Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 105
FSCO A06-002468
BETWEEN:
PARMINDER REHSI
Applicant
and
DOMINION OF CANADA
GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Robert A. Kominar
Heard: April 7, 8, 9, 10, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Rachel Hepburn Craig for Mrs. Rehsi
Christopher J. Schnarr for Dominion of Canada General Insurance Company
Issues:
The Applicant, Parminder Rehsi, was injured in a motor vehicle accident on July 12, 2004.
She applied for and received statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.1 Dominion terminated weekly income replacement and housekeeping benefits and denied her claim for retraining costs. The parties were unable to resolve their disputes through mediation, and Mrs. Rehsi 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 Mrs. Rehsi entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule from November 1, 2004 through July 12, 2006?
Is Mrs. Rehsi entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule, at the rate of $100.00 per week between September 27, 2004 and June 4, 2006?
Is Mrs. Rehsi entitled to payments for retraining at CDI College in the amount of $19,675.00 pursuant to section 15 of the Schedule?
Is Dominion liable to pay Mrs. Rehsi’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Rehsi liable to pay Dominion’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Rehsi entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
Mrs. Rehsi’s claims for income replacement benefits, housekeeping, rehabilitation expenses for retraining as a massage therapist and interest are dismissed.
If the parties cannot agree within 30 days of the date of this decision on the issues of entitlement to and quantum of expenses an expense hearing may be arranged pursuant to the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
Mrs. Rehsi has been involved in three motor vehicle accidents: February 6, 1998, September 6, 1999 and July 5, 2004. She acknowledges that the first two accidents were much more serious than the third which is the subject of this arbitration and that her injuries from the earlier accidents had not completely resolved by the time the third accident occurred.
Before these three accidents Mrs. Rehsi worked as a hairdresser. After the 1998 and 1999 accidents she found that she was unable to continue in this occupation. She stopped working in this capacity in 2001 and retrained to become an aesthetician. This retraining took approximately 6 months to complete and afterwards she worked as an aesthetician for Merle Norman for roughly 2 years. After the 2004 accident Mrs. Rehsi changed occupations again, this time she retrained and qualified as a registered massage therapist. Mrs. Rehsi stated in her evidence that she was compelled to stop working as a hairdresser because the job required constant upper body movement and sustained elevation of her right arm while cutting and blow-drying hair. She is right hand dominant. Her belief was that working as an aesthetician would be easier than cutting hair given her physical limitations following the earlier accidents.
Mrs. Rehsi testified that before the 2004 accident, she was experiencing chronic pain in her right arm and right hand as well as in her back. Her evidence was that although she had experienced pain down her right leg and into her right foot after the earlier accidents this pain had completely resolved prior to the third accident. She stated that after the 2004 accident she had more frequent headaches, her neck hurt more often and more intensely than it had in the past, her right shoulder and arm hurt more when she tried to elevate them, her right hand fingers tingled and went numb easily, and she experienced constant pain in her right wrist. Also, she experienced sharp pains in her right hip and leg immediately after the accident and which is still ongoing.
As a hairdresser Mrs. Rehsi worked five days per week, approximately six hours per day. As an aesthetician she stated that she worked between thirty and thirty five hours per week. Her tasks as an aesthetician were to do electrolysis, facials, and pedicures and manicures. She testified that after the 2004 accident she no longer had the strength to scrub feet for pedicures or to file nails, as these actions both involve significant strength and endurance on her right side. She also explained that there is a significant amount of strength involved in ripping off wax especially from the legs. Her electrolysis work involved the need to have a steady hand, however with the tingling sensation she was getting this became very difficult. This task also involved bending over people to reach various areas of the body that are being treated and Mrs. Rehsi stated that she was unable to do this bending easily after the accident. Facials also involved applying substances to the face and carefully removing them, requiring the use of both her arms and hands.
Mrs. Rehsi attempted to return to work as an aesthetician for a few days but quickly concluded that she was unable to handle it. She was paid income replacement benefits for sixteen weeks by Dominion. Her evidence was that after she determined that she could no longer do the aesthetics work, she chose to retrain as a massage therapist. To this end she enrolled in a registered massage therapist training program at CDI College (“CDI”) in January 2005. She paid the $19,675.00 tuition for this program herself and it took her approximately 19 months to complete the program. Mrs. Rehsi never submitted the claim for tuition reimbursement to Dominion until just before this arbitration. Her explanation for this was that she did not know that it might be covered. The parties, notwithstanding the late submission, agreed that it should be dealt with in this arbitration.
