Rashida Waheed and Fiaza Waheed v. RBC General Insurance Company, 2007 ONFSCDRS 206

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 206

FSCO A06-000761 and A06-000856

BETWEEN:

RASHIDA WAHEED

and

FIAZA WAHEED

Applicants

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Jeffrey Rogers

Heard: September 17, 18, 19 and 20, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. David Levy, solicitor for Rashida Waheed and Fiaza Waheed

Mr. Darrell March, solicitor for RBC General Insurance Company

Issues:

The Applicants, Rashida Waheed (Mrs. Waheed) and Fiaza Waheed (Ms. Waheed), were injured in a motor vehicle accident on June 27, 2005. They applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ RBC terminated housekeeping benefits and refused to pay for further treatment and three In-Home Assessments. The parties were unable to resolve their disputes through mediation, and the applicants 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:

Re: Rashida Waheed

1. Is Mrs. Waheed entitled to receive a medical benefit in the amount of $4,309 for treatment at Prime Health Recovery, from June 26, 2005 to February 28, 2006, pursuant to section 14 of the Schedule?

2. Is Mrs. Waheed entitled to payment of $100 per week, for housekeeping and home maintenance services provided by Saima Zia, from August 31, 2005 to February 28, 2006, pursuant to section 22 of the Schedule?

3. Is Mrs. Waheed entitled to payment of $869.50 for an In-Home Assessment dated October 13, 2005 and $869.50 for a follow-up In-Home Assessment, both by Century Diagnostic, pursuant to section 24 of the Schedule?

4. Is Mrs. Waheed entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

5. Is either party liable to pay the other’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Re: Fiaza Waheed

1. Is Ms. Waheed entitled to receive a medical benefit in the amount of $4,329 for treatment at Prime Health Recovery, from June 26, 2005 to February 28, 2006, pursuant to section 14 of the Schedule?

2. Is Ms. Waheed entitled to payment of $100 per week, for housekeeping and home maintenance services provided by Saima Zia, from September 4, 2005 to February 28, 2006, pursuant to section 22 of the Schedule?

3. Is Ms. Waheed entitled to payment of $869.50 for an In-Home Assessment dated October 13, 2005, by Century Diagnostic, pursuant to section 24 of the Schedule?

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

5. Is either party liable to pay the other’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Result:

Re: Rashida Waheed

1Mrs. Waheed is not entitled to receive a medical benefit in the amount of $4,309 for treatment at Prime Health Recovery, from June 26, 2005 to February 28, 2006, pursuant to section 14 of the Schedule.

2. Mrs. Waheed is entitled to payment of $50 per week, for housekeeping and home maintenance services provided by Saima Zia, from August 31, 2005 to December 11, 2005, pursuant to section 22 of the Schedule.

3. Mrs. Waheed is not entitled to payment of $869.50 for an In-Home Assessment dated October 13, 2005 and $869.50 for a follow-up In-Home Assessment, both by Century Diagnostic, pursuant to section 24 of the Schedule.

4. Mrs. Waheed is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

5. If they are unable to resolve this issue, either party may make an appointment for me to determine the issue of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Re: Fiaza Waheed

1. Ms. Waheed is entitled to receive a medical benefit in the amount of $917.26, pursuant to section 14 of the Schedule.

2. Ms. Waheed is not entitled to payment of $100 per week, for housekeeping and home maintenance services provided by Saima Zia, from September 4, 2005 to February 28, 2006, pursuant to section 22 of the Schedule.

3. Ms. Waheed is not entitled to payment of $869.50 for an In-Home Assessment dated October 13, 2005, by Century Diagnostic, pursuant to section 24 of the Schedule.

4. Ms. Waheed is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

5. If they are unable to resolve this issue, either party may make an appointment for me to determine the issue of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS

Background

These applications were heard together on the dates noted above. They were scheduled to be heard consecutively. When they appeared before me, the parties advised that they had agreed that the applications should be heard together. This was the most expeditious and least expensive way to proceed because the applicants claimed similar benefits, each had evidence to give with regard to the claim of the other and the same experts were expected to testify with regard to both claims. The only witnesses in the hearing were the two applicants and Dr. Adrian Joaquin, a chiropractor who prepared a treatment plan for each applicant.

The applicants are mother and daughter. Rashida Waheed is Fiaza Waheed’s mother. I will refer to Rashida Waheed as Mrs. Waheed and to Fiaza Waheed as Ms. Waheed. Ms.Waheed was 18 years old at the time of the accident. She lived with her mother. They were injured in the same accident on June 27, 2005. Mrs. Waheed was driving, Ms. Waheed was a passenger in the back seat. The only other passenger was Mrs. Waheed’s older daughter, who was seated in the front passenger seat. The Waheeds were stopped at a red light on Erin Mills Rd., waiting to enter the Erin Mills Mall, in Mississauga. They entered the intersection when the light turned green and were t-boned by a car that came through the red light.

