Neutral Citation: 2007 ONFSCDRS 219 FSCO A06-000665

BETWEEN:

ASIF HASAN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Eban Bayefsky Heard: July 3 and 4, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Shanna Mittleman for Mr. Hasan Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Asif Hasan, was injured in a motor vehicle accident on June 2, 2005. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm denied Mr. Hasan’s claims for certain housekeeping, attendant care and medical benefits. The parties were unable to resolve their disputes through mediation, and Mr. Hasan 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. Hasan entitled to housekeeping benefits from September 14, 2005 to October 15, 2006, at the rate of $100 per week, pursuant to section 22 of the Schedule?
Is Mr. Hasan entitled to attendant care benefits from June 2 to August 2, 2005, at the rate of $477.09 per month, pursuant to section 16 of the Schedule?
Is Mr. Hasan entitled to medical benefits for the balance of the treatment account of Prime Health Recovery, in the amount of $4,868.28, pursuant to section 14 of the Schedule?
Is Mr. Hasan entitled to interest on any overdue benefits, pursuant to section 46(2) of the Schedule?
Is either party entitled to their expenses of the arbitration, pursuant to section 282(11) of the Schedule?

Result:

Mr. Hasan is not entitled to housekeeping benefits from September 14, 2005 to October 15, 2006.
Mr. Hasan is not entitled to attendant care benefits from June 2 to August 2, 2005.
Mr. Hasan is not entitled to medical benefits for the balance of the treatment account of Prime Health Recovery.
Mr. Hasan is not entitled to interest.
If required, the parties may make submissions on the issue of expenses in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

Mr. Hasan was injured in a motor vehicle accident on June 2, 2005 when the car he was driving was rear-ended at a traffic light. His car was written off. An ambulance came to the accident scene, but Mr. Hasan said that he was “O.K.” and did not need to be taken to the hospital. He attended his family doctor’s office the following day, complaining primarily of neck, shoulder and back pain. His family physician, Dr. M. Atalla, was absent that day, but Mr. Hasan saw a Dr. Mosley, who prescribed pain medication and physical rehabilitation. Mr. Hasan attended Prime Health Recovery Centre (“Prime Health”) the same day, where he began a course of physiotherapy. The attending chiropractor, Dr. K. Jongedijk, reported that Mr. Hasan was substantially disabled from his housekeeping tasks. Mr. Hasan also maintained that he required attendant care assistance in the first two months following the accident and that his wife provided this assistance. Mr. Hasan indicated that he has now fully recovered from the injuries he suffered in the accident.

Mr. Hasan worked as a general labourer at a manufacturing company prior to the accident. He indicated that he returned to work one week following the accident, doing light duties for approximately a year.

At the time of the accident, Mr. Hasan lived in a two-bedroom basement apartment with his wife, Azra, and his two children (ages five years, and six months). Mr. and Mrs. Hasan had another child (aged 19 at the time of the accident) who lived with them intermittently, but who did not assist with the housekeeping duties. Mr. Hasan maintained that he shared these duties with his wife prior to the accident, but that he did the majority of this work. In late October 2005 (approximately four months after the accident), Mr. Hasan and his family moved into a three-bedroom, semi-detached townhouse.

Based on various medical and functional assessments, State Farm denied Mr. Hasan’s claim for housekeeping benefits beyond September 13, 2005, as well as his claim for attendant care benefits in the first two months after the accident. State Farm also denied Mr. Hasan’s claim for the full amount of the treatment he received at Prime Health.

Mr. Hasan’s Entitlement to Housekeeping Benefits

(i) The Applicable Law

Pursuant to section 22(1) of the Schedule, Mr. Hasan would be entitled to benefits for reasonable and necessary expenses incurred as a result of the accident for housekeeping and home maintenance services if, as a result of the accident, he sustained an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident.

The following comments on housekeeping benefits in Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006) are instructive:

I find that the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.

Therefore, the issue of Mr. Hasan’s entitlement to housekeeping benefits requires a determination of whether, based on a comparison of his pre- and post-accident household activities, and as a result of the accident, he suffered a substantial inability to perform his pre-accident housekeeping activities. The analysis would also involve a determination of whether the housekeeping expenses he incurred as a result of the accident were reasonable and necessary.

(ii) Mr. Hasan’s pre- and post-accident housekeeping activities

Mr. Hasan testified that, although he shared housekeeping duties with his wife before the accident, he did approximately 80% of this work, which included cleaning, cooking, doing the laundry and shopping. Mr. Hasan initially testified that he did 14 hours of housework a day, then said that he did 3 hours of housework a day, and then stated that when he was home from work, he did the majority of housework.

Mr. Hasan’s wife, Azra, testified that, before the accident, she did 20% to 30% of the housekeeping, and that Mr. Hasan did more than 50% of the housekeeping.

Mr. Hasan underwent an in-home assessment by Dr. A. Ventrella, a chiropractor, on July 23, 2005. Dr. Ventrella reported Mr. Hasan’s pre-accident housekeeping duties as follows:

Task	Hours per week
Sweeping, vacuuming, mopping floors	1
Dusting	1
Cleaning bathrooms	1
Cleaning kitchen	1
Garbage removal	.5
Laundry	3
Making beds	.5
Tidying	1
Shopping	2
Cooking/Meal Preparation	7
Total hours per week	18

Dr. Ventrella also reported that Mr. Hasan did 4.5 hours of childcare per day. Dr. Ventrella reported that, following the accident, Mr. Hasan “experienced significant difficulty completing most of his previous housekeeping and childcare tasks without assistance” and that he had “difficulty with major cleaning, ambulation and mobility, grocery shopping, personal care, meal preparation/services, and laundry since these tasks aggravate his injuries.” Dr. Ventrella concluded that Mr. Hasan “require[d] assistance with his activities of daily living.”

Regarding his specific pre-accident housekeeping duties, Mr. Hasan testified that he did approximately 10-15 minutes per day in garbage removal (approximately 70 to 105 minutes per week), but stated that he did recall telling Dr. Ventrella that he did 30 minutes of garbage removal per week. Mr. Hasan testified that he did 3 hours per week of dusting, but stated that he could not recall telling Dr. Ventrella that he did 1 hour per week of dusting.

Dr. Ventrella made the following recommendations for housekeeping assistance:

Task	Hours per week
Sweeping, vacuuming, mopping floors	1
Dusting	1
Cleaning bathrooms	0
Cleaning kitchen	1
Garbage removal	.5
Laundry	1
Making beds	0
Tidying	1
Shopping	2
Cooking/Meal Preparation	4
Total hours per week	11.5

Dr. Ventrella also recommended 3 hours per day in childcare assistance, and that Mr. Hasan be provided with various assistive devices.

On August 17, 2005, at the request of State Farm, Mr. Hasan underwent an “independent psychological assessment” by Dr. Louise E. Koepfler, a psychologist. On September 7, 2005, Dr. Koepfler reported that, “from a psychological perspective, Mr. Hasan does not suffer from a substantial inability to perform housekeeping and home maintenance activities, which are primarily performed by his wife.”

On August 18, 2005, at the request of State Farm, Mr. Hasan underwent an “occupational therapy in home assessment” by Ms. J. Phillips, an occupational therapist. Ms. Phillips noted Mr. Hasan as stating that “he is able to perform most of his pre-accident homemaking tasks and…that he avoids low level tasks which require him to bend.” Ms. Phillips concluded that: “based upon the claimant’s reports coupled with his demonstrated range of motion, strength, balance and cognition during the assessment, there were no current identified needs for homemaking assistance…[and] that he does not suffer a substantial inability to perform his pre-accident homemaking tasks.”

On September 19, 2005, Dr. J. Super of Prime Health submitted a Disability Certificate in which he stated that Mr. Hasan suffered a substantial inability to perform his pre-accident housekeeping tasks. Dr. Super noted that Mr. Hasan “still states difficulty with household chores involving lifting, carrying, bending, and general household work, all of which are provocative.”

On December 9, 2005, Dr. M. Perlmutter, a psychologist, found that Mr. Hasan was suffering from acute chronic pain in his neck, shoulders, back and left calf, generalized anxiety disorder, automobile-related phobia, headaches, sleep disorders, nightmares and mild depressive disorder. Dr. Perlmutter reported that “physical and psychological stressors restrict [Mr. Hasan’s] capacity to manage his household, and to take part in the physical activities he has enjoyed in the past.” Dr. Perlmutter recommended cognitive/behavioural therapies, depression and anxiety management, systematic desensitization of a phobia, and relaxation training techniques.

Mr. Hasan submitted several invoices for the housekeeping services his wife performed after the accident. Mr. Hasan testified that he and his wife were having financial difficulties at the time of the accident, that no one would do the housekeeping for free and that he, therefore, agreed to pay his wife for these services, at rates mutually determined by them. Mr. Hasan said three things in relation to the reduction in the hourly rate for housekeeping shown in the invoices (from $15 per hour in June 2005 to $10 per hour in July 2005, and then to $8 per hour in August 2005): that his wife was providing less housekeeping assistance, that he could not pay his wife as much, and that he was slowly coming back to normal and, therefore, decided to pay her less.

The invoices Mr. Hasan submitted to State Farm for the period September 14, 2005 to October 15, 2006 indicate housekeeping assistance of 3 hours per day, 21 hours per week. The specific tasks and times spent remain constant from day to day throughout the entire period. Each day notes the following tasks and times:

Task	Hours per day
Cleaning the house	.5
Vacuuming	.25
Garbage removal	.25
Dusting	.25
Laundry	.5
Mopping	.25
Dish washing	.5
Cleaning bathrooms	.5
Total hours per day	3 (21 hours per week)

For the same period, Mr. Hasan also claimed 5 hours per day, 35 hours per week, consistently, for caregiving assistance.

Mr. Hasan testified that every day, he would write down the number of hours spent on each task on the invoice form that he submitted to State Farm. His wife testified that Mr. Hasan would first note the tasks and times on a scrap piece of paper, and then transfer them to the invoice form every week or so.

Mr. Hasan testified that he gradually increased his help around the house after the accident. Mrs. Hasan also testified that she gradually did less housework and that the amount of time spent on the different tasks varied. Mrs. Hasan said that these variations would be reflected in the invoices submitted to State Farm. However, Mr. and Mrs. Hasan acknowledged that the invoices showed the same amount of housekeeping assistance each day for the entire period in dispute.

Although Mr. and Mrs. Hasan testified that the invoices were accurate, they acknowledged that there were a number of mistakes. For example, Mr. Hasan stated that the invoice for May 1, 2006 was incorrect since his wife had undergone an emergency cesarean section for the birth of their fourth child that day. Mr. Hasan testified that the invoices for May 1 to 5, 2006 and, in fact, for the whole month of May 2006, were incorrect due to the procedure and treatment his wife had undergone. Although Mr. Hasan testified that he was recording the services as he went along, he also said that he had recorded the invoices for May 2006 because he was simply following the previous pattern of invoices.

At first, Mrs. Hasan denied that she had undergone a cesarean section on May 1, 2006, but then admitted that she had. She then said that it was an honest mistake that the invoices recorded that she had done both housekeeping and caregiving services on that day, as well as on the other days she was in the hospital.

Mr. Hasan testified that his wife became pregnant approximately two months following the accident and that the pregnancy was very difficult, requiring numerous medical appointments (approximately forty in total) from September 2005 to approximately April 2006. Mr. Hasan acknowledged that, the invoices do not reflect that his wife did less housekeeping on the days she attended these appointments. Mr. Hasan stated that “all things are approximate”, that they “even out” and, therefore, that he “wrote the same thing every day.”

Mrs. Hasan stated that, while her pregnancy was very difficult and while she had to attend numerous medical appointments, this “did not really” affect the number of hours she spent on housekeeping or caregiving, and she always “put in the same hours.” Mrs. Hasan first maintained she used a babysitter when she went to her doctor’s appointments; she then stated that her husband took care of the children at these times, and that the children would not be dropped off at the babysitter’s home. Mrs. Hasan first stated that the time she spent at the medical appointments was reflected in the invoices, but then said that it was not reflected, and that this was an error. Mrs. Hasan testified that despite her being diagnosed with placenta previa (a serious condition that could result in the death of both her baby and herself) and despite the warnings of her obstetrician, Dr. Chang, to reduce the amount of work she did, she continued to work full-time and to do the majority of the housekeeping. However, Mrs. Hasan testified that she had to do less as her husband’s condition improved and that, for example, the caregiving invoices reflected the gradual decrease in the assistance she provided. She stated, in particular, that her husband was “much better” between May and October 2006. She said that she did “not have anything to say” to clarify the fact that the invoices remained the same between September 2005 and October 2006, the period during which she claimed that her husband’s condition was gradually improving.

State Farm conducted surveillance of Mr. Hasan on January 17, 18, 19, 20, February 1 and 5, 2006. The surveillance shows Mr. Hasan walking, bending, reaching and lifting with no apparent difficulty, driving to his work and to the babysitter’s house, carrying his youngest child, manually opening and closing his garage door, and carrying recycling boxes and garbage bags from his garage to the curb. Mr. Hasan testified that the surveillance was accurate and that he was “coming back to normal” at that time. He conceded that he could dust, wash dishes, mop and take out the garbage at that time. However, he stated that he and his wife “shared the work”, and that he required the full amount of housekeeping (and caregiving) assistance he claimed for those days, including, for example, 15 minutes of dusting a day and 30 minutes per day of accompanying and supervising his children. He stated that he and his wife “tried to help each other”, that they “had no choice”, and asked, “What could we do?”

Mr. Hasan testified that he returned to work one week after the accident and that he was on light duties for approximately the next year. He acknowledged that he worked overtime every day, indicating both that he worked 15 to 30 minutes of overtime each day and that he worked 3 to 4 hours of overtime every week. He disagreed with the report of Dr. Ventrella, the chiropractor he saw on July 23, 2005, that he was “currently working regular duties.” He acknowledged his August 2, 2005 performance evaluation at work, which noted that he did a “good amount of work by the end of [his] shift” and that he could do “all the work from Picking, Packing and Receiving”, but stated that the evaluators “knew [he] was on light duties.” Mr. Hasan also acknowledged that he had obtained a part-time teaching job and that he was “ready and able to do this job”, although he said that he only did the job for one day, that he “needed the money” and that he “had no choice.”

(iii) Findings on Housekeeping

I find that Mr. Hasan is not entitled to housekeeping benefits from September 14, 2005 to October 15, 2006.

As noted earlier, the issue of Mr. Hasan’s entitlement to housekeeping benefits involves a comparison of his pre- and post-accident housekeeping activities. However, I find a number of problems in Mr. Hasan’s evidence on this issue.

First, he has not established the extent to which he was engaged in housekeeping prior to the accident. Mr. Hasan gave three different versions of the amount of housekeeping he did before the accident, namely, 14 hours a day, 3 hours a day and the majority of housekeeping when he was home from work. Mr. Hasan maintained that he did 80% of the housework, but his wife stated that he did between 50% and 80% of the housekeeping. Contrary to at least part of his testimony at the hearing, Mr. Hasan told Dr. Ventrella that he did 18 hours of housework per week. Mr. Hasan also testified that he did well over an hour of garbage removal per week and 3 hours of dusting per week, whereas he told Dr. Ventrella that he did 30 minutes of garbage removal and 1 hour of dusting per week. Mr. Hasan also testified that he could not recall telling Dr. Ventrella about the amount of dusting he did each week. Dr. Ventrella prepared a detailed list of Mr. Hasan’s pre-accident housekeeping activities. Based on the discrepancies in Mr. Hasan’s evidence on this issue (as well as on the other issues in this case), I find that Dr. Ventrella accurately reported Mr. Hasan’s statements regarding his pre-accident housekeeping activities. I further find that, given the discrepancies in his evidence (in itself and in relation to the evidence of his wife and Dr. Ventrella), he has not established with any certainty what his pre-accident housekeeping activities were.

I also find that Mr. Hasan has not established the extent of his post-accident housekeeping activities. In the invoices he submitted to State Farm, Mr. Hasan claimed housekeeping assistance of 3 hours per day, 21 hours per week. However, Mr. Hasan told Dr. Ventrella that, before the accident, he only did 18 hours of housekeeping per week (and testified that he did as much as 14 hours per day of housekeeping). Dr. Ventrella recorded that Mr. Hasan did 2 hours a week of shopping, and recommended housekeeping assistance for 2 hours a week of shopping. However, Mr. Hasan did not make any claim for shopping after the accident, either as a housekeeping or attendant care expense.

Mr. Hasan and his wife differed as to how he would record his post-accident housekeeping requirements. Further, the invoices for housekeeping assistance remained constant for the full length of the claim, despite Mr. and Mrs. Hasan’s acknowledgement of a number of instances in which less or no housekeeping assistance was (allegedly) provided. Mr. Hasan testified that he claimed the same amount of housekeeping assistance each day because “all things are approximate” and “even out.” Mrs. Hasan had no response to the fact that her husband was apparently improving over the course of the claim, whereas the invoices for housekeeping assistance during this period remained the same. In relation to the surveillance, Mr. Hasan stated both that he could do a variety of housekeeping tasks (i.e. dusting, washing dishes, mopping and taking out the garbage) and that he shared this work with his wife.

Based on the numerous discrepancies in Mr. Hasan’s evidence (again, on its own and in relation to that of his wife and Dr. Ventrella) I am unable to determine the extent of Mr. Hasan’s post-accident housekeeping activities. I am, therefore, unable to compare his pre- and post-accident housekeeping activities for the purpose of determining his entitlement to housekeeping benefits.

Assuming, however, that Mr. Hasan’s pre-accident housekeeping tasks were at least those set out in Dr. Ventrella’s report, I find that Mr. Hasan is not entitled to the housekeeping expenses claimed in the invoices he submitted to State Farm.

Mr. Hasan has not established that he was substantially disabled from performing the housekeeping tasks identified in Dr. Ventrella’s report. I find significant that Mr. Hasan returned to work a week after the accident and that, even if he was on modified duties, he was able to work a significant amount of overtime each week. Further, approximately two and a half months following the accident (the point at which he was supposed to have been in the acute phase of his disability), Mr. Hasan told Ms. Phillips, the occupational therapist who conducted an in-home assessment, that he was able to perform “most of his pre-accident homemaking tasks” and only avoided limited activities requiring him to bend down. Ms. Phillips also found that Mr. Hasan was physically capable of performing his pre-accident housekeeping tasks. Dr. Super’s September 2005 Disability Certificate was largely based on Mr. Hasan’s subjective reports, which only stated that certain physical movements were “provocative”, and which contradicted his earlier report to Ms. Phillips. Dr. Perlmutter’s December 2005 finding of acute physical and psychological disturbance was significantly undermined by the January 2006 surveillance which showed extensive physical activity on Mr. Hasan’s part, and by Mr. Hasan’s testimony at the hearing that he was “coming back to normal” at that time. I also note Dr. Koepfler’s August 2005 report (again, during the apparently acute phase of Mr. Hasan’s disability) that, from a psychological perspective, Mr. Hasan did not suffer a substantial inability to engage in his pre-accident housekeeping tasks.

I find the invoices submitted by Mr. Hasan to be unreliable. While not directly related to the invoices in dispute in this arbitration (those from September 2005 to October 2006), I find that Mr. Hasan’s inconsistent evidence on the rate he allegedly agreed to pay his wife for housekeeping services in the first three months after the accident undermines his claim that he agreed to pay her $8 per hour during the period in dispute. I note, in particular, that Mr. Hasan did not explain why the hourly rate would change for his wife’s housekeeping services merely on the basis that his condition was improving and, therefore, that he required less assistance. And if, in fact, the rate changed for this reason in the first three months after the accident, Mr. Hasan did not explain why the rate would not continue to decrease over the course of the claim, during which he maintained that his condition continued to improve.

The hours claimed in the invoices also do not reflect the alleged improvement in Mr. Hasan’s condition and the associated reduction in housekeeping assistance provided by his wife. The hours noted also do not reflect the numerous days on which Mr. Hasan’s wife could not have provided the full amount of housekeeping assistance claimed. I find significant that Mr. Hasan and his wife differed as to whether Mrs. Hasan’s medical condition during her pregnancy did, in fact, affect her ability to provide housekeeping assistance. I found Mrs. Hasan’s evidence in this regard to be particularly unreliable given the numerous discrepancies in her testimony, not the least of which was her denial that she had undergone a cesarean section on May 1, 2006.

Finally, I find that the surveillance significantly undermined Mr. Hasan’s claim that he required as much housekeeping assistance as he had claimed shortly after the accident and that, for example, he needed assistance supervising his children and in dusting.

For all of these reasons, I find that Mr. Hasan has not established that he suffered a substantial inability to perform his pre-accident housekeeping activities, that he incurred the housekeeping expenses he claimed or that any housekeeping expenses he incurred were reasonable and necessary.

Mr. Hasan’s Entitlement to Attendant Care Benefits

Pursuant to section 16(2) of the Schedule, Mr. Hasan would be entitled to benefits for reasonable and necessary expenses incurred as a result of the accident for services provided by an aide or attendant. Pursuant to section 16(4), the monthly amount payable for attendant care benefits is to be “determined in accordance with Form 1.” That form sets out both the categories of attendant care that can be claimed and the hourly rates payable with respect to each category of care. Section 16(1.1) of the Schedule states that, for accidents after April 14, 2004, no attendant care benefits are payable to a person whose impairment comes within the Pre-approved Framework Guideline for Whiplash Associated Disorder Grade I or Grade II (the “Pre-Approved Framework Guideline”). To establish entitlement to attendant care benefits, Mr. Hasan must show that the Form 1 recommendations were reasonable and necessary and, on the basis of reliable evidence, that he incurred, or agreed to incur, expenses for attendant care to the extent set out in the Form 1 recommendations.²

Mr. Hasan testified that, due to his injuries, he could not do certain personal care activities following the accident, such as dressing himself, getting in and out of the shower and using the washroom. He testified that his wife assisted him in these activities for two months following the accident. He testified that no one helped him to use the washroom at work. Mrs. Hasan testified that she helped her husband shave, brush his teeth and get in and out of the bathtub.

Mr. Hasan submitted invoices for attendant care which indicated that he received two and a half hours of attendant care each day for the two months following the accident. The invoices indicate that attendant care services were provided at $15 per hour. Mr. Hasan testified that he and his wife agreed on that amount. The invoices show one hour of help per day with personal hygiene, half an hour of help per day with dressing and undressing, and one hour of help per day with cooking food.

On July 4, 2005, Dr. M. Mathieson, a chiropractor with the Brampton Memorial Designated Assessment Centre, conducted a Fast Track DAC Assessment and concluded as follows: “Based upon the documentation provided, it is deemed that Mr. Hasan did not sustain injuries which would require substantially different forms of treatment from that provided under the WAD II PAF Guidelines with the addition of supplementary services directed towards his left forearm, and lower leg muscle/tendon injury.”

On July 23, 2005, Dr. Ventrella completed an Assessment of Attendant Care Needs (Form 1), in which he recommended that Mr. Hasan be provided with assistance for various personal care services (including grooming, dressing and feeding) at the rate of $477.09 per month. Dr. Ventrella recommended 11.9 hours of attendant care per week. In respect of Mr. Hasan’s specific claims for attendant care, Dr. Ventrella recommended approximately thirty five minutes per day of help with personal hygiene, twenty minutes per day of help with dressing and undressing, and twenty minutes per day of help with feeding.

In her August 24, 2005 in-home assessment report, Ms. Phillips reported Mr. Hasan as saying that “he required assistance for his self-care tasks for one month total after the accident…[and] that he is currently independent with respect to all of his self-care tasks as listed on the Assessment of Attendant Care Needs (Form 1).” Mr. Hasan testified that he could not remember saying this. Ms. Phillips specifically noted Mr. Hasan as reporting “full independence” in respect of bathing/showering, dressing, toileting, grooming and feeding. Ms. Phillips concluded that “based upon the claimant’s demonstrated range of motion and strength, balance and cognition during the assessment, there were no current identified needs for attendant care.”

In a series of Explanation of Benefits forms, State Farm denied Mr. Hasan’s claim for attendant care benefits pursuant to section 16(1.1) of the Schedule on the basis that his disability came within the Pre-Approved Framework Guideline.

I find that Mr. Hasan is not entitled to attendant care benefits from June 2 to August 2, 2005. I find Mr. Hasan’s evidence on the type and extent of attendant care he received to be unreliable. Mr. Hasan submitted invoices for two months of attendant care following the accident. He also testified that he required attendant care for these two months. However, Mr. Hasan also reported to Ms. Phillips in late August 2005, that he only required one month of attendant care following the accident and that he was then fully independent in his self-care tasks. Mr. Hasan simply testified that he could not recall saying this to Ms. Phillips. Based on the numerous discrepancies noted in respect of Mr. Hasan’s claim for housekeeping benefits, I find that Ms. Phillips accurately reported Mr. Hasan’s statement on attendant care and that Mr. Hasan required at most one month of attendant care following the accident. I note that Mr. Hasan claimed to have stopped needing attendant care shortly after Dr. Ventrella reported that he required a considerable amount of attendant care.

I find significant that Mr. Hasan had returned to work a week following the accident and that he did a significant amount of overtime for at least the first month post-accident. In these circumstances, I do not accept that he required various forms of attendant care, as set out in the invoices he submitted. I note that he was able to use the washroom at work, although he claimed that this was one of the tasks with which his wife assisted him at home for the two months following the accident. I note, as well, that Mr. Hasan submitted invoices for twice as much attendant care each day as was recommended by Dr. Ventrella. Mr. Hasan sought attendant care at $15 per hour for the first two months of the accident. I find that the hourly rate allegedly agreed to between Mr. and Mrs. Hasan is significantly undermined by Mr. Hasan’s claim in respect of housekeeping benefits that he was gradually improving in the first three months following the accident (and, indeed, for the duration of his disability), and that this resulted in a reduction in the hourly rate claimed.

I do not find it necessary to determine whether Mr. Hasan’s impairment fell within the Pre-Approved Framework Guideline. I find that he failed to provide reliable evidence that he incurred, or agreed to incur, expenses for attendant care to the extent set out by Dr. Ventrella in the Form 1. I, therefore, find that he is not entitled to attendant care benefits from June 2 to August 2, 2005.

Mr. Hasan's Entitlement to Medical Benefits

Pursuant to section 14 of the Schedule, Mr. Hasan would be entitled to benefits for reasonable and necessary expenses that do not exceed the rates established by the applicable Guidelines and incurred as a result of the accident for medical, chiropractic, psychological and physiotherapy services. As set out in the arbitration decision of Sabino and Pilot Insurance Company (FSCO A04-001740, September 29, 2005):

In evaluating the reasonableness and necessity of treatment and services under section 14, arbitrators have considered the following factors: whether the rehabilitative goals have been met, the subjective benefit of the treatment to the person being treated and whether the treatment relieves pain.³

Mr. Hasan cited various arbitral decisions in support of the proposition that I have the jurisdiction to find entitlement to medical benefits for treatment beyond the limits set out in the Pre-Approved Framework Guideline.⁴ State Farm conceded that I likely have the discretion to award medical benefits for treatment above the limits set out in the Guideline and noted that it had, in fact, paid in excess of the Guideline; however, it maintained that Mr. Hasan had not satisfied the principal test in this case, namely, that the medical benefits claimed must be reasonable and necessary.

Mr. Hasan claimed the balance of his expenses for treatment at Prime Health from June 3 to December 20, 2005. Prime Health submitted five treatment plans (with a total cost of $8,706) for various forms of physical therapy. Prime Health submitted invoices for this treatment in the amount of $10,311. Of this total, State Farm paid $5,442.72, leaving a balance of $4,868.28.

Mr. Hasan received massage therapy and chiropractic treatment at Prime Health. He was also taught exercises and proper body mechanics for when he was at home. He testified that the treatment he received at Prime Health was “very helpful”, that “day by day [he] was improving”, and that he stopped going to Prime Health “because [he] was feeling better.” He said that, since he was feeling better and “wanted to return to normal”, he chose to stop his treatments at Prime Health and to do only his home exercises. He said that he continues with his home exercises at the present time.

On each of Prime Health’s treatment plans, the assessing practitioner indicated that Mr. Hasan’s impairment was not one to which the Pre-Approved Framework Guideline referred. Mr. Hasan was diagnosed as suffering from cervical strain/sprain, upper back strain/sprain, lower back strain/sprain, post-traumatic headache, bilateral forearm muscle/tendon injury and bilateral lower leg muscle/tendon injury.

State Farm denied the full amount of treatment at Prime Health on the basis that Mr. Hasan’s impairment fell within the Guideline. The July 4, 2005 Fast Track DAC assessment consisted of a paper review of Mr. Hasan’s claim for the first treatment plan (by Dr. K. Jongedijk of Prime Health, dated June 3, 2005) and concluded as follows:

The documentation consistently reports that Mr. Hasan had sustained sprain/strain injuries to his cervical, upper and lower back region along with headaches. However, there appears to be a discrepancy between the OCF-3 and the OCF-18 submitted by Dr. Jongedijk in that it was reported on the OCF-18 that he had sustained injury to his left extremities only, while the Disability Certificate provided on the same date indicates that he suffered from injury to these regions bilaterally. The reason for this discrepancy is unknown. The OCF-1 provided by Mr. Hasan reported that he had sustained injuries to his left extremities only. Based upon the documentation provided, it is deemed that Mr. Hasan did not sustain injuries which would require substantially different forms of treatment from that provided under the WAD II PAF Guidelines with the addition of supplementary services directed towards his left forearm, and lower leg muscle/tendon injury. These guidelines allow for up to 20 treatments of the forms of therapy indicated on the disputed treatment plan. Therefore, the disputed OCF-18 dated June 3, 2005 is deemed not reasonable or necessary.

On January 12, 2006, Dr. P. Diakow, a chiropractor, and Ms. V. Crane, a massage therapist, provided a report based on their December 20 to 29, 2005 medical and rehabilitation DAC assessment. The DAC assessors considered the first four treatment plans from Prime Health, dated June 3, July 21, September 14 and October 28, 2005.

Dr. Diakow conducted an examination of Mr. Hasan and concluded as follows:

It has been six months since this man was involved in the motor vehicle collision. He continues to undergo a prolonged course of passive care with some active elements and claims to be only 50% improved. At the present time, there are no objective findings to substantiate any ongoing injuries attributable to the motor vehicle collision. I would therefore, recommend the following:

All active and passive treatment be discontinued immediately.

He be encouraged to maintain his home exercises and return to his normal activities of daily living.

It is my opinion that the treatment plan dated October 28, 2005 was neither reasonable nor necessary in its entirety. There are no indications that this man would have required any supervised care at that time.

Ms. Crane conducted a paper-review of Mr. Hasan’s claim and reported as follows:

The disputed treatment plan dated October 28, 2005 proposed six sessions of massage therapy at $45.00 a session. It is the opinion of this assessor that the massage therapy aspect of the treatment plan does not appear to be necessary. Mr. Hasan has already received a significant amount of passive care including massage therapy in the previous three treatment plans. By October of 2005 this client should have been well on his way to an active regime that included both stretching and strengthening. From the interview portion it does not appear that he has been provided with any stretching or strengthening exercises. As mentioned above Mr. Hasan was a healthy 35-year-old with no extenuating circumstances to warrant the continuation of passive care beyond the normal healing time of 6-12 weeks.

I find that Mr. Hasan is not entitled to the balance of the Prime Health treatment account. Even if I have the jurisdiction to award expenses for treatment beyond the Pre-Approved Framework Guidelines, I find that Mr. Hasan has not established that the additional treatment was reasonable and necessary. While the amount of treatment decreased in the six months following the accident (which would be consistent with Mr. and Mrs. Hasan’s claim that his condition gradually improved after the accident), Mr. Hasan continued to submit housekeeping (and caregiving) invoices for the same amount of assistance each day for the duration of the claim. In these circumstances, I am not prepared to find that the rehabilitative goals of the treatment at Prime Health were achieved. Further, while Mr. Hasan claimed that the treatment was “very helpful” and that he “felt better” just prior to the end of the treatment, Dr. Perlmutter reported at that time that Mr. Hasan suffered from acute and chronic neck, shoulder, back and leg pain, as well as from a variety of psychological disorders. I note as well that Mr. Hasan returned to work a week after the accident and was doing a significant amount of overtime. Finally, I note that Mr. Hasan did not consistently report bilateral injury to his arms and legs, which he maintained was a basis for him to receive treatment beyond the limits set out in the Pre-Approved Framework Guidelines. In light of all of these discrepancies, I am unable to find that the additional treatment Mr. Hasan received from Prime Health was reasonable and necessary. I find that he is not entitled to medical benefits for the balance of treatment at Prime Health.

EXPENSES:

The parties did not address the matter of expenses. If required, the parties may make submissions on this issue in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

November 9, 2007

Eban Bayefsky Arbitrator

Date

Financial Services Commission of Ontario