One of the questions Dominion raises in this arbitration is whether Mrs. Rehsi’s transition from working as an aesthetician to a massage therapist was a reasonable and necessary measure, which is the test set out for entitlement to a rehabilitation benefit in section 15 of the Schedule. Their argument is that the physical requirements associated with being a registered massage therapist are much more demanding than those of an aesthetician, and hence if Mrs. Rehsi claimed that she was completely unable to do aesthetics work she would almost certainly be unable to do massage therapy work. A further corollary inference following from this would be that if Mrs. Rehsi was able to do the work of a registered massage therapist then a fortiori she was not disabled from doing the work of an aesthetician.
Mrs. Rehsi’s evidence related to this concern of Dominion’s was that one of her most significant challenges in doing aesthetics work was the bending over the client which it required. Additionally one needed right arm strength to scrub feet and file nails. In contrast to doing aesthetic work, Mrs. Rehsi testified that while doing a massage she is able to adjust the table to eliminate bending. When she was asked how she could administer a massage when she also maintained that she had no strength in her right hand or arm, her answer was that she gave massages with her left arm only. Particularly, she noted that massage therapists often use their elbows and that she was able to do this with her left arm. In other words, the essence of Mrs. Rehsi’s evidence was that it was easier to do massage therapy work than aesthetician’s work after her 2004 accident and therefore it was a reasonable career to train for in her situation.
With regard to her claim for housekeeping benefits, Mrs. Rehsi testified that prior to the 2004 accident she did approximately 70% of the work in their 3400 square foot home and her husband and son did the rest. Her estimate was that she used to do two to three hours of housework each day prior to the accident. She testified that after the accident she was completely unable to vacuum, sweep or do laundry as she was perpetually tired. She stated that she was able to fold the laundry but not actually put it in or take it out of the washer and dryer. Eventually her sister, Rajinder Virdi, began to attend at her home to help her with housework. Mrs. Rehsi’s evidence was that she believed that her sister helped her for “a couple of months”, coming over “once or twice a week for five or six hours.” Her estimate was that after the 2004 accident she was able to continue doing approximately 20% to 25% of her prior housekeeping chores.
During cross-examination Mrs. Rehsi revealed that her hairdressing career involved her being self employed in a First Choice franchise. In addition to cutting hair she conducted all of the business aspects that enterprise, including answering phones, doing banking, hiring, scheduling, supervising and paying the other stylists, ordering from suppliers, as well regularly advertising the business. She stated that she holds a Master’s degree in the Punjabi language and a Bachelor’s degree in English History.
Mrs. Rehsi testified that she qualified for her registered massage therapist designation in December 2007. She had to do some upgrading courses as she was not successful on her examinations when she first sat them. Since her date of qualification Mrs. Rehsi has done three or four massages. When she was asked why she has done so few she responded that she is too achy and has too much pain to conduct an average one hour massage session. Interestingly, when Mrs. Rehsi was asked what she is doing now, she stated that she sometimes attends at her daughter’s aesthetics salon business and answers the phone and does the banking. She also stated that she once in a while tries to give a haircut, do a shampoo and blow-dry, or apply hair colour. She does not do manicures or pedicures as they still require too much strength and effort. Mrs. Rehsi attends at the business every day, but stated that she does not always stay for the whole day.
Mrs. Rehsi was asked whether she had ever consulted with any treating medical practitioner or career consultant before venturing out to become a massage therapist. Her answer was that she did not. It is salient in my view that Mrs. Rehsi’s explicit evidence was that she enrolled in the massage therapy program “because I wanted to learn more about myself.” When the suggestion was put to her in a follow-up-question that she had not enrolled in the training because she wanted to pursue employment as a massage therapist but rather to understand her body better, she responded “Yes, that’s true.”