The police and ambulance were called to the scene. Mrs. Waheed complained of injuries. She was taken by ambulance to Credit Valley Hospital where she was examined and assessed, given pain killers, and released. Ms. Waheed accompanied her mother to the hospital, but not for the purpose of receiving treatment. She did not think that she had been injured. She went along to assist her mother.

THE CLAIMS

(a) Medical Treatment

After the accident, both applicants were treated exclusively at Prime Health Recovery Centre. The records indicate that Mrs. Waheed was assessed there on July 13, 2005 and Ms. Waheed on July 15, 2005. Prime Health submitted four treatment plans for each applicant.

Re: Mrs. Waheed

Total

Date of Plan

July 13, 2005

September 2, 2005

November 1, 2005

December 22, 2005

Amount of Plan

$2,848

$2,202

$1,482

$1,252

$7,784

Amount Paid

$2,848

$2,202

$0.00

$0.00

$5,050

Balance per plans

$2,734

Balance per invoices

$4,309

Re: Ms. Waheed

Total

Date of Plan

July 15, 2005

September 2, 2005

November 1, 2005

December 22, 2005

Amount of Plan

$2,010

$2,202

$1,482

$1,252

$6,946

Amount Paid

$2,010

$1,480

$0.00

$0.00

$3,682

Balance per plans

$3,264

Balance per invoices

$4,329

RBC approved and paid for the first two treatment plans for Mrs. Waheed. It rejected the other two plans and referred them to a DAC. The DAC concluded that the proposed treatment was not reasonable and necessary. RBC approved and paid for the first plan for Ms. Waheed. After receiving the second plan, RBC advised Ms. Waheed by Explanation of Benefits (OCF-9) dated November 17, 2005², that it had approved treatment totalling $3,682 and there would not be further payment, pending receipt of a DAC report. The DAC considered the last two plans and found that the proposed treatment was not reasonable and necessary. It did not comment on the second plan and the report³ does not indicate that the second plan was referred to the DAC.

The applicants’ position is that they received all of the treatment proposed, all of which was reasonable and necessary. They submit that RBC breached its procedural obligations in refusing to pay for the disputed plans, by failing to provide reasons for refusal and, in the case of the second plan for Ms. Waheed, failing to refer the plan to a DAC. They submit that RBC is therefore liable to pay in any event.

Prime Health invoiced RBC for $1,575 more than the total of the treatment plans submitted for Mrs. Waheed and $1,065 more than the plans for Ms. Waheed. Subject to a reduction for amounts invoiced for transportation, the applicants claim the total amount of the invoices. They argue that the treatment plans are merely an estimate, not binding on the applicants.

(b) Housekeeping

Each applicant submitted invoices to RBC claiming for housekeeping services provided by Saima Zia, at 305 Ceremonial Dr., in the amount of $100 per week. They submitted invoices for the period June 27, 2005 to December 11, 2005. They claim that they continued to pay for housekeeping services until February 28, 2006, but they did not get any invoices after December 11, 2005, because RBC had refused to pay for further housekeeping.

RBC paid for housekeeping at the rate of $100 per week for each applicant, until August 31, 2005 for Mrs. Waheed and Sept 4, 2005, for Ms. Waheed. RBC refused further payment based upon the opinion of Danielle Wilson, an occupational therapist, who conducted an In-Home Assessment on August 10, 2005 and concluded that the applicants were able to resume pre-accident housekeeping activities. The Waheeds admitted in their evidence that they had together paid Ms. Zia a total of $100 per week. In his submissions, counsel indicated that the claim was therefore limited to $50 per week for each applicant. Although counsel initially characterized this as a withdrawal, he later agreed that he was really making a concession, based on the evidence.

(c) Assessments

Each applicant claims the cost of an In-Home Assessment, conducted at 4639 Crosscreek Court, on October 13, 2005. Mrs. Waheed also claims the cost of a follow-up assessment, conducted at the same address, on February 3, 2006. The assessments were denied on the opinion of a Fast Track DAC. The applicants submit that the assessments are reasonable and necessary and that RBC is required to pay in any event because it breached its procedural obligations by not providing a reason for its refusal when it refused to pay.

ENTITLEMENT

(a) Medical Treatment

Three questions must be answered in order to determine entitlement to the disputed medical treatment:

1. Did RBC breach its procedural obligations and if it did, is it therefore required to pay for the disputed treatment because of its breach?

2. Are the applicants limited to claiming the amounts in the disputed treatment plans?

3. Was the disputed treatment reasonable and necessary?

I will address the questions in the above order.

Procedural Breaches

Section 38(12) of the Schedule (now revoked) prescribed the relevant notice obligations of an insurer, upon deciding that it will not pay for goods and services proposed under a treatment plan. It provided as follows:

If the notice under paragraph 1 of subsection (8) does not indicate that the insurer

will pay for all the goods and services contemplated by the treatment plan,

(a) the insurer shall require the insured person to be assessed by a designated assessment center in accordance with section 43 in respect of the goods and services the insurer will not pay for; and

(b) the insurer shall include in the notice under paragraph 1 of subsection (8);

i. a statement of the insurer’s reasons for not agreeing to pay for all goods and services contemplated by the treatment plan, and

ii. notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43.

As noted above, the disputed portion of the second treatment plan submitted by Ms. Waheed was not referred to a DAC. In addition, no reason was given when RBC rejected part of the second plan and the entire third plan⁴, and no notice at all was given upon rejection of the fourth plan, although it was referred to a DAC. For Mrs. Waheed, the only reason given for rejecting the third and fourth plans was that RBC did not consider the treatment to be reasonable and necessary. Mrs. Waheed submits that RBC’s stated reason is a conclusion not a reason. She submits that RBC therefore failed to give any reasons.

The Schedule does not state that an insurer is required to pay for proposed goods and services unless it complies with the provisions of section 38(12) nor does it contain a specific remedy for breach of section 38(12). The question of whether a breach of the denial provisions creates entitlement has been considered in many cases. In Poulos and Zurich Insurance Company⁵, Arbitrator Alves reviewed the jurisprudence and concluded as follows: “…arbitrators have considered the breaches raised before them to be procedural, and awarded benefits after hearing all the evidence. An evidentiary approach has been taken, not a jurisdictional one.” I agree with that conclusion.

The Waheeds cited no case in which an insured was found to be entitled to a benefit because an insurer had breached section 38(12). They relied on Arbitrator Allen’s decision in Sorokin and Wawanesa Mutual Insurance Company⁶, and the decision of Director’s Delegate McMahon in Glinka and Dufferin Mutual Insurance Company.⁷ In Sorokin the breach of section 38 was considered in granting a special award under section 282(10) of the Insurance Act. The breach was not considered a factor in determining entitlement to the disputed benefit. In Glinka, the Director’s Delegate found that “[I]n appropriate circumstances, significant consequences should attach to a failure to comply with the statutory reasons for denying a claim.”⁸ However, the Director’s Delegate did not grant a remedy and specifically refused to grant an order barring the insurer from challenging the claim on its merits.

Therefore, while consequences such as granting a special award, might flow from a breach of section 38(12), I find that the applicants cannot be awarded payment for the disputed treatment, based solely on any breaches of section 38(12) that might have occurred.

The Applicants specifically indicated that they were not advancing a claim for a special award. I heard no evidence that the applicants took issue with the insurer’s response at any time before the hearing commenced.

Amount of claim

As noted above, Prime Health invoiced RBC for $1,575 more than the total of the treatment plans submitted for Mrs. Waheed and $1,065 more than the plans for Ms. Waheed. The amount invoiced was about 20% more than the plans submitted for Mrs. Waheed and about 15% more than the plans for Ms. Waheed. The invoices included charges by Prime Health for transporting their clients to and from appointments. At the hearing, counsel for the Waheeds waived the claim for those charges, totalling $300 for Mrs. Waheed and $360 for Ms. Waheed. The applicants claim entitlement to pursue the total remaining amount invoiced, arguing that the treatment plans are merely estimates of the cost of the proposed treatment.

I agree that there might be circumstances in which an insured is not strictly bound by the amount proposed as the cost of goods and services in a treatment plan. There might be circumstances in which the service provider is only able to give an estimate of the cost, while providing a detailed description of proposed goods and services. In such instances, small cost overruns might be permissible, upon a reasonable explanation being provided. A cautious approach is mandated because section 38 contemplates that before expenses are incurred, the insurer is given the opportunity to approve proposed treatment. Overruns in the amounts that occurred in this case would be difficult to justify.

I heard no evidence to justify the claimed overruns. I heard no evidence on why Prime Health was only able to provide an estimate of the cost in the circumstances of this case. I also heard no evidence about, if what was provided was only an estimate, the services provided exceeded the estimated cost. What is clear is that Prime Health included charges in its invoices for services (transportation) which were not included in the treatment plans and to which their clients were not entitled under the Schedule. This highlights the importance the insurer’s right to consider payment before expenses are incurred. It operates not only for the protection of insurers, but also serves to protect insureds from exposure to financial risk. Had the plans proposed services for transportation, the insurer might have denied the claim giving the reason that payment was not available to the insureds under the Schedule. That might have given the insureds the opportunity to consider whether they wanted to incur the expense, without the opportunity to recover it from the insurer.

Even if all other barriers to pursuing the additional amounts were removed, I am not satisfied that the Prime Health records accurately reflect services that were actually provided.

Both applicants testified that Mrs. Waheed was in Pakistan on October 8, 2005 when an earthquake there caused serious damage, resulting in the loss of many lives. They were unclear on when she left Canada and when she returned, but they agreed that she was in Pakistan for two weeks. The records show that she attended an In-Home Assessment on October 13, 2005.⁹ I have no reason to doubt that the assessment took place on that date. Therefore, Mrs. Waheed was out of the country for two weeks that include October 8, 2005 and ended on or before October 13, 2005. Nevertheless, Prime Health billed RBC for treating Mrs. Waheed on October 3, 6 and 11.¹⁰

The only date she could have been in Canada was October 11, 2005. Although the applicants claimed to have received all of the invoiced treatment, they had no specific recollection. No witness was called to explain the discrepancy in Prime Health’s records. I find no reliable evidence upon which it could be determined that Prime Health provided services in the amounts invoiced.

Reasonable and Necessary Treatment

(i) Ms. Waheed

Subject to certain limitations and exceptions, Section 14 of the Schedule requires an insurer to pay for all reasonable and necessary expenses incurred by an insured person for treatment of an impairment resulting from an accident.

Ms. Waheed was 18 years old at the time of the accident. She had no prior, relevant medical history. She had completed grade 11 and planned to go to summer school to upgrade her mark. The accident happened just before summer school started. She testified that she felt no pain at the time of the accident but began to feel pain a day or two later. She also testified that she woke up in pain the next day. She said she called her family doctor but she was on vacation. She testified that she saw her family doctor when she came back from vacation, about a week after the accident.

Her evidence was that her family doctor recommended massage, told her to take pain killers if the pain got worse and referred her to Prime Health for treatment. She testified that she first went to Prime Health about a month after the accident. Upon being shown Prime Health’s records, she agreed that her first visit was July 15, 2005. That is 18 days after the accident. When confronted in cross-examination with the notation in Prime Health’s Initial Examination Report¹¹ that she had “not yet consulted her primary care physician”, she indicated that she did not recall going to Prime Health before seeing her family doctor. She did concede that she only saw her family doctor once for her injuries and that her doctor’s advice was to continue going for treatment at Prime Health. That must mean that, contrary to her earlier testimony, she had already gone to Prime Health when she first saw her family doctor. She then said she could not recall who had referred her to Prime Health. Despite agreeing to produce them, Ms. Waheed did not provide RBC with a copy of the records of her family doctor.

Summer school lasts for a month and started right after the accident. Ms. Waheed testified that, because summer school is a whole semester of work, squeezed into a month, a lot of work is required. She testified that she had pain in her back, neck and wrist and experienced headaches. Her ability to concentrate was impaired. The treatment at Prime Health calmed her muscles, decreased her headaches and she was able to study better. She successfully completed summer school, obtaining a mark of 83%. Her evidence was that she did not do as well as she normally did. She agreed that she was not a good student earlier, but said she was a good student immediately before the accident.

Ms. Waheed continued to Grade 12 in September of 2005 and successfully completed Grade 12. She testified that the treatment she received at Prime Health had the effect of gradually reducing her pain. By September, she was feeling a little better. Her wrist was much improved. Her neck and back were still painful, and she was still experiencing headaches. As she felt better, she attended at Prime Health less frequently. By November 2005, she was going once a week. By February 2006, she felt she could resume all her daily activities and therefore got no further treatment.

As noted above, RBC gave no reason why it was prepared to pay for only part of Ms. Waheed’s second treatment plan. It simply stated that no further payment would be made until a DAC opinion was received. In fact, the DAC was not asked to comment on this plan and RBC tendered no evidence at the hearing to explain why it deemed some of the proposed treatment to be reasonable and necessary, while the balance was not. Ms. Waheed’s evidence that the treatment was beneficial and the opinion of Dr. Karen Jongedijk, the chiropractor at Prime Health who prepared the treatment plan, are therefore not contradicted. Given that the proposed treatment was relatively close to the date of the accident, in the absence of any contradicting evidence, I find that the treatment proposed in the second treatment plan for Ms. Waheed was reasonable and necessary. RBC is therefore required to pay the unpaid balance of that plan in the amount of $722.

The DAC regarding the treatment plans of November 1 and December 22, 2005, was conducted on April 5, 2006.¹² By that time, Ms. Waheed had completed treatment at Prime Health and she admits that she was then able to return to her pre-accident daily activities. The physical findings of the DAC in April 2006 are therefore of limited value in determining what treatment

Ms. Waheed needed in November 2005. However, those findings are not critical to the opinion expressed in the report. The DAC concluded that the proposed treatment was not reasonable and necessary, not because it concluded that Ms. Waheed had recovered by November 1, 2005. It accepted that “Ms. Waheed likely suffered the following accident-related injuries and sequelae:

1. WAD II cervical spine

2. Thoracic spine strain-sprain

3. Cervicogenic headaches

4. Uncomplicated lumbar spine strain-sprain.”¹³

What the DAC rejected was Prime Health’s approach to treating these injuries. It concluded that “no further facility-based passive and/or active therapy was necessary at the time the disputed Treatment Plan was prepared. Ms. Waheed would have benefited from being discharged to an adequate-self directed, home exercise program.”¹⁴

I appreciate that the DAC opinion presumes a typical course of recovery. That assumption could have been rebutted by credible evidence from Ms. Waheed on the extent of her ongoing impairment and the benefit of the treatment she received. However, Ms. Waheed’s failure to recall the details of her post-accident decisions regarding treatment, casts serious doubt on the reliability of her account. I would have expected her to remember clearly whether she saw her family doctor before attending at Prime Health. I would have expected her to remember how she came to attend at Prime Health. The only reliable evidence leads to the conclusion that she first received treatment on July 15, 2005. By that time, she had completed the bulk of her month-long summer school. Yet she testified that she required the treatment at Prime Health so that she could meet the challenges of attending summer school. She testified that the 18-day delay in getting treatment was because she was too busy at school. That explanation is also inconsistent with her claim that she needed treatment in order to meet the physical challenges of school. I am therefore not prepared to accept Ms. Waheed’s account of her post-accident course of recovery.

The DAC opinion could also have been rebutted by clear, cogent evidence from a health professional who treated Ms. Waheed and could provide an overall view of the plan for her treatment, could assess her ongoing progress and could provide an insight into why her course of recovery was a typical. I heard no such evidence. I did hear from Dr. Joaquin, but he never treated Ms. Waheed. The only time he saw Ms. Waheed was on December 22, 2005 when he prepared the final treatment plan after meeting with her for twenty minutes to an hour. He could not recall her well enough to point her out in a room. He testified that he had access to Prime Health’s file prior to meeting Ms. Waheed and he would have reviewed it, but it would not have had much influence on his opinion. He was aware that she had received treatment at Prime Health but his opinion would not have been influenced by her prior treatment. He would have recommended what he thought best for her, in any event. He indicated that her injuries appeared to be typical WAD II for which a typical period of recovery is 6 to 8 weeks. He thought there might have been complicating factors such as prolonged sitting or carrying a backpack.

Recovery might also have been affected by patient compliance with in home therapy or patient perception of pain. He agreed that initial treatment plays a key role in a speedy recovery, with a return to activity immediately following the accident being a key factor.

However, Dr. Joaquin did not take these factors into account in preparing his treatment plan. The aim of his proposed treatment was to return to patient to pre-accident level of pain. His view is that patients are entitled to treatment until they have achieved pre-accident levels of pain. He agreed that studies show that active treatment is preferred at the time he prepared the treatment plan. He testified that, for that reason, he recommended more active treatment. He disagreed with the DAC opinion that a home-based exercise program was adequate because he was not confident that the patients could undertake such a program, without prior instruction. However, Dr. Jongedijk of Prime Health noted in her Follow-Up Progress Report of September 2, 2005¹⁵ that “[T]he patient has demonstrated that she can perform exercises independently without risk of aggravating her injuries.”

The discrepancy between Dr. Joaquin’s assumption regarding Ms. Waheed’s ability to exercise on her own and Dr. Jongedijk’s earlier finding, graphically illustrates why Dr. Joaquin was in a weak position to propose treatment for Ms. Waheed or to opine on whether such treatment was reasonable and necessary. His decision to assess Ms. Waheed’s need in a vacuum, without reference to her prior treatment, also calls into the question the general practice of Prime Health in recommending treatment. I am therefore not prepared to draw the inference that the November treatment plan recommended reasonable and necessary treatment. Further, Dr. Joaquin’s evidence that most of the notes he made when he met the Waheeds were missing from the copy of the Prime Health’s records filed at the hearing, raises the question of whether anyone could have made a comprehensive assessment, based on a full record of prior opinions expressed at Prime Health, had he or she chosen to do so.

I conclude that, because of the absence of any cogent evidence to support a finding that treatment of the kind recommended in the two disputed treatment plans was reasonable and necessary at the time it was recommended, I accept the DAC opinion that the proposed treatment was not reasonable and necessary. The DAC did recommend payment for a one-hour home exercise prescription session and two, thirty minute follow-up sessions, at a cost of $195.26.¹⁶ I find that Ms. Waheed is entitled to payment of that amount.

(ii) Mrs. Waheed

The DAC regarding Mrs. Waheed’s treatment plan of November 1, 2005 was conducted on December 29, 2005. There was a further DAC regarding the treatment plan of December 22, 2005. That took place on April 6, 2005. I denied RBC’s request to file the report of the second DAC, finding that it would be unfair to do so. The request was made after all of the oral evidence was completed and the report was first produced to counsel for the Waheeds after all of the oral evidence was completed.

The DAC of December 29, 2005 concluded that, because of Mrs. Waheed’s report that she had not experienced any significant improvement, despite the time that had elapsed since the accident and the treatment she had undergone, further passive treatment was not reasonable and necessary.¹⁷ The DAC concluded that the symptoms reported on December 29 were magnified, Mrs. Waheed having scored positive in four of the five categories of tests conducted in this regard. A score of three out of five would have been enough for a classification of “symptom magnified.”

As with her daughter, Mrs. Waheed’s own evidence supports the DAC conclusion that her post- accident symptoms were not accurately reported. She said she was unable to move for two or three days after the accident. She spent those days on the sofa. For 2 to 3 months after the accident, she could not move without assistance. She denied being able to drive for anywhere from 5 to 8 months after the accident. But her daughter testified that her mother picked her up from summer school when her usual ride was not available. Mrs. Waheed admitted that she continued attending a course on Islam that she had enrolled in prior to the accident. By two months after the accident, she was going once or twice a week. Although she indicated that she got a ride with other students, she did not indicate that she required any other assistance.

Mrs. Waheed also claimed to have seen the same family doctor that her daughter saw, about a week after the accident, before going to Prime Health. She also claimed that the family doctor referred her to Prime Health. She claimed that she went to see that doctor “a lot” about her injuries. Despite her agreement, the doctor’s notes were not produced. When confronted in cross-examination with the records of Prime Health, which indicate that she first attended there on July 13, 2005 and had not yet consulted her primary care physician,¹⁸ she agreed that she had not seen her family doctor when she first went to Prime Health, 16 days after the accident. She could not recall whether she attended at a walk-in clinic. She did not explain why she waited for 16 days before receiving treatment or who really referred her to Prime Health. Mrs. Waheed was still receiving treatment at Prime Health when she went to Pakistan in early October 2005. She claimed to sill be incapable of driving at that time. No evidence was tendered on how the long flight affected her symptoms, on whether she received any treatment in Pakistan or how her recovery was impeded by the long flight or lack of ongoing treatment.

Dr. Joaquin’s evidence regarding Mrs. Waheed contained the same weaknesses as his evidence regarding Ms. Waheed. He did testify that Mrs. Waheed’s neck injury appeared somewhat more complicated than her daughter’s because of evidence of radiculitis (pain radiating into her right arm). However, he agreed that he could not identify the cause and could not say definitively whether that diagnosis took her injury out of the WAD II classification.

For the reasons given regarding Ms. Waheed’s claim, I prefer the opinion of the DAC. Since the second disputed treatment plan recommended a continuation of similar treatment, I conclude that the treatment proposed in both plans was not reasonable and necessary. Mrs. Waheed’s claim for payment for those plans is therefore denied.

(b) Housekeeping

Section 22(1) of the Schedule provides as follows:

The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

Three elements must be satisfied in order to prove entitlement to benefits under section 22:

1. The insured must have performed housekeeping and home maintenance services before the accident;

2. The insured must suffer a substantial inability to perform those housekeeping and home maintenance services, as a result of an accident-related impairment, and;

3. Additional expenses must be incurred for someone else to perform those services.

Medical evidence could support a finding of substantial inability to perform certain activities, but it does not prove what activities were engaged in prior to the accident or the expenses incurred for someone else to do the work. The only evidence presented on those issues was the oral evidence of the applicants and the invoices from Saima Zia, the wife of Mrs. Waheed’s nephew, allegedly hired to do the work.

Pre-accident housekeeping activities

The Waheeds gave confusing and conflicting information and evidence about where they lived at the time of the accident and in the months following the accident. The three disputed In-Home Assessments, done on October 13, 2005 and February 3, 2006 were done at 4639 Crosscreek Court. However, all invoices show work only at 305 Ceremonial Drive. Both applicants testified that no housekeeping services were provided at Crosscreek Court. The In-Home Assessment RBC commissioned for August 10, 2005¹⁹ was done at Ceremonial Drive.

Both applicants testified that they were living in a basement apartment, at 305 Ceremonial Drive, at the time of the accident. This is consistent with the invoices. Both gave their address as 4639 Crosscreek Court, on their Application for Accident Benefits. They agree that 4639 Crosscreek Court is a two-storey house, owned by Ms. Waheed’s father, from whom her mother separated, long before the accident. Ms. Waheed testified that she had lived there with her father, until he left the country. She then moved into the Ceremonial Drive apartment where her mother lived. However, she continued to receive some of her mail at Crosscreek and therefore gave it as her mailing address on the application. She agreed that she also got mail at Ceremonial Drive. She did not explain her rationale for choosing Crosscreek for the Application.

