Neutral Citation: 2008 ONFSCDRS 161 FSCO A06-001502

BETWEEN:

AHMED SHAIKH Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Robert Bujold Heard: April 21, 22, 23, 24, May 28 and 30, 2008, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions dated June 18, 20 and July 7, 2008 Appearances: Rizwan (Dean) Wancho for Mr. Shaikh Gus Triantafillopoulos for Allstate Insurance Company of Canada

Issues:

The Applicant, Ahmed Shaikh, claims he was injured in a motor vehicle accident on February 7, 2005. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Allstate terminated caregiver benefits effective May 10, 2006 pursuant to a Disability DAC addendum. Housekeeping and home maintenance benefits were not paid beyond August 7, 2005 pursuant to a multidisciplinary insurer’s examination. Certain medical benefits were also denied as was a physiatry assessment. The parties were unable to resolve their disputes through mediation, and Mr. Shaikh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the time of the accident, Mr. Shaikh was 69 years old. He resided with his wife and adult daughter on the main floor of a house. His adult son, daughter-in-law and three grandchildren lived in the basement of the house. Mr. Shaikh’s wife was effectively bedridden at the time of the accident, suffering from numerous health issues, most notably elephantiasis affecting her lower limbs. Mr. Shaikh maintains that he was her primary caregiver, assisting her with such matters as toileting, personal hygiene, and dressing, as well as contributing to housekeeping and home maintenance. Mrs. Shaikh’s health deteriorated and she passed away on May 14, 2008, after the commencement of the hearing.

Mr. Shaikh claims that as result of injuries sustained in the accident of February 7, 2005, he was substantially impaired in his ability to care for his wife and carry on his housekeeping and home maintenance duties. Mr. Shaikh’s daughter, Yasmin, was largely responsible for assuming those duties, although outdoor maintenance was done by others. There is also evidence of at least some assistance being provided by his daughter-in-law.

There was some confusion as to the amounts claimed and the periods claimed for both caregiving and housekeeping and home maintenance. I requested that the parties provide clarification in post-hearing submissions. Mr. Shaikh’s representative provided a breakdown with correspondence dated June 18, 2008. Allstate did not respond to the submission which I accept as an uncontested breakdown of the amounts claimed, paid and outstanding.

For caregiving expenses, Mr. Shaikh claims $32,225.00.² I note that Mr. Shaikh made no distinction regarding caregiving expenses submitted up to 104 weeks post-accident, February 7, 2007, and caregiving expenses submitted thereafter. Under the Schedule, caregiving expenses post-104 weeks would only be payable if Mr. Shaikh was suffering from a complete inability to carry on a normal life as a result of the accident. It was not clear that Mr. Shaikh or his representative appreciated the distinction.

For housekeeping and home maintenance, Mr. Shaikh claims $541.43.³

Mr. Shaikh also claimed for treatment provided by Scarborough Physiotherapy and Rehabilitation Centre (“SPARC”). Again, post-hearing submissions were invited to clarify the amounts claimed outstanding for treatment at the facility. By correspondence dated June 20, 2008 from Mr. Shaikh’s representative, the claims for treatment at SPARC were quantified at $3,691.09 ($6,416.80 incurred less $2,725.71 paid). Allstate provided no response submissions to challenge these amounts which I accept.

In addition, Mr. Shaikh claimed $1,992.34 for the cost of a physiatric examination by Dr. Kachooie and a report dated March 31, 2006.

Ultimately, the reconciliation of amounts claimed in respect of caregiving expenses, housekeeping and home maintenance expenses and treatment proved to be of little consequence. Apart from a small amount that I find owing for approved treatment at SPARC, I am unable to find that Mr. Shaikh is entitled to any of the benefits claimed.

The caregiver and housekeeping and home maintenance claims require that Mr. Shaikh establish, on a balance of probabilities, that the accident in question caused or materially contributed to a substantial inability to perform those duties in which he engaged at the time of the accident. Likewise, Allstate’s liability to pay for treatment depends on the treatment being reasonable and necessary as a result of the accident.

For the reasons set out below, I am unable to conclude, on a balance of probabilities, that the accident of February 7, 2005 caused or materially contributed to Mr. Shaikh’s inability to carry out his caregiving and housekeeping and home maintenance duties. Nor am I able to conclude on the evidence that any ongoing need for treatment at SPARC was causally related to the accident.

With respect to the assessment by Dr. Kachooie, section 24 of the Schedule provides that an insurer shall pay reasonable fees for an assessment and report that are “reasonably required” in connection with a benefit claimed. Here, Mr. Shaikh had undergone two physiatric assessments in a matter of seven weeks. The second of these two reports was still pending when Dr. Kachooie’s request to conduct a third physiatric assessment was submitted a week later. In the circumstances, I do not find Dr. Kachooie’s assessment and report was reasonably required.

The issues in this hearing are:

Is Mr. Shaikh entitled to receive weekly caregiver benefits in the amount of $250 per week, less any amounts paid, from February 8, 2005 and ongoing, pursuant to section 13 of the Schedule?
Is Mr. Shaikh entitled to payment in the amount of $541.43 claimed for housekeeping and home maintenance services for the period up to January 27, 2007, pursuant to section 22 of the Schedule?
Is Mr. Shaikh entitled to receive a medical benefit for treatment by Dr. Gonneau, in the amount of $3,691.09, claimed pursuant to section 14 of the Schedule?
Is Mr. Shaikh entitled to payments for the cost of an examination by Dr. Kachooie, in the amount of $1,992.34, pursuant to section 24 of the Schedule?
Is Allstate liable to pay Mr. Shaikh’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Shaikh liable to pay Allstate’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Shaikh entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Shaikh is not entitled to weekly caregiver benefits beyond those amounts already paid to him by Allstate.
Mr. Shaikh is not entitled to housekeeping and home maintenance services beyond those amounts already paid to him by Allstate.
Mr. Shaikh is entitled to receive a medical benefit for treatment by Dr. Gonneau in the amount of $106.29.
Mr. Shaikh is not entitled to payment for the cost of Dr. Kachooie’s examination and report dated March 31, 2006.
The parties made no submissions on the issue of expenses. The parties are strongly encouraged to resolve this issue between themselves. If they are unable to do so, either party may request an assessment of expenses within 30 days from the date of this decision, pursuant to Rules 75 to 79 of the Dispute Resolution Practice Code and 282(11) of the Insurance Act.
Mr. Shaikh is entitled to interest on the $106.29 owing in respect of approved treatment provided by Dr. Gonneau, pursuant to section 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

Background

On February 7, 2005, Mr. Shaikh was the seat-belted driver and sole occupant of a 1992 Toyota Camry travelling northbound on McCowan Road in Scarborough. Mr. Shaikh stopped at a red light at the intersection of McCowan Road and Nugget Avenue. When the light turned green, Mr. Shaikh proceeded to make a right hand turn onto eastbound Nugget Avenue. Mr. Shaikh was proceeding slowly into his turn when he was struck on the front driver’s side by a vehicle making a left hand turn from southbound McCowan Road to eastbound Nugget Avenue. I did not receive a collision report in evidence, but the history recounted by Mr. Shaikh in the Functional Abilities Evaluation by SPARC refers to the impact as a “side accident.” No air bags deployed. Mr. Shaikh’s vehicle sustained approximately $1,700 in damage to the “shell” of the car, although two weeks later he noted that a coil spring was broken and also needed to be repaired.

According to Mr. Shaikh, he was upset and confused following the accident. The driver of the other vehicle made him more upset by asking why he had not proceeded faster. Mr. Shaikh wanted to call the police and asked the other driver to do so, due to his limitations with the English language. The other driver refused to call the police and requested that they exchange driver’s licence, ownership and insurance information. Mr. Shaikh refused. He testified that he was scared. The driver of the other vehicle was a big man who spoke loudly.

Mr. Shaikh called a friend, Amin, who attended at the accident scene. The parties ultimately exchanged information and Mr. Shaikh followed his friend back to his home. Later that day, his friend took him to report the accident. He was unable to say whether he attended a police station or collision reporting centre. As stated above, no report was filed in evidence.

Mr. Shaikh testified that Amin took him to his insurance broker the following day, where he reported the incident and apparently provided a copy of the accident report. His broker was not in and he left the report with a secretary. When Amin called back, the broker was still not in and he was told that it would be better to call Allstate directly.

Mr. Shaikh testified that his friend, Amin, then called Allstate to report the accident. Amin is said to have spoken to someone by the name of Gina. Allstate’s log notes reflect an initial call on February 8, 2005 between E. Leslie and “Ahmed Yusuf brother-in-law, Amin.”⁴ The entry notes, in part, as follows:

“calling to report Mon acc 2/7 – BI Neg – Ahmed Yusuf doesn’t speak Eng & (Amin) calling on his behalf but got the OK from OPR 05 about the privacy law – assigned to Pro S033 for repairs – rental not needed …”

Mr. Ralph Didomenico, Director of Accident Benefits, testified on behalf of Allstate and confirmed that “BI Neg” is shorthand for “no bodily injury.” He maintained that there is an emphasis placed on identifying whether any injuries were sustained when an accident is reported and if there is even the suggestion that someone was shaken up, an accident benefits adjuster would get involved and forward the appropriate claims forms.

The next entry, also dated February 8, 2005, was made by G. Zuccaro. That entry notes a call with the Insurer for the third party and the third party’s position that he had made and completed a left hand turn when Mr. Shaikh made a left hand turn into the third party’s lane and collided with the third party vehicle.

