Tsehainesh Hailu v. Aviva Canada Inc., 2005 ONFSCDRS 12

Neutral Citation: 2005 ONFSCDRS 12

FSCO A03-001622

BETWEEN:

TSEHAINESH HAILU

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: October 25, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David Carranza for Mrs. Hailu Kevin Griffiths for Aviva Canada Inc.

Issues:

The Applicant, Tsehainesh Hailu, was injured in a motor vehicle accident on December 7, 2002. Aviva Canada Inc. ("Aviva") denied Mrs. Hailu's claims for her acupuncture treatment and housekeeping benefits under the Schedule.¹ The parties did not resolve these disputes through mediation, and Mrs. Hailu 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:

What portion of Mrs. Hailu's $6,665 claim for housekeeping and home maintenance expenses is she entitled to under section 22 of the Schedule?
Is Mrs. Hailu entitled to $1,225 to fund her further acupuncture treatment under Part V of the Schedule?
Is Mrs. Hailu entitled to a special award under subsection 282(10) of the Insurance Act because Aviva unreasonably delayed or denied her benefits?
Is Mrs. Hailu or Aviva entitled to their expenses of the arbitration in accordance with subsection 282(11) of the Insurance Act?

The parties resolved Mrs. Hailu's claim for $3,312.36 in prescription drug expenses under Part V of the Schedule before commencement of the hearing.

Result:

Mrs. Hailu is entitled to $3,676 in housekeeping and home maintenance expenses under section 22 of the Schedule, plus interest in accordance with subsection 46(2) of the Schedule.
Mrs. Hailu is not entitled to funding for her further acupuncture treatment under Part V of the Schedule.
Mrs. Hailu is not entitled to a special award.
The decision about expenses of the arbitration are deferred.

EVIDENCE AND ANALYSIS:

Mrs. Hailu's claim for payment for her husband's replacement housekeeping and home maintenance services arises from a December 7, 2002 automobile accident, in which she suffered soft tissue injuries to her neck, low back and right shoulder, when another automobile collided with her car during a lane change. The Schedule² provides for Aviva to reimburse Mrs. Hailu up to $100 per week for reasonable and necessary housekeeping and home maintenance expenses during the period she suffered a substantial inability in conducting her pre-accident housekeeping duties as a result of her accident injuries.

Mrs. Hailu submitted a total of $6,665 in claims for housekeeping expenses through September 17, 2004. The evidence chiefly consists of testimony by Mrs. Hailu and her spouse, together with the parties' reports from health care experts and her lists of the services she claims her husband provided.

Applicant/Spouse's Evidence

Before and after the accident Mrs. Hailu, her husband and their three children lived in a four-bedroom, three-level semi-detached house with a swimming pool. Mrs. Hailu's uncontradicted evidence is that before the accident she performed all the household cooking, cleaning, washing, shopping and most of the yard maintenance.

Mrs. Hailu's evidence is supported by her husband's testimony. Mr. Berhane Asghedom testified that he sometimes cleaned the family swimming pool or took out garbage before the accident, but usually he spent his free time after work at a local gym, helped the children with homework or rested.

The evidence of Mrs. Hailu and her spouse is consistent with her reporting to the health experts. I find that Mrs. Hailu was responsible for all cooking, cleaning, laundry, shopping, and most of the garbage and yard duties prior to the accident.

Mrs. Hailu testified she did not resume either her pre-accident job as a part-time health care aid at a seniors' home or any of her pre-accident household duties immediately following the accident. Her disability, she said, was chiefly a consequence of her low back, upper back, right shoulder pain and headaches.

Mrs. Hailu's health records support her evidence that she began complaining of radiating pain from her right hip to her foot during early 2003. Her evidence that these problems impeded her ability to lift, bend and walk is supported by an activities list she supplied to Aviva immediately following the accident.

Mrs. Hailu and her spouse stated that her overall condition improved during 2004. However, she stated that her low back/right leg pain and migraine headaches have not improved since the accident. Her husband said he continues to vacuum, wash dishes, take care of their pet, perform outdoor chores and laundry duties, and both testified that Mrs. Hailu has been able to resume some of the laundry, cleaning and shopping trips for the household in 2004.

Mrs. Hailu's housekeeping records of her husband's services contradict their testimony about the amount of his post-accident housekeeping duties. The documents she submitted to Aviva indicate Mr. Asghedom spent 20 hours every two weeks on housekeeping through mid-March 2003; that he reduced his time to 11 hours for the two weeks ending March 19, 2003; a further reduction to 3.5 hours a week for the two weeks ending April 30, 2003; and thereafter resumed 20 hours bi-weekly. Mrs. Hailu and her spouse did not explain the contradiction between her records showing he reduced his housekeeping time from March to May 2003 with their testimony that his housekeeping was basically unchanged during this period.

Mr. Asghedom was also unable to explain why Mrs. Hailu's records show he took out the garbage on non-regular pickup days. Her records that Mr. Asghedom cooked, dusted and did other light duties in late 2003 and 2004 is undermined by health care reports indicating Mrs. Hailu admitted she had resumed these tasks.

