Neutral Citation: 2005 ONFSCDRS 91

FSCO A03-001749

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HARRICHAN NARAIN

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

AND

FSCO A03-001748

BETWEEN:

MEENAWATTI MANGROO

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Richard Feldman

Heard:

February 21, 22, 23, 24, 28, March 1 and March 2, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Robert N. Franklin for Mr. Narain and Ms. Mangroo

Dan Rabinowitz for ING Insurance Company of Canada

Issues:

The Applicants, Harrichan Narain and Meenawatti Mangroo, were injured in a motor vehicle accident on April 10, 2003. They each applied for and received statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ Those benefits were later terminated by ING. The Applicants disputed the termination of those benefits. The parties were unable to resolve their disputes through mediation, and the Applicants applied (separately) for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The parties requested, and the Commission agreed, that these two applications for arbitration ought to be heard together (but not joined). Both Applicants testified, as did Ms. Ultrawatie Narine, Dr. Michael Kliman and Dr. Tommy K. C. Chan on behalf of the Applicants. Dr. Reuven Lexier testified on behalf of ING.

The issues in this hearing are:

Issues with respect to Mr. Narain

1. Is Mr. Narain entitled to receive a weekly income replacement benefit of $197.25 pursuant to section 4 of the Schedule for the following periods:

a) December 9, 2003 - February 23, 2004?

b) September 3, 2004 - September 23, 2004 (less 3 days)?

c) November 25, 2004 onwards?

2. Is Mr. Narain entitled to a medical benefit for the cost ($3,331.00) of treatment recommended in a treatment plan dated June 4, 2003 from the Accident Injury Rehabilitation Centre, pursuant to section 14 of the Schedule?

3. Is Mr. Narain entitled to $890.00 for housekeeping and home maintenance services for the period from June 25, 2003 to November 7, 2003, pursuant to section 22 of the Schedule?

4. Is Mr. Narain entitled to $750.00 for the cost of the examination and report of Dr. Lawrence S. Chizen, dated February 6, 2004, pursuant to section 24 of the Scheduee?

5. Is Mr. Narain entitled to interest on the overdue payment of benefits pursuant to section 46(2) of the Schedule?

6. Is ING liable to pay Mr. Narain's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

7. Is Mr. Narain liable to pay ING's expenses in respect of the arbitration?

Issues with respect to Ms. Mangroo

1. Is Ms. Mangroo entitled to receive a weekly income replacement benefit of $225.33 from November 28, 2003 onwards, pursuant to section 4 of the Schedule?

2. Is Ms. Mangroo entitled to a medical benefit for the cost ($3,096.00) of treatment recommended in a treatment plan dated June 6, 2003 from the Accident Injury Rehabilitation Centre, pursuant to section 14 of the Schedule?

3. Is Ms. Mangroo entitled to $2,365.00 for housekeeping and home maintenance services for the period from April 11, 2003 to February 29, 2004, pursuant to section 22 of the Schedule?

4. Is Ms. Mangroo entitled to interest on the overdue payment of benefits pursuant to section 46(2) of the Schedule?

5. Is ING liable to pay Ms. Mangroo's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

6. Is Ms. Mangroo liable to pay ING's expenses in respect of the arbitration?

Result:

Results with respect to Mr. Narain

1. Mr. Narain is entitled to receive a weekly income replacement benefit of $197.25 pursuant to section 4 of the Schedule for the following periods:

a) December 9, 2003 - February 23, 2004;

b) September 3, 2004 - September 23, 2004 (less 3 days);

c) November 25, 2004 - March 2, 2005 (the last day of this hearing).

2. Mr. Narain is not entitled to a medical benefit for the cost of treatment recommended in a treatment plan dated June 4, 2003 from the Accident Injury Rehabilitation Centre.

3. Mr. Narain is not entitled to $890.00 for housekeeping and home maintenance services for the period from June 25, 2003 to November 7, 2003.

4. Mr. Narain is entitled to $750.00 for the cost of the examination and report of Dr. Lawrence S. Chizen, dated February 6, 2004, pursuant to section 24 of the Schedule.

5. Mr. Narain is entitled to interest on the overdue amounts from the date each payment became overdue at the rate of 2 per cent per month compounded monthly, pursuant to section 46(2) of the Schedule.

6. The parties requested that I defer the issue of the expenses of this arbitration.

Results with respect to Ms. Mangroo

1. Ms. Mangroo is not entitled to receive a weekly income replacement benefit for the period claimed.

2. Ms. Mangroo is not entitled to a medical benefit in the amount of $3,096.00 for the cost of treatment recommended in a treatment plan dated June 6, 2003 from the Accident Injury Rehabilitation Centre.

3. Ms. Mangroo is not entitled to $2,365.00 for housekeeping and home maintenance services for the period from April 11, 2003 to February 29, 2004.

4. There are no overdue payments. Therefore, no interest is owing pursuant to sections 46(2) of the Schedule.

5. The parties requested that I defer the issue of the expenses of this arbitration.

PROCEDURAL MATTERS

On the second day of this hearing, counsel for ING provided to Ms. Mangroo's counsel a copy of a Designated Assessment Centre ("DAC") Chiropractor's Report from West Park Healthcare Centre dated December 19, 2003 and requested that this document be admitted into evidence. Mr. Franklin objected to the admission of this document on the grounds that it was not provided to him at least 30 days prior to the commencement of the hearing (as required by Rule 39.1 of the Commission's Dispute Resolution Practice Code), because ING (through its agent) had ignored a written request for this document made on behalf of Ms. Mangroo on February 12, 2004 and because the reasonableness and cost of the treatment plan that is the subject matter of the DAC report dated December 19, 2003 is not an issue in this hearing. Mr. Rabinowitz was unable to demonstrate any extraordinary circumstances in this case that might convince me to exercise my discretion under Rule 39.2 to permit this document to be admitted. Given this and given the potential prejudice to Ms. Mangroo in having to respond to this new evidence and the fact that the report likely has, at best, marginal relevance to the issues upon which I must arbitrate, I declined to admit this report into evidence.

EVIDENCE AND ANALYSIS:

The Applicants

At the time of the accident (April 10, 2003), Harrichan Narain was 32 years old and was generally quite healthy (with the possible exception of untreated hernias). Mr. Narain had a previous motor vehicle accident on February 10, 2002 but states that his injuries were completely healed and he returned to work within six months of that accident. Mr. Narain came to Canada in 1992 when he was 21 years old. He has worked at a number of jobs since coming to Canada, primarily in shipping and receiving. He is licenced to operate a forklift. In August 2002, Mr. Narain started work at Custom Metals Limited ("CML") as a labourer. This was a full-time job that paid $11.00 per hour. He was laid off on March 27, 2003. This was his last job prior to the accident. He lived (and continues to live) in the basement of his parents' townhouse; his mother, father, adult sister (Ultrawatie Narine) and her child live upstairs in the house.

At the time of the accident, Meenawatti Mangroo was 28 years old and was generally quite healthy. She had two children at that time aged 11 and 7. Ms. Mangroo came to Canada in December 1993 when she was 19 years old. She married in 1992. After she separated from her husband in 1996, Ms. Mangroo worked at Blockbuster for about one and one-half years putting VHS and DVD movies into boxes and getting the boxes ready for shipping. That job ended in 1998 or 1999. She then worked for about one year for Trisol Shutters, assembling blinds. In October 2001, Ms. Mangroo started work at Design Variation Industries ("DVI"), primarily assembling foam mattresses. This was a full-time position paying, at the end, about $8.60 per hour. This was the job she had at the time of the accident. For the last seven years, Ms. Mangroo has lived with her children in a three-bedroom, two-storey townhouse.

The Applicants were romantically involved at the time of the accident and, since the accident, they have had a child together (born October 2004).

The Accident

The following facts are not disputed.

On the morning of April 10, 2003, Mr. Narain was driving Ms. Mangroo's 1989 Honda Civic motor vehicle. Ms. Mangroo was in the front passenger seat. They both were wearing their shoulder and lap belts and had the head restraints properly adjusted. They were heading towards Brampton, where Mr. Narain was scheduled to have a job interview. They were stopped at a red light when, without warning, they were struck from the rear by a large truck (a car transport truck). Mr. Narain struck his left knee on the dashboard and both Mr. Narain and Ms. Mangroo suffered soft-tissue injuries to the neck and lower back. They were taken by ambulance to the William Osler Health Centre, where they were examined and released about two hours later. They were given some "pain killers" and advised to see their family doctor the next day. They then rented a vehicle and drove back to Ms. Mangroo's home. On April 11, 2004, both Applicants went to see Dr. Garber, Mr. Narain's family doctor, who that same day had them both begin physiotherapy, chiropractic treatment and massage therapy at the Accident Injury Rehabilitation Centre.

Credibility of the Applicants

Given the difficulty of objectively testing for symptoms from soft-tissue injuries, the doctors who testified in this case generally agreed that any assessment of the Applicants' degree of disability (or, conversely, the extent of their recovery from the injuries suffered as a result of the accident) would depend largely on the Applicants accurately reporting their symptoms and performing to the best of their abilities during the various physical examinations and tests. In other words, the accuracy of the diagnoses depends largely on the degree of honesty and co-operation of the Applicants. Both counsel agreed that this case turns upon my assessment of the credibility of the Applicants. Counsel for the Applicants, in his closing argument, did not deny that there were some inconsistencies in the Applicants' evidence, but suggested that I attribute this to lack of sophistication on the part of the Applicants rather than to a deliberate attempt to mislead the Insurer or the Commission.

These inconsistencies have led me to reject some of the evidence presented by the Applicants. In making findings of credibility, I have considered all of the evidence presented and I have given the relevant evidence such weight as I deem appropriate on an issue-by-issue basis.

HARRICHAN NARAIN

1. Weekly income replacement benefit

According to section 4 of the Schedule, Mr. Narain is entitled to a weekly income replacement benefit if he can prove, on a balance of probabilities, that he sustained an impairment as a result of the accident and (within 104 weeks after the accident) he "suffers a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident". The parties agree that the employment in which Mr. Narain spent the most time during the 52 weeks before the accident was as a shipper / receiver for CML. It is, therefore, crucial to understand the nature of that employment. Mr. Narain's job was mainly made up of the following tasks: assembling office furniture and supplies and packing them for shipping; wrapping metal pieces; processing metal pieces using various machines in the plant; operating a forklift; loading and unloading trucks by hand; and other miscellaneous tasks. At the hearing, Mr. Narain described each of these tasks as follows:

Assembly and Packi'ng

• retrieve metal from another room

• each piece of metal weighs 10 to 20 pounds

• job is done standing all day long (except for breaks), 2 - 3 days per week

• involves grinding, polishing, cutting and assembling (using screwdriver, hammer, etc.)

• pack finished product for shipping

• involves repetitive bending, squatting, twisting, lifting and long periods of standing

Wrapping

• use fork pump truck to lift basket holding 40 - 50 pounds of metal pieces and bring them to work station

• bend down and pick up one piece at a time

• wrap each piece and then place it in another basket

• usually done standing

• sometimes done sitting (no more than 20 minutes per day)

• pass wrapped pieces along to someone else

Processing

• use machines (like cutting machine, drill, etc.) to process metal

• constant bending (approx. 100 times/day) to pick stuff up and put it down

Operating Forklift

• represents about 20% of the job (i.e. 1.5 - 2 hours per day)

Loading and Unloading Trucks

• often asked to unload trucks by hand (i.e. without the use of a forklift or other machinery)

• objects would weigh up to 60 pounds

• "if that heavy, I'd get help" (i.e. another person to assist me with lifting the item)

Miscellaneous

• sweep up and do "whatever the boss tells me to do"

These descriptions accord reasonably well with the information Mr. Narain provided to the kinesiologist who conducted the Physical Demands Analysis on June 30, 2003 (Exhibit 1A, Tab 16).

Before being laid off, Mr. Narain generally worked 45 - 50 hours per week. According to Mr. Narain, CML was working him very hard so he would occasionally take a day off by calling in sick. Mr. Narain was warned by his supervisor not to take so many days off. Business was slow in March 2003. Mr. Narain knew that his job was at risk. He didn't care. He was not happy at his job. He was already looking for work elsewhere as a forklift operator.

He had his license and knew that a job as a forklift operator would be both less physically demanding and more lucrative. At the end of March 2003, both Mr. Narain and his supervisor were laid off because there was not enough work to go around. Even if business had picked up, Mr. Narain's preference was not to return to CML if he could find another job.

Mr. Narain maintains that he has never recovered sufficiently from the injuries he sustained in the accident to return to this type of work (i.e. he could not "perform the essential tasks" of his pre-accident employment as a shipper/receiver). The issue is also not whether Mr. Narain is capable of squatting, bending, turning or lifting a certain weight but whether he can repeat these tasks again and again over the course of a 40+ hour work week. Mr. Narain and his medical experts say that he cannot; ING and its medical experts suggest otherwise.

ING paid income replacement benefits to Mr. Narain up to December 8, 2003. By this point, Mr. Narain was feeling better but it is difficult to know how much better because of conflicting reports he gave to various medical practitioners. In September 2003, Mr. Narain was still complaining of bad knee pain but reported a 70% improvement in his neck pain and a 60% improvement in his lower back pain (Exhibit 1A, Tab 18). As of September 30, 2003, Dr. Tommy K. C. Chan (orthopaedic surgeon) concluded that because of the pain being experienced by Mr. Narain in his back and neck and, in particular, in his left knee, Mr. Narain was "substantially disabled from returning to his previous level of employment duties" (Exhibit 1A, Tab 20, p. 4). Mr. Narain stopped receiving any therapy on October 20, 2003. On October 23, 2003, Mr. Narain saw Dr. Reuven Lexier (orthopaedic surgeon) and apparently reported that his neck was 50% better but his lower back was as bad as at the time of the accident and the knee was actually worse than at the time of the accident. On December 23, 2003, Mr. Narain reported an overall improvement of about 60% since the accident (Exhibit 1A, Tab 22). At the hearing, Mr. Narain did not recall making any of these statements but estimated that he was 40% better by December 2003.

Since he was no longer receiving income replacement benefits, he began looking for work in December 2003. He was exclusively looking for a job as a forklift operator. In January 2004, an MRI was done on Mr. Narain's left knee (Exhibit 1A, Tab 24) and it revealed a possible partial tear on the anterior cruciate ligament. At the hearing, however, both Dr. Chan and Dr. Lexier agreed that this MRI is not conclusive. On February 6, 2004, Mr. Narain was seen by Dr. Lawrence S. Chizen (physiatrist). Dr. Chizen concludes that the residual low back and left knee pain were significantly affecting Mr. Narain's ability to squat, bend and lift repetitively (Exhibit 1A, Tab 23, p. 7).

On February 24, 2004, Mr. Narain began employment as a forklift operator through Endeavour Personnel Ltd. He was working 44 - 50 hours per week. He was paid $12.50/hr. regular pay and $18.75/hr. for overtime. This job was done almost exclusively from a sitting position. According to Mr. Narain, he was "let go" on September 3, 2004 when they discovered that his brother worked there (and the company has a policy against hiring relatives of existing employees). Mr. Narain then found 3 days of temporary work as a forklift operator between September 3 and September 22, 2004.

On September 23, 2004, Mr. Narain began working as a forklift operator at RCP (through Bridge Staffing Services Inc.). He was hired on a temporary basis. He worked approximately 40 hours per week at $12.50/hr. This was a "standing" forklift (as opposed to one in which he could sit). After receiving a couple of warnings about absenteeism from his employer, Mr. Narain was "let go" on November 25, 2004. Based upon the testimony of Mr. Narain, I am satisfied that his absences were not due to illness or injuries (or, as suggested by his counsel, by fatigue brought on by constant pain) but rather represent Mr. Narain's habit of staying home whenever he feels upset or frustrated about his working conditions. Mr. Narain has not worked since November 25, 2004 nor has he made much of an effort to look for work. As of the time of this hearing, Mr. Narain reports that his lower back will hurt him if he lifts too much or bends the wrong way, that his neck is "achy" all of the time and that his left knee hurts if he kneels.

Mr. Narain has not been entirely consistent in his reported improvement and this does create some credibility issues. Of course, these reported perceptions of improvement are subjective and were given over a period of time. When questioned by various medical practitioners, it is difficult to know if Mr. Narain was reporting how he was feeling at that moment or in more general terms. In any event, whether he felt 40%, 50%, 60% or 70% better is not the ultimate question that needs to be decided. The real question is whether, at any point between December 9, 2003 and this hearing, Mr. Narain recovered sufficiently so that he was substantially able to perform the essential tasks of his pre-accident employment. Clearly he was able to operate a forklift on a full-time basis as of February 2004 and operating a forklift was one of the essential tasks of his pre-accident employment (representing about 20% of his job). As of September 2004, Mr. Narain also demonstrated that he was able to stand for extended periods of time.

What about the other essential tasks of his pre-accident employment that required repetitive bending, kneeling and lifting? All the medical professionals to date who have been asked to consider this question have concluded that Mr. Narain is substantially unable to perform these essential tasks of his pre-accident employment. All, that is, except for Dr. Lexier, the orthopaedic surgeon retained by ING to examine both Mr. Narain and Ms. Mangroo. I have reviewed the report of Dr. Lexier (Exhibit 1A, Tab 21) and I had the benefit of hearing his testimony during the hearing. Dr. Lexier confirmed that Mr. Narain's main complaints were (in order of significance): pain in the left knee, low back pain, neck pain and chest pain.

Having reviewed the medical documentation provided to him and having interviewed and examined Mr. Narain (for a total period of about 40 minutes), Dr. Lexier came to the conclusion that Mr. Narain should have achieved maximum recovery six to eight weeks after the accident. He further indicated that Mr. Narain would not be harmed by resuming his pre-accident activities. Dr. Lexier stated that he does not generally take pain into account as a factor in ability or disability since "hurt" is not the same as "harm" and because pain is subjective and is easily exaggerated.

Dr. Lexier stated that even if he knew that Mr. Narain were telling the truth about the amount of pain he felt in his knee, back and neck, he would still have reached the same conclusions because, based on the "Québec study",² one would expect there to be full recovery within three months (six months at the most) in 90% of patients who suffer these types of injuries. When asked if it was possible that Mr. Narain fell into the minority of cases in which full recovery is not achieved within six months, Dr. Lexier indicated that he did not believe so but it was clear to me that he had no real basis for this conclusion. At the time he reached this conclusion, Dr. Lexier had not seen a copy of the January 2004 MRI of Mr. Narain's left knee (Exhibit 1A, Tab 24) which may reveal a torn ligament or the February 2002 x-ay results of Mr. Narain's spine (Exhibit 1A, Tab26) which may reveal signs of degenerative disc disease in the cervical area. At the hearing, Dr. Lexier testified that he now had an opportunity to review the said MRI and x-ray results and that neither changed his opinion.

In diagnosing Mr. Narain, Dr. Lexier seemed to rely exclusively upon what he considered to be objective evidence and was apparently unwilling to consider even the possibility that Mr. Narain's symptoms may have persisted beyond six months or that, even if they have, that persistent pain can prevent Mr. Narain from performing the essential tasks of his pre-accident employment. Dr. Lexier testified that he could not evaluate pain or how limiting it might be. Because of the very narrow approach taken by Dr. Lexier and his failure to really explore the possibility that Mr. Narain may fall into the group of people who suffer these types of injuries and do not fully recover within three to six months, I find that I can give Dr. Lexier's conclusions little weight.

Counsel for ING submits that if Mr. Narain's accounts to the medical practitioners were unreliable, then the conclusions of those experts are also unreliable. It does appear that Mr. Narain told some doctors in October 2003 that he was still taking Tylenol 3's for the pain when he may have stopped taking Tylenol in June or July 2003. He neglected to mention to Dr. Chan that he had had a hernia operation just one month prior to seeing Dr. Chan and that he was still in the process of recovering from that operation. He told Dr. Lexier that he was still seeing his family doctor (Dr. Garber) every two to three weeks when the records seem to indicate that Mr. Narain saw Dr. Garber only a few times after the accident in 2003.

Notwithstanding that Mr. Narain may have exaggerated his symptoms and gotten some of his facts wrong from time to time, I accept that, until recently, he has continued to have debilitating pain in his back and left knee that limits his ability to bend, kneel and lift objects weighing ten pounds or more repetitively and over an extended duration. Most relevant tests conducted on Mr. Narain showed that he put forth a consistent and maximal effort, that he had at least some loss of mobility and strength and that he experienced pain during certain types of movements. His complaints about his left knee have been reasonably consistent since the accident and, in addition to his subjective complaints, there exists objective evidence of patellofemoral derangement of his left knee and a possible torn ligament in that knee. There is no evidence that he suffered any of these problems prior to the accident. In his report of February 2004 (Exhibit 1A, Tab 23), Dr. Chizen concluded that the pain experienced by Mr. Narain in his back and left knee significantly affects his ability to squat, bend and lift repetitively.

I find that Mr. Narain has proven on a balance of probabilities that, as a result of the April 10, 2003 accident, he is unable to squat, bend and lift repetitively. He has therefore proven that he sustained an impairment and suffers a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident. I further find that this substantial inability to perform the essential tasks of his pre-accident employment continued at least to the conclusion of the hearing. Mr. Narain is, therefore, entitled to receive a weekly income replacement benefit in the amount of $197.25 pursuant to section 4 of the Schedule for the following periods:

a) December 9, 2003 - February 23, 2004;

b) September 3, 2004 - September 23, 2004 (less 3 days);

c) November 25, 2004 - March 2, 2005 (the last day of this hearing).

2. Cost of treatment recommended in a treatment plan dated June 4, 2003 from the Accident Injury Rehabilitation Centre

Mr. Narain is claiming the cost of treatment recommended in a treatment plan dated June 4, 2003 from the Accident Injury Rehabilitation Centre (Exhibit 1A, Tab 13). The plan consisted of twelve sessions of rehabilitation (chiropractic treatment and physiotherapy), eight sessions of massage therapy and re-evaluation at the end of the treatment period. ING had Mr. Narain examined on August 22, 2003 and September 3, 2003 at the West Park Healthcare Centre DAC and three reports were produced, one relating to massage therapy, one relating to physiotherapy and one relating to chiropractic treatment (Exhibit 1A, Tabs 17, 18 and 19). In all three reports, it was found that the treatment plan dated June 4, 2003 was not reasonable and necessary as it was unlikely that Mr. Narain would derive any real benefit from the proposed treatment.

At the hearing, Mr. Narain testified that the therapy he received from April through October 2003 may have reduced his pain 30% for a duration of several hours up to a maximum of one day. In October 2003, Mr. Narain told Dr. Lexier that (after six months and over 35 sessions of physiotherapy and massage therapy) his lower back and knee pain were just as bad as they had been immediately after the accident. Mr. Narain also testified that by doing his exercises or taking Tylenol, he could eliminate much of the pain he was feeling for two to three hours at a time. Although pain reduction or management may be valid reasons for undertaking therapy,³ in this case I find that the proposed treatment is not reasonable and necessary. Mr. Narain appeared to derive no long-term benefit from the treatment that he had already received and he was able to obtain as much short-term pain relief by taking some analgesics or by performing a few minutes of exercise. This part of the application is, therefore, denied.

3. Housekeeping and home maintenance services

Pursuant to section 22 of the Schedule, 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."

Mr. Narain has his own bedroom, bathroom and sitting area in the basement of his parents' townhouse. The floors are tiled and there are a couple of area rugs. The laundry room is located in the basement and is shared by the family. They also share the kitchen on the main floor of the house. This living arrangement pre-dated the accident and continues to the present.

In his testimony, Mr. Narain claimed that, prior to the accident, he: cleaned the bathroom once a month; cooked seven or eight meals a week for himself if he didn't like what his mother had prepared and then washed his dishes after those meals that he had prepared (the meals would include such dishes as rice, French fries, toast and fried eggs); did one to two loads of laundry plus ironed for 10 - 15 minutes each week; took out a small bag of garbage (a distance of approximately 25 feet) every two days or so; and vacuumed the rugs occasionally.

In the Activities of Normal Life form OCF-12 signed by Mr. Narain on April 14, 2003 (Exhibit 1A, Tab 9), Mr. Narain indicated that before the accident he could partially do the following: groceries (i.e. shopping), meal preparation, cooking, washing dishes, sweeping, dusting, vacuuming, bedmaking, cleaning the bathroom, garbage removal and washing/drying laundry. He further stated that he was unable to do any of these activities as of April 14, 2003 (four days after the accident).

Mr. Narain's legal representative apparently arranged for an Activities of Daily Living In-home Assessment to be conducted on the following day, April 15, 2003 (see Exhibit 1A, Tab 11). According to the report, Mr. Narain told the assessor that, prior to the accident, his parents and sister did all the housework, including outdoor activities (p. 13 of 16). The only homemaking activity Mr. Narain indicated he performed prior to the accident was garbage removal. Nevertheless, the assessor, Praag Arya, recommended housekeeping assistance at a rate of 5 hours per week for 4-6 weeks for help with laundry, shopping and vacuuming.

Mr. Narain claims that he paid his sister, Ultrawatie Narine, $10 per hour (cash) for every hour that she assisted him with his housekeeping. Mr. Narain submitted to ING forms completed by his sister for five hours of housekeeping assistance per week for the period from April 11, 2003 through June 24, 2003 and ING paid in full the amount claimed for this period (46 hours x $10.00/hr. = $460.00).

On June 26, 2003, Mr. Narain underwent a Functional Abilities Evaluation ("FAE") (Exhibit 1A, Tab 14) which, at page 12, recommended another 4-6 weeks of home-care assistance (for laundry, floor care, grocery shopping, etc.). The report does not indicate the number of hours per week that were being recommended.

On July 2, 2003, ING had its own In-home Assessment done by Independent Rehabilitation Services Inc. ("IRSI") (Exhibit 1A, Tab 15). On the questionnaire completed by Mr. Narain (which forms part of this report), Mr. Narain does not indicate that he is unable to perform household chores; rather, he states that he has not attempted to do so. According to the occupational therapist who interviewed and examined Mr. Narain, by early July 2003, Mr. Narain demonstrated that he was physically able to: prepare and serve meals, wash dishes, remove garbage, shop for groceries, do his laundry, vacuum and clean his bathroom. It was also noted in this report that Mr. Narain told the assessor that, prior to the accident, at least some of these tasks had been shared with his mother or sister. The assessor therefore concluded that Mr. Narain no longer required housekeeping assistance as he had demonstrated that he was able to manage all of his pre-accident housekeeping tasks with proper pacing.

Nevertheless, Mr. Narain's sister allegedly continued to assist him 5 hours per week from June 26, 2003 until October 11, 2003 and then 7 hours per week from October 13, 2003 until November 7, 2003. Eventually, Mr. Narain submitted a bill to ING for 100 hours of housekeeping assistance between June 26, 2003 and November 7, 2003 (for a total of $1,000.00). Of this amount, ING paid $110.00 to Mr. Narain, representing payment of housekeeping benefits up to July 8, 2003. ING refused to pay for housekeeping services after that date. Mr. Narain is claiming the outstanding balance of $890.00.

During his cross-examination, Mr. Narain admitted that he was physically able to cook again by late June 2003; he just "didn't feel like it." By his own testimony, that would leave: washing his own dishes, cleaning the bathroom once a month; doing one to two loads of laundry per week; taking out a small bag of household garbage every two days or so; and vacuuming the rugs occasionally. The functional abilities evaluation determined that, with pacing, Mr. Narain was capable of performing all of these tasks without assistance.

The only medical evidence that supports the continuation of housekeeping services beyond July 2003 is that of Dr. Tommy K. C. Chan, an orthopaedic surgeon who examined Mr. Narain on September 30, 2003. He concluded that, as of September 30, 2003, Mr. Narain was disabled from returning to his pre-accident level of housekeeping and home maintenance chores. He does not explain the basis for this conclusion in his report, the chores to which he is referring or how Mr. Narain's complaints prevent him from performing those chores. During his testimony, Dr. Chan did not elaborate on how Mr. Narain's condition would prevent him from performing his usual pre-accident housekeeping chores.

Dr. Chan was also relying heavily upon Mr. Narain to accurately relate to him the relevant history. As it turns out, Mr. Narain did not provide Dr. Chan with a completely accurate accounting of all relevant details. For instance, Mr. Narain neglected to mention to Dr. Chan that on August 28, 2003 (just one month prior to seeing Dr. Chan), he had had a hernia operation (from which he had not yet fully recovered). Dr. Chan also did not have access to a Physiotherapy Designated Assessment Centre (DAC) report dated September 2, 2003 (Exhibit 1A, Tab 18) wherein it states that Mr. Narain reported a 70% symptomatic improvement in neck pain and a 60% improvement in lower back pain. On cross-examination, Dr. Chan agreed that, as of September 2003, Mr. Narain was capable of carrying a small bag of household garbage a short distance to a dumpster.

Mr. Narain certainly left much doubt in my mind as to what housekeeping services he normally performed before the accident. His reports to various assessors on this point have been confusing and inconsistent. Even if I were to accept that he did more than just take out the garbage, I find that Mr. Narain has still failed to prove on a balance of probabilities that he sustained an impairment as a result of the accident that prevented him from performing his usual housekeeping activities beyond early July 2003. In my view, the In-home Assessment performed on July 2, 2003 is the most reliable measure of Mr. Narain's abilities with respect to housekeeping activities. The conclusions contained in this report are based primarily upon observations of Mr. Narain performing various tasks rather than upon his subjective assessment of his capabilities and I accept those conclusions.

Consequently, Mr. Narain is not entitled to any additional amounts for the cost of housekeeping and home maintenance services.

4. Cost of the examination and report of Dr. Lawrence S. Chizen, dated February 6, 2004

Pursuant to section 24 of the Schedule, Mr. Narain is entitled to be paid for reasonable fees that are charged by a member of a health profession for conducting an assessment or examination and preparing a report, if the assessment or examination and the report are reasonably required in connection with a benefit claimed. Dr. Chan testified that he found it reasonable for Mr. Narain to see Dr. Chizen in order to get a different perspective (i.e. that of a physiatrist). I agree. I found the report of Dr. Chizen to be helpful, especially with respect to the issue of Mr. Narain's ability to perform the essential tasks of his pre-accident employment. There was no evidence presented and no submission made to suggest that the cost of the examination and report was unreasonable. I therefore find that Mr. Narain is entitled to $750.00 for the cost of the examination and report of Dr. Lawrence S. Chizen, dated February 6, 2004.

MEENAWATTI MANGROO

1. Weekly income replacement benefit

According to section 4 of the Schedule, Ms. Mangroo is entitled to a weekly income replacement benefit if she can prove, on a balance of probabilities, that she sustained an impairment as a result of the accident, that she was employed at the time of the accident and that as a result of the impairment (and within 104 weeks after the accident) she "suffers a substantial inability to perform the essential tasks of that employment." The parties agree that Ms. Mangroo was employed at the time of the accident as a general labourer at DVI. It is crucial to understand the nature of her employment. Ms. Mangroo's job was mainly made up of the following tasks: assembling foam mattresses and baby seats and putting pillow cases onto pillows. Assembling mattresses was her primary job. At the hearing, Ms. Mangroo described each of these tasks as follows:

Assembling Mattresses

• with a partner, place 12 mattress-sized pieces of foam onto a 4-wheeled cart
• each piece of foam weighed approximately 5 pounds
• with a partner, push the loaded cart over to a machine that glues together the foam pieces
• with a partner, place four pieces of foam into the machine so that they can be joined into one mattress (with four layers)
• with a partner, move the three completed mattresses to another area
• this process involved much bending
• repeat this process about 16 times per day
• job is done in a standing position

Assembling Baby Seats

• this job involved fitting a cover onto a "baby sofa"
• because of the odd shape, it was more difficult than stuffing a pillow into a pillowcase
• job is done in a standing position

Putting Covers on Pillows

• carry about 15 pounds of pillow cases to work area
• stuff one pillow at a time into a pillow case
• place covered pillows (about 20 - 25 pillows in total) into a box on a cart and wheel them to another area
• repeat this process about 16 times per day
• this job was more rare than assembling mattresses
• job is done in a standing position
• when assigned to this job, it would last all day long

Monday through Thursday, Ms. Mangroo would work from 7:30 a.m. until 5:00 p.m. On Fridays, she worked until 4:00 p.m. She would get a fifteen-minute break at 10:00 a.m., thirty minutes for lunch at noon and another fifteen-minute break at 2:00 p.m. In summary, her job involved: standing all day long (except for breaks); repetitive bending, kneeling, reaching and twisting motions; and, repetitive lifting of objects weighing up to approximately 20 pounds (with the assistance of another person). These descriptions accord reasonably well with the information Ms. Mangroo provided to the kinesiologist who conducted the Physical Demands Analysis on June 30, 2003 (Exhibit 2A, Tab 11).

Ms. Mangroo maintains that she has never recovered sufficiently from the injuries she sustained in the accident to return to this type of work (i.e. she could not "perform the essential tasks" of her pre-accident employment as an assembler).

On June 26, 2003, Ms. Mangroo had a functional abilities evaluation ("FAE") conducted. Although some test results suggested inconsistent or sub-maximal effort on her part, for the most part the testing revealed a verifiable loss of range of motion in her neck, lower back and shoulders. She was able to safely lift 10 pounds from floor to waist, from floor to shoulder and from waist to shoulder; this might indicate an ability to lift the amount of weight typically encountered in her usual employment. During the testing, however, Ms. Mangroo complained of increased pain in her neck, back and shoulders. The FAE report recommends that Ms. Mangroo not return to her former job until she has made significant improvement with regard to her rehabilitation. A similar conclusion was reached in the Physical Demands Analysis of Darren Payne, dated July 12, 2003 (Exhibit 2A, Tab 11); it was recommended that Ms. Mangroo not yet return to work due to (amongst other things) her inability to stand for prolonged periods and her inability to repeatedly bend and kneel. It was also recommended that Ms. Mangroo complete a work hardening program, receive appropriate treatment and education and that she continue her self-directed stretching and exercise program.

ING had an in-home assessment performed on July 2, 2003 (Exhibit 2A, Tab 12). With respect to her functional abilities, the assessor reported that Ms. Mangroo demonstrated that she was able to sit for 40 minutes, stand for 10 minutes, walk normally over short distances, ascend/descend stairs, complete a full squat with minimal support, complete a bilateral kneel with minimal support and lift and carry 5 pounds. Ms. Mangroo refused to attempt to lift and carry any other (i.e. greater) weights.

On October 20, 2003, ING had Ms. Mangroo examined by Dr. Lexier (see Exhibit 2A, Tab 16). Her main complaint at that time was low back pain. A secondary complaint was neck pain. She had almost a full range of motion in her neck and back and only pain associated with some movements at the extreme ends of the range of motion. She stated that her low back pain was as bad in October 2003 as it had been at the time of the accident but that her neck pain had improved approximately 50%. Dr. Lexier concluded that Ms. Mangroo had suffered soft-tissue injuries that would have been resolved physiologically within 2 - 2.5 months and that any limitations as of October 20, 2003 were not physical in nature. Dr. Lexier also testified that it was his impression (based upon his interview and examination of her) that Ms. Mangroo tends to embellish. Dr. Lexier concluded that Ms. Mangroo did not, at the time of his examination of her, suffer a substantial inability to perform the essential tasks of her pre-accident employment. Presumably, based upon this report by Dr. Lexier, ING decided to terminate Ms. Mangroo's income replacement benefits as of November 27, 2003.

As I pointed out in my earlier review of Dr. Lexier's opinion concerning Mr. Narain, since Dr. Lexier completely discounts subjective complaints of pain, his opinion can probably best be viewed as limited to an opinion on whether or not there exists objective evidence of an orthopaedic condition that might explain the patient's alleged limitations. While such an opinion may be helpful in some cases, it will rarely be sufficient to conclusively resolve the types of questions raised in applications such as this. The issue of whether Ms. Mangroo is suffering from debilitating pain in her back and neck that prevents her from performing her pre-accident employment must still be resolved. This is an issue that turns largely upon the credibility of Ms. Mangroo.

There are several reasons why I find Ms. Mangroo to be an unreliable witness. Her statements to various medical professionals were confusing and contradictory, many test results suggest that her efforts were inconsistent and sub-maximal and, despite claiming almost no improvement since the accident, she has seen her family doctor only a few times over a period of more than two years and neither Dr. Garber nor Dr. Velji (her regular family physician) ever referred her to a specialist to investigate her complaints of chronic pain.

During her cross-examination, Ms. Mangroo claimed several times to be unable to recall not only specific details about events but even whether or not those events occurred at all. For example, on her examination-in-chief, Ms. Mangroo testified that although she had taken medication for stress at one time, she had stopped taking it months before the accident and that it had nothing to do with her job. On cross-examination, she was confronted with a statement she signed on May 6, 2003 (Exhibit 2A, Tab 3) that was apparently prepared by her legal representative at the time which states:

"Prior to the accident, I was taking medication for stress and anxiety. I would feel this way because of my work." Ms. Mangroo testified that she did not recall meeting with her representative on the date in question, did not recall having the statement read to her and did not recall signing the statement (although she did not dispute that it was, in fact, her signature on the document). She could not explain the discrepancy between the signed statement of May 6, 2003 and her testimony at this hearing.

Throughout the hearing, when confronted on cross-examination with prior inconsistent statements that she made to various medical professionals, Ms. Mangroo would state that she did not recall making those earlier statements. She would not specifically deny having made the statements but would deny that the statements were accurate. In my view, this only serves to undermine her credibility because she is essentially saying, "I don't remember saying that, but if I made that statement, it was not true." If this had occurred once or twice, one might attribute it to simple miscommunication. In this case, there were too many instances for such an explanation to be plausible.

Ms. Mangroo also disagreed with reports of her statements contained in the Activities of Daily Living In-home Assessment (Exhibit 2A, Tab 8, p. 14, re homemaking activities she could perform as of April 15, 2003). Although she indicated (in a signed questionnaire) in the Insurer’s In-home Assessment (Exhibit 2A, Tab12) that by July 2003 she could do her shopping independently and sweep occasionally, on cross-examination Ms. Mangroo denied that this was accurate. She did not recall the recommendations of the FAE dated June 26, 2003 (Exhibit 2A, Tab 10). She did not recall the In-home assessment of July 2, 2003 (Exhibit 2A, Tab 12) or the recommendations contained in that report. When confronted with numerous inconsistencies between her testimony and the housekeeping expense forms submitted for the services allegedly provided by Ms. Narine, Ms. Mangroo could provide no explanation. Although Ms. Mangroo apparently reported during the Physiotheraphy DAC (Exhibit 2A, Tab 14) that as of August 2003 her neck was 40% improved and her lower back was 50% improved, at the hearing Ms. Mangroo denied that this was accurate. She also apparently told Dr. Lexier that her neck was 50% better but, at the hearing, denied that this was true at the time and could not explain why she may have made that statement to Dr. Lexier. In fact, she claimed that as of December 2003, her back and neck pain (and headaches) were just as bad as at the time of the accident.

Since the accident, Ms. Mangroo has really made no effort to return to the workforce. She first notified her employer of the accident on or about April 14, 2003 and then made no further effort to communicate with DVI. Her employer eventually had to call her (a couple of months later) to find out if she had any intention of returning to work. Ms. Mangroo admitted that she was bored at work and that she felt it did not pay enough; it appears that she was not eager to return. She received income replacement benefits until late November 2003 and then began collecting employment insurance benefits. She then decided to pursue a career as a personal support worker and enrolled at a local college in a program that involved both academic studies (involving several months of courses) and practical training (involving 250 hours of work in a field placement). Ms. Mangroo stated that she anticipates that work as a personal support worker will be more interesting and more lucrative than the assembly job she used to have and will allow more flexibility in her schedule (as she will be able to work a later shift). Ms. Mangroo stated that this job does not involve standing for long periods of time and she maintains that she would still not be physically able to perform the essential tasks of the job she had at DVI. Counsel for ING suggested that it is difficult to know what Ms. Mangroo is truly capable of doing because she has exaggerated her symptoms and is not motivated in the least to attempt to return to a similar job.

The medical evidence in support of Ms. Mangroo’s position comes from Dr. Samuel Silverberg (Exhibit 2A, Tab 18) and Dr. Michael E. Kliman (Exhibit 2A, Tab 19). Dr. Silverberg examined Ms. Mangroo on one occasion in June 2004. Dr. Kliman examined Ms. Mangroo on one occasion in July 2004. Dr. Silverberg’s report indicates that Ms. Mangroo told him that she could only stand for 20 minutes at a time and that she was unable to sit because of her headaches. On cross-examination, Ms. Mangroo did not recall making such statements to Dr. Silverberg. She agreed, however, that such statements would not accurately reflect her abilities as of June 2004. If Dr. Silverberg relied upon such inaccurate statements, obviously that would affect the validity of his conclusions. Similarly, Dr. Kliman testified that he relied upon Ms. Mangroo to accurately report her symptoms and he indicated that he had no reason to doubt what she told him.

Where, as here, entitlement to a benefit turns upon an applicant’s subjective reports of chronic pain, the credibility of the applicant is critical. As the applicant, the onus of proof rests upon Ms. Mangroo. For the foregoing reasons, I find that I can give little weight to the testimony of Ms. Mangroo or to the medical opinions of Drs. Silverberg and Kliman, who relied upon the veracity of Ms. Mangroo. I find that Ms. Mangroo has failed to prove, on a balance of probabilities, that she sustained an impairment as a result of the April 10, 2003 accident that, after November 27, 2003, rendered her substantially unable to perform the essential tasks of her pre-accident employment.

2. Cost of treatment recommended in a treatment plan dated June 6, 2003 from the Accident Injury Rehabilitation Centre

Ms. Mangroo claims the cost of treatment recommended in a treatment plan dated June 6, 2003 from the Accident Injury Rehabilitation Centre (Exhibit 2A, Tab 9). The plan consisted of 12 sessions of rehabilitation (chiropractic treatment and physiotherapy), 8 sessions of massage therapy and re-evaluation at the end of the treatment period. ING had Ms. Mangroo examined on August 11 and 13, 2003 at the West Park Healthcare Centre DAC and three reports were produced, one relating to massage therapy, one relating to physiotherapy and one relating to chiropractic treatment (Exhibit 2A, Tabs 13, 14 and 15). In all three reports, it was found that the treatment plan dated June 6, 2003 was not reasonable and necessary as it was unlikely that Ms. Mangroo would derive any real benefit from the proposed treatment.

At the hearing, Ms. Mangroo testified that the therapy she received from April through August 2003 may have reduced her pain 20% (from 10 out of 10 to 8 out of 10) for a duration of one to two hours following the treatment (and, occasionally, until the next day). In August 2003, Ms. Mangroo reported to the West Park Healthcare Centre that her neck had improved 40% and her back had improved 50%. In October 2003, Ms. Mangroo told Dr. Lexier that her neck pain had improved by 50%. At the hearing, Ms. Mangroo denied that this was accurate and claimed that the pain she experienced in her neck and back was just as bad in the fall of 2003 as had been immediately after the accident. Ms. Mangroo also testified that, by doing her exercises or taking Tylenol, she could eliminate much of the pain she was feeling for two to three hours at a time.

Although pain reduction or management may be valid reasons for undertaking therapy, in this case I find that the proposed treatment is not reasonable and necessary. If her testimony is to be believed, Ms. Mangroo appears to have derived no long-term benefit from the treatment that she had already received (which included about 45 physiotherapy sessions and 24 massage therapy sessions) and she was able to obtain almost as much short-term pain relief by taking some analgesics or by performing a few minutes of exercise. Although Ms. Mangroo later (on re-examination) stated that the therapy helped her lower back pain more than other methods she tried and that the benefits of therapy tended to last longer than exercise, the questions being asked of Ms. Mangroo on these points were very leading and I accordingly give little weight to this part of Ms. Mangroo’s evidence. This part of the application is, therefore, denied.

3. Housekeeping and home maintenance services

Pursuant to section 22 of the Schedule, 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"

For the last seven years, Ms. Mangroo has lived with her children in a three-bedroom, two-storey townhouse. Ms. Mangroo testified that on April 11, 2003 (the day after the accident), Harrichan Narain's sister, Ultrawatie Narine came to Ms. Mangroo's home and began to provide housekeeping services. According to the Housekeeping Expense Forms completed by Ms. Narine (Exhibit 23, Tabs 39, 41, 42, 44, 46 and 49), Ms. Narine performed the following services for Ms. Mangroo: cooking, grocery shopping, cleaning the bathroom(s), dusting, doing dishes, cleaning the kitchen, doing the laundry, ironing clothes and mopping the floors.

On April 14, 2003, Ms. Mangroo completed an Activities of Normal Life form (OCF-12) (Exhibit 2A, Tab 6) in which she listed the following as housekeeping activities that she was able to perform prior to the accident but was unable to perform as of April 14, 2003: grocery shopping, meal preparation, washing dishes, sweeping, dusting, vacuuming, bedmaking, cleaning bathrooms, washing floors, cleaning the oven, cleaning the refrigerator, garbage removal and doing the laundry.

Ms. Mangroo’s legal representative apparently arranged for an Activities of Daily Living In-home Assessment to be conducted on the following day, April 15, 2003 (see Exhibit 2A, Tab 8). According to the report, Ms. Mangroo told the assessor that, since the accident, she was still able to clean the kitchen and that there were only three housekeeping chores that she could not perform: cleaning the bathroom, garbage removal and laundry. There were a number of other chores (such as bedmaking, cooking, dishwashing, mopping, sweeping and shopping) that she indicated she could perform with some restrictions or with some discomfort. Ms. Mangroo apparently reported that her daughter was assisting her with some of these chores since the accident. Significantly, although Ms. Mangroo testified that Ms. Narine began to assist her with housekeeping on April 11, 2003, Ms. Mangroo apparently made no mention of this fact to the assessor on April 15, 2003. In fact, according to the Housekeeping Expense form submitted by Ms. Narine for this period (Exhibit 2B, Tab 39), Ms. Narine attended at the home of Ms. Mangroo for two hours on each of April 11, April 14 and April 15, 2003. It is difficult to fathom how Ms. Mangroo could fail to mention this fact to the person sent by Ms. Mangroo’s representative to assess her need for housekeeping assistance. Ms. Mangroo's explanation is that she never mentioned Ms. Narine because she was not specifically asked about her. This is but one of several glaring inconsistencies that arose in the evidence presented in support of this part of the claim.

The Activities of Daily Living In-home Assessment conducted on April 15, 2003 recommended 6 - 8 hours per week of housekeeping assistance for 4 - 6 weeks (representing approximately $240.00 to $480.00 in housekeeping assistance). Based upon this report, ING paid $320.00 towards housekeeping assistance.

On June 26, 2003, Ms. Mangroo underwent a Functional Abilities Evaluation ("FAB") (Exhibit 2A, Tab 10) which recommended another 4-6 weeks of home-care assistance (for laundry, floor care, grocery shopping, etc.). The report did not indicate the number of hours per week that were recommended.

On July 2, 2003, an In-home Assessment was conducted by IRSI on behalf of ING (Exhibit 2A, Tab 12). According to the occupational therapist who interviewed and examined Ms. Mangroo, by early July 2003, Ms. Mangroo demonstrated that she was physically capable of all housekeeping activities (with pacing or with assistive devices that were provided to Ms. Mangroo). The assessor concluded that Ms. Mangroo no longer required housekeeping assistance.

Nevertheless, Ms. Narine allegedly continued to provide to Ms. Mangroo at least five hours of housekeeping services each week from July 2003 until the end of February 2004. In total, Ms. Mangroo submitted bills to ING for $3,030.00 (303 hours of housekeeping assistance between April 2003 and February 2004). Of this amount, ING paid to Ms. Mangroo $665.00 (the initial payment of $320.00 plus a further $345.00) for the period up to July 7, 2003, the time of the Insurer's In-home Assessment. ING refused to pay for housekeeping services after that date. Ms. Mangroo is claiming the outstanding balance of $2,365.00.

Ms. Mangroo testified that Ms. Narine always came for two hours but Ms. Narine testified that the expense forms submitted by her (which show that many of her visits lasted for one hour or less) accurately reflect the time she spent performing housekeeping services for Ms. Mangroo. Ms. Mangroo testified that her children always left for school by 8:15 a.m. (because school starts at 8:30 a.m.) while Ms. Narine (who, according to the testimony of both Ms. Narine and Ms. Mangroo, was responsible for feeding the children and getting them off to school each weekday morning after the accident) testified that the children left for school at 9:00 a.m.

Ms. Mangroo has attributed all of Ms. Narine's time to housekeeping services but it appears that at least one-half of Ms. Narine's time was spent preparing breakfast for Ms. Mangroo's children (which activity may not properly be characterized as housekeeping). Ms. Mangroo testified that Ms. Narine spent four hours each Saturday doing her laundry; the expense claim forms, however, reveal that Ms. Narine rarely (if ever) recorded or billed for doing laundry on a Saturday and never billed more than two hours of housekeeping on any given day. Ms. Mangroo told the assessor that she was capable of cleaning the kitchen but repeatedly claimed compensation for Ms. Narine cleaning the kitchen. Ms. Mangroo testified that for two weeks in October 2003 she did not require the services of Ms. Narine because Ms. Mangroo's mother came to stay with her and helped with the housekeeping; there is, however, no corresponding gap in the billings of Ms. Narine during the period in question. Finally, Ms. Mangroo testified that she paid all of the housekeeping benefit she received from ING to Ms. Narine but Ms. Narine testified receiving a lesser amount.

The only medical evidence that supports the continuation of housekeeping services beyond July 2003 is that of Dr. Michael E. Kliman, an orthopaedic surgeon who examined Ms. Mangroo on July 8, 2004 (Exhibit 2A, Tab 19). He concluded that, as of the date of this examination, "there are many of her usual housekeeping and household activities that are not within the tolerance of her current neck and back symptoms, and she would certainly benefit from assistance with these activities over the upcoming months." At the hearing, however, Dr. Kliman admitted that Ms. Mangroo probably could do most household chores if she took her time, watched her position and did not try to lift too much. Dr. Kliman was also quite forthright in stating that he believed Ms. Mangroo's subjective complaints of back pain, neck pain and headaches and had no reason to doubt her word.

Based upon the many inconsistencies in the evidence presented by or on behalf of Ms. Mangroo with respect to this issue, I find that she has failed to adduce credible evidence that she has incurred the housekeeping expenses claimed. Since Dr. Kliman relied upon Ms. Mangroo to accurately report her symptoms, given my findings concerning the credibility of Ms. Mangroo, I also find that I can give little weight to the conclusions of Dr. Kliman. In my view, the In-home Assessment performed on July 2, 2003 is the most reliable measure of Ms. Mangroo's abilities and I accept the conclusions contained in that report. Ms. Mangroo has failed to meet the onus upon her. ING was justified in terminating the housekeeping benefits when it did.

Consequently, Ms. Mangroo is not entitled to any additional amounts for the cost of housekeeping and home maintenance services.

EXPENSES:

At the conclusion of the hearing, the parties asked that I defer the issue of entitlement to expenses of this arbitration. If the parties cannot agree on the issue of entitlement or amount, they may make submissions on both issues in accordance with Rule 79 of the Dispute Resolution Practice Code.

June 24, 2005

Richard Feldman Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 91

FSCO A03-001749

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HARRICHAN NARAIN

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

AND

FSCO A03-001748

BETWEEN:

MEENAWATTI MANGROO

Applicant

and

ING 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:

1. ING shall pay Harrichan Narain income replacement benefits in the weekly amount of $197.25 pursuant to section 4 of the Schedule for the following periods:

a) December 9, 2003 - February 23, 2004;

b) September 3, 2004 - September 23, 2004 (less 3 days);

c) November 25, 2004 - March 2, 2005.

2. ING shall pay Harrichan Narain $750.00 for the cost of the examination and report of Dr. Lawrence S. Chizen, dated February 6, 2004, pursuant to section 24 of the Schedule.

3. ING shall pay Harrichan Narain interest on the overdue amounts set out above from the date each payment became overdue at the rate of 2 per cent per month compounded monthly, pursuant to section 46(2) of the Schedule.

4. The application of Meenawatti Mangroo is dismissed.

5. If the parties cannot agree on the issue of entitlement or amount of the expenses of this arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code.

June 24, 2005

Richard Feldman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2which I assume is meant to refer to the April 1995 report of the Société de l'assurance automobile du Quebec's Task Force Report entitled, Redefining "Whiplash "and its Management.
3. 3Kennelly and Wawanesa Mutual Insurance Company (FSCO A99-000139, January 21, 2000), Wong and Allstate Insurance Company of Canada (FSCO A99-000545, September 22, 2000), and General Accident Assurance Co. of Canada and Violi, (FSCO P99-00047, September 27, 2000).