Mrs. Waheed’s evidence was that the person who prepared the Application must have made a mistake. Ms. Waheed added to the confusion by claiming that she lived part-time at Crosscreek, both before and after the accident, staying there overnight at least once a week. On the other hand, her mother said she was unaware of the Crosscreek property until after the accident. Both applicants testified that they moved into that property, some time after the accident. They could not recall when they moved and were not clear on why. Confronted with the fact that the In-Home Assessments, done at Crosscreek in October, suggest that she was living there at that time, Ms. Waheed testified that perhaps there was an error on the invoices, showing work at that time being performed at Ceremonial.

One would expect that the applicants would have clearer recall of where they lived, at least at the time of the In-Home Assessments that they commissioned. There is no way to reconcile

Ms. Waheed’s claim that she spent at least one night per week at Crosscreek and her mother’s claim that she did not know of the existence of this property until after the accident. RBC submitted that this confusion suggests subterfuge and I should conclude from it that the claimed housekeeping services were not provided.

The only reason RBC suggested for using the Crosscreek address is intent to inflate their housekeeping needs by substituting a larger residence for the one they occupied. But, for that to succeed, they would have hid the Crosscreek address. However, RBC was aware of the Ceremonial address. The invoices were for that address. RBC’s assessment was done there and RBC sent some mail there. Therefore, although the applicants appear not to have been completely forthright, I am not satisfied that it directly relates to the claim for housekeeping benefits. Nevertheless, the confusion clouds the question of what housekeeping at Crosscreek each applicant was responsible for, before the accident. If Ms. Waheed was spending significant time at Ceremonial before the accident, what responsibility would she have had for Crosscreek? The question is further clouded by a direct conflict between the evidence of Ms. Waheed and Mrs. Waheed about what they did before the accident.

Ms. Waheed testified that she did everything before the accident, except cooking and laundry. Her mother did that. Mrs. Waheed testified that, as the mother, she was responsible for all housekeeping, before the accident. The invoices blur the picture further, showing services for laundry, supplied to both and no services for cooking, although both applicants claimed that

Ms. Zia supplied that service. Ms. Waheed also admitted in cross-examination that her older sister shared her pre-accident responsibilities and assisted with laundry and cooking, while

Mrs. Waheed assigned no pre-accident role to her older daughter.

In the circumstances, Ms. Waheed’s claim regarding her housekeeping responsibilities before the accident seems implausible and I do not accept it. It seems more likely that her mother, who was not employed, would have been responsible for all housekeeping chores, while her daughters concentrated on their academic responsibilities. The likelihood of Ms. Waheed’s non-involvement is increased by the fact that she was solely responsible for Ceremonial at the time and spent significant time there. I am therefore not satisfied that, before the accident,

Ms. Waheed performed the housekeeping activities for which she claims reimbursement. Her claim for further housekeeping benefits is denied for this reason.

Inability to engage in Housekeeping Activities

Mrs. Waheed

RBC terminated Mrs. Waheed’s housekeeping benefits, effective August 31, 2005, based upon the opinion of Danielle Wilson, an occupational therapist. Ms. Wilson conducted an In-Home Assessment on August 10, 2005 and prepared a report dated August 15, 2005.²⁰ Ms. Wilson found a reduction Mrs. Waheed’s range of motion in her neck, shoulders, back and hips. She also noted complaints of pain in flexing, extending or stretching those parts of the body. She concluded that Ms. Waheed’s range of motion was within functional parameters. She noted that Mrs. Waheed had limited her participation in her usual activities, secondary to symptoms. She suggested “using the principles of proper body mechanics, pacing and energy conservation techniques to minimize symptom aggravation as she increases activity levels.” She recommended that “[O]ne session of education in proper body mechanics, energy conservation and pacing techniques would facilitate …safe resumption of housekeeping tasks at this time.”

There is no evidence that RBC pursued this recommendation or that Mrs. Waheed received this training. At the time that it terminated housekeeping benefits, Mrs. Waheed was still being treated at Prime Health and RBC was still paying for that treatment. While the DAC found in December 2005 that the further treatment suggested was not reasonable and necessary, it did not find that Mrs. Waheed had fully recovered from her injuries. The DAC also recommended strengthening and conditioning exercises that Mrs. Waheed never received.

I am not satisfied that Mrs. Waheed was able to resume her housekeeping activities, without risk of aggravating her symptoms, thereby prolonging her recovery, when benefits were terminated. Although both Ms. Wilson and the DAC suggest that a gradual return to those activities, would have aided recovery, I am satisfied that Mrs. Waheed’s decision not to do so before December 11, 2005, the date to which I have found entitlement, was not unreasonable. I am satisfied that Mrs. Waheed continued to experience pain upon engaging in her pre-accident housekeeping activities, until December 11, 2005. Although a decision to limit activities for fear of symptom aggravation might be unreasonable at some time post-accident, I am not satisfied that

Mrs. Waheed acted unreasonably in deciding to do so until December 11, 2005.

Incurred expenses

Ms. Zia, the person Mrs. Waheed engaged to do housekeeping, did not testify. Although

Mrs. Waheed claimed she was paid for her work until February 28, 2006, no proof of payment was presented. The invoices²¹, which were only supplied to December 11, 2005 are admittedly inaccurate. They show Ms. Zia providing 10 hours of services each week to each applicant. Both applicants testified that only five hours per week was provided to each of them. I therefore give the invoices no weight in determining what expenses were incurred. However, they do provide some corroboration for Mrs. Waheed’s oral evidence that some expense was being incurred. I accept her evidence that she continued to incur expenses of $50 per week, until December 11, 2005. With no documentary evidence to support her claim that she paid for housekeeping beyond that date, I find that she has not proven that she did so. Knowing that she intended to claim reimbursement from RBC, I find it unlikely that she continued to pay Ms. Zia, without an invoice, when that was the established practice, or a receipt, or a cancelled cheque, as proof of payment.

I therefore find that Mrs. Waheed is entitled to further housekeeping benefits, at the rate of $50 per week, from August 31, 2005 to December 11, 2005.

(c) Assessments

Section 24(1) (11) of the Schedule required an insurer to pay reasonable fees “charged…for conducting an assessment or examination and in preparing a report if the assessment or examination is reasonably required in connection with a benefit that is claimed…”

The claims for the disputed In-Home Assessments are based on the assertion that they were reasonably required in connection with the Waheeds claims for housekeeping benefits. Since I have concluded that Ms. Waheed did not perform the alleged housekeeping activities, prior to the accident, I find that the assessment for which she claims was not reasonably required in connection with her claim for that benefit.

As noted above, all of the assessments were done at 4639 Crosscreek Court. It is clear that

Mrs. Waheed was not living there, when the first assessment was done in October 2005. She testified that she moved to Crosscreek, some time after her daughter. Neither she nor her daughter could recall when that was. As noted earlier, one would expect clarity of recall of the place of residence on the date in which an In-Home Assessment is conducted. I am therefore not satisfied that Mrs. Waheed lived at Crosscreek on the date either disputed assessment was conducted.

An important aspect of an In-Home Assessment is measuring the claimant’s need for assistance, based on the demands of the claimant’s place of residence. Therefore, an In-Home Assessment, conducted where the claimant does not reside, will not normally be reasonable. I find that the

In-Home Assessment, conducted at Crosscreek, a significantly different kind of unit from the one in which Mrs. Waheed resided, was not reasonably required in relation to her claim for housekeeping benefits. In addition, since Mrs. Waheed was not incurring expenses for housekeeping after December 11, 2005, I find that the assessment conducted in February 2006 was not required, for that reason as well.

INTEREST

Ms. Waheed and Mrs. Waheed are entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule. If the parties are unable to agree on the amount payable, I remain seized of this issue.

EXPENSES

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 26, 2007

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 206

FSCO A06-000761 and A06-000856

BETWEEN:

RASHIDA WAHEED

and

FIAZA WAHEED

Applicants

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 shall pay Fiaza Waheed a medical benefit in the amount of $917.26.

2. RBC shall pay Rashida Waheed housekeeping benefits in the amount of $50 per week, from August 31, 2005 to December 11, 2005.

3. RBC shall pay interest for the overdue payment of the above benefits pursuant to section 46(2) of the Schedule.

4. I remain seized of the issue, should the parties be unable to agree on the amount of interest payable.

5. If they are unable to resolve this issue, either party may make an appointment for me to determine the issue of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 26, 2007

Jeffrey Rogers Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 5
3. 3Exhibit 24
4. 4Exhibits 3 and 5
5. 5FSCO A00-000193, June 6, 2001
6. 6FSCO A00-001163, February 9, 2004
7. 7FSCO P01-00002, July 17, 2003
8. 8At paragraph 28
9. 9Exhibit 17
10. 10Exhibit 15, page 59
11. 11Exhibit 1, page 1
12. 12Exhibit 24
13. 13Exhibit 24, at page 12
14. 14At page 3
15. 15Exhibit 1, Page 15
16. 16Exhibit 24, page 3
17. 17Exhibit 22
18. 18Exhibit 15, Page 1
19. 19Exhibit 21
20. 20Exhibit 21
21. 21Exhibits 4 and 16