In addition, Mrs. Hailu's testimony that she infrequently attended stretching/yoga or aqua fit classes is contradicted by information she gave to the Designated Assessment Centre (DAC) in November 2003 that she was doing home exercises once or twice a day and attending daily aqua fit classes, and its opinion that she considerably magnified her physical symptoms.

The fact that Mrs. Hailu's housekeeping records were first submitted to Aviva 10 months after Mr. Asghedom started doing housework indicates these records were not prepared contemporaneous with the services, and are inaccurate. Based on this and the unexplained contradictions between Mrs. Hailu's records and their evidence about Mr. Asghedom's post-accident housekeeping services and hours, I find that her housekeeping records are not accurate. I further find that Mrs. Hailu's and Mr. Asghedom's evidence is not reliable because of their tendency to overstate her disability during the hearing.

Health Care Evidence

Dr. L.J. Kadish examined Mrs. Hailu for Aviva in February 2003, dismissing her claimed disability because he could not find an organic cause for her complaints. However, he did not have access to the CT and MRI scans taken later which, while not revealing any evidence of nerve root compression, did indicate she had right side facet joint osteoarthritis at L5/S1. I do not rely on Dr. Kadish's opinion because he focussed entirely on the credibility of her presentation without being able to consider the impact of her soft tissue injuries on her later diagnosed osteoarthritis.

RMD Management, the DAC that evaluated Mrs. Hailu's work disability in May 2003, had the CT scan, but attributed her low back symptoms to her pre-existing condition. They found Mrs. Hailu could not lift and carry more than 10 pounds, safely move patients at the nursing home, or stand and reach at a competitive level for her job. I do not rely on the DAC opinion because it did not analyse Mrs. Hailu's housekeeping requirements.

While the DAC did not opine on her housekeeping needs, one of the examiners did report on Mrs. Hailu's housekeeping abilities. Dr. G. M. Sawa wrote, "With help she could prepare meals, cook, wash dishes, clean the oven and refrigerator. She can not do grocery shopping, sweep, dust, vacuum, make the beds, clean the bathrooms, wash floors, remove the garbage, do the laundry or drying, sew, cut grass, do the gardening or shovel the snow."

I accept this interview record as an admission by Mrs. Hailu about her housekeeping because it is consistent with her statements at the in-home assessment she commissioned four months later. The physiotherapist from Back To Health reported Mrs. Hailu said she could not walk/sit/stand for over 45 minutes, but could prepare meals or wash dishes for between 15 to 30 minutes, wipe tables/counters and sweep floors.

This August 26, 2003 in-home assessment report provides a detailed explanation of the household tasks in which Mrs. Hailu needed help due to her disabilities from the accident. The physiotherapist's opinion is persuasive because it provides a consistent link between Mrs. Hailu's primary symptoms of low back/right leg pain with her tested abilities during the home assessment and her statements about her in-home activities.

Relying on Mrs. Hailu's in-home assessment, I find that as a result of her accident injuries she was unable to bend over to collect debris, stand for long periods to dust/cook/clean, push/pull a vacuum or a full shopping cart, and lift/carry laundry baskets. I accept the in-home assessment recommending 8.4 hours housekeeping assistance for at least six weeks after the August 26, 2003 assessment date (October 5, 2003), and reasonably infer that Mrs. Hailu required the same quantum of housekeeping assistance from the date of the accident until the assessment.

The physiotherapist who conducted the in-home assessment also reported that Mrs. Hailu had assistance cooking during the first four months after the accident. However, her recommendations did not include meal preparation because the report reflects that Mrs. Hailu had resumed some of her kitchen chores by August 2003. I am persuaded that Mrs. Hailu's statement is true because it is consistent with information she gave the DAC in March 2003. Thus, I find that Mrs. Hailu required at least an additional two hours per week food preparation/kitchen assistance during that acute stage of her recovery.

Mrs. Hailu's health care records during the fall of 2003 demonstrate she became more active. The Credit Valley Hospital reported in November 2003 that Mrs. Hailu was exercising/stretching at home every day and attending regular aqua fit, which is in accordance with the physiotherapist's recommendations from the in-home assessment.

Aviva did not provide her with the devices the in-home assessor recommended to assist her with vacuuming, dusting and bathroom cleaning. Dr. Tommy Chan, Mrs. Hailu's consulting orthopaedic specialist, reported in September 2003 that she could not fully resume those tasks without these devices. I accept his unchallenged opinion.

Aviva's and Mrs. Hailu's psychological evaluations during the fall of 2003 support her continued partial disability. Both Dr. Peter Waxer, her psychologist, and Dr. Kilian Walsh, Aviva's psychiatric examiner, generally agreed with the diagnosis of depression, anxiety and driving phobia. Dr. Walsh reported in December 2003 that Mrs. Hailu said her spouse performed the heavier household chores. His report is followed by that of Dr. Frank Lipson, a physiatrist retained by Aviva, who stated in January 2004 that Mrs. Hailu said she was back doing most of the housework.

Although the January 2004 functional evaluation from Back to Health stated that Mrs. Hailu still suffered difficulties with bending, crouching, standing or walking, they do not specify the extent of her disability or relate the disability to her inability to perform a specific household task. Neither does Dr. N. Abdelshaheed's brief comment in his March 2004 disability certificate that Mrs. Hailu remained unable to perform her usual household tasks provide an adequate basis for his opinion or clarify the specific chores she could not perform.

These general comments or opinions have little weight in comparison with Mrs. Hailu's admissions to Drs. Walsh and Lipson that she was performing all but the heavier tasks beginning in December 2003. I find that her contemporaneous admissions about her abilities that are recorded from meetings with health care practitioners are more reliable because they show steady improvement of her function that is fairly consistent with her own experts' findings. Mrs. Hailu did not present any reliable evidence to contradict these statements, and I rely on them.

On the one hand, it is unlikely Mrs. Hailu's disability or her need for housekeeping assistance entirely or abruptly ceased in December 2003, but on the other hand I am not satisfied she continued to meet the threshold for entitlement to this benefit since the evidence clearly establishes she resumed most of her pre-accident household duties. On balance, I am prepared to accept that Mrs. Hailu suffered a substantial inability performing her household tasks until December 2003, at which time she was exercising regularly and Mr. Asghedom was doing only the heavier chores around the house.

Based on the recommendations from Aviva's in-home assessment that she required both assistance and certain devices to re-integrate back into important elements of her housework, I find that Mrs. Hailu is entitled to 8.4 hours of weekly housekeeping assistance through November 30, 2003.

Housekeeping Conclusion

With 2 hours of cooking assistance for the first four months after the accident, I find that Mrs. Hailu is entitled to 10.4 hours of housekeeping to March 7, 2003, and 8.4 hours of weekly housekeeping assistance thereafter until November 30, 2003. Aviva did not challenge the billed $10 per hour, and I accept it is a reasonable rate.

I calculate 13 weeks between the accident and March 7, 2003 at the maximum $100 per week, added to the remaining 39 weeks in 2003 at $84 per week. I subtract the $900 Aviva paid from the $4,676 total in housekeeping benefits, and find that Mrs. Hailu is entitled to $3,676 under section 22 of the Schedule.

Housekeeping & Home Maintenance Calculations

Dec. 8, 2002 through March 7, 2003 (13 weeks)

8.4 hrs. + 2 hrs. per week

$100 per week x 13 weeks

$1,300

March 8, 2003 through December 7, 2003 (39 weeks)

8.4 hrs. per week

$84 per week x 39 weeks

$3,276

Total Housekeeping & Home Maintenance Benefit

$4,576

Less amount Aviva previously paid

$900

Total Entitlement

$3,676

Acupuncture Treatment

Mrs. Hailu presented little evidence that her September 24, 2003 acupuncture treatment plan qualified as a reasonable and necessary expense. Aviva funded Mrs. Hailu's first 15 treatments with Dr. Xu Zhang, which she testified gave her short-term pain relief. Dr. Abdelshaheed's brief certification on a standard treatment plan is the sole expert evidence supporting Mrs. Hailu’s need for a second round of acupuncture treatment. This treatment plan lacks any explanation.

The chiropractor’s assessment at a DAC in November 2003 opined that Mrs. Hailu would not reap any long-term benefit from a second set of passive treatments, given the length of time since the motor vehicle accident and the absence of objective findings. I do not rely on this opinion because pain relief is a valid reason for an injured person to seek treatment, whether it provides long or short-term effects.

Rather, I base my decision on the fact that all of the experts emphasized Mrs. Hailu should exercise regularly, and did not either specifically recommend acupuncture or generally recommend passive therapies in the fall of 2003. I find that under Part V of the Schedule, Mrs. Hailu is not entitled to payment or funding for the proposed acupuncture treatments that are recommended in the September 2003 plan.

SPECIAL AWARD:

Mrs. Hailu claims that Aviva unreasonably denied or delayed payment of her accident benefits, and that she is entitled to a special award under subsection 282(10) of the Insurance Act. She obtained her first expert opinion supporting payment of housekeeping benefits in August 2003, followed in October 2003 with her first submitted expenses that indicated her spouse commenced his services 10 months earlier.

Aviva responded that month in accordance with the Schedule’s time line, by paying $900 for the period up to February 12, 2003. This was based on Dr. Kadish's opinion of the same date that she did not suffer a substantial housekeeping disability.

I am not persuaded that Aviva's denial of benefits after February 12, 2003 was unreasonable because the amount was supported by an expert opinion, although I ultimately accepted a longer claim period based on hearing the parties' evidence. I am also not persuaded that the amount is unreasonable based on the $84 per week that Mrs. Hailu's own expert recommended. I find that Mrs. Hailu is not entitled to a special award.

EXPENSES:

The parties should attempt to resolve the issue of their arbitration expenses on their own by reference to Rules 75 through 79 of the Dispute Resolution Practice Code before contacting the caseworker to set an assessment date.

February 10, 2005

Fred Sampliner Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 12

FSCO A03-001622

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN: