Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 8

FSCO A04-002211

BETWEEN:

JAGDEEP RATTAN

Applicant

and

PILOT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

December 12 and 13, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Stephen Braithwaite for Ms. Rattan

Joseph Griffiths for Pilot Insurance Company

Issues:

The Applicant, Jagdeep Rattan, was injured in a motor vehicle accident on May 23, 2003. She applied for statutory accident benefits payable under the Schedule¹ from Pilot Insurance Company ("Pilot"). Pilot paid Ms. Rattan certain benefits, including income replacement, medical and housekeeping benefits, but it denied that she remained entitled to medical benefits for treatment up to a year after the accident or to housekeeping benefits up to two years after the accident. The parties were unable to resolve these disputes through mediation, and Ms. Rattan 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 were:

1. Is Ms. Rattan entitled to medical benefits under section 14 of the Schedule in respect of the treatment recommended in four disputed treatment plans dated September 22, 2003, October 29, 2003, March 25, 2004 and May 25, 2004.

2. Is Ms. Rattan entitled to additional housekeeping benefits under section 22?

Result:

1. Ms. Rattan is entitled to $2,340, plus interest from November 8, 2003, in respect of the treatment recommended in the first disputed treatment plan and to $1,950, plus interest from December 12, 2003, in respect of the treatment recommended in the second disputed treatment plan. She is not entitled benefits, in respect of the treatment recommended in the third and fourth treatment plans.

2. Ms. Rattan is entitled to housekeeping benefits calculated as follows: 14 hours per week from May 23, 2003 to July 30, 2003 and 7 hours per week from July 31, 2003 to September 10, 2003, payable at the hourly rate of $7.14 per hour minus benefits already paid. The outstanding balance will bear interest from September 10, 2003.

Introduction

On May 23, 2003, Ms. Rattan was driving home from her evening shift as a line operator in an industrial bakery. Her vehicle was stopped at a red light when it was suddenly struck from behind by another vehicle travelling at an estimated speed of 85 kilometres per hour. Fortunately, Ms. Rattan was restrained by her fastened seat belt. She was taken to a hospital that night and saw her family doctor, Dr. Sushma Joshi, later the same day. A radiological examination conducted on May 27, 2003 revealed no cervical or lumbar spine injuries but did show a "flexion deformity at the sacral-coccygeal junction consistent with recent trauma."² Nevertheless, there was no subsequent investigation of any bony injury. Instead, Dr. Joshi diagnosed "Neck sprain, Back sprain and anxiety."³ Dr. S. K. Silverberg, a specialist in internal medicine, saw Ms. Rattan on November 18, 2003 and also diagnosed "soft tissue injuries to the cervical and lumbosacral spines."⁴

Ms. Rattan remained off work until December 29, 2003 and received income replacement benefits until that date. There was no dispute about her entitlement to income replacement benefits. There was also no dispute about three of the seven treatment plans submitted by I.A. Qureshi, a physiotherapist at Total Care Management (TCM). Two of the four disputed treatment plans were submitted prior to her return to work and the other two were submitted after her return to work. Ms. Rattan submitted that her return to work aggravated her condition and necessitated further treatment. Ms. Rattan also maintained that she required assistance with housekeeping to May 22, 2005, two years after the accident, and that such benefits should have been paid at the maximum rate of $100 per week.

Medical benefits

I will first set out a brief history of TCM's seven treatment plans. I will then deal with the first two disputed treatment plans, dated September 22, 2003 and October 29, 2003. I will then deal with the second two disputed treatment plans, dated March 25, 2004 and May 25, 2004.

A brief history of the seven treatment plans

The first treatment plan, dated May 28, 2003, recommended active exercises, electro-therapy, massage therapy and moist heat in order to relieve cervical strain, lumbar strain, headaches and left shoulder strain.⁵ This plan was approved by Pilot. The second treatment plan, dated August 5, 2003, recommended more of the same treatment (except for moist heat).⁶ Mr. Griffiths acknowledged that since Pilot did not give notice under section 38(8) of the Schedule that it would not pay for this treatment, it was "deemed" approved under section 38(8.2), paragraph 2. The third treatment plan, dated September 22, 2003, recommended active and resisted exercises, work conditioning and manual therapy in order to increase strength and endurance of neck and left shoulder and to improve lumbar stability.⁷This plan was the subject of a Medical and Rehabilitation Designated Assessment Centre (MedRehab DAC) report, dated December 18, 2003. The report described the work conditioning component of this treatment plan as reasonable and necessary and the active and passive therapy components as unreasonable and unnecessary.⁸The report noted that Ms. Rattan was receiving the work conditioning program from another treatment provider, Sportsplex Rehab. The fourth treatment plan, dated October 29, 2003, recommended physiotherapy and exercises.⁹ It was also described as unreasonable and unnecessary in the December 18, 2003 MedRehab DAC report. The fifth treatment plan, dated December 9, 2003, recommended physical rehab, physiotherapy, education and exercise therapy.¹⁰ This plan was initially rejected¹¹ but Mr. Griffiths again acknowledged that it was "deemed" approved when Pilot failed to issue a notice indicating its intention to challenge the reasonableness and necessity of the recommended treatment. The sixth and seventh treatment plans, dated March 25 and May 25, 2004, respectively, also recommended physical rehab, physiotherapy, education and exercise therapy.¹² They were described as neither reasonable nor necessary in a MedRehab DAC report signed on June 14, 2004.¹³

the first two disputed treatment plans, dated September 22, 2003 and October 29, 2003

I find it perplexing that Pilot chose to challenge the third and fourth treatment plans, dated September 22, 2003 and October 29, 2003, but did not follow the process for challenging the fifth treatment plan, dated December 9, 2003, even though all three plans recommended physical therapy and exercises. If Ms. Rattan required this kind of treatment on December 9, 2003, was it not likely that she also still required it on September 22, 2003 and October 29, 2003?

In any event, the MedRehab DAC report dated December 18, 2003 does not, in my opinion, provide an adequate foundation for Pilot's position that the treatment recommended in the September 22 and October 29, 2003 treatment plans was unreasonable and unnecessary.

The MedRehab DAC assessments were conducted by a kinesiologist and a physiotherapist on December 4, 2003. For her part, the kinesiologist did not appear to understand that the question she was required to answer was whether or not the treatment was reasonable and necessary when it was recommended. In her opinion, the treatment plan dated September 22, 2003 "would not be reasonable and necessary at this time" while the "treatment plan dated October 23, 2003 [sic] for further exercises is not reasonable or necessary."¹⁴ (my emphasis) The kinesiologist's opinion is, therefore, of no assistance to me.

The physiotherapist, on the other hand, did appear to understand the question that she was required to answer. In her opinion, apart from the work conditioning component of the September 22, 2003 treatment plan, the treatment Ms. Rattan had already received prior to September 22, 2003 "should have been more than sufficient to have improved her strength, endurance and flexibility ... [f]urther active or passive physical therapy would not have resulted in any further long-term benefit."¹⁵

However, since this physiotherapist only examined Ms. Rattan on December 4, 2003, not on September 22 and October 29, 2003, her opinion was, at best, an educated guess about how much treatment "should have been ... sufficient" by the two earlier dates, one of which was more than two months earlier. Moreover, TCM's invoices established that by December 4, 2003, Ms. Rattan had already received the treatment recommended in both of the disputed plans.¹⁶ In my view, the physiotherapist's opinion must be regarded as highly speculative.

I also reject Mr. Griffiths' submission that there was insufficient positive evidence to support a finding that these treatment plans were reasonable and necessary. This argument was based, in part, on the results of a functional abilities examination (an FAE), conducted by a kinesiologist, and an "independent medical examination" (an IME), conducted by a chiropractor, on September 18, 2003. The FAE report stated that "further regularly scheduled therapy treatment is not physically required to be able to resume normal activities of daily life" but it also recommended in-home exercises "for better movement mechanics and reduced chance of chronicity of symptoms."¹⁷ The IME report stated that Ms. Rattan "would greatly benefit from care that is activity based and not on passive treatment modalities. Rehabilitation and conditioning can be in the form of re-integration into normal routine - including employment demands."¹⁸

These reports did not deny the existence of Ms. Rattan's ongoing problems. They only favoured dealing with those problems through "re-integration into normal routine - including employment" supported by "in-home exercises." But this view must also be regarded as speculative as it was never tested: Ms. Rattan remained off work until December 29, 2003. Moreover, Mr. Qureshi had direct contact with Ms. Rattan between September and December 2003. In my view, his treatment plans provided more reliable evidence about her treatment needs during this period though not, as explained later in this decision, about precisely why she needed this treatment.

Mr. Griffiths further argued that since Mr. Qureshi's last "reassessment report" was submitted to Pilot on September 22, 2003,¹⁹ with the disputed treatment plan of that date, and since no other health practitioners submitted later reassessment reports detailing later progress, Ms. Rattan had not sufficiently substantiated her need for treatment beyond that recommended in the September 22, 2003 treatment plan.

Insofar as this argument was directed at the October 29, 2003 treatment plan, it overlooked two facts. First, while Mr. Qureshi may not have submitted a "reassessment report" with this treatment plan, TCM's invoices²⁰ and the charges itemized in the treatment plan itself indicated that he did conduct a "reassessment" of Ms. Rattan on October 29, 2003. Second, and more importantly, the results of this reassessment were reflected in the observations made by Mr. Qureshi in the body of the treatment plan in response to the following question: "If this is a subsequent Treatment Plan, what was the applicant's improvement at the end of the previous treatment based on your evaluation method?" Mr. Qureshi's answer to this question amounted to a "reassessment" of her progress. It listed both Ms. Rattan's subjective reports of improvement (or lack thereof) in the low back, neck and left shoulder and Mr. Qureshi's objective reports of ROM limitations in the cervical and lumbar levels of the spine and in the left shoulder.²¹

In sum, I find that Mr. Qureshi's treatment recommendations, as stated in his treatment plans dated September 22 and October 29, 2003, should be assigned greater weight than the opinions expressed in the FAE and IME reports dated September 18, 2003 and the MedRehab DAC report dated December 18, 2003. Accordingly, I conclude that the treatment recommended in the first two disputed plans was reasonable and necessary.

On its face, the cost of the first disputed treatment plan was $2,340 but it was not clear whether or not that amount included the cost of the work conditioning program which Ms. Rattan received at Sportsplex Rehab. Since Sportsplex Rehab's invoice was not entered into evidence, I find that Ms. Rattan is only entitled to $2,340 plus interest from November 8, 2003, thirty days after the date Pilot received this treatment plan.

The cost of the second disputed treatment plan was not $2,135, as indicated on its face, because that amount included two charges which were not recoverable under section 14 of the Schedule, namely, the cost of the assessment conducted on October 29, 2003 and the cost of completing form OCF 18. These costs were recoverable under section 24 of the Schedule but Ms. Rattan submitted no claims under this section. She is, therefore, only entitled to an additional $1,950 for the treatment recommended in this treatment plan, plus interest from December 12, 2003, thirty days after the date Pilot received the plan.

the second two disputed treatment plans, dated March 25, 2004 and May 25, 2004

Where these two treatment plans are concerned, it is Ms. Rattan's position which is perplexing. As mentioned, Ms. Rattan maintained that it was her return to work on December 29, 2003 which aggravated her condition and necessitated further treatment. Why then was the first of these two treatment plans, dated March 25, 2004, not received by Pilot until three months after her return to work?²²

Ms. Rattan testified that she returned to full duties, not modified duties, and that she was expected to work her full eight hours and forty-five minute shift. She testified that she was able to do this because she took painkillers and because she received assistance from co-workers. She stated that in February 2004 she asked Dr. Joshi if she could start getting physiotherapy again. She stated that she attended physiotherapy for six weeks and that it was helping to reduce her pain but that, at the end of six weeks, when she stopped getting treatment, the pain came back.

On cross-examination, Ms. Rattan was unable to explain how Dr. Joshi was able to recommend further physiotherapy in February 2004 when, according to Dr. Joshi's clinical notes and records, she did not see that doctor after her return to work, on December 29, 2003, until March 29, 2004.²³ She ended up agreeing that she did not see Dr. Joshi during that three-month period.

In other words, Ms. Rattan effectively admitted that she decided to see Mr. Qureshi again without any recommendation or referral from Dr. Joshi. Dr. Joshi's report dated June 8, 2005 stated that she retroactively ratified that decision but only in the vaguest of terms. It read: "She returned to work on December 29, 2003. She still suffered from pain and was advised to continue with therapy and massage therapy."²⁴

Mr. Qureshi's treatment plan, dated March 25, 2004, noted that "she is back to work. Works through pain. Is helped by co-workers on personal level. But no modified duties..."²⁵ His treatment plan dated May 25, 2004 observed: "She is still helped by co-workers. But is able to do some heavy chores now."²⁶ As previously mentioned, both treatment plans recommended physical rehab, physiotherapy, education and exercise therapy.

These treatment plans were reviewed by a different MedRehab DAC than the one that reviewed the first two disputed treatment plans and, in my view, its report suffered from fewer weaknesses than the earlier MedRehab DAC report dated December 18, 2003.

First, Ms. Rattan was examined by a DAC assessor, a physiotherapist, who appeared to understand that the question she was required to answer was whether or not the treatment was reasonable and necessary when it was recommended. Second, while the report was signed on June 14, 2004, and was thus able to express an opinion about both disputed treatment plans, the opinion expressed was based, at least in part, on an examination conducted on May 5, 2004, a date approximately mid-way between the dates of the two treatment plans. The DAC's examination was, therefore, about as close in time to the examinations on which Mr. Qureshi based his recommendations as the DAC system would permit. Third, by May 5, 2004, Ms. Rattan had not yet received the treatment recommended in at least the second of the two treatment plans.

The DAC assessor carefully recorded all of Ms. Rattan's complaints of pain and reported finding nothing to suggest that Ms. Rattan's symptomatology was non-organic in origin. She also took note of Ms. Rattan's assertions that her return to work exacerbated her condition and that she obtained "significant benefits" from the disputed treatment. Nevertheless, the DAC assessor came to the following conclusions:

Taking into consideration the client's accident-related soft tissue injuries, the length of time elapsed since the motor vehicle accident, and the extensive physiotherapy, chiropractic care, and massage therapy already undergone, including the work conditioning program at Sportsplex Fitness Centre, it is my opinion that the disputed Treatment Plans outlined above were neither reasonable nor necessary. At this juncture, in view of the time elapsed and the results of my examination, which did not reveal evidence of any significant physical impairments, I have no recommendations for further clinic-based physical rehabilitation programs for injuries reportedly sustained in the May 22, 2003 motor vehicle accident. I feel Ms. Rattan has received appropriate treatment for her injuries from which she has achieved maximum therapeutic benefits.²⁷

As was pointed out by Mr. Griffiths, the last two sentences of this passage were clearly written in compliance with section 43(8)(a) of the Schedule which requires MedRehab DACs to "include recommendations relating to the future provision of goods and services to the insured person for his or her treatment and rehabilitation..." Contrary to Mr. Braithwaite's submission, these sentences should not be read as an approval of all of Ms. Rattan's prior treatment, including the treatment recommended in the disputed treatment plans.

I find that the opinion expressed by the MedRehab DAC should be assigned greater weight than the recommendations contained in the treatment plans dated March 25 and May 25, 2004. This finding is based partly on the relative strengths of the MedRehab DAC report, dated June 14, 2004, as described above, and partly on the weaknesses of the evidence in support of the treatment plans, as described below.

First, the evidence established that the idea to resume treatment came from Ms. Rattan herself, not from Dr. Joshi or Mr. Qureshi. I appreciate that Mr. Qureshi agreed to recommend further treatment and that Dr. Joshi agreed to supply a letter saying that Ms. Rattan "was advised to continue with therapy." I nevertheless remain concerned that they were simply responding to Ms. Rattan's request for further treatment without really considering whether or not it was reasonable and necessary. Indeed, neither Dr. Joshi's letter nor the treatment plans submitted by Mr. Qureshi contained opinions that the particular treatment at issue was reasonable and necessary. Dr. Joshi's letter was too vague and the OCF-18 forms submitted by Mr. Qureshi did not require him to express such an opinion.²⁸ While the expression of such an opinion might normally be inferred from the treatment provider's submission of a treatment plan to the insurer, in the particular circumstances surrounding the last two disputed treatment plans, I am not prepared to draw such inferences.

Second, Ms. Rattan demonstrated during the first three months of 2004 that she could function in the workplace without this treatment. Even after she received all of the treatment recommended in the first treatment plan, the second treatment plan indicated that she was "still helped by co-workers." Contrary to the submission made by Mr. Braithwaite, this evidence established that the disputed treatment made little difference in Ms. Rattan's ability to function in the workplace.

Accordingly, I conclude that the treatment recommended in the last two disputed plans was neither reasonable nor necessary.

Housekeeping benefits

how long did Ms. Rattan require housekeeping benefits?

There was no suggestion that Ms. Rattan was catastrophically impaired as a result of the accident. Accordingly, the maximum housekeeping benefits she could recover under section 22 of the Schedule was $100 per week for each of the 104 weeks following the accident during which she was unable to perform the housekeeping services she normally performed before the accident. In his opening statement, Mr. Braithwaite stated that Ms. Rattan was claiming the statutory maximum amount of $10,400. However, when it came to presenting evidence to support his client's claim for this amount, Mr. Braithwaite did an exceedingly poor job.

First, his examination-in-chief of Ms. Rattan gave a very incomplete picture of the housekeeping tasks she performed before the accident. Second, it was not he, but rather Mr. Griffiths, who submitted Ms. Rattan's housekeeping expense forms into evidence after Ms. Rattan had already testified in-chief. Third, the expense forms did not go beyond April 13, 2004, well short of the 104 weeks following the accident of May 23, 2003. Fourth, while the expense forms indicated that two people provided housekeeping assistance to Ms. Rattan, her mother-in-law and her brother-in-law, Mr. Braithwaite only called her mother-in-law as a witness and provided no explanation why her brother-in-law was not called as a witness. Fifth, Mr. Braithwaite appeared not to anticipate Mr. Griffiths' highly effective attack on the reliability of the expense forms, even though his client previously submitted these forms to Pilot for payment. For reasons which I will explain below, I find that these forms provided completely unreliable evidence about Ms. Rattan housekeeping needs.

Nonetheless, there were other sources of evidence about Ms. Rattan's need for housekeeping assistance after the accident.

A kinesiologist named Sylvia Atkinson conducted an in-home assessment one week after the accident, on May 30, 2003. Ms. Atkinson formed the opinion that Ms. Rattan required housekeeping assistance to accomplish the following tasks: meal preparations, dish washing, laundry, ironing, bed making, changing sheets, sweeping, mopping, vacuuming, bathroom cleaning, dusting and grocery shopping. The inclusion of grocery shopping in this list was questionable. The report indicated that grocery shopping was performed by Ms. Rattan's husband before the accident.²⁹ Excluding grocery shopping, Ms. Atkinson estimated that Ms. Rattan required 14.8 hours of housekeeping assistance per week. Ms. Atkinson did not estimate the period of time during which Ms. Rattan would require this level of assistance and she conducted no further assessments.³⁰

An ergonomist named Nancy Vranic conducted a series of three in-home assessments on June 4, July 30 and September 10, 2003. In her report dated June 4, 2003, Ms. Vranci estimated that Ms. Rattan needed 6.1 hours of housekeeping assistance per week "for the next four weeks" to accomplish the following tasks: changing sheets, bathroom cleaning, meal preparation, kitchen cleaning and laundry. With respect to dusting and floor care, the report stated that Ms. Rattan had not attempted these tasks "to date."³¹ After a reassessment of Ms. Rattan's needs on July 30, 2003, Ms. Vranic estimated that she required 1.2 hours of housekeeping assistance per week to accomplish the following tasks: bathroom cleaning, floor care and laundry. She recommended a further "reduction over the next 6 weeks...to encourage independence."³² When Ms. Vranic further reassessed Ms. Rattan's needs six weeks later, on September 10, 2003, she concluded that further housekeeping assistance was not required.³³

Mr. Griffiths argued that Ms. Rattan's need for housekeeping assistance was properly monitored by Ms. Vranic and that her reports established that Ms. Rattan's needs in this regard declined over time and disappeared by at least September 10, 2003. He noted that this view was supported by the FAE and IME reports referred to earlier, dated September 18, 2003 which also concluded that Ms. Rattan was able to resume her housekeeping activities.³⁴ Mr. Griffiths further noted that while Ms. Atkinson initially gave a higher estimate of Ms. Rattan's housekeeping assistance needs than Ms. Vranic, she did not monitor Ms. Rattan's progress after May 30, 2003.

Ms. Atkinson did, however, carry out a "functional range of motion" assessment of Ms. Rattan on June 18, 2003. This was done in conjunction with a work site assessment in order to determine whether or not Ms. Rattan was able to return to work. Ms. Atkinson described the job, and Ms. Rattan's inability to do it, in the following terms:

The majority of Jagdeep Rattan's job as being on the bread production line requires standing for the duration of her shift. Mrs. Rattan is required to carry/lift up to 20 lbs and bend frequently below knees throughout a working shift, putting pressure on the lumbar region, deltoids and both legs. Also, Mrs. Rattan must use both hands to reach, finger/feel and grasp/handle items to perform the job tasks. She must be able to push/pull a movable rack with 360 lbs of bread dough. With each job task, there is a requirement to be able to stand and balance while carrying loads at waist level. Furthermore, multi-coordination is needed with the use of hands, feet and eyes. All these physical demands of the job would be difficult and in some situations impossible for Mrs. Rattan to perform due to her injuries. She has reported that the cervical pain would radiate to the deltoid and thoracic regions. Mrs. Rattan also demonstrated pain responses from the thoracic region when using both arms. Furthermore, Mrs. Rattan experiences lumbar pain and restrictions. She is unable to stand longer than 10 minutes or lift/carry over 5 lbs. Mrs. Rattan has not been to work since the accident due to her injuries. Mrs. Rattan has reported she would experience pain in the left deltoid radiating to the forearm occasionally. At this time Mrs. Rattan would not be able to endure a full work shift without undue fatigue or unnecessary strain and pain.³⁵

This conclusion may have established that Ms. Rattan was not ready to return to work on June 18, 2003, less than a month after the accident. It did not, in my opinion, establish that she was still not ready to resume her housekeeping activities, in her own home, at her own pace, by September 10, 2003, nearly two months later.

I acknowledge that the treatment plans Mr. Qureshi submitted immediately after September 10, 2003 stated that the treatment he recommended was intended to assist Ms. Rattan to return to both "activities of normal life" and to "work." Mr. Qureshi indicated this in both of the first two disputed treatment plans, dated September 22 and October 29, 2003, by checking off boxes about the treatment plans' anticipated benefits or goals. I accept that the treatment in question was required to prepare Ms. Rattan for her eventual return to work on December 29, 2003. I do not accept that it was required to help her resume her housekeeping activities after September 10, 2003. That would give Mr. Qureshi's imprecise check marks about the goals of treatment more weight than the combined and specific opinions of Ms. Vranic, the FAE and the IME assessors about Ms. Rattan's ability to resume her housekeeping activities. In my view, the latter opinions must be given greater weight.

I, therefore, conclude that Ms. Rattan was able to return to her pre-accident housekeeping activities by September 10, 2003.

how much housekeeping assistance did Ms. Rattan require until September 10, 2003?

I accept that Ms. Rattan's housekeeping needs gradually diminished to zero by September 10, 2003 but, for the following reasons, I am not prepared to accept all of Ms. Vranic's estimates regarding Ms. Rattan's initial and diminishing needs.

1. Ms. Vranic initially included no time for floor care on the ground that Ms. Rattan had not attempted these tasks "to date." That was not a proper reason to exclude these tasks. Ms. Atkinson included over three hours per week for sweeping, mopping and vacuuming. I, therefore, add three hours to Ms. Vranic's initial weekly estimate.

2. Ms. Vranic acknowledged that Ms. Rattan spent seven hours per week preparing meals before the accident but only included four hours per week in her post-accident needs on the ground that she was still able to "manage small meals, snacks and breakfast." Ms. Atkinson included seven hours per week for meal preparation in her initial estimate and, in my view, that was a more realistic number for the period of acute disability immediately after the accident. I, therefore, add another three hours to Ms. Vranic's initial weekly estimate.

3. Ms. Vranic included 80 minutes per week after the accident for kitchen cleaning but recommended Ms. Rattan only do it every other day to allow adequate rest. Again, I do not consider this to have been a realistic approach or figure in the immediate post-accident period. Ms. Atkinson included two hours and twenty minutes per week for dish washing only. I, therefore, add an hour per week to Ms. Vranic's initial estimate in order to bring it in line with Ms. Atkinson's estimate.

4. Ms. Vranic's initial assessment on June 4, 2003 included 15 minutes for bathroom cleaning and 20 minutes for laundry and ironing but, paradoxically, her July 30, 2003 reassessment increased the time allotted for these tasks to 30 minutes for bathroom cleaning and 32 minutes for laundry and ironing. Ms. Atkinson's estimate included 40 minutes for bathroom cleaning and 55 minutes for laundry. I, therefore, add an hour per week to Ms. Vranic's initial estimates in order to bring them in line with Ms. Atkinson's estimates.

5. Ms. Vranic's reassessment report of July 30, 2003 removed assistance for three tasks, changing sheets, meal preparation and kitchen cleaning, while retaining assistance for three others, bathroom cleaning, floor care and laundry. I consider it very unlikely that Ms. Rattan had regained her ability to perform the former tasks, with no restrictions, by July 30, 2003 while, by the same date, she remained restricted in her ability to perform the latter tasks. I find it more likely that Ms. Rattan's need for housekeeping assistance diminished gradually and evenly across all categories.

Applying these findings, and rounding out the resulting total, I conclude that Ms. Rattan reasonably required the following amount of housekeeping assistance as a result of the accident: 14 hours per week from May 23, 2003 to July 30, 2003 and 7 hours per week from July 31, 2003 to September 10, 2003.

at what rate should housekeeping benefits have been paid to September 10, 2003?

The following examples demonstrate the general unreliability of the information contained in the expense forms Ms. Rattan submitted to Pilot.

1. Ms. Rattan's brother-in-law submitted an expense form for the period May 24, 2003 to June 24, 2003 but Pilot received it on June 6, 2003. As previously noted, he did not testify.

2. The expense forms indicated that Ms. Rattan's mother-in-law started to provide housekeeping services to Ms. Rattan on June 25, 2003³⁶ and that she continued to do so, without restrictions, until October 25, 2003.³⁷ Ms. Rattan's mother-in-law testified that she started to provide housekeeping services to Ms. Rattan when she returned from India on July 10, 2003 and that she stopped providing at least some housekeeping services when she got sick on September 20, 2003.

3. The five expense forms submitted for the period May 24, 2003 to October 25, 2003 provided no task breakdowns and were identical in all respects except for the dates and the names of Ms. Rattan's mother-in-law and brother-in-law. The six expense forms for the period October 29, 2003 to April 13, 2004, were, except for the dates, identical in all respects, including task breakdowns.

4. The expense forms indicated that Ms. Rattan paid her brother-in-law and mother-in-law $10 per hour, 40 hours per week. Her mother-in-law testified that Ms. Rattan's husband paid her $400 in cash per week but it was not clear whether or not this amount included child care payments.

Nevertheless, the date of submission of the first expense form, June 6, 2003, confirmed that Ms. Rattan was made aware of her right to claim housekeeping benefits soon after the accident. I do not, therefore, doubt that she received, and undertook to pay some member of her family to provide, housekeeping services at least equivalent to those which I have determined she required. To that extent, I conclude that Ms. Rattan incurred reasonable and necessary housekeeping expenses as a result of the accident. The amount of benefits owing will be calculated by applying the hourly rate of $7.14³⁸ and by deducting the housekeeping benefits Pilot has already paid at the lower rate. Given the unreliability of the information contained in the one expense form that Ms. Rattan submitted to Pilot prior to September 10, 2003, I find that interest does not start to run on the outstanding balance until the end of her period of eligibility on September 10, 2003.

EXPENSES:

If the parties cannot agree on expenses, they will follow the procedure set out in the Dispute Resolution Practice Code, 4th edition.

January 18, 2006

David Leitch Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 8

FSCO A04-002211

BETWEEN:

JAGDEAP RATTAN

Applicant

and

PILOT INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Rattan is entitled to $2,340, plus interest from November 8, 2003, in respect of the treatment recommended in the first disputed treatment plan and to $1,950, plus interest from December 12, 2003, in respect of the treatment recommended in the second disputed treatment plan. She is not to entitled benefits in respect of the treatment recommended in the third and fourth treatment plans.

2. Ms. Rattan is entitled to housekeeping benefits calculated as follows: 14 hours per week from May 23, 2003 to July 30, 2003 and 7 hours per week from July 31, 2003 to September 10, 2003, payable at the hourly rate of $7.14 per hour, minus housekeeping benefits already paid. The outstanding balance will bear interest from September 10, 2003.

January 18, 2006

David Leitch Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 1, Tab 69, p. 772.
3. 3Exhibit 1, Tab 69, p. 737.
4. 4Exhibit 1, Tab 69, p. 762.
5. 5Exhibit 1, Tab 6.
6. 6Exhibit 1, Tab 18.
7. 7Exhibit 1, Tab 27.
8. 8Exhibit 1, Tab 43.
9. 9Exhibit 1, Tab 33.
10. 10Exhibit 1, Tab 40.
11. 11Exhibit 1, Tab 45.
12. 12Exhibit 1, Tabs 48 and 59.
13. 13Exhibit 1, Tab 57.
14. 14Ibid.
15. 15Exhibit 1, Tab 43.
16. 16Exhibit 1, Tab 65.
17. 17Exhibit 1, Tab 23.
18. 18Exhibit 1, Tab 24.
19. 19Exhibit 1, Tab 28.
20. 20Exhibit 1, Tab 65, p. 456.
21. 21Exhibit 1, Tab 33.
22. 22Exhibit 1, Tab 48 confirms that this treatment plan was received by Pilot on March 29, 2004.
23. 23Exhibit 1, Tab 69, p. 767.
24. 24Exhibit 1, Tab 69, p. 737.
25. 25Exhibit 1, Tab 48.
26. 26Exhibit 1, Tab 59.
27. 27Exhibit 1, Tab 57.
28. 28The treatment plans at issue are located at Exhibit 1, Tabs 48 and 59. An earlier version of the OCF-18 form did require the expression of such an opinion, see Exhibit 1, Tab 27.
29. 29Ms. Rattan testified that while her husband might come with her to do grocery shopping, it was her responsibility prior to the accident.
30. 30Ms. Atkinson's report is found at Exhibit 1, Tab 1.
31. 31Exhibit 1, Tab 4.
32. 32Exhibit 1, Tab 17.
33. 33Exhibit 1, Tab 22.
34. 34Exhibit 1, Tabs 23 and 24.
35. 35Exhibit 1, Tab 12.
36. 36Exhibit 2, p. 8.
37. 37Exhibit 2, pp. 8, 7, 5 and 6.
38. 38This is the hourly rate which produces a weekly rate of just under $100 during those weeks in which I have determined that Ms. Rattan was entitled to 14 hours of housekeeping assistance.