Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 146

FSCO A05–001249

BETWEEN:

AMMAR ABULIBDEH Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Lawrence Blackman

Heard: February 26, 27, 28, March 1 and May 25, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Adam Ezer for Mr. Abulibdeh Mr. Darrell March for RBC General Insurance Company

Issues:

Mr. Ammar Abulibdeh submits he was injured in a motor vehicle accident on July 19, 2004. He applied to RBC General Insurance Company (“RBC”) for statutory accident benefits payable under the Schedule.¹ RBC refused payment of certain benefits.

As the parties were unable to resolve their disputes through mediation, Mr. Abulibdeh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Preliminary Issues

– Combining Proceedings

The January 16, 2006 pre-hearing letter herein scheduled this matter to be heard the same time as Zaidan and RBC General Insurance Company (FSCO A05-001285). Ms. Zaidan is the wife of Mr. Abulibdeh. Both were involved in the July 19, 2004 accident. Ms. Zaidan seeks the same categories of benefits as Mr. Abulibdeh, namely medical services provided by East Sheppard Rehabilitation Company Ltd. (“East Sheppard”) and caregiver and housekeeping benefits.

Rule 30 of the Dispute Resolution Practice Code (Fourth Edition Updated — October 2003) (the “Code”) provides that proceedings may be combined or scheduled to be held at the same time, upon written notice to the parties, the latter having an opportunity to object. Considerations include whether combining matters will result in the most just, quickest and least expensive means to deal with the applications. Unfortunately, the process set out in the Code had not been followed in this case nor had any order been made combining these matters.

Mr. Abulibdeh submitted that the two matters should proceed together as they involved the same experts and the same housekeepers. The Applicant was of the view that both cases could be finished in five days or less. RBC was content to proceed with these matters separately.

I was persuaded it would not be possible to complete both matters in the assigned four days. This would require both matters to be resumed at a significantly later date, given counsels’ availability. I was of the view it was preferable to finish one matter during the time assigned. This would allow an earlier determination in one proceeding, which might provide assistance in resolving the other. Unfortunately, due to unforeseen circumstances regarding non-production of surveillance tapes (addressed below), the hearing herein had to be resumed on May 25, 2007. However, this resumption date was far earlier than the dates the parties would have available for the probable three or four further hearing days necessary to conclude both matters.

Ultimately, the Applicant decided not to call any of the housekeepers in this hearing, nor did he call his spouse to give evidence.

– Report of Dr. G. Alyea dated January 24, 2007

At the beginning of the hearing, RBC submitted that the January 24, 2007 report of Dr. G. Alyea, D.C. (formerly with East Sheppard), upon which the Applicant was relying, should not be allowed into evidence, as the report was not signed and was served out of time on January 25 or 26, 2007. RBC further submitted that the doctor’s notes were not provided until January 29, 2007, contrary to the Commission’s thirty day rule.

The Applicant argued that the report was only one business day late. That did not explain why the report was produced a year and a half after the end of the entitlement period in dispute.

I held that either Dr. Alyea’s report and the surveillance materials sought to be introduced by RBC (addressed below) should be allowed into evidence or both should be excluded. The parties were content, if those were the only choices available, to have both allowed into evidence.

– Surveillance Evidence

The Insurer conducted surveillance of Mr. Abulibdeh in February, April and June 2005.

At the beginning of the hearing, Mr. Abulibdeh sought to exclude RBC’s surveillance material on the basis of non-compliance with Rule 40 of the Code. The Applicant argued that RBC’s arbitration brief included only investigative summaries and that the surveillance CDs, totalling more than four hours, were delivered on February 15, 2007, only eleven days before the start of the hearing, in contravention of the Code’s thirty day notice requirement. The Applicant further argued that neither the names nor the qualifications of the persons who secured the evidence had been provided, nor had any notes or accompanying documents been served, as required.

The Applicant relied on the comments in Coles and Dominion of Canada General Insurance Company (FSCO A97-000647, June 12, 2002) that “[e]arly disclosure of surveillance and investigation information is intended to promote settlement and prevent ‘trial by ambush,’” and Kozdra and Canadian General Insurance Group (FSCO A01-000390, September 13, 2004) that “[t]he Rules are aimed at allowing the parties the opportunity of knowing in advance the case they have to meet at arbitration and to avoid trial brinkmanship.”

RBC submitted that the surveillance reports were served in time and that there were unique and extraordinary circumstances that the DVDs were served later, namely that they had been inadvertently put into storage and it took considerable time to find them. RBC argued that the evidence was relevant, specifically to the Applicant’s credibility, and there was no prejudice to the Applicant. Counsel for RBC advised at the beginning of the hearing that RBC did not have any notes from the investigators and he did not know whether there were any notes.

As noted above, I allowed both Dr. Alyea’s January 24, 2007 report and the surveillance material into evidence. I held that the investigator should be made available for cross-examination. The Applicant noted his intention to call Dr. Alyea.

On the second day of the hearing, documents from Profile Investigation (“Profile”) were produced. RBC, however, did not concede that these were notes; rather, it argued that they were simply “jottings” taken by the investigator while observing. I find that “jottings” are indeed notes as contemplated by Rule 40 of the Code and should have been produced to the Applicant at least thirty days before the start of the hearing.

On the third day of the hearing, further notes from Profile were produced. I allowed the Applicant’s representative an opportunity to review these notes. That same day, Mr. B. Albrecht of Profile testified that there was original 8 mm footage at his office. Mr. Albrecht did not know whether the DVDs which had been provided contained all of the original footage. The original tapes were produced on the fourth day of the hearing. I adjourned the matter, as noted above, to allow the Applicant’s counsel an opportunity to review this documentation.

– Witnesses

By letter dated January 23, 2007, RBC wrote Mr. Abulibdeh’s counsel listing twelve medical experts upon whose evidence it intended to rely. RBC indicated that it might file the reports of those experts, rather than call them to give oral evidence. RBC further indicated “[w]e also require all your expert witnesses to be in attendance at the upcoming Arbitration for the purposes of cross-examination on their reports and materials.”

