Neutral Citation: 2008 ONFSCDRS 165

FSCO A06-000704

BETWEEN:

EZMIN MERANI Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

Before: Arbitrator Denise Ashby

Heard: July 28, 29 and 30, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Arvin Gupta for Ms. Merani Jonathan S.D. Wakelin for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ezmin Merani, was injured in a motor vehicle accident on June 28, 2005. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa denied her claims for income replacement benefits, certain medical benefits, attendant care benefits and housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Ms. Merani 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 Ms. Merani entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule?
What is the amount of the income replacement benefit that Ms. Merani is entitled to receive pursuant to section 6 of the Schedule?
Is Ms. Merani entitled to receive a medical benefit, for treatment provided by Prime Health Recovery Centre, pursuant to section 14 of the Schedule?
Is Ms. Merani entitled to attendant care benefits pursuant to section 16 of the Schedule?
Is Ms. Merani entitled to housekeeping benefits pursuant to section 22 of the Schedule?
Is Wawanesa liable to pay Ms. Merani's expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Ms. Merani liable to pay Wawanesa's expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?
Is Ms. Merani entitled to interest for the overdue payment of benefits, pursuant to subsection 46(2) of the Schedule?

Result:

Wawanesa shall pay Ms. Merani a weekly income replacement benefit for the period from August 15 to August 25, 2005 at the rate of $400.00.
Wawanesa shall pay Ms. Merani a medical benefit for treatment provided by Prime Health Recovery Centre from August 26, 2005 to June 5, 2006, in the sum of $8,648.00 less any amounts paid by Wawanesa for treatment received during the period.
Wawanesa shall pay Ms. Merani an attendant care benefit in the amount of $710.75.
Wawanesa shall pay Ms. Merani a housekeeping beneft of $600.00.
Ms. Merani is entitled to interest on overdue income replacement benefits, medical benefits, attendant care benefits and housekeeping benefits pursuant to subsection 46(2) of the Schedule.
The issue of expenses remains outstanding.

EVIDENCE AND ANALYSIS:

Ms. Merani was involved in a motor vehicle accident on June 28, 2005. She was taken to hospital by ambulance and was discharged to her home that evening. At the time of the accident, Ms. Merani lived alone and was employed as a customs officer at Pearson International Airport, Terminal 3.

Ms. Merani and Dr. Adrian Joaquim, a chiropractor, testified on Ms. Merani's behalf. Dr. N. Lishchyna, chiropractor, and Ms. Lori Chowan, an employee of SunLife Financial, also testified. Ms. Merani was a forthright witness.

Ms. Merani claims an income replacement benefit, medical benefits, an attendant care benefit and housekeeping benefits. In order to be successful in this arbitration, she must establish her claims on a balance of probability.

Ms. Merani testified that as a result of the accident she suffered a black eye. As well, her left thumb, wrist and knee were bruised. She experienced neck, left shoulder and lower back pain. Ms. Merani testified that upon returning to work on June 30, 2005, she requested and was given modified duties. She was transferred to Terminal 2 where the security checks were more sedentary. She eventually returned to Terminal 3, but continues to have restricted duties. Ms. Merani testified that her injuries prevented her from conducting fingerprinting to the standards required by CSIS, and she has not returned to this employment task. Ms. Merani testified that as a consequence of her impairments she continues to be unable to wear the bulletproof vest and steel-toed shoes required by her employment. As a consequence, she continues to have modified duties.

Income Replacement Benefits:

Ms. Merani claims a weekly income replacement benefit at the rate of $400.00 for the ten-day period from August 15 to August 25, 2005. She testified that although she returned to work two days after the accident she was in a great deal of pain which increased in the period between the accident and early August. As a consequence, Ms. Merani consulted her family physician, Dr. S.A. Mehmi, on August 15, 2005. She testified that her doctor advised her to take time off work in order to heal. Dr. Mehmi's notes indicate that Ms. Merani reported she was continuing to suffer from pain in her left shoulder arm and hand. Dr. Mehmi concludes: "so unfit to work."²

Ms. Merani testified that she has no specific recollection of the pay periods for which she claims an income replacement benefit. The records of her employer, the Canada Border Services Agency, indicates that she was absent due to sickness and notes LWOP.³ Ms. Merani testified that LWOP means "leave without pay." I accept her evidence regarding the meaning of the acronym. Further, her pay stubs for November 2 and November 16, 2005 note an adjustment in her pay for which her employer deducted 42 hours for illness and disability.⁴

Wawanesa submits that pursuant to subsection 5(2)(a), it is not required to pay an income replacement benefit for the first week of disability. Therefore, were I to accept that she is entitled to a benefit for the period claimed, Wawanesa should receive credit for 7 days of her entitlement. It also relies on the Calculation of Income Replacement Benefits Payable which calculates the benefit payable for the period from August 22 to August 30, 2005 as $180.59.⁵

In order to successfully establish her claim pursuant to section 4 of the Schedule, Ms. Merani must prove that as a result of an accident-related impairment she suffered a substantial inability to perform the essential tasks of her pre-accident employment.

I accept Ms. Merani's evidence that she returned to work two days after the accident. Her employer, the Canada Border Services Agency, accommodated her by providing her with modified duties. I find that from June 28, 2005 until Ms. Merani returned to her duties at Terminal 3 she was substantially disabled from performing the essential tasks of her pre-accident employment. Therefore, I find that Ms. Merani's first week of disability was from June 28 to July 4, 2005.

I also accept that having tried for 6 weeks to perform the essential duties of her modified work she could not continue to work and had no further short-term disability available to her. Therefore, I find that for the period from August 15 to August 25, 2005, Ms. Merani was substantially disabled from performing the essential duties of any employment available to her for the period and is entitled to an income replacement benefit.

I accept that Ms. Merani repaid her employer for 42 hours of work. I find that Ms. Merani had no post-accident income or collateral benefits for the period claimed.

I accept the Income Replacement Benefit Calculation, excluding the calculation of post-accident income, reflects entitlement to the weekly policy limit of $400.00. Therefore, I find that Ms. Merani is entitled to a weekly income replacement benefit for the period from August 15 to August 25, 2005 at the rate of $400.00.

Medical Benefits:

Ms. Merani disputes the denial of five Treatment Plans issued by Prime Health Recovery Centre dated: August 26 and October 20, 2005; January 16, March 8 and June 5, 2006.⁶ In order to be successful in her claim for medical benefits pursuant to section 14 of the Schedule, Ms. Merani must prove that the treatment was reasonable and necessary to treat an accident-related impairment.

Each of the five Treatment Plans recommended chiropractic treatment, massage therapy and a functional exercise program. The Treatment Plan dated August 26, 2005 recommended acupuncture and the application of hot and cold gel packs. The subsequent Treatment Plan of October 20, 2005 recommended acupuncture but not the use of gel packs. The estimated cost of the five Treatment Plans was $9,126.00.

Ms. Merani testified that following the accident Dr. Mehmi referred her for physiotherapy at a clinic near her office. The clinic Dr. Mehmi referred her to was not convenient. As a consequence, she began attending Prime Health Recovery Centre (Prime Health) which was on her way to work.

Ms. Merani testified that she found the treatments, particularly the acupuncture, initially reduced the pain and were of assistance. She was out of the country for approximately 4 weeks in December 2005 visiting her father who was ill. During this period she did not receive any treatment. After she returned to Toronto she resumed treatment at Prime Health because the travel and lack of treatment had aggravated her injuries with an associated increase of pain.

Ms. Merani testified that she believed she stopped going for treatment at Prime Health in May 2006 because she was 60 to 70% better and could continue on her own at home. As well, she had returned to her gym where she had retained the services of a personal trainer. She testified that her gym program continues to help her maintain the improvement achieved at Prime Health. Ms. Merani did not dispute the documentary evidence which suggests she attended treatment at Prime Health until the fall of 2006.

Dr. Adrian Joaquin, chiropractor, testified that he worked at Prime Health from January to March, 2006 and prepared the disputed Treatment Plan dated January 16, 2006. Dr. Joaquin also authored a report dated June 3, 2008.

Dr. Joaquin did not have a specific recollection of treating Ms. Merani. He testified that he would have assessed her prior to completing the Treatment Plan. As well, he would have provided the chiropractic treatment between January and March and would have supervised the other treatment modalities provided.

On May 26, 2008, Dr. Joaquin conducted a file review and assessed Ms. Merani. In the body of his report he states: "I evaluated Ms. Merani on May 26, 2007." This statement occurs in the section entitled "Review of Evalution performed May 26, 2008."⁷ I find that Dr. Joaquin assessed Ms. Merani on May 26, 2008 and the date in the body of his report is a typographical error. Dr. Sandra O'Connor, chiropractor, conducted a paper review in response to Dr. Joaquin's assessment on June 27, 2008.

Dr. J. Picula, chiropractor, conducted a DAC assessment of Ms. Merani on October 5, 2005 in respect of the Treatment Plan dated August 26, 2005. Dr. Picula noted that Ms. Merani reported that she was 50 to 60% improved. He concluded that, based on the Pre-Approved Framework Guideline (PAF), one third of that treatment had been incurred prior to Ms. Merani's attendance at Prime Health. Dr. Picula concluded that two thirds of the treatment provided for in the PAF were available to Ms. Merani.⁸

Dr. Natalia Lishchyna testified that she conducted two DAC assessments. The first was a fast-track DAC in which she found a recommended Work Site Assessment was not reasonably necessary due to some discrepancies on the file. She noted that the file indicated that Ms. Merani had returned to work on June 30 following the accident but was described as not working and modified duties were not available in August 2005.⁹ On January 24, 2006, Dr. Lishchyna conducted a DAC assessment in respect of the disputed Treatment Plans dated October 20, 2005 and January 16, 2006.¹⁰

Dr. Lishchyna testified that she found the treatment plans to be unreasonable because Ms. Merani reported that she had improved by 70%. In Dr. Lishchyna's opinion, Ms. Merani had reached "maximal therapeutic benefit." Dr. Lishchyna concurred with Dr. Picula's opinion in which he found the Treatment Plan of August 26, 2005 only two thirds reasonable and necessary because Ms. Merani's injuries fell within the PAF Guideline.

On July 20, 2006, Dr. Peter Kim, chiropractor, assessed Ms. Merani. In his report dated August 9, 2006, he concluded that the Treatment Plan dated June 5, 2006 was not reasonable and necessary. He reported that Ms. Merani described herself as having returned to "approximately 75% of her pre-collision activities." Dr. Kim noted that Ms. Merani had joined a gym with a personal trainer which she found helpful. As well, Dr. Kim noted her left thumb injury.¹¹

Ms. Merani first consulted her family physician, Dr. Mehmi, in June 1993. Ms. Merani's pre-accident medical history, while unremarkable in respect of the substantial impairment test, does indicate a pre-accident history of muscle pain in the legs and back.¹²

Ms. Merani saw her family physician 13 times between the first post-accident appointment, on June 29, 2005 and June 20, 2006. On May 5 and 16, 2006, Dr. Mehmi notes that Ms. Merani continued to complain of wrist and hand pain. As well, there was right knee pain and swelling in the right ankle. Dr. Mehmi's medical records indicate she recommended that Ms. Merani continue physiotherapy for the hand and referred her to Dr. S. McKenzie, a neurologist, to assess the left hand.¹³ As well, x-rays of the left hand and right knee were ordered.¹⁴ Dr. Mehmi also recommended continuation of physiotherapy

Dr. McKenzie's report dated June 15, 2006 notes that: "clearly, she did have a C6 or C7 root complaint previously but that seems to be getting better." She went on to recommend a referral to the Hand Clinic.¹⁵

On August 7, 2006, Dr. J.A. Mayer, neurologist, conducted a paper review on behalf of Wawanesa. He determined that a referral to a neurologist was neither reasonable nor necessary. In the alternative, Ms. Merani's family physician could have arranged a referral through OHIP.¹⁶

Entitlement to Medical Benefits:

I accept Ms. Merani's evidence that the treatment provided by Prime Health permitted her to continue working, resume most of her activities of normal living and ameliorate pain. I also accept that her trip to Kenya aggravated her condition and required additional treatment.

The Treatment Plan dated June 5, 2006 makes no reference to Ms. Merani's opinion of the value or efficacy of the treatment. The estimates of her level of improvement reportedly given to both Dr. Lishchyna and Dr. Kim are consistent. I find that in Ms. Merani's opinion she improved approximately 5% between January and July 2006.

I accept Ms. Merani's testimony that she found her self-directed home program and attendance at the gym an effective maintenance regime. This is supported by Dr. Kim's report that Ms. Merani began attending the gym in April and had the assistance of a personal trainor.

I accept Dr. Mehmi's opinion and Ms. Merani's testimony that her hand and wrist injuries were a persistent source of pain. I further accept Ms. Merani's evidence that these injuries continue to prevent her from conducting fingerprinting to the standards required by CSIS.

I also accept Dr. McKenzie's opinion that Ms. Merani sustained a C6 or C7 root complaint in her wrist which was resolving in June 2006.

I find that the injuries to Ms. Merani's left hand, wrist and knee take her out of the PAF which is confined to whiplash associated disorder grade II with or without complaints of back symptoms. As a consequence, I place little weight on the opinions of Dr. Picula and Dr. Lishchyna insofar as they failed to consider the implications of the additional injuries in respect of the PAF and the appropriate treatment of Ms. Merani's injuries.

I find that in January 2006, Ms. Merani was significantly improved. She testified she stopped treatment in May 2006 because her own efforts ameliorated the pain better than the treatment she was receiving at the clinic. I find that her recollection that she stopped treatment in May 2006 was the general period when she determined her self-directed program was more efficacious than the treatment provided by Prime Health.

I find that the right knee pain noted by Dr. Mehmi in May 2006 was not an acident-related impairment.

Given Ms. Merani's testimony that she continues to have impairments and is not fully recovered I find that the treatment was necessary to her obtaining 70% to 75% recovery.

Although Ms. Merani testified that she believed she stopped treatment at Prime Health in May 2006, she did not provide a specific date. She did not dispute the treatment records which indicated she attended until September 2006. I find that the treatment date of June 5, 2006 is sufficiently close to the end of May as to conform with her recollection of when she terminated treatment with Prime Health. Therefore, I find that from June 6, 2006 Ms. Merani was substantially self-treating any residual impairment to her neck, back and left leg.

On the basis of the foregoing, I find that the Treatment Plans dated August 26 and October 20, 2005 and March 8, 2006 were both reasonable and necessary.

The Treatment Plan dated June 5, 2006 notes the left thumb strain as an injury in Part 7. It does not set out the treatment which is recommended for this injury.¹⁷ I find that physiotherapy of the left thumb and wrist would have been necessary based on Dr. Mehmi's recommendation in May 2006. The failure to describe what treatment was being recommended for Ms. Merani's thumb and wrist renders the Treatment Plan of June 5, 2006 unreasonable.

Quantum of the Medical Benefits:

The following chart sets out the value of the treatment to which I find Ms. Merani is entitled. I have reduced the amount attributed to the invoice dated June 19, 2006 by $62.00 being the cost of completing the Treatment Plan dated June 5, 2006.

Date of Invoice (OCF-21)	Period of Treatment	Amount of Invoice	Total
October 3, 2005	August 26 to September 30, 2005	$2,697 ¹⁸
November 10, 2005	October 5 to October 28, 2005	$1,557 ¹⁹
November 30, 2005	November 3 to November 30, 2005	$1,460 ²⁰
February 1, 2006	January 16 to January 31, 2006	$852 ²¹
March 1, 2006	February 8 to February 28, 2006	$700 ²²
April 10, 2006	March 8 and March 17, 2008	$452 ²³
May 16, 2006	April 5 and April 19, 2006	$270 ²⁴
June 19, 2006	May 8 to June 5, 2006	$660 ²⁵
			$8,648

The remaining invoices reflect treatment provided from July 7 to September 15, 2006.²⁶ I am unable to determine whether physiotherapy to the left thumb and wrist was provided during this period. Therefore, Ms. Merani has failed to establish the quantum of such treatment. As a consequence, I find that she is not entitled to compensation for any treatment received after June 5, 2006.

Attendant Care Benefit:

Ms. Merani claims an attendant care benefit for services received from June 30 to August 21, 2005, in the sum of $1,060.00. She testified that due to her injuries she was unable to take care of her personal care including dressing herself. She described her inability to do up her buttons on her blouses as a consequence of the injury to her thumb and wrist.

On August 15, 2005, Ms. Merani completed an Application for Accident Benefits.²⁷ On August 26, 2005, an OCF-12, Activities of Normal Life form, was completed. It notes that following the accident she was able to toilet herself. However, all other activities are noted as able to do partially with help.²⁸ Dr. Mehmi completed a Disability Certificate on August 25, 2005. It includes a statement by Ms. Merani in which she describes severe swelling of her wrist and thumb. The doctor notes whiplash neck strain but also notes left knee injury.²⁹

On October 26, 2006, an Assessment of Attendant Care Needs (Form 1) was completed by Dr. J. Swain, a chiropractor, who determined that Ms. Merani required 31.68 hours of attendant care monthly at a cost of $406.14.³⁰

Ms. Merani submitted invoices for the attendant care provided by a named attendant from June 30 to August 21, 2005 in the amount of $1,060.00.³¹

In an OCF-9 dated September 12, 2005, Wawanesa denied Ms. Merani's claim for an attendant care benefit. The Claims Consultant (Consultant) stated: "Please note that attendant care expenses are not payable as per section 16(1.1) of the Statutory Accident Benefits Schedule."³² He did not request a section 39 assessment of attendant care needs.

Subsection 16(1.1) provides:

Despite subsection (1), if the accident occurred after April 14, 2004, no attendant care benefit is payable to an insured person whose impairment is a Grade 1 or Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline.

Subsection 39(1) of the Schedule provides:

An application for attendant care benefits for an insured person must be in the form of an assessment of attendant care needs for the insured person that is prepared and submitted to the insurer by a member of a health profession who is authorized by law to treat the person's impairment.

The injuries which might reasonably take Ms. Merani's impairment outside of the PAF Guideline are clearly noted in Dr. Mehmi's Disability Certificate and Ms. Merani's Application for Accident Benefits. For the reasons set out above, I have found that the injuries to Ms. Merani's wrist and thumb and left knee set her impairments outside the PAF. I also find that the notice of denial fails to meet the standards set out in Smith v. Co-operators General Insurance Co.³³ A reference to a subsection in the Schedule does not fulfill the insurer's obligation to provide its insured with reasons which are understandable by an unsophisticated person.

I find that the injury to her thumb and wrist made it reasonably necessary for her to receive the assistance of an attendant for the activities described in the Activities of Normal Life. Further, I find that it would be reasonable that this assistance was given for the period that she claimed at the arbitration hearing. I therefore find that Wawanesa shall pay Ms. Merani an attendant care benefit at the monthly rate of $406.14 for the period from June 30 to August 21, 2005 which I fix at the sum of $710.75, being 1 month and 3 weeks.

Housekeeping:

Ms. Merani claims a housekeeping benefit for housekeeping services received from June 30, 2005 to August 18, 2005 in the sum of $600.00. At the arbitration she confined her claim to the expenses detailed in her Application for Expenses dated August 18, 2005.³⁴ The Application contained the name of the housekeeper retained to provide the services.

In the OCF-9 dated September 12, 2005, Wawanesa's Consultant advised Ms. Merani that the Disability Certificate indicated that she was "eligible for housekeeping benefits." He declined to pay the benefit until Ms. Merani provided the name, address and telephone number of the service provider.³⁵ Wawanesa submits that Ms. Merani failed to comply with the provisions of section 33 of the Schedule by not providing that information and therefore is not entitled to a housekeeping benefit.

In order to be entitled to a housekeeping benefit, Ms. Merani must establish that she incurred housekeeping expenses as a result of an accident-related impairment that substantially disabled her from performing her pre-accident housekeeping tasks.

Subsection 33(1) provides:

A person applying for a benefit under this Regulation shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

Any information reasonably required to assist the insurer in determining the person's entitlement to a benefit.

A statutory declaration as to the circumstances that gave rise to the application for a benefit.

The number, street and municipality where the person ordinarily resides.

Proof of the person's identity.

Subsection 33(1.1) requires an insured person to submit to an examination under oath unless the insurer seeks more than one examination or the insured is incapable of examination because of his or her physical, mental or psychological condition. Its remaining provisions provide for the insured to be represented at the examination, require the insurer to take reasonable steps to schedule the examination at the convenience of the insured, the requirements of the notice to be given to the insured and the scope of the examination.

Subsection 33(2) is authority for the insurer to stop payment or withhold a benefit if an insured fails to comply with either subsection 33(1) or 33(1.1). Subsection 33(3) limits the application of 33(2) and subsection 33(4) provides for reinstatement or payment of benefits in the event the insured brings themselves into compliance.

The Consultant made a determination that providing the personal information of the housekeeper was a condition precedent to Ms. Merani's entitlement to a housekeeping benefit. In this he erred.

The Consultant had Dr. Mehmi's medical opinion that Ms. Merani was substantially disabled from performing her pre-accident housekeeping tasks. He had the Application for Expenses setting out the tasks which were undertaken by the housekeeper. The Consultant asks for the private information of the housekeeper without providing an explanation of how the information might be relevant to Ms. Merani's claim. He does not express concern that the housekeeping services received are inconsistent with the injuries described in the Disability Certificate. The Consultant does not request further particulars of the services provided on the basis that the description given in the Application for Expenses was too vague. He does not explain what he intended to do with the information once given.

The request for the personal information of the housekeeper suggests that the Consultant doubted Ms. Merani's bone fides. Consequently, he intended to contact the housekeeper to obtain information that would establish the expenses had been incurred. However, he failed to communicate this to Ms. Merani. Wawanesa has an obligation to deal with its insured in good faith. Unless there are inconsistencies which might reasonably lead to further investigation Wawanesa should accept Ms. Merani's statement that the expenses were incurred.

At a mininimum, Wawanesa must provide a rationale for its request for the personal information of a housekeeper which is sufficient so that Ms. Merani will understand that a failure to provide the information would be unreasonable and would compromise payment of the housekeeping benefit.

Further, Section 33 provides an insurer with a procedure by which it can obtain information that it determines is required for fairly adjusting an insured's entitlement to a benefit. By not requesting an examination under oath an insurer may leave itself vulnerable to an inference that the information is not required.

On the basis of the foregoing, I find that the Disability Certificate and the Application for Expenses provided sufficient information to determine Ms. Merani's entitlement to a housekeeping benefit. I accept Ms. Merani's testimony and the Disability Certificate and find that as a result of an accident-related impairment Ms. Merani was substantially disabled from engaging in her pre-accident housekeeping tasks. I further find that the description of the tasks performed by the housekeeper as set out in the Application for Expenses are consistent with the impairments described in the Disability Certificate and by Ms. Merani in her testimony. Therefore, I find that Ms. Merani is entitled to a housekeeping benefit for services received from June 30, 2005 to August 18, 2005 in the sum of $600.00.

INTEREST:

Ms. Merani has claimed entitlement to interest on all overdue benefits pursuant to subsection 46(2) of the Schedule.

I find Ms. Merani is entitled to interest in respect of her claims for an income replacement benefit, medical benefits, an attendant care benefit and housekeeping benefits.

In the event that the parties are unable to agree on the quantum of interest to which Ms. Merani is entitled, they may request a resumption of the hearing in accordance with the Dispute Resolution Practice Code.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

October 8, 2008

Denise Ashby Arbitrator

Financial Services Commission of Ontario