broken leg. He testified that Khalid told him that the only other occupant of the vehicle was Mohsima. On the basis of this evidence, the Insurer took the position that the other three Applicants were not involved in the collision.

The four Applicants testified that the accident occurred as they returned from shopping at an Afghani store. Khalid testified that the investigating officer spoke to Ali and Angela. The other evidence from Khalid, Mrs. Shirzad, Ali and Angela and from the doctors who reported their understanding of the accident was that Khalid was in the driver's seat and Ali was in the front passenger seat and the three women, Mrs. Shirzad, Mohsima and Angela were in the back seat. The evidence is not clear in what order the three women sat in the back seat. Angela testified that she did not talk to the police because she could not speak English at the time and she was afraid to deal with the authorities because she did not have her immigration papers with her. She went to the hospital with Mohsima. Ali testified that he stood to the side with Mrs. Shirzad while Khalid talked to the police.

I do not accept Khalid's testimony that the police talked to Ali and Angela. Khalid said that Mohsima was unconscious where the other witnesses said that she was crying because of her pain. I find that Khalid said what he thought would help his case regardless of whether it was true. Although there are a number of minor discrepancies in the evidence concerning the positions of the three vehicles just prior to the impacts and the position of the three women in the back seat, I am satisfied they are due to poor recollection, confusion at the time of the accident and communication difficulties with the various examiners who interviewed the parties. I accept Angela's explanation and find that Ali, Mrs. Shirzad and herself did not step forward because of their language difficulties and fear of authorities, particularly when they did not have their immigration papers. I infer that Khalid did not identify the other three occupants since they were not seriously injured.

I therefore find that Angela, Ali and Mrs. Shirzad were involved in the motor vehicle accident.

Khalid Shirzad and Doctor's Rehabilitation Clinic:

Khalid Shirzad's work involved standing all day at a metal cutting machine. He missed about three days from work because of neck, shoulder and back pain he suffered as a result of the accident. He said that he was on light duties for a month. He did not describe what those duties were. Dr. Ali Nourali, a chiropractor at Doctor's Rehab completed a treatment plan on June 16, 2000 for Mr. Shirzad, in which he recommended eight weeks of passive and active therapy and six weeks of massage at an estimated cost of $3,135. The assessors at a DAC described the treatment as stretching, treadmill-walking, stationary bicycling, chiropractic spinal manipulation and massage. The Insurer approved the plan and paid $2,415 of the first bill of $2,735. It refused to pay for a report and reduced the amount claimed for an examination. I heard no evidence or argument concerning this reduction. Dr. Nourali submitted a second treatment plan in July 2000 in which he proposed a further three weeks of therapy and four weeks of massage at a total proposed cost of $2,505.

Although the Insurer refused to fund the plan, Mr. Shirzad continued to undergo treatment. He elected an assessment at a DAC and the assessors found that the initial six weeks of treatment was sufficient.

In a statement taken by the Insurer one month after the accident, Mr. Shirzad wrote that the therapy helped a little. At this hearing he testified that the therapy was not effective. I heard no other evidence from Mr. Shirzad as to the benefits of the additional therapy he underwent at Doctor's Rehab.

It is not clear what pain or limitation of function Mr. Shirzad suffered from as a result of the accident. As well, I find that the initial therapy did not help him. Accordingly, I find that the additional therapy was not reasonable or necessary.

Lastly, Mr. Shirzad had group insurance coverage through his employer. He is entitled to $1,000 for physiotherapy and $300 for other paramedicals for each benefit period. If RBC was required to pay for any further treatment, it would be entitled to a deduction for these amounts pursuant to subsection 60(2) of the Schedule.

Sharifa Shirzad and Doctor’s Rehabilitation Clinic:

Mrs. Shirzad suffered soft tissue injury to her neck, left shoulder and left shin as a result of the accident. The Insurer approved the first treatment plan of Doctor’s Rehab for seven weeks of therapy and massage. Mrs. Shirzad described the treatment as walking on a treadmill and massage. She said it helped her. The Insurer paid $2,530 of the first account for $2,850. It explained why it did not pay the balance of $320 in its Explanation of Benefits Payable form. I heard no reliable evidence or argument to contradict the denial.

Doctor’s Rehab submitted a second treatment plan dated July 26, 2000 in which it proposed another 10 weeks of treatment at an estimated cost of $2,580. Despite the Insurer’s refusal to pay, Mrs. Shirzad continued to attend Doctor’s Rehab. An assessment was carried out at a DAC which concluded that given the limited response to treatment, prolonged treatment was not useful. I agree. I heard no persuasive evidence that Mrs. Shirzad received any benefit from the prolonged treatment.

Sharifa Shirzad and housekeeping expenses:

Mrs. Shirzad claimed housekeeping expenses at $10 per hour for 40 hours per week. The Insurer paid $6.85 per hour for 10 hours per week until November 30, 2000. At the time, Mrs. Shirzad lived in a two-bedroom apartment with her husband and her son, Yama, who is 22, daughter Anahita, who is 27, and Khalid, who is 33. Mrs. Shirzad described her housekeeping chores as preparing food, vacuuming and cleaning. She said that before the motor vehicle accident, she did most of the housekeeping and her daughter did a little. Since the motor vehicle accident her daughter has done more. She admitted that her sons and husband also helped out before the accident. She could not remember how many hours she spent doing housekeeping before the accident or how many meals she prepared a week. She claimed that she cannot do any housekeeping today.

I would have expected Khalid to have said something about his mother's disability and the amount of housekeeping other family members undertook if Mrs. Shirzad was disabled from housekeeping as she claimed. However, Khalid was not asked and did not say anything about his mother's alleged disability. I find that Mrs. Shirzad exaggerated her disability and I do not accept that she cannot do any housekeeping. I heard no evidence to justify housekeeping expenses beyond those paid by the Insurer.

Angela Akbari and Doctor's Rehabilitation Clinic:

Angela Akbari testified that she had shoulder and arm injuries and an aggravation of back problems as a result of the accident. Her family doctor's disability certificate refers to soft tissue injury to her neck, back and knees, without mentioning the shoulder. The physiotherapist at Doctor's Rehab reported complaints of pain in the neck, back and knee, and again omits mention of the shoulder.

The Insurer accepted the first treatment plan in which Dr. Nourali predicted that Mrs. Akbari would return to her normal activities after 10 weeks of active and passive therapy and nine weeks of massage at an estimated cost of $3,020. At the conclusion of that treatment, Doctor’s Rehab proposed a further five weeks of therapy and ten weeks of massage. The Insurer refused to pay and invited Mrs. Akbari to apply for an assessment at a DAC. The DAC found no significant musculoskeletal or neurological impairment and concluded that Mrs. Akbari did not need more treatment other than exercise, which she could do at a gym.

Mrs. Akbari said that she had to stop her ESL courses in order to attend treatment. She described her treatment at Doctor's Rehab as exercises, ultrasound and 25 minutes of "something" on her back. She said that with treatment she felt better every day and that everything is fine today, except for her back.

I heard no persuasive evidence of what Doctor's Rehab did that helped Mrs. Akbari or how it helped her and find that the treatment provided after the first treatment plan was not reasonable or necessary.

Angela Akbari and housekeeping expenses:

Mrs. Akbari claimed housekeeping expenses pursuant to section 22 of the Schedule at $10 per hour for 40 hours per week. The Insurer paid Mrs. Akbari housekeeping expenses at the minimum wage of $6.85 per hour for 40 hours per week until November 7, 2000. I heard no evidence or argument on a reasonable hourly rate. When asked in cross examination whether she was claiming housekeeping beyond the date of termination she said no. She said she that she did not have time for further treatment, that she did not have time to spend with her child or to study. She said she did not want anymore from the insurance company and she thanked the Insurer for what it had done.

I heard no evidence that Mrs. Akbari was unable to perform the housekeeping services she normally performed after November 7, 2000. She is not entitled to housekeeping expenses beyond those paid by the Insurer.

Mrs. Akbari and weekly caregiver benefits:

The Insurer paid Mrs. Akbari $300 per week pursuant to section 13 of the Schedule for the care of her two children until June 30, 2001. Mr. Akbari admitted that the month prior to the termination of caregiver benefits his wife applied for employment in a day care centre caring for young children. He reported at his own DAC in March 21, 2001 that Mrs. Akbari worked as a volunteer assistant teacher at that time. Mrs. Akbari testified that she did not want any further caregiver benefits and that she can take care of her children. She thanked the Insurer for what it had paid.

It is not clear what caregiving activities Mrs. Akbari performed or was capable of performing before the Insurer terminated caregiver benefits in June 2001. In any event, I heard no evidence that Mrs. Akbari was unable to care for her children after June 30, 2001. She is not entitled to caregiver benefits beyond June 30, 2001.

Psychological treatment plans of Dr. Rex Samuel:

Dr. Samuel assessed Khalid Shirzad and Sharifa Shirzad on October 25, 2000. He assessed Angela and Ali Akbari on October 27, 2000. His reports for each patient are dated the day after each assessment.

I deal with the assessments Dr. Samuel performed for the four Applicants together because the assessments are similar and raise similar issues.

In each case, Dr. Samuel proposed 20 sessions of psychological treatment and the Insurer agreed to pay for 15 sessions. Although Dr. Samuel did not invoice the Insurer for any treatment, I heard conflicting evidence as to whether any of the Applicants received any treatment from Dr. Samuel. In each case, the Applicant requested an assessment at a DAC. Each assessment was carried out by a different DAC psychologist who recommended various amounts of treatment for each Applicant.

It is not clear who referred the Applicants to Dr. Samuel. Khalid Shirzad testified that he found Dr. Samuel in the newspaper. Angela Akbari testified that a friend from Afghanistan referred her to Dr. Samuel. The DAC psychologist who assessed Mrs. Akbari reported that she said her lawyer referred her to Dr. Samuel. Dr. Samuel mailed his reports to Mr. Baradaran and to Dr. Afsana Afsar, who was the family doctor for each patient.

Dr. Samuel's reports are very similar in their findings, lack of background information, diagnoses and proposed treatment. In each case, Dr. Samuel reported that the patient "developed symptoms of clinical depression, insomnia and anxiety for travelling in an automobile" following the accident. In each case, Dr. Samuel reported that the vehicle "was so badly damaged and its repair cost was so exorbitant that it was declared as a total loss and was written off." In each case, Dr. Samuel mistakenly recorded that "Police or ambulance did not arrive at the scene of the accident." In each case, Dr. Samuel reported "This patient experienced an onset of severe pain in her [or his] neck and back. Her [or his] muscles were pulled tight, she [or he] added."

Dr. Samuel reported very little background information on each Applicant. He mistakenly thought that the Akbaris fled Afghanistan in 1991. He did not identify any significant stressors in his patients' lives while they lived in Afghanistan.

Dr. Lawson, the psychologist who performed the medical assessment at the DAC for Mr. Akbari, noted that life for Mr. Akbari and his wife became intolerable when the Taliban took power in Afghanistan after the exodus of the Russians. Mrs. Akbari was imprisoned for one night for teaching children in her home. Although he was not personally threatened, Mr. Akbari knew many friends, relatives and classmates who were killed in the political struggle. His father was taken away by the Taliban in 1998 and likely executed.

Dr. Samuel made the same diagnosis for each patient: "1. Adjustment Disorder with mild depression and anxiety and 2. Somatoform Disorder: Pain Disorder with Psychological Disorder." Dr. Samuel proposed the same treatment plan for each patient.

For each patient, Dr. Samuel described that "Administration of psychological tests and our communications were conducted in simple basic English language." In the case of Mrs. Shirzad he added that her son, Khalid, helped with communication. In the case of Mr. Akbari, he added that his wife, Angela, assisted with communication. Although in each case Dr. Samuel recorded that he belonged to the "linguistic and cultural background of Pakistan and India, which is fairly close to this patient’s background," he did not say that he spoke Farsi. Angela Akbari had studied ESL for 10 months at the time of her meeting with Dr. Samuel. She testified Dr. Samuel did not have an interpreter and that she "could not speak properly." She said that he did not speak the same language. She said that she could understand Dr. Samuel’s Urdu, but that she could not reply in Urdu. When she could not understand Dr. Samuel’s English, he spoke in Urdu and she replied in English. Mr. Akbari testified that his Pashto was not that good and he tried to communicate with Dr. Samuel "in any way possible" using a combination of Farsi and Urdu. Dr. Peter Marton is a psychologist who examined Mr. Akbari at the request of the Insurer. He reported in December 2000 that Dr. Samuel communicated with Mr. Akbari in Farsi. Dr. Lawson reported in March 2001 that Dr. Samuel communicated with Mr. Akbari in Pashto.

The only reasonable conclusion I draw from this contradictory evidence is that Dr. Samuel does not speak Farsi. I also conclude that Dr. Marton, Dr. Lawson and the other DAC assessors did not make extensive inquiries as to the ability of Dr. Samuel to communicate with the Applicants because they were not faced with the contradictory evidence I am faced with. I find that at the time of the assessments Dr. Samuel could not communicate clearly with Mrs. Shirzad, Angela Akbari or Ali Akbari.

For each patient, Dr. Samuel proposed 20 one-hour treatment sessions by a "Pashto or Farsi speaking clinical psychologist, who is familiar with the patient's cultural background."

The Insurer agreed to pay for 15 of the 20 treatments proposed by Dr. Samuel for each Applicant. Although the Insurer sent letters to the Applicants, none of them knew that the Insurer had approved treatment. Khalid Shirzad said he relied on Mr. Baradaran to explain things to him. Mrs. Shirzad does not read English and at that time, the Akbaris' ability to read English was limited. Mrs. Akbari testified that she has a basement full of reports and correspondence and she tried to work through them with a dictionary. Mr. Baradaran did not tell any of his clients that the Insurer had approved 15 psychological treatments.

Each Applicant elected an assessment at a DAC and assessments were performed by four different psychologists. In the case of Khalid Shirzad, the assessor recommended up to 10 treatments. In the case of Mrs. Shirzad, the assessor found Dr. Samuel's treatment plan reasonable. In the case of Angela Akbari, the assessor found Dr. Samuel's treatment plan reasonable. In the case of Ali Akbari, the assessor found that 15 treatments were reasonable. Although copies of the DAC reports were mailed to each Applicant, only Mrs. Akbari understood that the DAC had approved psychological treatment. At the conclusion of the hearing, the Insurer withdrew its offer to fund 15 treatments for each Applicant and argued that no amount of psychological treatment was reasonable or necessary.

I heard contradictory evidence as to whether Dr. Samuel treated any of these patients.

Angela Akbari testified that Dr. Samuel helped her overcome her fear of driving. She told the Insurer's psychological assessor that she attended psychotherapy once a month and she told the DAC assessor that she found the treatment with Dr. Samuel quite helpful. Ali Akbari testified that Dr. Samuel did not treat him, however, when Mr. Sones pointed out to him that the DAC assessor reported that Mr. Akbari saw Dr. Samuel bi-weekly for a few months, Mr. Akbari admitted that Dr. Samuel treated him two or three times. The Insurer’s psychologist, Dr. C. Lawson, also reported that Mr. Akbari received psychological treatment twice per month. Dr. Lawson contacted Dr. Samuel to determine the number of sessions he had conducted with Mr. Akbari. He noted: "Unfortunately, Dr. Samuel's response did not clarify this matter." The Insurer was also concerned with whether Dr. Samuel treated any of the Applicants and in response to a telephone inquiry, Dr. Samuel wrote the Insurer on January 7, 2002 confirming that he had not treated any of the Applicants in his office.

I find that Dr. Samuel could not clearly communicate with Mrs. Shirzad, Ali Akbari and Angela Akbari. Although Dr. Samuel could communicate with Khalid Shirzad, he thought he worked as a garage mechanic and concluded that he was psychologically disabled from this work even though I find that Mr. Shirzad worked as a machine operator and returned to that work after three days. I find that the four assessments Dr. Samuel performed are very similar and do not demonstrate an individualized inquiry into the Applicants' background or need for treatment. None of the assessments demonstrate any understanding of the difficulties the Applicants faced in Afghanistan. I do not accept Dr. Samuel's opinions that any of these four Applicants required psychological treatment as a result of the motor vehicle accident as reliable.

Although I do not find the opinions of Dr. Samuel reliable, the question remains whether any of the other evidence demonstrate that any of the Applicants are entitled to a medical benefit under section 14 of the Schedule for reasonable and necessary psychological services.

Khalid Shirzad and psychological treatment:

Dr. P. DeFeduis conducted the DAC psychological assessment for Khalid Shirzad on January 18, 2001. He did not find that Mr. Shirzad's complaints met the criteria for any of the anxiety disorders but that he might benefit from 10 sessions regarding pain management techniques to manage his reported pain problems.

Mr. Shirzad expressed indifference as to whether the DAC recommended psychological counselling and said that although he needed treatment, he did not have time to go. He did not persuade me that he was interested in or needed psychological treatment to manage any alleged pain and I do not find psychological treatment for him reasonable or necessary.

Sharifa Shirzad and psychological treatment:

Dr. Peter Marton is a psychologist who examined Mrs. Shirzad for the Insurer on November 28, 2000 with the assistance of a Persian-speaking interpreter. He found that she was evasive, vague and tried to convey the impression of having significant cognitive difficulty.

Dr. Marty Resnick conducted the DAC psychological assessment for Mrs. Shirzad on January 17, 2001 with the assistance of a Farsi-speaking interpreter. He concluded:

The overall findings of the assessment point to moderate to serious emotional difficulties due to the motor vehicle accident. The findings include an adjustment disorder with symptoms of anxiety and depressed mood, as well as findings of a pain disorder associated with both physical and psychological factors (anxiety, tension, depressed mood and fear of being in another accident) and symptoms of post-traumatic stress disorder. These findings are interacting to contribute to her distress and impairment in social and household areas of functioning. The findings also indicate that prior to the accident, there were no significant stressors in her home life or domestic responsibilities. The motor vehicle accident, unfortunately, has created a series of stressors that have adversely affected her life and functioning.

Dr. Resnick found that Dr. Samuel's treatment plan was reasonable and recommended a Pashto or Farsi-speaking clinical psychologist in the Mississauga area.

Mrs. Shirzad is 56 years old. She has no formal education and has never worked outside of the home. She was unable to explain how the motor vehicle accident changed her life and was a poor witness. Her son, Khalid, lives with her. It would have helped me if he had described how the motor vehicle accident affected his mother, however, he gave no evidence on this issue.

Dr. Marton reported:

Her behaviour during the assessment indicated an attempt to be perceived in significant distress and dysfunction. On psychological testing there was subjective evidence of symptom magnification.

Dr. Resnick reported:

The claimant presented as compliant and co-operative and she made every effort to co-operate in working with the translator to provide answers to the questions asked by the assessor. She presented as mature, reserved and with good self-control. There were no indications of symptom magnification or excessive focus on pain.

Dr. Marton's observations are closer to mine and I accept his opinion over that of Dr. Resnick, that psychological treatment is not necessary or reasonable.

Angela Akbari and Ali Akbari and psychological treatment:

Mrs. Akbari testified that Dr. Samuel helped her overcome her fear of driving. Since the accident she obtained her driver’s licence and purchased a vehicle and she had no fear of driving from Hamilton to this hearing. She testified that her only psychological difficulties are marital. She said that she does not have time for further treatment and that she needs more time to spend with her children and to study.

Mr. Akbari testified that his unemployment is a sickness and that if he had a job he could overcome his obstacles. He testified that he did not like to talk about his marriage and that he did not discuss his marriage with the assessors. He said his inability to find employment and support his family causes stress, including marital stress.

Dr. Peter Marton assessed Mrs. Akbari for the Insurer on November 7, 2000 and concluded that the monthly psychological treatment she was receiving was reasonable. However, he did not find it reasonable that she travel by bus from Hamilton to Mississauga for treatment. He noted that Mrs. Akbari complained that she was irritable with her husband and children. He did not recommend any treatment beyond the 15 sessions which the Insurer had agreed to pay for.

Dr. Rita Bradley assessed Mrs. Akbari for the psychological DAC assessment on July 23 and 24 and August 8, 2001. She diagnosed anxiety, depression, somatoform pain disorder and relationship strain and approved Dr. Samuel's plan and recommended an additional 15 sessions for marriage counselling.

Dr. Marton assessed Mr. Akbari on December 6, 2000 and thought that he magnified his symptoms of irritability, forgetfulness and learning difficulties and that he did not need psychological treatment beyond that which the Insurer agreed to fund.

Dr. Lawson performed a psychological assessment for Mr. Akbari on February 21, 2001 at the DAC. He found that Mr. Akbari was functioning at a high psychological level in the year prior to the motor vehicle accident despite difficulties typically associated with acculturation and the residual effects of war-time trauma experienced in Afghanistan. He found that his mild level of depression and anxiety was likely caused by the motor vehicle accident and that treatment beyond the 15 sessions the Insurer agreed to pay for was not necessary.

I accept Mrs. Akbari’s testimony that she wants to get on with her life and that the only treatment she feels would help is marriage counselling. I find that the main stressor in Mr. Akbari's life is his unemployment, which contributes to marital stress.

I find that in their first four months in Canada before the accident, the Akbaris were moving towards achieving their goals. I accept that the accident, the extensive treatment, the assessments and the travel from Hamilton to Mississauga for physiotherapy and psychological treatment, took them off their course and significantly contributed to problems in their marriage. Although it is not an issue in this hearing, I find that the only accident-related need for psychological treatment is for marriage counselling.

EXPENSES:

The procedure for the assessment of expenses is set out in section 79 of the Dispute Resolution Practice Code (Fourth Edition). The rule contemplates a procedure for determining entitlement and another separate procedure for determining amount. I asked both parties if they wished to make submissions on the issues of entitlement and amount of expenses and they did. I therefore decided, pursuant to section 81 of the Dispute Resolution Practice Code (Fourth Edition) to waive the procedural requirements and deal with both issues of entitlement and amount at one time.

Entitlement to expenses:

The criteria for determining entitlement to expenses of the arbitration proceeding are set out in subsection 12(2) of Ontario Regulation 664, R.R.O. 1990 as amended by Ontario Regulation 464/96 ["Expense Regulation"]. I set out each criteria with my comments.

Each party's degree of success in the outcome of the proceeding.

Other than expenses, the hearing concerned 10 issues. The Applicants established that they were involved in a motor vehicle accident. The Applicants failed to establish that they were entitled to any benefits. They were better off before the hearing when they could have accepted the psychological treatment that the Insurer offered to pay for or if they had undergone the treatment recommended by the DACs.

Conduct of the Insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders.

In an adversary process, the conduct of a person under examination is often the conduct of their representative. The conduct of counsel for the Applicants, Mr. Baradaran, tended to prolong, obstruct and hinder the proceeding.

Mr. Baradaran was unprepared and did not know his case. In terms of dollars, the largest claim was that of Mrs. Akbari for caregiver and housekeeping expenses. Mrs. Akbari freely admitted that she was looking for work in a daycare centre while the Insurer was paying her caregiver benefits. She also freely admitted that she was not seeking further caregiver or housekeeping expenses and she thanked the Insurer for what it had paid. Mr. Baradaran explained that Mrs. Akbari did not understand the question. When Mrs. Akbari did not understand a question she said so and I find that Mrs. Akbari understood the questions and her rejection of further caregiver and housekeeping expenses was clear.

Mr. Baradaran did not understand the issues. For example, for benefits which require evidence of diminution of function, such as caregiver and housekeeping benefits, Mr. Baradaran presented no evidence of the claimant's level of function before the accident and level of function after the Insurer terminated benefits. Matters which are normally non-contentious, such as who referred the Applicants to Dr. Samuel and whether Dr. Samuel treated the Applicants, were rife with contradictory and confusing evidence.

Mr. Baradaran did not understand how to examine his witnesses. He presented no background information and examined his witnesses as if he was interviewing them for the first time. For example, he asked Mr. Akbari if he spent time in prison in Afghanistan, to which he answered "no" and whether he was interrogated or tortured in Afghanistan, to which he answered "no." He asked pointless questions which merely invited conversational-type answers. For example, he asked Mr. Akbari if he had thought about going back to his job, when the last job Mr. Akbari had was as a bank manager in Afghanistan. He confused his witnesses and wasted time by asking them to comment on assessments they could not recall and never read. Mr. Baradaran adduced evidence through his own witnesses which weakened their claims. For example, most of the evidence of the difficulty his clients had communicating with Dr. Samuel came out in examination-in-chief.

Mr. Baradaran's cross-examinations were also inept and a waste of time. He questioned Ms. Beverley Hand, the Insurer’s adjuster, about her failure to arrange interpreters for the assessments carried out by Dr. Samuel, when the Insurer had no obligation to arrange for interpreters for these assessments. He questioned Ms. Hand about the unfairness caused by the time it took to arrange a DAC assessment when the delay was due to Mr. Baradaran's failure to return a "Permission to Disclose Health Information" form to the Insurer.

Mr. Baradaran's submissions were also inept. He threatened to leave the proceeding unless I provided a court reporter, even though I explained to him that the Commission has no obligation to provide a court reporter. He made brief closing submissions because he was late for another appointment. His brief submissions made little sense.

Mr. Baradaran's conduct tended to prolong, hinder and obstruct the proceeding.

Whether the proceeding or any position taken by the Insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.

The Insurer was obligated to pay for the psychological treatment which the DAC medical assessors found reasonable and necessary. The Insurer was obliged to fund 10 treatments for Khalid Shirzad, 20 treatments for Sharifa Shirzad, 15 treatments for Ali Akbari and 20 treatments for Angela Akbari and a further 15 treatments for marriage counselling. On the basis of what the DACs reported and Mr. Akbari's reluctant admissions, I find that Mr. and Mrs. Akbari received some treatment from Dr. Samuel despite Dr. Samuel's letter that he had not treated them in his office. The only explanation I found as to why the Applicants did not receive psychological treatment was in Dr. Samuel's letter to the Insurer in which he wrote: "The treatment plan for Mrs. Angela Akbari was not started because this patient was advised by her lawyer to start the treatment only if and when the treatment plan for all the 20 sessions was approved." The Applicants should have undergone the full treatment approved by the DACs and then pursued their remedies for further treatment if they thought they needed it. The claim for psychological treatment was manifestly unfounded.

Mrs. Akbari admitted that she did not have a claim for caregiver or housekeeping expenses. These claims were manifestly unfounded.

The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.

The issues were not complex, novel or significant.

If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of the arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the responses to the offers, having regard to the result of the proceeding.

The parties made submissions on the expense issue and I therefore conclude that they do not want me to consider any offer made in accordance with the rules of practice and procedure.

Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

To this point, all the criteria support an order that the Applicants pay the Insurer its expenses of the arbitration proceeding. However, for each criteria, it is the conduct of the Applicants agent, Mr. Baradaran, that militates toward an award in favour of the Insurer. Generally, a principle is responsible for the acts of his agent. At the time of the accident, three of the Applicants could not communicate clearly in English. Two of the Applicants had been in Canada for only four months. They went to Mr. Baradaran because he speaks the same language and they trusted him to help them. Not only did his incompetence prevent him from helping them, he exposed them to an order of expenses. The Applicants were particularly vulnerable and dependent on the help of someone they could trust. It seems unfair to order that they pay the Insurer’s expenses.

Considering all the criteria, I order the Applicants to pay the Insurer its expenses of the arbitration proceeding. However, I reduce the total amount payable to reflect the unfairness I find in ordering the Applicants to pay for Mr. Baradaran’s incompetence.

Amount of expenses:

Section 3 of the Expense Regulation sets out those legal fees which I may award.

(1) The legal fees payable by the insured person or the Insurer for the following matters may be awarded:
For all services performed before an arbitration, appeal, variation or revocation hearing.
For the preparation for an arbitration, appeal, variation or revocation hearing.
For attendance at an arbitration, appeal, variation or revocation hearing.
For services subsequent to an arbitration, appeal, variation or revocation hearing.

(2) The number of hours for which legal fees may be awarded shall be determined by the arbitrator, having regard to the criteria set out in subsection 12 (2) of this Regulation.

Mr. Baradaran asked for an order that the Insurer pay him $1,500 for each Applicant. Mr. Sones asked for expenses of 150 hours at the maximum rate of $150 per hour, $480 in disbursements and the return of the $3,000 assessment fee the Insurer paid to respond to the application for arbitration.

Having regard to the criteria set out in the expense regulation I order each Applicant to pay the Insurer $500 for its expenses of the arbitration hearing.

Although I find that the Applicants commenced an arbitration which was frivolous and an abuse of process within the meaning of subsection 282(11.2) of the Insurance Act, I decline to order them to pay the Insurer the $3,000 it paid to respond to their applications for the reasons of unfairness I have described.

May 22, 2002

William J. Renahan Arbitrator

Date