At the beginning of the arbitration hearing, Mr. Abulibdeh moved for an order barring RBC from calling any expert witnesses, arguing that by naming every potential witness, meaningful notice had not been provided in accordance with Rule 41 of the Code and that RBC was requiring him to prepare cross-examinations for every expert witness. Mr. Abulibdeh noted the comment in Demelo and Gore Mutual Insurance Company (FSCO A04-001769, June 24, 2005) that:

The Rules encourage early preparation and impose a continuing obligation to update information. They do not encourage imprecise decision making, as counsel for Ms Demelo submitted.

The Applicant did not object to RBC filing its medical reports.

RBC submitted it had complied with the Code, which it argued allows flexibility and recognizes that as the evidence evolves, decisions regarding required witnesses may change. RBC emphasized that as the responding party, it could not know whom it might call until the end of the Applicant’s case. RBC also submitted that an arbitrator has no authority to exclude a witness.

Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, provides a tribunal with discretion as to the evidence which may be admitted at a hearing. Section 23 provides that a tribunal may make such orders as it considers proper to prevent abuse of its process. The Code’s overall purpose is to narrow the issues to what truly is in dispute, prevent surprise and streamline the proceeding to what is truly necessary for a just, expeditious and cost-efficient hearing. Hence, Rule 42 limits parties to two experts apiece, unless otherwise ordered by an arbitrator.

I found that RBC had sufficient time prior to the start of the arbitration hearing to determine whom it might reasonably call and whom it might require for cross-examination, subject to extraordinary or unforseen circumstances. Ultimately, RBC chose not to call any of its twelve expert witnesses. The Applicant chose to call only Dr. Alyea, in addition to his own oral evidence, and no further witnesses were required for cross-examination by RBC.

– Ms Zaidan’s Caregiving and Housekeeping Invoices

Mr. Abulibdeh objected to Ms. Zaidan’s invoices being entered as evidence in his proceeding, submitting he was taken by surprise and had no time to prepare. I was not persuaded that the Applicant was taken by surprise, when he had wanted both matters to proceed together. I held that if Ms. Zaidan was required to be examined, that could be addressed in legal costs. Ultimately, neither side chose to call Ms. Zaidan to give oral evidence in this hearing.

Substantive Issues

The issues in dispute, as confirmed at both the beginning and the end of the hearing, are:

1. Is Mr. Abulibdeh entitled to receive a weekly caregiver benefit of $300 from July 20, 2004 to August 14, 2005 in respect of Rawan Abulibdeh, born February 22, 1997, and Mirda Abulibdeh, born March 16, 2000, claimed pursuant to section 13 of the Schedule?

2. Is Mr. Abulibdeh entitled to payment of $5,280.65 for services provided by East Sheppard Rehabilitation Company Ltd., claimed pursuant to section 14 of the Schedule?

3. Is Mr. Abulibdeh entitled to payment of $100 a week for housekeeping and/or homemaking services from July 19, 2004 to August 14, 2005, claimed pursuant to section 22 of the Schedule?

4. Is Mr. Abulibdeh entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

5. Is RBC liable to pay Mr. Abulibdeh’s legal expenses in respect of this arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?

6. Is Mr. Abulibdeh liable to pay RBC’s legal expenses in respect of this arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?

Result:

1. Mr. Abulibdeh is not entitled to payment of a weekly caregiver benefit of $300 in respect of Rawan Abulibdeh and Mirda Abulibdeh from July 20, 2004 to August 14, 2005, claimed pursuant to section 13 of the Schedule.

2. Mr. Abulibdeh is entitled to payment of $5,067 for services provided by East Sheppard Rehabilitation Company Ltd., together with interest on the amount set out in each treatment plan at the rate of two per cent per month, compounded monthly, from thirty days after receipt of each treatment plan to the date of payment, in accordance with section 46 of the Schedule.

3. Mr. Abulibdeh is not entitled to payment for housekeeping or homemaking services from July 19, 2004 to August 14, 2005, claimed pursuant to section 22 of the Schedule.

4. The issue of legal expenses claimed pursuant to subsection 282(11) of the Insurance Act may now be addressed in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition Updated — October 2003).

EVIDENCE AND ANALYSIS:

Did Mr. Abulibdeh sustain an impairment as a result of the accident?

The Applicant submits that he was injured in an accident on July 19, 2004 when the vehicle he was driving on Highway 401, at forty to sixty kilometres an hour, lost its front right tire.

RBC questions whether Mr. Abulibdeh was indeed injured in this accident. Dr. D. Dos Santos, D.C., commented in the executive summary of a November 29, 2004 Medical/Rehabilitation DAC (Designated Assessment Centre) Assessment that “[g]iven the reported mechanism of injury, it would be difficult to conceive of any significant injury having been sustained.” The basis of Dr. Dos Santos’ expertise regarding causation was not clear.

RBC did not provide any accident reconstruction or other relevant evidence supporting its position that when a wheel falls off a car travelling between 40 and 50 kph and scrapes along the road, limited if any force would apply and this would be a nominal accident at best. In support of its position that the Applicant was not injured in this accident, RBC also submitted that the Applicant first attended medical treatment ten days after the accident (after moving from Windsor to Mississauga), which was at East Sheppard, and which required driving 45 minutes.

Mr. Abulibdeh, however, testified that the day after the accident he went to a walk-in clinic where he was given a painkiller. He had no explanation why East Sheppard’s records state he had not seen a health professional between the day of the accident (when it, incorrectly, says he went to hospital) and attending East Sheppard on July 29, 2004. Mr. Abulibdeh believed the walk-in attendance was not noted in the decoded OHIP summary because that visit was mainly for his mother. Nonetheless, the Insurer’s September 15, 2004 In-Home Assessment states that the Applicant saw a Dr. Mahanaif at a walk-in clinic the day after the accident. Based on this confirmation relatively shortly after the accident, I accept the Applicant’s evidence in this regard.

The Schedule defines “impairment” as a loss of, amongst other things, physiological or anatomical function. Dr. G. Sawa’s October 21, 2004 DAC report states that the Applicant had WAD II (Whiplash-Associated Disorder) neck pain and a low back musculo-ligamentous injury. Dr. N. Lishchyna opines, based on a June 21, 2005 DAC assessment, “that Mr. Abulibdeh sustained myofascial injuries with resulting symptoms because of his motor vehicle accident on July 19, 2004.”

On the basis of this evidence, as well as that of the Applicant and Dr. Alyea, I am persuaded that Mr. Abulibdeh suffered neck, mid and low-back pain as a result of the July 19, 2004 motor vehicle accident and some measure of resultant loss of physiological or anatomical function and, hence, did suffer an impairment as a result of this accident.

The Caregiver Benefits Claims

Mr. Abulibdeh is the father of four children, namely, Rawan, born February 22, 1997, Mirda, born March 16, 2000, Abed, born May 14, 2001 and Omar, born July 9, 2004. By letter dated February 2, 2005, the Applicant’s counsel wrote RBC advising that Mr. Abulibdeh was the primary caregiver for the older two children, Rawan and Mirda. In response to a leading question in chief, Mr. Abulibdeh confirmed that he was the primary caregiver for the older two children, who were seven and four respectively at the time of the accident.

When the accident took place, Mr. Abulibdeh was not employed, living with his wife, children and his mother in Windsor, Ontario. He planned to move to Mississauga where he had obtained work. The Applicant’s wife, Ms. Zaidan, submits she was the pre-accident primary caregiver for the younger two children. Mr. Abulibdeh claims caregiver benefits of twenty hours a week (except for four weeks, when seventeen hours a week are sought) at $15 an hour, from July 20, 2004 to August 14, 2005. Invoices filed note the names of the care providers as A.M. Musameh from July 20 to August 1, 2004, A. Zace, from August 2 to October 24, 2004, and S. Khan from October 25, 2004 to August 14, 2005. None of these individuals testified at the hearing.

Ms. Zaiden claims caregiver benefits for the exact same time period, based on her own injuries. Mr. Abulibdeh testified that his pre-accident caregiving and housekeeping duties would have continued after the accident, regardless of whether he obtained full-time employment.

The Applicant testified that before the accident he dressed the two older children, prepared their meals, prepared them for school, took them for walks and played with them. He stated he was unable to perform these activities after the accident due to constant back pain which he was afraid of aggravating and, hence, hired care providers for his children.

After careful perusal of the caregiving and housekeeping invoices sent to RBC, Mr. Abulibdeh testified each one was accurate in every respect as to who did the work and what work was done, and that he had checked those documents before submitting them to RBC. He stated he had filled out the invoices, which he had obtained from his lawyer, except for the care provider filling in their name, telephone number and address and checking off the services provided.

Ms. D. Rehani is an occupational therapist with NRCS Consultants (“NRCS”). Her September 2004 In-Home Assessment reported Mr. Abulibdeh saying that prior to the accident he “shared some caregiving duties with his wife for their three elder children,” including assisting in feeding, dressing and undressing, and taking the children to play, as well as educating his seven-year old daughter and driving her to school. He indicated to Ms. Rehani that since the accident he had difficulty dressing and undressing the children and taking them to play and he did not have the patience to watch them eat. Although the Applicant stated he had a person coming three to six hours a day, six days a week, to do the housekeeping and caregiving tasks, he did not know the person’s name. The Applicant did not dispute these statements in his oral testimony.

Ms. S. Bechard, a certified kinesiologist, states in her October 25, 2004 DAC report that the Applicant was responsible pre-accident for assisting his wife with their children’s bathing, grooming, dressing/undressing, lifting, carrying and recreational activities. Again, the Applicant did not dispute this statement in his oral evidence.

By Explanation of Benefits dated August 10, 2004, RBC advised Mr. Abulibdeh he was eligible to elect caregiver benefits. On September 16, 2004, RBC indicated that Ms. Rehani’s assessment concluded Mr. Abulibdeh was no longer disabled from caregiving and the Insurer was, therefore, ending the Applicant’s caregiving entitlement effective October 4, 2004. Ms. Rehani’s assessment opined that caregiving assistance was not required as Mr. Abulibdeh demonstrated functional range of movement in all joints as well as functional sitting and standing tolerance.

The Applicant did not argue that RBC had conceded entitlement for any period. The evidence before me indicates Mr. Abulibdeh first submitted housekeeping and caregiving invoices by letter dated October 29, 2004 (covering the initial claim period July 20 to October 24, 2004).

By Explanation of Benefits dated December 31, 2004, RBC stated it had received a DAC disability report stating that Mr. Abulibdeh was not substantially disabled from performing his caregiving activities. RBC advised that the October 4, 2004 stoppage remained in effect. Nonetheless, in its Explanations dated April 29 and May 30, 2005, RBC requested that the Applicant advise who would be making the claim for caregiving on the presumpton only one person could be entitled to such benefits.

Dr. Sawa’s October 21, 2004 DAC report opined that Mr. Abulibdeh was not substantially disabled from engaging in the caregiving activities in which he engaged in at the time of the accident. Dr. D. Dos Santos’ October 21, 2004 DAC report concurred, based on the history of the accident, the time elapsed and the treatment taken. He concluded that no significant disability existed and that Mr. Abulibdeh did not suffer a substantial inability to perform his pre-accident caregiving activities as a result of the whiplash-associated disorder sustained. Ms. Bechard states in her October 25, 2004 DAC report that the Applicant reported continuing to play with his children, but at a reduced frequency due to pain from sitting and walking. However, Mr. Abulibdeh self-reported being able to both sit and stand for more than thirty minutes.

RBC submits that there is no positive, reliable evidence in support of any of the Applicant’s claims. RBC notes that Mr. Abulibdeh had invoiced three hours on Saturday, June 5, 2005 for Ms. Khan accompanying, supervising, feeding and taking the children for walks and that an additional three hours were claimed by Ms. Zaiden for caregiving expenses that same day.

Mr. Abulibdeh conceded, on cross-examination, that he, his wife and their four children had spent that entire day either at African Lion Safari or in transit, as shown in the surveillance. Amongst other things, the Applicant is noted at various times holding a child. He arrived home at 7:56 p.m. and proceeded to unload his van. Mr. Abulibdeh further conceded that no caregiver services were provided that day. He stated that he had not noticed this unintentional error in his invoices when reviewing the documentation during his examination-in-chief.

The Housekeeping Claims

Mr. Abulibdeh testified that at the time of the accident he and his family lived in a two-bedroom apartment in Windsor, Ontario. After the accident, the family, including his mother, moved to a two-bedroom apartment in Mississauga.

Mr. Abulibdeh further testified that before his accident he helped his wife with dusting, laundry, doing the dishes and other household tasks. He stated that he was unable to continue those tasks after the accident and, therefore, hired a housekeeper. The Applicant provided invoices from three different individuals. As noted above, A. Musameh provided invoices for the first two weeks, A. Zace from August 2 to October 24, 2004 and S. Khan from October 25 to August 14, 2005. For every week, seven hours of housekeeping are charged at $15 an hour (except for two weeks when five hours are invoiced).

The invoices, on prepared forms, have a variety of duties ticked off, including dusting every second day, mopping daily and laundry done twice a week. Mr. Abulibdeh testified that the invoices accurately reflected the work done. He further testified that his pre-accident duties would have continued regardless of whether he worked full-time. He did not indicate why the providers changed, why the duties remained constant throughout the period claimed or why none of the providers were called to testify.

By Explanation of Benefits dated September 16, 2004, RBC wrote Mr. Abulibdeh advising that as per Ms. Rehani’s September 8, 2004 In-Home Assessment, he did not suffer an inability to perform his housekeeping and home maintenance activities and, therefore, his benefits would end effective September 8, 2004.

Ms. Rehani was of the view that Mr. Abulibdeh did not require housekeeping assistance as he demonstrated functional ranges in all joint movements as well as functional sitting and standing tolerances. The Applicant had indicated to Ms. Rehani that since the accident he had been unable to remove the garbage, wash dishes or iron, and that a housekeeper, whose name he did not know, was assisting three to six hours a day, six days a week, with household tasks, in addition to performing caregiving duties.

Decision re Caregiver and Housekeeping Entitlement

– Primary Caregiver

Section 13 of the Schedule requires as a pre-requisite for entitlement to caregiver benefits, amongst other things, that the claimant is the primary caregiver for the persons in need of care and that the claimant did not receive any remuneration prior to the accident for engaging in caregiving activities.

Mr. Abulibdeh submitted he was forthright and honest in his testimony and that his evidence withstood rigorous cross-examination. He further argued that as he testified that he was the primary caregiver to his two older children and no conflicting evidence was adduced, his evidence must be accepted.

Mr. Abulibdeh’s oral evidence, however, provided little support for his submission he was the primary caregiver for Rawan and Mirda, rather than his wife, other than his answer to a leading question from his representative. Nor did the Applicant provide any information as to what, if any, role, he provided for his two younger children. Nor did he provide any insight as to why he and his wife had divided the primary caregiver duties in the manner alleged. Nor did the Applicant challenge the statements in the reports of both Ms. Rehani and Ms. Bechard that he only shared or assisted his wife with some of the caregiving activities of the older children.

I note that under section 13 of the Schedule, if one person is the caregiver for four children, the maximum weekly benefit is $400, whereas if two insureds are each found to be the primary caregivers for two children apiece, each would be entitled to a maximum benefit of $300, representing a total additional benefit of up to $200 a week to the family unit.

Mr. Abulibdeh testified that his mother had come to stay with him in June 2004 to see him and his new child, the latter born ten days before the accident. The Applicant stated that his mother had not come to help with the baby. Mr. Abulibdeh’s mother lived with the family until December 2004, when she left for the United States to get her citizenship.

Mr. Abulibdeh further stated, under oath, that his mother did nothing to help the family before the accident except the day of the birth of his fourth child, when she babysat the other children and the only assistance she provided after the accident was perhaps giving some advice on cooking, and only if it was a special meal, and nothing more. There was no explanation by the Applicant as to his mother’s inability pre-accident to assist in the care of her grandchildren. There was some evidence that his mother sustained some injury from this accident.

I do not accept the Applicant’s evidence regarding the pre-accident role performed by his mother, in accordance with the judgment in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), as being inharmonious “with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” Likewise, I am not persuaded, on the evidence provided with the noted contradictions, that the family had neatly divided caregiving duties between the two parents in the manner submitted.

I am, therefore, not persuaded that Mr. Abulibdeh was the primary caregiver for his two older children at the time of the accident.

– Caregiving and Housekeeping Entitlement

Regardless of my finding regarding Mr. Abulibdeh’s status as primary caregiver, I am not persuaded he has established, on a balance of probabilities that, as required under the Schedule, he suffered a substantial inability to engage in the caregiving activities in which he allegedly engaged at the time of the accident or that the impairment he sustained resulted in a substantial inability to perform the housekeeping and home maintenance services he allegedly normally performed before the accident.

Mr. Abulibdeh’s submission was that he devoted all of his energy to remunerative employment to support his family after the accident, and had nothing left over for his caregiving and housekeeping duties.

While this may, in theory, be a valid argument, it was not the evidence received in this hearing. Mr. Abulibdeh testified that after he started working he still could not dust or mop his two-bedroom apartment due to constant back pain. While he could lift 20 to 25 lbs. on occasion for his delivery job, he could not mop or dust because while he was forced to find a job to provide for his wife and children, and did so with pain, there was nothing forcing him to mop the floors or clean the apartment. He testified he would be able to do those housekeeping tasks but would not take the risk of increasing his pain.

The period of the claim, July 20, 2004 to August 14, 2005, is roughly 55 weeks. 27 hours a week is claimed, generally, for caregiving and housekeeping benefits, at $15 an hour. This comes to about $22,275. This money is apparently still owing to the alleged service providers, who would thus have an incentive to testify to support the Applicant’s claim. The unexplained failure of any of the service providers to attend and to provide supporting evidence for the Applicant is a further weakness in his case, specifically given the Insurer’s strong challenge to his credibility.

The Applicant relies on the evidence of Dr. Alyea, whose July 29, 2004 Disability Certificate states that Mr. Abulibdeh was suffering a complete inability to carry on a normal life which continuously prevented him from engaging in substantially all of the pre-accident activities in which he ordinarily engaged, as well as a substantial inability to engage in the housekeeping and caregiving activities (four children being noted) in which he engaged prior to the accident.

Dr. Alyea anticipated five to eight weeks of disability due to functional limitation arising from pain. Dr. Alyea’s September 21, 2004 Disability Certificate estimated a further one to four weeks of complete inability to carry on a normal life and five to eight weeks of caregiving and housekeeping disability.

At the arbitration hearing, however, Dr. Alyea was unsure if he had known that the Applicant had been working in September 2004 or that he had obtained full-time employment in November 2004, although notes from East Sheppard reference an unidentified work strain as possibly accounting for the Applicant’s slow progress. Even at the hearing Dr. Alyea still appeared to have little knowledge of Mr. Abulibdeh’s work history.

Dr. Alyea did recall that at some point Mr. Abulibdeh mentioned there was a physical aspect to his job such as lifting and bending, and the doctor agreed this was important information which could affect his opinion whether the Applicant could take care of his children and perform housekeeping duties. However, Dr. Alyea testified he had no idea as to the Applicant’s specific pre-accident housekeeping duties.

Dr. Alyea testified that when Mr. Abulibdeh returned to East Sheppard in May 2005, the Applicant was in increased pain due to increased work or home activities and, hence, should refrain from his essential household activities. His January 24, 2007 report stated that the Applicant did not recover within the expected twelve weeks as x-rays showed moderate lumbar spine degenerate discal disease “which could potentially contribute [to] the chronic nature and severity of the injuries sustained” and that Mr. Abulibdeh remained disabled in May 2005 from performing certain essential housekeeping activities, activities of daily living and caregiving duties. Dr. Alyea did not specify the nature of the activities.

I do not accept Dr. Alyea’s evidence regarding Mr. Abulibdeh’s disability. Dr. Alyea had little, if any, knowledge as to the specifics of the Applicant’s pre-accident caregiving and housekeeping duties. He had little knowledge of his post-accident employment and school attendance.

Dr. Alyea initially opined that Mr. Abulibdeh was continuously prevented from engaging in substantially all of the pre-accident activities in which the Applicant ordinarily engaged, when there was no evidence to support such a conclusion, including that of the Applicant, who testified that he drove a truck the end of July 2004 from Windsor to Mississauga when his family moved after the accident and that he helped unload light items.

However, far more damaging to the Applicant’s caregiving and housekeeping claims was that his evidence was internally inconsistent and that it was illogical that his impairments in this regard remained unalterably and consistently impaired during the entire period of his claim, notwithstanding the increasing work and school duties he was able to assume. In this regard, I will review, chronologically, the evidence before me.

Mr. Abulibdeh agreed on cross-examination that for Afana Mosamah, the first of the three service care providers, the housekeeping and caregiving invoices provided were identical regarding services provided for both he and his wife, Ms. Zaidan, include personal hygiene, tutoring and taking the children for walks. It was not explained what tutoring would be provided for the younger two children, who were then three years old and one-month old.

On cross-examination, Mr. Abulibdeh indicated for the first time that for three weeks in September 2004 he had worked in house renovations part-time in the evening, up to four hours an evening. He stated he did only simple things, such as handing tools or nails to the person he was assisting. Mr. Abulibdeh testified he never hammered a single nail, put up any drywall or held any boards. He said he was hired prior to the car accident, while still living in Windsor, because the person who hired him knew he needed money and that person needed an assistant. It seems illogical that one would be paid to simply hand nails to another person.

From August 2 to October 24, 2004, the Applicant submitted weekly invoices of Ms. Zace for seven hours a week of housekeeping and twenty hours a week of caregiving. Again, $15 an hour was charged. Notwithstanding the older of the two children began attending school full-time and the second oldest began attending school half-days, and there would presumably be less hours of home supervision, the caregiving hours claimed remained constant.

Mr. Abulibdeh testified that in October 2004 he was looking for work. The first or second day of November 2004 he began working as a courier for a printing company, Trade Secrets Printing (“Trade Secrets”), delivering boxes of paper, prints or flyers, which he described as very light. He would make two to five deliveries a day.

Mr. Abulibdeh testified he would load the van only if the boxes were very light or there were only a few boxes. He would unload the van if the company receiving the merchandise had no one to unload. Mr. Abulibdeh agreed that one of his job responsibilities was unloading the van and that the boxes could weigh between 25 and 30 lbs. Mr. Abulibdeh indicated he could lift 25 lbs., but would feel pain in his back.

Surveillance done by Profile on April 18, 2005 shows the Applicant arriving at Trade Secrets at 8:09 a.m. He is noted, amongst other things, removing a hand cart, entering a place of business, returning with five boxes which he lifted into the rear of his van, returning with four more boxes on the hand cart which he also lifted onto the van, and driving to another place of business, where he unloaded the boxes onto a wooden skid.

The Applicant’s hours of work were 9:00 a.m. to 5:00 p.m. Monday to Friday, leaving home between 8:00 and 8:15 a.m. and returning between 5:30 and 6:00 p.m. He got to work by transit, in addition to walking about a kilometre and a half each trip.

Mr. Abulibdeh worked for Trade Secrets continuously from November 2004 to August 2005, when he moved to Waterloo. The only time he took off work was for insurer medical examinations. Mr. Abulibdeh testified that he did not tell RBC about this employment, nor did he tell Trade Secrets he had a disability.

Dr. Dos Santos’ November 29, 2004 DAC assessment, however, states that the Applicant reported he was not currently employed. He also reported the Applicant stating he must manage slowly or with adaption, amongst other things, putting his pants on or off, using buttons, getting in or out of a car, buttering bread, eating with a fork, spoon or knife, and that he complained of severe disability. Ms. Ann Ruebottom, massage therapist, notes in her concurrent report that the Applicant was looking for a job but found that extended periods of time on the computer aggravated his symptoms. The Applicant did not challenge these comments attributed to him.

The Applicant submitted to RBC, by letter dated February 3, 2005, invoices from October 25, 2004 to January 30, 2005 from Ms. Khan. Except for two weeks, every week notes seven hours of housekeeping and twenty hours of caregiving. For the two weeks around the Christmas break, caregiving is reduced to seventeen hours a week. This seems somewhat unusual, as one might expect that during the Christmas break, more hours might be required as the children were at home rather than at school.

Mr. Abulibdeh testified that in the beginning of 2005, his two oldest children were in school, the oldest full-time. Nonetheless, the amount of paid daily care for the children did not change whether or not the children were in school, and weekly tutoring continues whether or not the children are off school.

In February 2005, Mr. Abulibdeh applied to the University of Waterloo for Civil Engineering. In his February 17, 2005 DAC report, Dr. R.C. Guerriero, D.C. states that the Applicant was looking for work as a site engineer, but he still had not found a job. Ms. Ruebottom’s concurrent assessment states that the Applicant denied working since coming to Canada and was spending three hours a day looking for a job in his field. She notes the Applicant saying he was 80% improved. The Applicant did not challenge that he made these statements.

Notwithstanding he was working full time and reporting he was 80% improved, the Applicant submitted Ms. Khan’s invoices for seven hours a week of housekeeping and twenty hours a week of caregiving by letter dated March 9, 2005 for the period January 31 to February 27, 2005, April 26, 2005 for the period February 28 to April 10, 2005, and May 27, 2005 for the period April 11 to May 8, 2005.

While working full-time during the day, Mr. Abulibdeh also began attending night school at George Brown College (“George Brown”) for about six weeks, finishing in or about June 2005. Classes lasted between two and three hours, and travelling by public transit added another 45 minutes each way. The Applicant would study on the weekends and sometimes in the evenings. Dr. Alyea could not recall Mr. Abulibdeh attending school, but agreed on cross-examination that such information was important, but submitted his clinical findings were more important.

Dr. N. Lishchyna’s June 21, 2005 chiropractic medical/rehabilitation DAC assessment states that the Applicant had found a job in March 2005 (he had actually started early November 2004) driving a van and doing light deliveries for Trade Secrets. Dr. Lishchyna also confirmed that in May 2005 the Applicant began taking a course in construction project management at George Brown and was attending school three times a week. Mr. Abulibdeh concurrently reported to Ms. Ruebottom his family was receiving 48 hours of housekeeping and caregiving help a week.

Notwithstanding he was now working full-time, going to night school and was seen taking care of his children for a full day (for which he continues to seek compensation), Mr. Abulibdeh submitted further invoices to RBC for Ms. S. Khan by letter dated September 13, 2005, at $15 an hour, still for seven hours a week housekeeping and twenty hours a week for caregiving from May 9 to August 14, 2005 (except for the week of August 1, 2005, when five hours of housekeeping and 17 hours of caregiving are charged). Caregiving during the summer months continues to include tutoring.

Further, notwithstanding the alleged level of disability, the only medical attendances noted in the August 30, 2006 decoded OHIP summary, other than attendances at East Sheppard, are low back x-rays taken February 17, 2005 and two attendances in February 2005 with a Dr. S.J. Lazare in Mississauga, the diagnostic code descriptions being for a common cold and acute sinusitis. Mr. Abulibdeh testified that Dr. Lazare was at a nearby walk-in clinic. The Applicant stated that Dr. Lazare also checked his back and referred him to an x-ray. The only follow-up after the x-rays was with East Sheppard.

I find that the Applicant’s caregiving and housekeeping claims have been grossly exaggerated. In significant measure, this is based on his lack of credibility regarding the weekly benefits in issue and, specifically, repeated lack of accurate representation of his employment.

I have no basis, other than conjecture, upon which to determine what pre-accident caregiving and housekeeping duties were, more likely than not, assumed by the purported service providers, if any. Accordingly, the Applicant’s claims in this regard are dismissed.

Mr. Abulibdeh testified he was new to Mississauga after the accident and did not know anyone there, and that he attended at East Sheppard upon the recommendation of the mechanic who fixed his vehicle.

For his first two weeks of treatment, East Sheppard sent a car with a driver to pick up Mr. Abulibdeh and his mother. After the first two weeks, he would drive to treatment. The drive took thirty minutes each way if the roads were not busy or there were no problems on the road.

In response to a leading question in chief, Mr. Abulibdeh stated that all of the treatment he received at East Sheppard was helpful. Ms. Rehani’s September 15, 2004 In-Home Assessment states that Mr. Abulibdeh reported the treatment he was receiving at East Sheppard was really good. The Applicant testified that the treatment eased his pain and allowed him to function better. He stopped going for treatment when the family moved to a Waterloo townhouse the end of August 2005 to allow both Mr. Abulibdeh and Ms. Zaidan to attend university.

The Applicant submits that the claim for treatment are the OCF-21 Invoices provided by East Sheppard dated August 6, 2004 ($304), August 23, 2004 ($707.35), September 16, 2004 ($478.35), October 22, 2004 ($1,726.65), December 20, 2004 ($1,144.10), February 3, 2005 ($863.50), March 4, 2005 ($601.20 and $162) and August 5, 2005 ($162 and $621.20).

The invoices total $6,770.35. The treatment plans in dispute, however, listed below, total $5,067. I was given no guidance as to which invoices matched which treatment plans. The claim for treatment at East Sheppard in issue was confirmed both at the beginning of the hearing and at the beginning of submissions as $5,280.65. There was no request to amend that amount. I will address the amounts set out in the treatment plans.

– September 10, 2004 Treatment Plan for $1,650

Dr. Alyea’s September 10, 2004 treatment plan recommended six weeks of chiropractic intervention, massage therapy, inferential current, hot pack and active rehabilitation exercises. It appears that there was an earlier treatment plan approved by RBC, but Dr. Alyea could not confirm what had been paid by the Insurer to East Sheppard. RBC submitted it initially paid $1,100 for medical/rehabilitation treatment based on the PAF guidelines. An OCF-23 Pre-Approved Framework Treatment Confirmation Form, dated July 29, 2004, sets out proposed treatment totalling $1,205.

The Insurer’s Explanation of Benefits to Mr. Abulibdeh, dated November 8, 2004, had denied payment based on the conclusion of the October 20, 2004 medical-rehabilitation DAC, Mississauga Physical Rehabilitation Centre (“Mississauga”) that the proposed treatment was neither reasonable or necessary, there were no significant or ongoing orthopaedic or neurological signs and the Applicant presented as pain focussed.

In this report, Dr. J. Pikula, D.C. opined that further passive interventions would have no significant effect. He was of the view there were non-organic components to the neck, mid and low back complaints best addressed by a psychologist. Ms. E. Cooper, EMT, opined that the massage treatment exceeded the recommendations of the Ontario Massage Therapy Association for WAD injuries. She stated that the Applicant did not report cumulative pain relief from the treatment. Ms. Cooper, however, reported the Applicant’s leg had improved at least 90%, the worst area, being the back, had improved about 60%, and that improvement had been steady, the massage providing about three hours of noticeable relief and then tapering off.

– October 5, 2004 Treatment Plan for $720 and the October 19, 2004 Treatment Plan for $825

The October 5, 2004 Treatment Plan recommended twelve sessions of acupuncture to reduce pain, increase range of movement, increase strength and return Mr. Abulibdeh to his activities of normal living. The October 19, 2004 Treatment Plan was for six sessions of chiropractic treatment, massage, modalities, hot pack and exercise.

The Insurer’s January 12, 2005 Explanation of Benefits Payable denied payment of these treatment plans, based on the November 2004 opinion of the Mississauga DAC. Dr. Dos Santos stated that the maximum therapeutic benefit would have been attained during the Applicant’s four months of treatment and that further treatment was not reasonable or necessary. Ms. Ruebottom found the Applicant’s movements compromised in a fairly minor way. She was of the view that his complaints, considering a reported recovery of 50 to 60%, were not significant enough to justify treatment continuing beyond the usual guidelines.

– December 28, 2004 Treatment Plan for $550 and the February 5, 2005 Treatment Plan for $550

The December 28, 2004 Treatment Plan recommended four sessions, once a week, of chiropractic treatment, massage, passive modalities, hot pack and an active rehabilitation exercise program. East Sheppard’s December 28, 2004 Progress Report stated that the Applicant was having difficulty with housekeeping and caregiving as well as prolonged sitting and standing for an hour. Dr. Alyea notes that the Applicant was progressing slowly possibly due to “chronic nature of injuries, work.”

Concurrent with the February 5, 2005 Treatment Plan, Dr. Alyea noted that the Applicant was progressing well, but slowly.

The Insurer’s March 8, 2005 Explanation of Benefits stated that the December 28, 2004 and the February 5, 2005 Treatment Plans were not reasonable or necessary based on the February 17, 2005 medical rehabilitation DAC assessment from Mississauga.

Mississauga’s executive summary stated there was no objective evidence of any accident-related impairments sustained by the Applicant. It opined there had been excessive passive therapy for the minor soft tissue injuries sustained and that active supervised exercises for the first two months, continuing on a self-directed basis, would have sufficed.

Dr. Guerriero was of the view the Applicant’s possible mild cervical and lumbar myofascial strains from the low velocity impact should have resolved within one to two weeks. He also noted symptom magnification and self-limited range of movement. Dr. Guerriero stated that neurological testing was within normal limits and orthopaedic testing was unremarkable. Dr. Guerriero’s qualifications in these areas of medicine is, however, unknown.

Ms. Ruebottom stated that Mr. Abulibdeh had normal muscle tone palpation and reported his symptoms had improved 80%. The Applicant had felt 50 to 60% improved after 12 weeks of treatment with East Sheppard and that the recent massage had decreased pain for several hours.

– May 14, 2005 Treatment Plan for $772

Concurrent with the May 14, 2005 Treatment Plan was an East Sheppard Progress Report noting that the Applicant had back problems with prolonged sitting and standing of 30 minutes, moderately heavy lifting and carrying. Dr. Alyea noted the Applicant was progressing well, but slowly.

RBC denied payment of this treatment plan based on the June 21, 2005 medical/rehabilitation Mississauga DAC assessment which found the May 14, 2005 treatment plan neither reasonable nor necessary, concurring with the prior DAC assessment. Dr. Lishchyna noted the Applicant reporting his pain as getting slightly worse, which he attributed to his return to work.

Ms. Ruebottom stated that the only benefit from the treatment was a few hours of relaxation, which was insufficient or not enduring enough to warrant such ineffective treatment, especially at this late date, ten months after the accident.

– Conclusion

RBC submitted that the Applicant was not entitled to payment of the further treatment provided by East Sheppard as the above-noted DAC assessors had repeatedly opined that such treatment was not reasonable or necessary and that the Applicant’s very mild strain should have resolved shortly after the accident. It further submitted that the Applicant had, in fact, returned to his pre-accident activities.

RBC further argued that the Applicant’s attendance at East Sheppard, in fact, worsened his condition, noting Mr. Abulibdeh’s October 19, 2004 Progress Report that he had difficulty sitting for more than thirty minutes and Dr. Alyea’s concession that the Applicant’s prolonged sitting while driving to and from his clinic might possibly aggravate the Applicant’s condition.

In Pinto and Allstate Insurance Company of Canada (FSCO A05-000403, January 4, 2006), Arbitrator Murray found that treatment provided by East Sheppard was not reasonable or necessary as:

The Applicant presented no medical evidence to challenge that of the Insurer’s Examinations or the DAC assessment to support his claim for medical benefits

. . . The only evidence regarding the treatment at East Sheppard were Mr. Pinto’s statements that he “felt better” following treatment. However, generalized assertions that therapy is beneficial are insufficient . . .

Pinto was followed by Arbitrator Killoran in Pierre and RBC General Insurance Company (FSCO A05-001289, January 26, 2007). Arbitrator Killoran stated that:

A criterion for determining whether treatment is reasonable and necessary is the identification of treatment goals which must be reasonable and should be met to a reasonable degree . . . Arbitral decisions have established that pain relief can be a valid treatment goal provided that it does not foster indefinite dependency or interfere with other aspects of rehabilitation

The facts found by Arbitrator Killoran in Pierre, however, differed from the case before me:

– Mr. Pierre was equivocal as to the benefit of his disputed treatment at East Sheppard. Mr. Abulibdeh was unequivocal as to the positive benefit of East Sheppard’s treatment, improvement confirmed with the DAC practitioners;

– Mr. Pierre did not produce East Sheppard’s clinical notes until the day of the hearing and no witness appeared from the clinic to authenticate its records or testify as to whether the treatment was reasonable and necessary. Little weight was thus attached to the clinic’s records. Mr. Abulibdeh produced East Sheppard’s records approximately a month before the hearing and Dr. Alyea attended the hearing from the United States. I found Dr. Alyea’s evidence of assistance to the extent it dealt with the treatment provided; and,

– Mr. Pierre was extremely vague about his treatment sessions at East Sheppard. I find that Mr. Abulibdeh answered the limited questions put to him about his treatment in a straightforward manner.

Unlike Pierre, where Arbitrator Killoran noted the absence of any medical witness commenting on the patient’s diagnosis, treatment goals, the nature and frequency of his treatment, or his response to treatment, Dr. Alyea qualified on consent as an expert in chiropractic medicine, diagnosed Mr. Abulibdeh as having a WAD II cervical and a thoracic/lumbar strain.

Further, Dr. Alyea testified that each successive treatment plan had the hope of progressively increasing the Applicant’s function, returning him to his pre-accident condition and treating his spasm and pain with passive modalities. Dr. Alyea testified that the treatment continued over many months because while for the most part each period of treatment showed improvement, there was continuing pain. I accept the Applicant’s evidence that the treatment he received at East Sheppard more than made up for any aggravation caused by prolonged driving.

I was specifically impressed with Dr. Alyea’s evidence that in February 2005 he thought Mr. Abulibdeh could continue without treatment, but that the Applicant returned in May 2005 complaining of increased pain and symptoms, and upon reexamination, Dr. Alyea recommended a little more treatment to get Mr. Abulibdeh back on track.

The reports of the DAC practitioners to a large extent advanced general propositions such as the usual course of a whiplash injury, the usual recommendations for treatment, a concern regarding passive interventions, the lack of objective findings in soft-tissue injuries and a preference for exercises (although I have no evidence that RBC offered to pay for such assistance as an alternative method of treatment or pain relief). Many of the DAC practitioners were at a distinct disadvantage, as Mr. Abulibdeh failed to advise them of his return to employment and the demanding nature of his full-time work.

In matters where weekly monetary claims were not being maintained, Mr. Abulibdeh was a model of mitigation. He started part-time work in September 2004. In October, he was looking for full-time employment. In early November, he began full-time work which he continued, without missing a single day due to pain or impairment, until August 2005 when he moved to another city. In the interim, he commenced and continued with evening classes at George Brown.

I am persuaded, on a balance of probabilities, that this improvement, consistent with Dr. Alyea’s goal of progressively increasing the Applicant’s function and returning him to his pre-accident condition, was materially due to the treatment provided by East Sheppard. This is not a case of simply “generalized assertions” that the therapy was beneficial. Rather, the treatment plans identified reasonable goals (including pain reduction) which were met to more than a reasonable degree. The treatment was stopped by the clinic, but resumed on the initiative of the Applicant, I am persuaded, legitimately seeking short-term assistance. The treatment did not foster dependence nor did it interfere with any other aspect of rehabilitation, nor do I find in the circumstances, that the treatment was excessive or outside the bounds of reason.

I am thus persuaded, on a balance of probabilities, that the treatment plans, enumerated above, were reasonable and necessary.

Interest

Section 46 of the Schedule provides that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under Part X. Subsection 38(18) of the Schedule which was in place at the time of the accident provides that within thirty days of receiving the application, the insurer shall pay the expenses or give the insured person notice of its reasons for not paying the expense. Subsection 238(1) falls within Part X.

Amendments effective March 1, 2006 state, pursuant to subsection 38(17.2) that an insurer shall pay an expense in respect of medical or rehabilitation benefits it has agreed to pay or that it is required under this section to pay within thirty days after receiving an invoice for the expense. I find that this provision simply clarifies its predecessor.

Subsection 46(2) provides that if payment of a benefit is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of two per cent per month, compounded monthly.

Accordingly, I find that RBC shall pay the Applicant interest on the amount set out in each treatment plan at the rate of two per cent per month, compounded monthly, from thirty days after the receipt of each treatment plan, to the date of payment.

EXPENSES:

The parties asked that I defer my decision regarding entitlement to and the quantum of legal expenses. Having determined all of the issues in dispute other than legal expenses, should the parties not agree on entitlement to or the amount of such expenses, they may request an appointment before me to determine same, in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition Updated — October 2003).

In accordance with Rule 75(d) of the Code, the procedural issues noted at the beginning of this decision would be one of the considerations in any expense determination.

August 1, 2007

Lawrence Blackman Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 146

FSCO A05–001249

BETWEEN:

AMMAR ABULIBDEH Applicant

and

RBC GENERAL 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. RBC General Insurance Company shall Mr. Abulibdeh $5,067 for services provided by East Sheppard Rehabilitation Company Ltd., together with interest on the amount set out in each treatment plan at the rate of two per cent per month, compounded monthly, from thirty days after receipt of each treatment plan to the date of payment, in accordance with section 46 of the Schedule.

2. The issue of legal expenses claimed pursuant to subsection 282(11) of the Insurance Act may now be addressed in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition Updated — October 2003).

August 1, 2007

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.