Again on the same date, G. Zuccaro is noted to have placed a call with Amin who advised that it was Mr. Shaikh’s position that he had made and completed his right hand turn when the third party vehicle came into Mr. Shaikh’s lane and collided with his vehicle. The entry continues that G. Zuccaro would need to discuss the matter (again) with the third party insurer and would call back. The entry also references discussion regarding repair to the vehicle. It appears Amin advised that Mr. Shaikh would wait for repairs (presumably until fault allocation was determined). Mr. Shaikh was advised that the $500 collision deductible applied until then. The entry also notes that “insd advised that he will take the veh to Pro,” presumably for repairs.

On February 9, 2005, G. Zuccaro spoke again with the third party insurer and the log notes provided: “came to agreement to proceed 50/50 as unable to determine who crossed into who’s lane.” The notes then reflect that G. Zuccaro called Amin on that same day, February 9, 2005, and advised him of the 50/50 split determination. The entry also provides that G. Zuccaro explained the reasons for the decision and Amin advised that he would contact Mr. Shaikh and call back. This is the last entry reflecting communication between Allstate and Amin.

Mr. Shaikh maintained that Amin continued to try to speak to someone by the name of “Gina” on many occasions.⁵ He was told that Gina was “too busy” and she would fail to return messages left for her. While there may have been a call not returned, I am not convinced that Amin placed several unreturned calls or that the evidence supports a finding that Allstate deliberately ignored Mr. Shaikh. Amin was not called to give evidence and Mr. Shaikh had no record of when such phone calls were placed or the frequency of such calls.

An entry dated March 9, 2005 provides: “rec’d copy of CRC – diagram confirms my decision on a 50/50 split.”⁶

On April 28, 2005, G. Zuccaro notes a call from Mr. Shaikh’s lawyer⁷ that he would be sending a letter that Mr. Shaikh was not at fault for the accident. The entry continues that the adjuster explained the reasons for the 50/50 determination including the lack of witnesses and the diagram from the CRC. The entry then continues: “lawyer started getting rude with me and advised I should be protecting my insured and should hold him NAF [not at fault]. Lawyer sending in letter.”

The next entry by G. Zuccaro is dated May 24, 2005. The entry notes that a call had been received from SPARC indicating that Mr. Shaikh was receiving treatment. G. Zuccaro notes “insured has been getting treatment from them due to this accident??? Reopened claim and assigned to AB adjuster.”⁸

The accident claims history to this point has been set out in some detail, as Mr. Shaikh complained of shoddy treatment by Allstate and also because it brings us to the first notation in Allstate’s records of any injury or impairment having been reported as a result of the February 7, 2005 accident. Based on the evidence presented, I am not persuaded that Allstate failed in the exercise of its obligations to Mr. Shaikh. I am not persuaded that Mr. Shaikh, through Amin or otherwise, advised Allstate that he had sustained any injuries in the accident of February 7, 2005. I find that communications between Mr. Shaikh and Allstate to this point focussed exclusively on property damage and the liability assessment.

The chronology of events after Allstate became aware that Mr. Shaikh was receiving treatment at SPARC is marked by confusion and delay that I find rests with Mr. Shaikh and/or his representative and is also worth noting.

Upon receiving the call from SPARC that Mr. Shaikh was receiving treatment as a result of the accident, Allstate provided Mr. Shaikh with accident benefits claims forms. On June 20, 2005, the accident benefits adjuster assigned to the file, Laura Ershler, received an Application for Accident Benefits dated June 14, 2005. In the Application, “Part 7 – Caregiver” is stroked out.

Mr. Shaikh testified that he re-attended at NFP Group in late May specifically because he was having trouble taking care of his wife. Mr. Shaikh also testified that caregiving benefits had been explained to him (although it was not clear when he received this explanation). He also testified that the Application was explained to him and that he signed the Application after it was completed. Nevertheless, Mr. Shaikh could provide no explanation as to why “Part 7 – Caregiver” had been stroked out in the Application.

An initial In-Home Assessment by Janice Kim of SPARC was conducted on June 18, 2005 and reported on July 4, 2005. The assessment was conducted with Mr. Shaikh’s daughter, Yasmin Shaikh, present as an interpreter. The report states that Mr. Shaikh denied any pre-accident complaints, that he reported seeing his family doctor, Dr. Tara Patel, one or two weeks after the accident, that Dr. Patel had x-rays taken of his neck and left shoulder (showing no fractures) and that she prescribed a pain killer. The report also states that on a subsequent visit Dr. Patel prescribed massage therapy and another pain killer, but did not recommend physiotherapy. Mr. Shaikh did not attend physiotherapy until May when his legal representative referred him to SPARC.

Ms. Kim’s In-Home report identified that Mr. Shaikh took care of his wife prior to the accident and that his daughter and daughter-in-law had been taking care of her since the accident. The report also identified Mr. Shaikh as responsible for housekeeping and home maintenance activities prior to the accident. Since caregiver benefits had been crossed out in the Application, it appears that Allstate became aware of Mr. Shaikh’s possible entitlement to caregiving benefits through Ms. Kim’s report.

By letters dated July 26, 27 and 28, 2005, Allstate notified Mr. Shaikh and his legal representative, NFP Group, of assessment appointments with an occupational therapist, a psychiatrist and a physiatrist to assess his entitlement to housekeeping and caregiving benefits. The appointments were scheduled for dates in August and September.

The first of these appointments was an in-home assessment to be conducted by Function O.T. on August 9, 2005. According to a letter dated August 9, 2005 prepared by Farah Habib, occupational therapist with Function O.T., the appointment was cancelled by Mr. Shaikh’s legal representative, Dean Wancho of NFP Group, in a message left after business hours. The letter states that Ms. Habib called Mr. Wancho from outside Mr. Shaikh’s home on the day of the assessment. Mr. Wancho is stated to have initially explained the cancellation on the basis that Ms. Habib had purportedly tried to re-schedule the appointment with Mr. Shaikh to a time not convenient to him. Ms. Habib denied such communications with Mr. Shaikh and explained that she was calling from outside Mr. Shaikh’s house ready to proceed with the assessment. The letter continues that Mr. Wancho then advised that “he would not permit his client to participate in the assessment, as Mr. Shaikh is now currently able to perform all pre-accident activities of daily living and a prior request for a Home Assessment under Section 24 was denied.”⁹

In a letter from Allstate to NFP Group dated August 23, 2005, Ms. Ershler enclosed a copy of Function O.T.’s letter of August 9, 2005 outlining the circumstances leading to the cancellation of the in-home assessment. Ms. Ershler also confirmed that NFP Group had cancelled the psychiatric and physiatric assessments with Drs. Soric and Bail scheduled for August 23 and September 13, 2005 respectively, and that NFP Group had further advised that Mr. Shaikh would not be attending any insurer’s assessments arranged by Allstate.¹⁰ Ms. Ershler advised that Mr. Shaikh was in non-compliance with section 42 of the Schedule and no further payments for housekeeping and caregiving would be made pending compliance.¹¹

Ultimately, Mr. Shaikh did attend a multidisciplinary insurer’s examinations conducted by Ms. Habib, Dr. Soric and Dr. Bail in November and December 2005. On the basis of these assessments and an addendum report by Dr. Soric dated December 28, 2005, Allstate terminated caregiving and housekeeping and home maintenance benefits effective March 2, 2006. Allstate offered a Disability DAC assessment which Mr. Shaikh attended at Work Able Centres Inc. (“Work Able”) between March 3 and 29, 2006.

The Disability DAC assessors initially found Mr. Shaikh to be suffering from a substantial inability to perform the caregiving activities in which he was engaged at the time of the accident. However, this opinion was reconsidered on the basis of documentation subsequently reviewed and, by addendum report dated May 10, 2006, Dr. Ian Harrington, orthopaedic surgeon, concluded that Mr. Shaikh’s symptoms and underlying pathology could not be directly related to the motor vehicle accident.

I will review the basis for Dr. Harrington’s revised opinion in the section below dealing with causation.

Causation: Evidence of Pre-Accident vs. Post-Accident Impairment

Mr. Shaikh’s accident-related complaints focus primarily on his neck and left shoulder pain.

Approximately 11 months pre-accident, on March 16, 2004, Mr. Shaikh attended at his family doctor, Dr. Patel¹², with complaints of left shoulder pain which he had been experiencing for two weeks. Dr. Patel noted some muscle tenderness and swelling of the medial left arm. Dr. Patel prescribed local heat, massage, Tylenol and exercises.

On January 18, 2005, approximately 2 ½ weeks before the accident, Mr. Shaikh attended at Dr. Patel’s office with complaints of neck and left shoulder pain. The complaints were sufficient for Dr. Patel to requisition x-rays of the left shoulder and cervical spine. Radiological findings found minor degenerative changes in the neck and mild osteoarthritis in the A.C. joint of the left shoulder.

On January 27, 2005, Dr. Patel noted that left shoulder movement was slightly painful with some restriction. She prescribed Tylenol and Mobicox which is an anti-inflammatory. She also reviewed exercises for his left shoulder.

On February 7, 2005, Mr. Shaikh was involved in the subject accident.

Mr. Shaikh attended again at Dr. Patel’s office on February 15, 2005 (one week post-accident) and March 1, 2005 (three weeks post-accident). On neither occasion did Mr. Shaikh make any complaints of neck or shoulder pain, nor did he advise Dr. Patel that he had been involved in an accident.

A visit to Dr. Patel on March 23, 2005 (now six weeks post-accident) records a passing entry that “pain in left shoulder has not improved.”

Entries in Dr. Patel’s records on March 29 and April 14, 2005 (seven and nine weeks post-accident respectively) make no reference to neck and shoulder complaints and there is still no reference to the accident of February 7, 2005.

Finally, on June 7, 2005 (4 months post-accident), Mr. Shaikh advised Dr. Patel that he had been in the accident of February 7, 2005. I note that this is also approximately three weeks after Mr. Shaikh first attended at SPARC, a facility that he was referred to by his legal representative, NFP Group.

In her records of the June 7, 2005 attendance, Dr. Patel notes that Mr. Shaikh had not mentioned the accident to her before. She also notes “pain in left shoulder movement, movement slightly restricted.” She reintroduced Mobicox. When asked how Mr. Shaikh’s complaints at that time compared to the neck and left shoulder complaints for which she saw him shortly before the accident in January 2005, she confirmed that they were the same.

In entries subsequent to June 7, 2005, neck and/or left shoulder pain is mentioned at times, but most times there is no reference to these complaints. Most visits appear to focus on Mr. Shaikh’s chronic venous insufficiency (varicose vein) problem in his legs which Dr. Patel described as a condition that has been getting progressively worse. However, I note that Mr. Shaikh did see Dr. Patel on February 17, 2006 looking to have disability forms completed which Dr. Patel refused to complete for him. Her records note: “he needs disability forms filled for his accident & I did not assess him for any accidental injuries in the past (he did not come to see me).”

Mr. Shaikh gave evidence that although he did not seek medical attention immediately following the accident, he did experience an immediate onset of pain and restrictions affecting his ability to carry out caregiving and housekeeping and home maintenance tasks. Indeed, Mr. Shaikh’s invoices claim these benefits from February 8, 2005 onward. Mr. Shaikh claims the Allstate log entry “BI Neg” is wrong. He maintained that he told his friend, Amin, that he had left shoulder pain, but the Allstate agent did not ask if anyone was injured.¹³

Mr. Shaikh also maintained that he did not want to file a claim with Allstate because he did not want to risk having his son’s insurance rates increase which is why he focused on the fault determination issue. Mr. Shaikh admitted that this was the reason he initially retained NFP in April 2005. He was not seeking to claim accident benefits. However, the pain continued to increase and he was not able to take care of his wife, so he went back to NFP in May 2005 to pursue accident benefits for his injuries and impairments.

Mr. Shaikh’s daughter, Yasmin Shaikh, testified that her father required assistance with caregiving and housekeeping and home maintenance commencing in or around the time of the accident. Ms. Shaikh also testified that her father had not mentioned to her any neck or shoulder pain prior to the accident.

While I accept that Mr. Shaikh may have started to receive increased assistance from his daughter in or about early-to-mid 2005, I do not find that the evidence, when viewed as a whole, including Mr. Shaikh’s own evidence, supports the conclusion that Mr. Shaikh’s impairments were caused or materially contributed to by the accident of February 7, 2005.

Notwithstanding Mr. Shaikh’s evidence of an immediate onset of disability and the explanation proffered for not advising Allstate, he also sought to explain his failure to seek medical attention or report the accident to Dr. Patel on the basis that he thought it was “the same pain he had before” and he did not appreciate that the accident might be the cause. He expected the pain to resolve with Tylenol as it had done in the past. Mr. Shaikh described the neck and left shoulder pain he experienced shortly before the accident as minor and quick to resolve (2 to 3 days).

On the one hand, therefore, the pain was, at least initially, of insufficient consequence to distinguish it as significantly different from the relatively minor pain he had experienced shortly before the accident. At the same time, Mr. Shaikh seeks to maintain that the pain and restrictions were sufficient to result in an immediate onset of disability and the need for assistance with caregiving and housekeeping and home maintenance tasks. These positions are irreconcilable.

He also proffered as reasons for not telling Dr. Patel about the accident that she was located far from his home, that he was unable to drive and that he did not intend to file a claim. These reasons make little sense. Regardless of the distance between his home and Dr. Patel’s office, he did attend her office of several occasions and did not mention the accident. Also, I fail to see the connection between the fact that he may not have intended to file an insurance claim and his failure to mention disabling pain to his primary health care provider.

Mr. Shaikh also explained that the pain was worsening with time (rather than resolving) and he came to realize it was not the same pain he had before the accident. When asked why he did not tell Dr. Patel about the accident on the March 1, 2005 attendance (three weeks post-accident), Mr. Shaikh initially testified that he couldn’t remember if he told her or not. In response to the same inquiry about the March 23, 2005 attendance (six weeks post-accident), Mr. Shaikh suggested that he might have told her and she might not have noted it. In response to the suggestion that he did not advise Dr. Patel about the accident until the June 7, 2005 attendance (4 months post-accident), Mr. Shaikh suddenly seemed certain that he would have told her about the accident before then. He suggested that Dr. Patel is getting to retiring age, so she is forgetful.¹⁴

Quite apart from the problems with Mr. Shaikh’s failure to report the accident or any exacerbation of his neck and left shoulder complaints to his family doctor, it is significant that Mr. Shaikh failed to mention his pre-accident complaints of neck and left shoulder pain to any of the health care providers¹⁵ who treated him or assessed him for his alleged accident-related complaints.

Mr. Shaikh first sought treatment at SPARC in May 2005. Dr. Gonneau of SPARC diagnosed cervical spine strain/sprain with radicular symptoms. He received treatment until February 2006. During this time, Dr. Gonneau prepared two Disability Certificates and four Treatment Plans. Dr. Gonneau does not note any prior or concurrent conditions in any of these documents.

Dr. Gonneau testified at the hearing and seemed surprised by Mr. Shaikh’s pre-accident medical history. Nevertheless, Dr. Gonneau maintained that he would still find Mr. Shaikh’s impairments to be as a result of the accident on the basis of Mr. Shaikh’s report that he did not have symptoms before the accident but has had complaints since.

Dr. Lee of Chronic Pain Solutions also testified on Mr. Shaikh’s behalf. Dr. Lee first saw Mr. Shaikh in February 2006 on referral from Mr. Shaikh’s legal representative. Dr. Lee concluded that Mr. Shaikh was suffering from chronic WAD II, chronic thoracic spine and left shoulder dysfunction/deconditioning with suspected impingement. Dr. Lee prepared a report dated February 22, 2006 and a treatment plan of same date recommending pain modulation (low intensity laser) therapy and a functional restoration program. There is no reference in the report to Mr. Shaikh’s medical history and the treatment plan indicates no prior and concurrent conditions.

I note that Dr. Lee’s assessment in February 2006 was conducted without the benefit of an interpreter. On cross-examination, Dr. Lee admitted that he was unable to take a history and some of the responses to his questions had to be elicited through hand gestures and single word questions and responses. He also admitted that he likely did not have medical documents to review in connection with his report. As Dr. Lee put it, he did his best. He also continued that “he had to propose something because he wants to help people.”

Dr. Lee also states in his report that Mr. Shaikh had plateaued in his recovery. On cross-examination, Dr. Lee confirmed that in this case, Mr. Shaikh had “plateaued” at 50 per cent recovery, although that figure does not appear in the report.

Dr. Lee also admitted that Mr. Shaikh’s problems could relate to his pre-accident injury and suggested that was a matter for comment by the family doctor. When asked if there was any way to tell whether Mr. Shaikh’s complaints are as a result of the accident or his pre-existing condition, Dr. Lee again deferred to the family doctor. Dr. Lee stated that he relied on Mr. Shaikh’s report that the pain worsened after the accident.

In addition to Drs. Gonneau and Lee who treated Mr. Shaikh and testified on his behalf, Mr. Shaikh also failed to disclose his pre-existing neck and left shoulder problems to the several insurer’s assessors and the Designated Assessment Centre (“DAC”) assessors who assessed him.

Mr. Shaikh’s failure to mention his pre-accident complaints of neck and left shoulder pain to the health care professionals who treated and/or assessed him not only raises suspicion regarding Mr. Shaikh’s bona fides, but, even if viewed generously as an innocent oversight, denied the health care professionals highly relevant information that undermined their ability to properly assess the cause of his complaints.

Most notable is the multidisciplinary disability assessment conducted by Work Able in April 13, 2006. Dr. Harrington, orthopaedic surgeon, and Avi Kaplun, occupational therapist, who conducted the assessments concluded, at first instance, that Mr. Shaikh was substantially unable to engage in the caregiving activities in which he was engaged at the time of the accident, contrary to the finding of Dr. Soric, physiatrist, who conducted an insurer’s examination on November 29, 2005.

However, upon receipt of the DAC assessment, it appeared to the accident benefits adjuster, Ms. Ershler, that Dr. Harrington had not reviewed the entire medical file. Ms. Ershler contacted Work Able and it was confirmed that Dr. Harrington had not reviewed the entire file including the clinical notes and records of Dr. Patel. Work Able requested that the entire file be copied and delivered to them for an addendum report.

Mr. Shaikh took issue with Allstate’s conduct in contacting the DAC assessor upon realizing that the entire medical file had not been reviewed by the assessors. Mr. Shaikh also suggested that Allstate was selective in what it provided to Work Able. He also suggested that Allstate would not have contacted Work Able if it were discovered that some document favourable to the insured had not been disclosed.

I find no basis for Mr. Shaikh’s allegations and innuendo of untoward conduct by Allstate nor anything improper in ensuring that all relevant medical documentation is brought to the attention of medical assessors so that full and accurate assessments can be obtained.¹⁶ The log entry indicates that a copy of the entire file was delivered to Work Able.

Upon reviewing the additional medical documents, Dr. Harrington concluded as follows:

It is not clear from the documentation provided or the various examinations performed before and after the motor vehicle accident that Mr. Shaikh’s shoulder problems have significantly worsened as a result of the motor vehicle accident. Therefore, there does not appear to be any clear evidence that Mr. Shaikh would not be capable of performing the caregiving activities now that he did prior to the accident.

Based on the medical documentation available and the current physical findings, it does not appear that Mr. Shaikh’s present shoulder problems can be directly attributed to an injury from the MVA. Because Mr. Shaikh had complaints of shoulder pain and radiological evidence of degenerative change prior to the motor vehicle accident, it seems likely that his present symptoms are more in keeping with pre-existing shoulder pathology, e.g. degenerative change affecting the acromioclavicular joint and likely the rotator cuff.

Dr. Harrington does not take issue with the fact that Mr. Shaikh has problems with his left shoulder. The real difficulty is in being able to attribute those problems with the accident of February 7, 2005. I agree with Dr. Harrington that the medical documentation leads to the conclusion that it is more likely than not that Mr. Shaikh’s symptoms relate to his pre-existing shoulder pathology. Although Mr. Shaikh contended that his left shoulder problems reported on January 18, 2005 had resolved in 2-3 days, this is simply not supported on the evidence. The entry in Dr. Patel’s notes of January 27, 2005 confirms that he continued to experience left shoulder pain for which Dr. Patel prescribed Tylenol and Mobicox. Six weeks later, on March 23, 2005, an entry records that the left shoulder pain had not improved – not that the pain had resolved and returned; not that the pain had worsened; and not that Mr. Shaikh could not perform his pre-accident caregiver duties. Indeed, there was not even a reference at this point, or for a further 10 weeks, that Mr. Shaikh had even been involved in an accident.

As noted above, Dr. Lee reported in his Disability Certificate of July 26, 2006 that Mr. Shaikh had injured his neck and left shoulder while lifting his wife one month prior to the accident.¹⁷ Dr. Patel testified that, based on Mr. Shaikh’s reports to her and based also on her monthly visits to the home, Mr. Shaikh continued to perform caregiving tasks for Mrs. Shaikh after the accident.¹⁸ She testified that the caregiving tasks that Mr. Shaikh engaged in could put strain on his neck and shoulders and could have caused his condition to worsen.

Dr. Patel also testified that Mrs. Shaikh’s condition progressively worsened. Over time, she had become completely bedridden, increasing in weight to nearly 500 pounds and was no longer able to transfer to the bathroom. It was Dr. Patel’s evidence that, even if healthy, Mrs. Shaikh’s condition became such that Mr. Shaikh would have required help with caregiving.

Mr. Shaikh argued that it was possible that his pre-existing condition could have been exacerbated by the accident but, at least initially, the symptoms were masked by his medications, only later to develop into a more serious and chronic condition. Even Dr. Patel and Dr. Harrington were prepared to admit the possibility that the accident could exacerbate his pre-existing pathology. However, though possible, they found insufficient basis to arrive at that conclusion. In my view, it is not a conclusion that is supported by the evidence when viewed as a whole. It is simply not a finding of fact that I am prepared to make.

In conclusion, and in fairness to Mr. Shaikh, he may have come to believe that his impairments were the result of the accident of February 7, 2005.¹⁹ In my view, however, the evidence leads to the more likely conclusion that Mr. Shaikh’s diminished ability to care for his wife and to perform housekeeping and home maintenance tasks were the direct result of Mrs. Shaikh’s deteriorating condition and increased weight, as well as Mr. Shaikh’s own pre-accident shoulder and neck pathology, made worse by the injury sustained while assisting his wife one month prior to the accident and further aggravated by his efforts to continue to contribute to his wife’s care.

For all of the above reasons, I find that Mr. Shaikh has failed to establish on a balance of probabilities that the accident of February 7, 2005 caused or materially contributed to his left shoulder and neck pathology and any need for caregiving and housekeeping and home maintenance services that he may have required for the periods claimed.

Objection to the Clinical Notes and Records of Dr. Patel

Mr. Shaikh argued that Allstate had improperly secured the clinical notes and records of Dr. Patel for a period of 5 years pre-accident. Mr. Shaikh noted that the usual disclosure period for pre-accident medical records at a pre-hearing discussion is one year. I note that the records were obtained as part of Allstate’s efforts to adjust the file and not as part of the arbitration process.

Allstate wrote to NFP Group on August 23, 2005 enclosing a Permission to Disclose Health Information form (OCF-5). The covering letter explicitly requests: “Please have your client complete the enclosed OCF-5, with name, address & telephone number, of the doctor he attended for 5 years prior to the above noted accident. Have your client sign same & return it to Allstate Insurance so that we can obtain the doctor’s clinical notes & records.” The executed OCF-5, completed with Dr. Patel’s name and phone number, was returned to Allstate under cover of letter from NFP on September 8, 2005. The letter from NFP made no objection to the use for which Allstate had requested the OCF-5.

This is not a case where Allstate attempted to surreptitiously obtain medical records of an undisclosed health care provider or for an undisclosed period of time. Allstate was very clear which records they wished to obtain and for what period. Nor did Allstate even contact Mr. Shaikh directly. The request was directed to his legal representative. If Mr. Shaikh’s legal representative took issue with the period claimed, then an objection could easily have been raised.

Apart from his agreement to provide the records, I further note that Mr. Shaikh raised no objection to Allstate’s use of the records at the pre-hearing discussion in December 2006 or when Allstate filed its document brief in July 2007. Indeed, there does not appear to have been any objection taken until the commencement of the hearing.

It was not entirely clear what consequence Mr. Shaikh believed should flow if I were to determine that Allstate had improperly secured Dr. Patel’s records. In any event, I find that Allstate did not act improperly. Although 5 years does appear excessive, Allstate was upfront and clear regarding its request which it directed to Mr. Shaikh’s legal representative. Given that Mr. Shaikh executed the OCF-5 with the benefit of legal advice, and given further the absence of any objection prior to the hearing, I find Mr. Shaikh’s objection at this point untenable. Further, even if I were prepared to disallow a portion of Dr. Patel’s clinical notes and records, I would still accept into evidence her records from one year pre-accident and it is within that period that the most damaging notations are found.

Dr. Gonneau’s Treatment Plans

As Mr. Shaikh has failed to establish that his left shoulder and neck pathology are accident-related, any treatment is necessarily not reasonable and necessary as a result of the accident. In any event, even if I had concluded that Mr. Shaikh’s injuries were accident-related, I would not have found that the further treatment proposed by Dr. Gonneau was reasonable and necessary.

Briefly, I note that Dr. Gonneau had diagnosed cervical spine strain/sprain with radicular symptoms. This diagnosis was based, in part, on an inaccurate medical history provided by Mr. Shaikh. The diagnosis of radiculopathy also runs contrary to the findings of Drs. Bereznick, Somerville, Platnick, Soric and Patel who found little, if any, indication of significant musculoskeletal, neurological or orthopaedic injury. Even Dr. Majl, a neurologist seen at Mr. Shaikh’s request, concluded that Mr. Shaikh did not have objective signs of myelopathy or radiculopathy.

I also note that much of the treatment proposed by Dr. Gonneau involves passive modalities such as massage therapy and manipulation. Although not ruling out any further time-limited treatment, the Functional Abilities Evaluation from Dr. Gonneau’s own clinic, SPARC, in October 2005 concluded that passive therapy should be used conservatively and Mr. Shaikh should be moved toward a program of self-directed active therapy at home as soon as possible.

Dr. Lee, who appeared on Mr. Shaikh’s behalf, also testified that it was not helpful to offer passive treatment.

For all of the above reasons, Allstate is not liable to pay for the treatment proposed by Dr. Gonneau in his treatment plans of September 9, 2005, November 3, 2005 and January 12, 2006.

However, the first treatment plan of May 26, 2005 was approved in the amount of $2,832.00. According to the reconciliation provided by Mr. Shaikh’s representative, $2,725.71 has been paid to Dr. Gonneau’s clinic on account of treatment. As stated earlier, Allstate did not challenge Mr. Shaikh’s figures, although provided with the opportunity to do so. Even with my finding on causation, Dr. Gonneau is entitled to be paid for the full amount of approved treatment plans. As a result, I find that Allstate is liable to pay $106.29 ($2,832.00 approved less $2,725.71 paid), plus interest pursuant to the Schedule, for treatment provided by Dr. Gonneau.

Dr. Kachooie’s Physiatry Assessment and Report of March 31, 2006

An Application for Approval of an Assessment or Examination (OCF-22) prepared by Dr. Kachooie dated December 7, 2005 was denied by Allstate on the basis that Mr. Shaikh had just undergone a physiatric assessment with Dr. Soric on November 29, 2005 and Allstate was then awaiting his report.

The dispute regarding the proposed assessment by Dr. Kachooie was sent to a fast track DAC. Dr. Platnick found the proposed assessment to be not reasonable and necessary. Quite separate from the fact that a physiatric assessment had just been conducted with Dr. Soric on November 29, 2005, Dr. Platnick noted that Mr. Shaikh had seen another physiatrist, Dr. Somerville, on October 7, 2005, as part of a multidisciplinary Med/Rehab DAC assessment regarding treatment proposed by Dr. Gonneau. Dr. Platnick noted that neither Dr. Somerville nor the other assessor, Dr. Bereznick, chiropractor, had identified evidence of significant musculoskeletal, neurological or orthopaedic accident-related injury.

Dr. Platnick concluded the medical documentation supported a finding of uncomplicated soft tissue injury and that there was no indication for the requested assessment. As such, it was not reasonable and necessary.

Given that Mr. Shaikh had a physiatric assessment on October 7, 2005 with no significant findings, and given that another physiatric assessment had been conducted on November 29, 2005 with a report then still pending, I agree that the request for a third physiatric assessment by Dr. Kachooie on December 7, 2005 was not reasonable and necessary.

EXPENSES:

The parties made no submissions on the issue of expenses. The parties are strongly encouraged to resolve this issue between themselves. If they are unable to do so, either party may request an assessment of expenses within 30 days from the date of this decision, pursuant to Rules 75 to 79 of the Dispute Resolution Practice Code and 282(11) of the Insurance Act.

September 30, 2008

Robert Bujold Arbitrator

Date

Financial Services Commission of Ontario