With regard to her employment at Merle Norman just before the 2004 accident, Mrs. Rehsi confirmed that she was taking frequent breaks to deal with the pain and fatigue she was experiencing at the time. She was asked about her treatment sessions with a psychologist, Dr. Davilla. Mrs. Rehsi first testified that she stopped seeing Dr. Davilla long before the accident, however when confronted with a report dated June 2, 2004, she conceded that she had continued in psychological treatment up to at least May 25, 2004. She also conceded that she told Dr. Davilla that she preferred working by herself at home rather than seeking treatment at health care clinics and that she was taking prescribed Vioxx and an antidepressant medication in May 2004. When asked about her opinion on Dr. Davilla’s conclusion that her condition had “not improved” during her time in treatment, she stated that she agrees with whatever Dr. Davilla says. Mrs. Rehsi acknowledged that on May 18, 2004 her family physician noted that she had numbness in her right hand and pain all over her body as well as that she was taking Vioxx and Paxil. Her doctor also noted that she was suffering from chronic pain and carpal tunnel syndrome. She was further noted as being unable to use her right hand with the consequence that the doctor believed that she could not work any longer as a hairdresser. The doctor’s conclusion was that she had likely suffered a permanent physical impairment as a result of her 1998 and 1999 automobile accidents and that she would likely need therapy and medication on an ongoing basis.
Mrs. Rehsi was shown the record of her prescription medications and she confirmed that after the 2004 accident she primarily resorted to taking over the counter Tylenol and Advil, when needed. This was despite the fact that she had been prescribed anti-inflammatory and antidepresant medications by her doctor. Her response to this was that she did not want to “kill herself with medicine.” When she was asked about her OHIP records she acknowledged that they did not reveal that she was being treated for any musculoskeletal complaints between November 2004 and March 2006. However, she denied that this meant that she had no longer had serious symptoms. Instead, Mrs. Rehsi stated that she was getting massages from the students in her program and her husband to deal with her pain.
Mrs. Rehsi was asked about various housekeeping invoices she submitted to Dominion. She testified that she completed them all on the dates noted on each. However she admitted she only sent them to her lawyer when she was asked to do so, well after the expenses were ostensibly incurred. Mrs. Rehsi was asked why it was that if she wanted to be reimbursed for housekeeping expenses in 2005 she waited until May 2006 to submit them. Her answer was “maybe I misplaced them or something.” When she was asked whether she was stating “that” she had actually misplaced them, she declined to answer. Mrs. Rehsi was also asked about how it was possible for her to have signed the invoice dated June 6, 2004 on that date, when it appears that they were faxed to the insurer on May 29, 2006. Once again she declined to answer the question. Mrs. Rehsi declined to answer a number of questions put to her on cross-examination.
Mrs. Rehsi admitted that she became an aesthetician so that she could continue to work while enduring the chronic pain that she was experiencing after the 1998 and 1999 accidents, which once again I note, were more apparently much more serious than the 2004 accident. When she was asked about her inability to do housekeeping her evidence was that prior to this accident she was doing 70% of the work in the house, despite her chronic pain condition but could only do a fragment of that work after the accident. Specifically, when she was asked about why she could not dust her house after this accident if she could administer massages, she stated that “I am not left handed for dusting.”
Mrs. Rehsi was asked about headaches and whether she hit her head during the 2004 accident. She stated that she had hit her head. When asked to explain the mechanism of the head impact she responded that she did not actually remember any details about it. When she was asked to explain why Dr. Lin’s clinical records do not mention head impact, she stated that she told him about it but that “maybe he forgot to write it down.” Dr. Lin did not testify at the hearing.
Mrs. Rehsi’s husband, Daljit Rehsi, also testified at the arbitration. His evidence was that his wife had difficulty doing the work as an aesthetician after the 2004 accident. She had never completely recovered from the previous accidents in his opinion. Eventually, he stated, Mrs. Rehsi was so frustrated with sitting at home that she decided to enrol in the massage therapy course “to learn about her body.”
Mr. Rehsi acknowledged that his wife had been treated by Dr. Chizen, a physiatrist, in May 2004 because of her increasingly troubling symptoms of chronic stiffness and numbness in her upper and lower right extremities. According to Mr. Rehsi, his wife was getting more and more frustrated with her physical condition around that time. Specifically he said that she was getting more upset with him, more often, even over little things. He was asked about
Dr. Davilla’s psychological assessment that noted his wife was having troubles working at Merle Norman just before the 2004 accident. He responded that he did not recall Mrs. Rehsi ever telling him anything about experiencing stress at work. However, he qualified that answer by saying that “it could be that she didn’t tell me.” He stated that he had no reason to challenge Dr. Davilla’s conclusions. With regard to Mrs. Rehsi’s psychological state before the 2004 accident, Mr. Rehsi stated that his wife had not been happy with her life ever since the accidents in 1998 and 1999.
Mr. Rehsi also testified that Mrs. Rehsi’s sister had been helping around the house after the earlier accidents and that she had always contributed to the household whenever she came over. This apparently was the way their family interacted. Interestingly, Mr. Rehsi testified that Mrs. Rehsi might have benefited from more assistance with housekeeping before the 2004 accident but that he and his son did not do things the way she liked, so they stopped due to her getting upset with their performance.
Mr. Rehsi was asked whether his wife had made accident benefit and tort claims arising out of the 1998 and 1999 automobile accidents. He stated that she had and that those claims were settled for what I note most people would regard as a large amount of money. He further agreed that within that settlement Mrs. Rehsi was compensated for her inability to do housekeeping after those accidents. Mr. Rehsi was asked whether Mrs. Rehsi received compensation for future retraining at CDI within the settlement. He did not answer but agreed that the releases in the former accidents were entered into approximately one year after Mrs. Rehsi started her program at CDI. He did state that her retraining as an aesthetician was paid for.
On re-examination Mr. Rehsi stated that after the 2004 accident his wife had good days and bad days when it came to her ability to do housework. On a good day he said that she was able to do a couple of hours of work but on a bad day she would get cranky after about one half hour to one hour. When he was asked what benefit he thought that the massage therapy training provided to his wife, he stated that now “she tells me where to massage her.” Mr. Rehsi stated that he has been massaging his wife for a long period of time to assist with her pain. He also stated that prior to the accident Mrs. Rehsi’s sister would come over and work “with” his wife but afterwards she worked “for” her. He did not elaborate on the meaning of this distinction.
Dr. Kobrossi, Mrs. Rehsi’s treating chiropractor also testified at the hearing. His evidence was that when he first saw her after the 2004 accident he formed the opinion that her symptoms would likely resolve within one to four weeks. However, he stated, it turned out that her symptoms continued long beyond that and that she required further treatment. He stated that he filled out an initial PAF treatment confirmation for Mrs. Rehsi but that he did not refer to any complaints of thumb, leg or foot pain. His response was that when he fills out forms like treatment plans, he usually notes the main problems and may have neglected to write down every symptom that she was complaining of, especially if he did not believe that some complaints required any treatment. When he was asked about his conclusion that Mrs. Rehsi had suffered WAD II injuries he acknowledged that he had never actually read the PAF Guidelines and did not know about any exceptions to them related to pre-existing conditions a patient may have had. When Dr. Kobrossi was asked whether he would diagnose Mrs. Rehsi as being within the PAF Guidelines now, knowing what he now knows, he advised that in hindsight perhaps she should have filled out a treatment plan for her. I note that Dr. Kobrossi was tentative and hypothetical in this answer.
Dr. Kobrossi was asked his opinion about the reasonableness of Mrs. Rehsi’s undertaking massage therapy training. He said that he encouraged her to retrain if she was having trouble doing aesthetics work but also told her that massage therapy was physically demanding work to do. He suggested that perhaps, if her health improved, she might have been better able to do the work by time she finished the training. Dr. Kobrossi acknowledged that he had no specific knowledge or expertise about what was involved in massage therapy training or whether it was reasonably appropriate for Mrs. Rehsi or not.
On cross examination Dr. Kobrossi admitted that when Mrs. Rehsi came to see him after the 2004 accident he immediately began to treat her for her expressed symptoms. He did not take any specific medical history from her because he relied “100%” on her personal report that her symptoms arose from the auto accident, notwithstanding that he also acknowledged that his regulatory college requires him to take a medical history during an initial examination. In the doctor’s recollection he asked Mrs. Rehsi some questions and took some notes on that occasion. He stated quite categorically in his evidence that he believed that there was no need for him to inquire into her previous medical history before treating her. If she was fine before the accident and in pain afterwards, then in the doctor’s opinion, the actual cause of the injuries was not worth a treating chiropractor’s worrying about.
Dr. Kobrossi acknowledged on cross-examination that he had no knowledge that Mrs. Rehsi had been treated by Dr. Davilla or Dr. Chizen. He further acknowledged that, in hindsight, he would have been interested in knowing that she was receiving treatment from a physiatrist and a psychologist in May 2004. Dr. Kobrossi was asked to explain the basis for his conclusion reported in September 2006 that Mrs. Rehsi had fully recovered from her 1998 and 1999 accidents. He stated that his warrant for this was that she had not returned for any more treatments with him after those accidents and so he inferred that it was reasonable to conclude that she must have recovered. Otherwise she would have kept coming back for more treatment.
Dr. Kobrossi was also asked to explain how he reconciled his conclusion that Mrs. Rehsi had recovered completely from the 1998 and 1999 accidents when he also had concluded that she was unable to work as a hairdresser due to her inability to lift and hold up her right arm. He answered that in hindsight he should have thought about this more carefully.
Dr. Kobrossi was asked various questions about his clinical notes and explained that he uses an “arrow” system to record changes in a patient’s range of motion. He testified that he does not make specific notations on every visit and that he relied exclusively on her subjective reports of pain in recording the notes that he did make. He agreed that in hindsight he ought to have kept better clinical notes.
With regards to Mrs. Rehsi’s ability to return to work, he agreed that by November 2004 he believed that Mrs. Rehsi was able to return to her work as an aesthetician. He recalls that right after the accident she needed some housekeeping assistance but never discussed the subject with her after her last treatment in October 2004. He stated that his expectation was that she would have been able to resume all her housekeeping as of that time.
In order to succeed on her claims in this arbitration Mrs. Rehsi must show, on the balance of probabilities, that she is entitled to each benefit.
With regard to her claim for a rehabilitation benefit for retraining the relevant portions of section 15 read as follows (emphasis added):
The insurer shall pay an insured person who sustains an impairment as a result of an accident a rehabilitation benefit.
The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.
Measures to reintegrate an insured person into the labour market include measures that are reasonableand necessary to enable the person to,
(a) engage in employment that is as similar as possible to employment in which he or she engaged before the accident; or
(b) lead as normal a work life as possible. O. Reg. 403/96, s. 15 (3).
In determining whether a measure is reasonable and necessary for the purpose of subsection (3), the insurer shall consider the insured person’s personal and vocational characteristics. O. Reg. 403/96, s. 15 (4).
The rehabilitation benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in subsection (2) for,
(a) life skills training;
(b) family counselling;
(c) social rehabilitation counselling;
(d) financial counselling;
(e) employment counselling;
(f) vocational assessments;
(g) vocational or academic training;
(h) workplace modifications and workplace devices, including
communications aids, to accommodate the needs of the
insured person.
I find that Mrs. Rehsi has not satisfied that burden of proof to my satisfaction on the need for retraining for the following reasons:
Both Mrs. Rehsi’s and Mr. Rehsi’s evidence was that she retrained as a massage therapist not for the purposes set out in section 15, but specifically to “learn more about her body.” The evidence before me is that Mrs. Rehsi was suffering from chronic pain before the 2004 accident and that she was experiencing ongoing psychological and physical symptoms. Mrs. Rehsi had also concluded by this point in time that she was not interested in pursuing pharmacological treatment for her problems. Mrs. Rehsi is completely justified in wanting to continue her education. The question however is whether this training is both reasonable and necessary as a consequence of the impairments she sustained as a result of the 2004 accident. Although I do not doubt that the 2004 accident may have exacerbated Mrs. Rehsi’s situation somewhat for a short period of time, I find it more probable, based on the evidence, that she was experiencing the conditions that ultimately motivated her to leave the aesthetics career before it occurred. This is not in my view the “straw that broke the camel’s back” situation that the Ontario Court of Appeal has recently discussed in Monks v. ING Insurance Company of Canada.2 I find that if Mrs. Rehsi was indeed not able to do aesthetics work after the 2004 accident she was also likely unable to do it prior to the accident.
I find that Mrs. Rehsi’s evidence that she was able to do massage therapy work with only her left arm to be implausible. I say this acknowledging that she did pass the course and was able to register with the College of Massage Therapists of Ontario. In my opinion, Mrs. Rehsi’s significant challenges in using her right, arm, shoulder, hand and fingers supports her evidence that this learning program was more insight-oriented than vocational and rehabilitative. I also find that there is no evidence before me that this program was required in any way to reintegrate Mrs. Rehsi into either her family or society.
Section 15(4) of the Schedule makes “personal and vocational characteristics” relevant to entitlement to a rehabilitation benefit. Mrs. Rehsi specifically stated that she did not consult with anyone before deciding to retrain as a massage therapist. I find this to be consistent with her evidence that she was doing this to expand her own insight and that therefore her decision was no one else’s concern. Even if massage therapy was of personal interest to Mrs. Rehsi, I am not satisfied on a balance of probabilities that it was reasonable due to her vocational characteristics. I base this conclusion on Mrs. Rehsi’s evidence that she has only conducted a few massages since becoming registered due to the work tiring her so much. I agree with Ms Hepburn Craig’s submissions that the mere fact that she has not yet worked significantly in the field is not the relevant test, but I do find that in her particular situation there was a distinct probability that she would not be able to use her massage therapy training in any occupational capacity. From this, I also infer that training as a massage therapist was not reasonable and necessary to reintegrate her into the labour market and further that there was no evidence before she started the training that would have created a reasonable expectation in her that it would become a career for her. I further find that I have no evidence that the massage therapy program did anything to reduce the effects of an accident related disability.
I further agree with Ms Hepburn Craig’s submission that Mrs. Rehsi is fully entitled to assert accident benefit claims arising out of the 2004 accident notwithstanding that she was still negotiating a settlement for the injuries she sustained in the 1998 and 1999 accidents. This being said, Mrs. Rehsi still has to satisfy the burden of proof to prove that the 2004 accident resulted in some additional impairment. In this case the reports of Dr. Chizen and Dr. Davilla are strong evidence in support of the view that Mrs. Rehsi was complaining of all of the impairments she said she had after the accident before it occurred, and further she was alleging in her legal actions that the 1998 and 1999 accidents caused those impairments. Although it speaks more to a tort related test, the conclusion that Mrs. Rehsi had suffered permanent injuries requiring ongoing treatment does set a baseline from which one must assess what further impairments arose out of this accident.
Ms Hepburn Craig submitted that Mrs. Rehsi was stabilized before the 2004 accident and that it caused her symptoms to flare up again. I agree with Mr. Schnarr on this point, that the fact that she was referred to a physiatrist in May 2004 was a sign that something was wrong and that she was not “stable.” Dr. Chizen explicitly comments on right lower leg pain being an issue in May 2004, specifically that she was manifesting global weakness on the right side. ( check cite). If this was the case I find it salient that Dr. Kobrossi noted that he set out Mrs. Rehsi’s “most significant” complaints in his PAF treatment plan and made no mention of these concerns. I find it implausible to accept Mrs. Rehsi’s explanation that Dr. Kobrossi may have simply forgotten to write down that she had global weakness on the right side of her body. It is more probable in my view that she did not mention any of this to him. Surely someone who was experiencing “global weakness on the right side” in May 2004, and who is complaining that an accident in July 2004 seriously exacerbated her condition, would have mentioned this condition to her treating chiropractor.
I agree with Mr. Schnarr’s submission that even though Mr. and Mrs. Rehsi stated that her massage therapy training was “helpful” in working for her daughter’s business that that is not the appropriate test. The training must be reasonable and necessary before the insurer is required to pay for it, not simply “helpful” in some generic sense. I find it salient that Mr. Rehsi stated in his evidence that although Mrs. Rehsi is at her daughter’s business daily they have actually hired another registered massage therapist to do the massages as Mrs. Rehsi is unable to do them.
With regard to the claim for income replacement benefits, Mrs. Rehsi, was paid under the PAF Guidelines for 16 weeks. Dominion paid her these benefits on the basis of Dr. Kobrossi advising that she had sustained a WAD II injury in this accident and had filled out a Treatment Confirmation Form. Notwithstanding Dr. Kobrossi’s initial conclusion that Mrs. Rehsi fell within the PAF the argument put forward on her behalf, is that Dr. Kobrossi was wrong and that she was not actually within the framework and therefore not limited to a maximum of 16 weeks of income replacement benefits.
There is no argument that Mrs. Rehsi did present to Dr. Kobrossi with injuries that fit within section 2 of the Guideline. She would in my view only be exempted from the Guideline if she fits within the section 3 impairments that do not fall within it.
The relevant section here is 3(b) which provides:
Despite being assessed within 28 days of the injury as having an injury described in Section 2, there are specific pre-existing occupational, functional or medical circumstances of the insured person that:
i. significantly distinguish the insured person’s needs from the needs of other persons with similar impairments that come within this Guideline; and
ii. constitute compelling reasons why other proposed goods or services are preferable to those provided for under this Guideline.
The challenge I have with accepting Mrs. Rehsi’s claim is that Dr. Kobrossi did not note any exceptional circumstances that “significantly” distinguished her from other people sustaining WAD II type injuries. Ms Hepburn Craig disagreed with Mr. Schnarr’s suggestion that the mere fact that Mrs. Rehsi was not being treated for other injuries after the accident does not mean that they were not significant and hence did not take her out of the PAF Guideline. I agree that the section does not make the test “treatment,” but rather that the condition “significantly distinguish” a person from the normal population of the group. However, I also accept Mr. Schnarr’s submission that the most significant evidence on this point is that Dr. Kobrossi stated that he would not have changed his treatment recommendations for Mrs. Rehsi even if he had access to other medical practitioners reports. Even if Mrs. Rehsi had other medical conditions they were nothing that “distinguished” her from other WAD II patients.
On the balance of probabilities I find that the impairments which the 2004 accident initiated in Mrs. Rehsi fell within the PAF Guideline and that she received income replacement benefits to the maximum allowed for a person who sustained that sort of impairment. My conclusion from reviewing all of the evidence is that Mrs. Rehsi was experiencing substantial difficulty just before this accident and that her condition changed very little after it, certainly nothing warranting any more than the prescribed treatment and income replacement benefits which the PAF allows. As further support for this conclusion, I note that Mrs. Rehsi withdrew her claims for funding of further treatment with Dr. Kobrossi and that no other treatment plans were submitted to Dominion. This in my mind is consistent with her sustaining a PAF related injury.
With regard to the claim for housekeeping I noted that Mrs. Rehsi was substantially disabled from housekeeping prior to the 2004 accident. She was unable to do any heavy work due to her serious 1998 and 1999 accidents. She was certainly unable to do anything requiring significant involvement of the right side of her body, according to the evidence given by both she and her husband. Her estimate was that she was only doing about 70% of what she did before the earlier accidents at the time of the 2004 accident. Specifically she was not doing any laundry, vacuuming, or heavy cleaning. Mrs. Rehsi stated that a large part of what she was able to do was dusting before the 2004 accident. When she was asked why she could not dust after the accident, she said that she was not “left handed for dusting.” I find this to be implausible. Mrs. Rehsi was specifically able, according to her evidence, to get certified as a massage therapist using her left arm and hand. Her evidence was not that she was too tired after going to school to dust but rather that she was unable to wield a duster with her left hand. I believe it is fair to take notice of the fact that general dusting does not require a large degree of strength or small motor control and that it is an activity that can be done in increments. Given that Mrs. Rehsi was not doing most of her medium to heavy housework before the 2004 accident and that she was able to develop strength and endurance on the left side of her body through massage therapy training, it is unlikely in my view that she was unlikely to do her basic housework for any longer than the period of time which Dr. Kobrossi, the occupational therapist who assessed her, and the physiatrist suggested, approximately five or six weeks after the accident.
In conclusion, I find that Mrs. Rehsi has not satisfied her burden of proof to demonstrate on a balance of probabilities that she is entitled to further income replacement benefits, housekeeping benefits or rehabilitation benefits for retraining as a massage therapist. Therefore her claims for these benefits and interest are dismissed.
EXPENSES:
No submissions were made by either party on expenses. I strongly encourage the parties to attempt to resolve the issue of expenses on a negotiated basis. If this is not possible within the next 30 days, either party may request an expense hearing and I shall determine the matter.
June 30, 2008
Robert A. Kominar Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 105
FSCO A06-002468
BETWEEN:
PARMINDER REHSI
Applicant
and
DOMINION OF CANADA
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:
Mrs. Rehsi’s claims for income replacement benefits, housekeeping benefits, rehabilitation benefits for retraining as a registered massage therapist are dismissed.
If the parties cannot agree on expenses within the next 30 days either party may request an expense hearing and I shall determine the matter.
June 30, 2008
Robert A. Kominar Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- 2008 ONCA 269