Neutral Citation: 2007 ONFSCDRS 161

FSCO A05-002645

BETWEEN:

VOLODYMYR PANCHENKO Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Denise Ashby

Heard: June 4, 5, and 6, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Adam Ezer, Student-at-law, for Mr. Panchenko Darrell March, Counsel, for RBC General Insurance Company

Issues:

The Applicant, Volodymyr Panchenko, was injured in a motor vehicle accident on January 23, 2005. He applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ RBC terminated weekly caregiver benefits and housekeeping and home maintenance benefits and denied medical benefits. The parties were unable to resolve their disputes through mediation, and Mr. Panchenko applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Panchenko entitled to receive a weekly caregiver benefit at the rate of $250.00 from April 27, 2005 to November 1, 2005, pursuant to section 13 of the Schedule?
Is Mr. Panchenko entitled to receive a medical benefit in the amount of $3,826.00 for treatment provided by Downsview Health Recovery Centre claimed pursuant to section 14 of the Schedule?
Is Mr. Panchenko entitled to payments for housekeeping and home maintenance services at the weekly rate of $100.00 from April 1, 2005 to November 1, 2005, pursuant to section 22 of the Schedule?
Is Mr. Panchenko liable to repay $3,321.42 to RBC with respect to weekly caregiver benefits he received from RBC, pursuant to section 47 of the Schedule?
Is RBC liable to pay Mr. Panchenko’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Panchenko liable to pay RBC’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Panchenko entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Mr. Panchenko is entitled to receive a weekly caregiver benefit at the rate of $250.00 for the period from April 27, 2005 to May 31, 2005 and, at the weekly rate of $60.00, from June 1 to August 31, 2005, pursuant to section 13 of the Schedule.
Mr. Panchenko is entitled to receive a medical benefit in the amount of $2,249.00 for treatment provided by Downsview Health Recovery Centre, claimed pursuant to section 14 of the Schedule.
Mr. Panchenko is entitled to payments for housekeeping and home maintenance services at the weekly rate of $60.00 from April 1, 2005 to August 31, 2005, pursuant to section 22 of the Schedule.
Mr. Panchenko is not liable to repay $3,321.42 to RBC, pursuant to section 47 of the Schedule.
Mr. Panchenko is entitled to interest as follows:

(a) In respect of the Caregiving benefits commencing May 27, 2005;

(b) In respect of the Medical Benefits commencing 30 days following receipt of the invoices relating to the treatment set out in the Treatment Plans dated May 20 and October 28, 2005; and

I make no finding with respect to the expenses claimed by the parties.

EVIDENCE AND ANALYSIS:

On January 23, 2005, Mr. Panchenko was stopped at a red light when the vehicle he was driving was “rear-ended” by a car which was unable to stop due to icy conditions. At the time of the accident Mr. Panchenko, a widower, was living with Ms. Irina Garanina and her son, Dmitriy, then aged 12.² Mr. Panchenko’s 7 year old daughter was living with her grandmother in the Ukraine. In September 2005, Mr. Panchenko went to the Ukraine to bring his daughter to live with him.

Mr. Panchenko testified at the hearing as did Dr. D. Lianos, the chiropractor who treated him. As well, Dr. R. Ogilvie, a chiropractor who conducted a Medical and Rehabilitation DAC assessment, testified on behalf of RBC. Both Dr. Lianos and Dr. Ogilvie were qualified as experts in chiropractic treatment on consent of the parties.

Mr. Panchenko testified that immediately following the accident he was in shock. Some hours later he began to have a severe headache, neck and back pain. He experienced interrupted sleep. The pain prevented him from engaging in his usual activities. Sleep deprivation resulted in an inability to concentrate and this, together with the pain, caused him to be less effective at work. As a consequence, Mr. Panchenko’s sales income decreased significantly in the year following the accident.³

Mr. Panchenko testified that prior to the accident he cared for Dmitriy and did the majority of housekeeping. This arrangement permitted Ms. Garanina to focus on her career in luxury car sales. Due to his accident related injuries he was unable to perform his caregiving and housekeeping duties. Upon being advised by the adjuster that it was permissible to have a family member assume these responsibilities he agreed to pay Ms. Garanina to care for Dmitriy and do the housekeeping. He submitted invoices which contained a description of the work Ms. Garanina did and the hours worked. Mr. Panchenko testified that he paid her $15.00 per hour for both her caregiving and housekeeping services. He stopped providing invoices in June 2005.

Mr. Panchenko testified that he and Ms. Garanina ceased living together when he brought his daughter back to Canada from the Ukraine. He thought it would be better for his daughter to move slowly towards living, as a family, with Ms. Garanina and Dmitriy. Mr. Panchenko testified that they are moving nicely towards this goal. He also testified that he went to the Ukraine to bring his daughter to live with him in September and from October 2005 onwards he has cared for her and taken care of their home.

Mr. Panchenko testified in a credible and forthright manner. I find that Mr. Panchenko held an honest belief that he was substantially disabled from providing caregiving and housekeeping services following the accident. I accept his evidence that prior to the accident he had primary responsibility for both care of Dmitryi and the family’s housekeeping. Further, I accept that he relied on RBC’s representative’s advice that it was acceptable for him to hire a family member to assume those duties while he was disabled when he retained his spouse, Ms. Garanina, as caregiver and housekeeper.

Mr. Panchenko testified that when he ceased living with Ms. Garanina and Dmitriy, he stopped paying Ms. Garina for caregiving and housekeeping services. However, his evidence regarding the date upon which they ceased living together was vague. He estimated he went to the Ukraine in September and began living alone with his daughter in October. I find that he ceased living with Ms. Garanina on or about August 31, 2005.

Caregiver Benefit

The Commission’s case law establishes that Mr. Panchenko must prove, on a balance of probabilities, that as a result of the accident he suffered a substantial inability or a significant and important impairment of his ability, to perform the essential or major tasks of his pre-accident caregiving tasks.

Mr. Panchenko testified that prior to the accident he cooked meals for Dmitryi, did his laundry, helped him with his school work, took him to sports activities, played basketball, soccer and tennis with him and provided adult supervision. Mr. Panchenko described Dmitryi as a competitive golfer who trains both summer and winter. Prior to the accident, Mr. Panchenko would take Dmitryi to his training sessions.

Immediately following the accident, Mr. Panchenko was unable to care for Dmitryi with the exception of driving him to school. Mr. Panchenko testified that his condition improved from the date of the accident and ongoing. By the summer of 2005, he had improved sufficiently to supervise Dmitriy at home in the evenings but had not resumed the more strenuous activities such as sports activities.

Dr. Lianos, testified that he did not obtain details of either Mr. Panchenko’s pre-accident or post-accident caregiving duties but was satisfied from his discussions with Mr. Panchenko and his observations while treating him that Mr. Panchenko was substantially disabled from providing care to Dmitriy.

RBC terminated benefits effective April 26, 2005 based on the Functional Abilities Evaluation (FAE) conducted by Functional Rehabilitation Inc. on April 1, 2005.⁴ The assessor concluded that while no caregiving assistance was required Mr. Panchenko should be provided with education regarding “the use of pacing when tutoring, and selection of less physically strenuous leisure activities.” The report gives basketball as an example of a sport Mr. Panchenko engaged in with Dmitryri. A pillow was recommended to assist Mr. Panchenko with disrupted sleep. The assessor speculated that improved sleep would result in greater energy which would permit Mr. Panchenko to resume his caregiving activities.

Subsequently, a Disability DAC was conducted on May 10 and 26, 2005. The DAC assessor described Mr. Panchenko as presenting in a “direct and straightforward manner.” The DAC concluded that Mr. Panchenko was not substantially disabled from performing his pre-accident caregiving activities. However, it assessed him as having mildly reduced lumbar/lumbosacral range of motion, mild inflammation with tenderness over the SI joint and mildly reduced cervical spine range of motion. The assessor also noted “some mild-to-moderate muscular hypertonicity in the lower lumbar and cervico-thoracic muscles.”⁵

It is apparent, that notwithstanding the conclusion that Mr. Panchenko was not substantially disabled, the insurer’s FAE assessor was satisfied that Mr. Panchenko required education that would permit him to resume his lighter caregiving activities, like tutoring, but was not ready to resume strenuous activity.

Taken together, the FAE and DAC reports evidence that in the spring of 2005 Mr. Panchenko continued to have objective symptoms of accident-related disability. I accept the FAE assessor’s opinion that Mr. Panchenko could not participate in strenuous sports activities with Dmitriy. I find that engaging in strenuous activity was an essential or major activity of caring for this athletically competitive teenage boy. I find that for the period from April 27, 2005 to May 31, 2005, Mr. Panchenko was substantially disabled from engaging in most of his caregiving activities and is entitled to a caregiver benefit at the weekly rate of $250.00. Further, I find that for the period from May 31 to August 31, 2005, Mr. Panchenko was able to assume the lighter aspects of his caregiving duties but was prevented from participating in sports activities for four hours weekly, at the hourly rate of $15.00. Therefore, I find that Mr. Pachenko is entitled to caregiving expenses of $60.00 weekly for this period.

Repayment of Caregiver Benefit:

RBC claims repayment of the caregiver benefits it paid to Mr. Pachenko between January 23, 2005 and the effective termination date of April 26, 2005, the sum of $3,321.42 pursuant to section 47 of the Schedule.

Subsection 47(1) provides:

A person shall repay to the insurer,

a) any benefit under this Regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilfull misrepresentation or fraud;

Subsection (2) provides:

If a person is required to repay an amount to an insurer under this section,

(a) the insurer shall give the person notice of the amount that is required to be repaid; and

(b) …

Subsection (3) provides that: “the obligation to repay a benefit does not apply unless the notice under subsection (2) is given within 12 months after the payment was made.”

Mr. Panchenko submitted that RBC provided no evidence that it gave Mr. Pachenko notice of the amount to be repaid pursuant to subsection 47(3) on or before April 26, 2006. Therefore, Mr. Panchenko is not liable to repay RBC the sum claimed.

RBC submitted as evidence the Explanation of Benefits Payable by Insurance Company (OCF 9), dated January 25, 2006. It was sent to Mr. Panchenko and advised him that RBC had erred in accepting him as the primary caregiver.⁶ As well, RBC’s Application for Mediation dated March 15, 2006, in which it claimed repayment of caregiver benefits paid in error in the amount of $3,321.42 and the Report of Mediator dated May 30, 2006 which indicates that the issue was not resolved at mediation were both submitted.⁷

I have found that Mr. Panchenko was the primary caregiver of Dmitry, who was less than 17 years of age at the time the care was provided. Therefore, I find that Mr. Panchenko is not liable to repay RBC the caregiver benefits it paid to Mr. Pachenko between January 23, 2005 and the effective termination date of April 26, 2005 pursuant to section 47 of the Schedule.

Medical Benefits:

Mr. Panchenko claims a medical benefit of $3,826.00 for treatment costs incurred with Downsview Health Recovery Centre (Downsview) pursuant to section 14 of the Schedule.

The Treatment Plans which are in dispute are dated May 20 and October 28, 2005. The recommended treatment totals $2,249.⁸

In order to be entitled to this benefit Mr. Panchenko must prove that, on balance, the treatment he received was reasonable and necessary as a consequence of his accident.

Mr. Panchenko testified that he consistently suffered from neck, back pain, headaches and interrupted sleep post-accident which prevented him from engaging in his activities of daily living. I accept that as he did not have a family physician he consulted Dr. Dimitrios Lianos, a chiropractor employed by Downsview, who testified at the hearing. The treatment he received at Downsview helped by increasing his mobility and reducing pain which permitted him to engage in some of his activities of daily living. Mr. Panchenko testified that while his post-accident symptoms have substantially diminished, he continues to have recurrent neck pain and headaches. He further testified that he would like to continue to receive some periodic therapy as it helped by providing pain relief.

Dr. Lianos testified that in his opinion the treatment claimed in the Treatment Plans he submitted were reasonable and necessary to reduce Mr. Panchenko’s pain, increase his mobility and alleviate headaches.

Dr. Ogilvie testified that he conducted a Medical/Rehabilitation DAC assessment of the chiropractic aspects of the April 6, 2005 Treatment Plan. His assessment included a review of the documents, including clinical notes and records, provided and a one hour physical examination. Dr. Ogilvie concluded that the chiropractic treatment referred to in the Treatment Plan was reasonable and necessary. He had little independent recollection of his assessment of Mr. Panchenko. In his report dated May 30, 2005, Dr. Ogilvie concludes that 4 sessions of chiropractic treatment and 10 sessions of functional exercise were reasonable and necessary.⁹

I accept Mr. Panchenko’s evidence that the disputed treatment relieved pain which permitted him to engage in his activities of daily life with some restrictions on strenuous activity. His evidence is supported by that of his treating chiropractor, Dr. Lianos.

Commission case law recognizes pain relief as a reasonable goal of treatment.¹⁰ Dr. Lianos was Mr. Panchenko’s treating chiropractor and had regular contact with him. I prefer Dr. Lianos’ estimate of the number of sessions required to that of Dr. Ogilvie who had only a brief encounter with Mr. Panchenko. Therefore I find that the additional sessions set out in the Treatment Plan of May 20, 2005 were reasonable and necessary to maintain and advance the reduction of pain and increase his range of mobility which was described by Mr. Panchenko.

The Treatment Plan dated October 28, 2005 was not referred to a DAC assessment. I agree with Mr. Panchenko’s submission that pursuant to subsection 38(12)(a) of the Schedule, RBC was required to refer Mr. Panchenko to a DAC assessment. As a consequence of RBC’s failure to follow the procedure, RBC must pay the amount set out in the Treatment Plan.¹¹

Mr. Panchenko’s claim is for treatment in the amount of $3,826.00. The services set out in the disputed Treatment Plans total $2,249.00. Neither Dr. Lianos’ nor Mr. Panchenko’s evidence was of assistance in determining what treatment related to the difference of $1,577.00. Therefore, I find that Mr. Panchenko’s benefit pursuant to section 14 of the Schedule is limited to $2,249.00, the amounts set out in the Treatment Plans of May 20 and October 28, 2005.

Housekeeping and Home Maintenance:

Mr. Panchenko claims a housekeeping benefit pursuant to Subsection 22(1) of the Schedule. For the reasons set out above, I have limited his claim to the period from April 1, 2005, the date RBC terminated housekeeping benefits, to August 31, 2005, the date upon which I found that Mr. Panchenko had ceased to live with Ms. Garanina.

To be entitled to a housekeeping benefit Mr. Panchenko must prove that, on balance, an accident-related impairment resulted in his being substantially unable to perform the housekeeping services he performed before the accident.

RBC terminated housekeeping benefits effective April 1, 2005 based on the Functional Abilities Evaluation (FAE) conducted by Functional Rehabilitation Inc. on April 1, 2005.¹² The assessor found that Mr. Panchenko was physically able to resume his pre-accident housekeeping duties but recommended an education session “regarding the use of proper body mechanics, pacing strategies, and hurt vs. harm theory for immediate implementation.” On April 25, 2005, an In-home Assessment was conducted by Century Assessment and Diagnostic Centre (Century) on behalf of Mr. Panchenko. The assessor found that Mr. Panchenko required 10 hours weekly of housekeeping assistance which was to be reassessed in two to three months. This represented a decrease of 5 hours per week from that which Mr. Panchenko reported having. Several assistive devices were recommended to assist Mr. Panchenko in resuming his activities.¹³

Mr. Panchenko testified that he was provided with a pillow as recommended by RBC’s assessor. However, there was no evidence that the cleaning devices which were recommended by the Century assessor were provided to Mr. Panchenko. Both assessors identified limitations in Mr. Panchenko’s ability to engage in his housekeeping activities. RBC’s assessor concluded there was no need for assistance. Century’s assessor found 10 hours of assistance were required. Although, the Century assessor recommended assistive devices he drew no conclusion regarding the reduction in hours of assistance which might result from the use of these devices.

The Century assessor’s conclusion that Mr. Panchenko was not able to tolerate heavy loads is consistent with Mr. Panchenko’s evidence and RBC’s assessors finding that he not engage in strenuous physical activity. I find that Mr. Panchenko was substantially disabled from engaging in heavy housekeeping, such as garbage removal, laundry and cleaning the bathroom, for the period from April 1 to August 31, 2005. I find that those tasks could reasonably be completed within four hours per week. I accept that Mr. Panchenko paid Ms. Garina at an hourly rate of $15.00. Therefore, Mr. Panchenko is entitled to a housekeeping benefit at the weekly rate of $60.00 from April 2, 2005 to August 31, 2005 pursuant to section 22 of the Schedule.

Interest:

Mr. Panchenko is entitled to interest on all outstanding benefits as follows:

In respect of the Caregiving benefits commencing May 27, 2005;
In respect of the Medical Benefits from 30 days following receipt of the invoices relating to the treatment set out in the Treatment Plans dated May 20 and October 28, 2005; and
In respect of the housekeeping benefits commencing April 2, 2005;

pursuant to subsection 46(2) of the Schedule.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

August 23, 2007

Denise Ashby Date Arbitrator

ARBITRATION ORDER

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

RBC General Insurance Company shall pay Mr. Panchenko a weekly caregiver benefit at the rate of $250.00 for the period from April 27, 2005 to May 31, 2005 and at the weekly rate of $60.00 from June 1 to August 31, 2005.
RBC General Insurance Company shall pay Mr. Panchenko a medical benefit in the amount of $2,249.00 for treatment provided by Downsview Health Recovery Centre.
RBC General Insurance Company shall pay Mr. Panchenko for housekeeping and home maintenance services at the weekly rate of $60.00 from April 1, 2005 to August 31, 2005.
Mr. Panchenko is not liable to repay $3,321.42 to RBC General Insurance Company.
RBC General Insurance Company shall pay Mr. Panchenko interest as follows: