Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 139

FSCO A06-001684

BETWEEN:

JESS TENDENILLA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

Before: David Muir

Heard: July 8 and 9, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Arvin Gupta for Mr. Tendenilla

Richard Horst for Allstate Insurance Company of Canada

Issues:

The Applicant, Jess Tendenilla, was injured in a motor vehicle accident on June 27, 2005. He applied for statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Tendenilla 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. Tendenilla entitled to payment for all or part of three treatment plans provided by East Sheppard Rehabilitation Company Ltd.?
Is Mr. Tendenilla entitled to housekeeping and home maintenance benefits of $100 per week from June 27 to September 9, 2008?

Result:

Mr. Tendenilla is entitled to payments of $3354 and $782 for treatments provided by East Sheppard Rehabilitation Company Ltd.
Mr. Tendenilla is entitled to a housekeeping benefit of $100 per week from June 27, 2005 to July 11, 2005 at the rate of $100 per week, and from July 11, 2005 to July 25, 2005 at the rate of $50 per week.
Mr. Tendenilla is entitled to interest on these amounts calculated in accordance with section 46 of the Schedule.

EVIDENCE AND ANALYSIS:

Medical Benefits

Two treatment plans and part of a third are in dispute. The first two treatment plans were submitted on June 30, 2005 and were for chiropractic, active and passive physiotherapy ($3354) and acupuncture ($782). A third treatment plan for a range of active and passive treatments ($2162) was submitted on August 25, 2005. However as a consequence of Mr. Tendenilla’s failure to attend an examination under oath required of him pursuant to section 33.1 of the Schedule, Mr. Tendenilla is not entitled to be paid any benefits beyond September 9, 2005.² Accordingly, the parties agreed that, at most, the amount Mr. Tendenilla might be entitled to in respect of this treatment plan is $541.

As I indicated to the parties at the conclusion of the hearing, Mr. Tendenilla is entitled to be paid a medical benefit for some of the treatments provided by The East Sheppard Rehabilitation Company Ltd. (“East Sheppard”) as there was no substantial dispute that he suffered WAD II injuries in the automobile accident. Moreover, the treatment plan of acupuncture was found to be reasonable and necessary by the DAC Fast Track Assessment report dated August 1, 2005. Inexplicably, Allstate did not pay anything towards the first two treatment plans.

Allstate did make a partial payment, apparently in respect of a final invoice sent in by the treatment provider related to the third treatment plan. The parties were unsure what the payment was for, whether the payments made related to assessments, treatment or indeed whether any amount had been paid at all. I have determined however, for reasons set out below, that this treatment plan was not reasonable or necessary.

The only real issue with respect to the medical benefits issue was whether or not Mr. Tendenilla had suffered injuries that would take him outside of the Pre-approved Framework Guideline for Whiplash Associated Disorder Grade II injuries With or Without Complaint of Back Symptoms (The “WAD II PAF Guideline”), in particular whether there was evidence of radiculopothy. Mr. Tendenilla relied upon the evidence of Dr. Alyea and Dr. Joaquin, both Chiropractors. For its part, Allstate relied on a report of Dr. Dos Santos.

I prefer the evidence offered by Mr. Tendenilla on this point. Although there were shortcomings in the evidence and report writing of Dr. Alyea, on balance there is evidence to support his conclusion that there was evidence of radiculopathy. Dr. Dos Santos, who provided a DAC Fast Track assessment (although apparently a respected chiropractor) could not comment conclusively on the issue without examining Mr. Tendenilla, presumably because of the shortcomings in Dr. Alyea’s reports. No further investigations were conducted by either the Insurer or Mr. Tendenilla.

The inconclusive report of Dr. Dos Santos is insufficient to counter the evidence of Dr. Alyea who examined Mr. Tendenilla, treated him and testified that in his view there was substantial indication of radiculopathy that would justify a more extensive treatment regime.

Having determined that Mr. Tendenilla had sustained injuries that took him outside of the WAD II PAF Guideline, it remains to determine whether or not the treatments were reasonable and necessary.

I find that the treatments in dispute were reasonable and necessary. Allstate lead no evidence to the contrary. I accept the evidence of Mr. Tendenilla that the treatment helped him return to function. Ms. Estrada, Mr. Tendenilla’s girlfriend at the time, (and now his spouse) testified that he was in a bad way in the first weeks after the accident and required extensive help at that time. While there are problems with Ms. Estrada’s evidence which I will discuss further below, I do accept her evidence respecting the levels of assistance Mr. Tendenilla required in those first few days and weeks post accident which suggest that Mr. Tendenilla’s injuries and hence his need for treatment might have been significant. I also accept the evidence of Dr. Alyea that the treament regime was required to properly treat the injuries sustained in the accident and successfully eliminate the radicular symptoms experienced by Mr. Tendenilla for a time.

Accordingly, Mr. Tendenilla is entitled to be paid a medical benefit in respect of the first treatment plan of chiropractic and physiotherapy services ($3354). There is no dispute about the treatment plan of acupuncture ($782); therefore if it is not already paid, it ought to be paid.

As for the third treatment plan, I have no reliable evidence from Mr. Tendenilla with respect to this treatment plan other than his general statement that the treatment helped him recover function. Dr. Alyea, while continuing to support the treatment regime he was recommending, said very little about this third plan. He did testify that the radicular symptoms had alleviated by that time and what remained were typical soft tissue injuries associated with WAD I or WAD II injuries. Given the reduction or elimination of Mr. Tendenilla’s radiculopathy, Dr. Alyea was required to rely more on Mr. Tendenilla’s self report. It is in this context that I have considered that Mr. Tendenilla did not tell Dr. Alyea that he had been back to work for over a month by the time of the follow up assessment and third treatment plan.

In light of the slightness of Dr. Alyea’s diagnosis based more and more on Mr. Tendenilla’s self reporting and considering the two, albeit not quite contemporaneous reports of a section 42 report of Dr. Fielden, an orthopaedic surgeon, as well as a subsequent Med/Rehab DAC, I find that Mr. Tendenilla has not established that the third treatment plan dated August 25, 2005 was reasonable and necessary for the treatment of the injuries sustained in the accident.

Housekeeping and Home Maintenance

To establish entitlement to this benefit, Mr. Tendenilla must show that he incurred additional expenses for housekeeping and homemaking services that he normally performed prior to the accident and that he could not perform subsequently, as a result of injuries sustained in the accident. I find that Mr. Tendenilla is entitled to some of the housekeeping and home maintenance benefits that he has claimed.

Mr. Tendenilla was not a good historian. He could not remember when he returned to work and insisted in his evidence that he was only able to return to work for a few days before being fired, when in fact he returned to work on July 11 and worked essentially full time or more hours until he was terminated for unauthorized non-attendance in late August 2005. He claimed to not remember “these things” when asked to clarify his hours of work over the summer of 2005. He also insisted that he attended his family physician on June 28, 2005 and was sent for x-rays at that time. His family physician’s clinical notes and records have notations before and after the June 28 date but no record of his attendance that day. In the end, there is absolutely no record of a June 28 visit to the family physician or an x-ray taken at that time. There were also things he claims to know that he could not know with precision. For example, he testified that after he returned to work, Ms. Estrada continued to attend at his residence 1 to 1.5 hours per day. Given that he was at work when she would have been at his apartment, it is unclear to me how he could know how long Ms. Estrada was there.³

More directly on the issue of what household chores he performed prior to the accident and which he was unable to perform after the accident, his evidence was less than compelling. He stated in direct examination that he did “laundry, cut the grass, washed dishes and cleaned the basement – that’s it”. He was unable to say how long it took him to perform any of these tasks or even how often he performed them. He testified that after the accident he could not do these things because his back was killing him and he asked his girlfriend, now his spouse, to help.

At the time they were not living together. Mr. Tendenilla lived in Mississauga and Ms. Estrada lived in the north end of Toronto. In any case, Mr. Tendenilla claimed that Ms. Estrada helped him 2 hours per day each day in the initial three weeks after the accident and then 1 to 1.5 hours each day thereafter for an indeterminate period of time, perhaps three or four months. Despite this evidence the claim, but for the impact of the preliminary issue decision cutting off entitlement in September 2005, ran from June 27, 2005 to February 2006.

Allstate challenged Mr. Tendenilla’s evidence that he performed housekeeping and home maintenance duties pre-accident with statements made in an examination under oath⁴ conducted in respect of a subsequent accident. Mr. Tendenilla could not recall making the statements recorded in the examination. I have reviewed the transcript and while Mr. Tendenilla does admit that he did very little in the way of housekeeping prior to the subsequent January 2007 accident because his mother performed those tasks, it is not directly probative of the question of what, if anything he performed prior to the June 2005 accident.

Allstate also sought to introduce a statement made by Mr. Tendenilla’s mother which might have contradicted some of Mr. Tendenilla’s evidence respecting the housekeeping issues. I declined to accept it in evidence for a number of reasons given orally at the hearing.

When challenged about his ability to work all day as a fork-lift operator and yet claiming to be unable to perform any of his pre-accident housekeeping activities, Mr. Tendenilla did say that his limitations were largely a result of back pain. In doing his job, he was not required to stand or lift anything, but remained seated, maneouvering his forklift truck around a loading dock throughout the shift. Essentially his claim was that his back pain did not limit his ability to work, but it did prevent him from performing tasks that required standing and/or lifting such as dishwashing, food preparation, laundry and general cleaning.

Ms. Estrada also gave evidence and was in some respects a more reliable historian, but there were substantial credibility issues raised by her evidence. As well she was unable to say, with much certainty, what housekeeping tasks Mr. Tendenilla performed prior to the accident because she did not really know what he had done at the time. Ms. Estrada was able to confirm Mr. Tendenilla’s testimony that he did cook for himself and others and that he did cut the lawn in the summer.

Ms. Estrada’s evidence was more compelling than Mr. Tendenilla’s in that it is clear that at least for a short period of time, Mr. Tendenilla was quite seriously impaired after the accident and needed significant assistance including what was probably attendant care which is not in dispute in this case.

Ms. Estrada testified that during much of the first week after the accident she attended at Mr. Tendenilla’s residence each and every day for upwards of two hours per day, cooking for him, cleaning up after him and providing attendant care. After a week of this, she rebelled and insisted that Mr. Tendenilla move in to her apartment in the north end of Toronto where she could more easily assist him because it was too much doing her own job and then commuting each day from north Toronto to Mississauga. She testifed that Mr. Tendenilla’s presence in her apartment added only about one half hour of additional cleaning and up to five hours of cooking time during the period that Mr. Tendenilla lived with her. It is not entirely clear when he returned to his own home in Mississauga but by the time of his return to work on July 11, Mr. Tendenilla had returned to his own residence.

However, Ms. Estrada’s credibility suffers in several respects. On more than one occasion she confused the assistance she provided as a result of the car accident and that which she was later called on to provide when Mr. Tendenilla injured his knee playing basketball, sometime in the Spring 2006. Her reliability was damaged further by her insistence that the invoices submitted for housekeeping were a completely accurate record of the services provided, but then later admitted that there was a short period in October 2005 where, despite an invoice identical to all the others, she testified that she did nothing for Mr. Tendenilla because of medical concerns of her own.

The housekeeping invoices also reflect an identical and undiminished need for housekeeping throughout the period of the claim, in this instance from June 2005 to February 2006, despite the evidence of Mr. Tendenilla that after three or four months he was able to return to all of his pre-accident activities.

I find it more likely than not that Mr. Tendenilla’s housekeeping activities were limited prior to the accident. I do find that it was more likely than not the case that he did his own laundry and cooked for himself. I also find that he did some outdoor work such as grass-cutting and snow-shovelling. Ms. Estrada performed neither of these latter duties during the claim period. I do find that Mr. Tendenilla would have needed assistance with some of his pre-accident activities for a period of time after the accident and accept Ms. Estrada’s evidence that Mr. Tendenilla needed signficant assistance in the first days and perhaps weeks after the accident. I also find that this need would have declined after this initial period of time. Equally critical to my conclusions, however is the fact that there is little credible evidence of what services were actually being provided after the first few weeks of the claim period.

Given all of these limitations in the evidence I find that Mr. Tendenilla is only entitled to a housekeeping and home maintenance benefit in the amount of $100 per week from June 27 to July 11, 2005, the first two weeks post accident. Given that it is unlikely that he would have instantly been able to resume all of his pre-accident activities, I find his entitlement reduced to $50 per week for a further two weeks to July 25, 2005.

EXPENSES:

The issue of expenses is left to the parties to resolve. If they are unable to do so they may request an appointment pursuant to Rules 75 to 79 of the Dispute Resolution Practice Code .

August 15, 2008

David Muir Arbitrator

Date