Prodensky v. RBC General Insurance Company, 2008 ONFSCDRS 76

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 76

FSCO A06-000466

FSCO A06-000465

BETWEEN:

ALEX PRODENSKY

and

TAL PRODENSKY

Applicants

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Robert A. Kominar

Heard: October 22, 23, 24, and 25, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Shonna Mittleman for Mr. and Mrs. Prodensky

Darrell March for RBC General Insurance Company

Issues:

The Applicants, Alex Prodensky and Tal Prodensky, were injured in a motor vehicle accident on February 26, 2005. They applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule¹. RBC denied their entitlement to housekeeping, caregiving and to some medical treatment at Downsview Health Recovery Clinic (“Downsview”). The parties were unable to resolve their disputes through mediation, and Mr. and Mrs. Prodensky 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:

With respect to Mrs. Prodensky:

Is Mrs. Prodensky entitled to receive weekly caregiver benefits pursuant to section 13 of the Schedule from February 26, 2005 to February 19, 2006 at the rate of $300 per week?
Is Mrs. Prodensky entitled to a medical benefit for massage, physiotherapy and exercise services received at Downsview Health Recovery Clinic in the amount of $3,751.00 pursuant to section 14 of the Schedule?
Is Mrs. Prodensky entitled to payments for housekeeping and home maintenance services provided by Irina Kabanova at the rate of $100.00 per week from February 26, 2005 through February 19, 2006, pursuant to section 22 of the Schedule?
Is RBC liable to pay Mrs. Prodensky’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mrs. Prodensky liable to pay RBC’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mrs. Prodensky entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

With respect to Mr. Prodensky:

Is Mr. Prodensky entitled to a medical benefit for massage, physiotherapy and exercise services received at Downsview Health Recovery Clinic in the amount of $2,598.00 claimed pursuant to section 14 of the Schedule?
Is Mr. Prodensky entitled to payments for housekeeping and home maintenance services provided by Irina Kabanova at the rate of $100.00 per week from February 26, 2005 through February 19, 2006, pursuant to section 22 of the Schedule?
Is Mr. Prodensky liable to pay RBC’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is RBC liable to pay Mr. Prodensky’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Prodensky entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. and Mrs. Prodensky’s claims for caregiving, housekeeping, medical benefits and interest are dismissed.
If the parties are unable to resolve the issue of arbitration expenses within 30 days of the date of this decision, they may arrange an expense hearing as provided for in the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

On consent of counsel, both of these arbitrations were heard simultaneously.

Both Mr. and Mrs. Prodensky are immigrants to Canada from the former Soviet Union. They were involved in an automobile accident on February 26, 2005 along with their two young children. At that time they were seated in the front of their vehicle and their two children were seated in the back. Mr. and Mrs. Prodensky were wearing their seat belts. No evidence was presented as to whether the children were belted or restrained in car seats.

Both Applicants are making claims in this arbitration for various modalities of treatment that were provided to them by Downsview. Additionally, they are claiming housekeeping and caregiving benefits. RBC has paid for some medical treatment for both of the Applicants, but has denied their entitlement to any housekeeping or caregiving benefits.

There is nothing legally complex about this case. Both sides acknowledge that the dispute between them is a fact-oriented one. In essence, RBC is arguing that the Prodenskys have not met the civil burden of proof which would entitle them to the various benefits that they are claiming. Beyond that very generic argument, RBC claims that the Prodenskys’ evidence in this hearing, along with that of their treating chiropractor, Dr. Liannos, is riddled with contradictions and large inferential gaps that lead to the conclusion that it should be seriously discounted due to its incredibility. Finally, RBC argues that the failure of the Applicants to produce the service provider, Irina Kabanova, at the hearing generates strong grounds for drawing an adverse inference against them related to the nature and quantity of caregiving and housekeeping services that the Prodenskys actually required or received after the accident.²

Notwithstanding that these cases were heard together, it is clearer to discuss each Applicant’s claims and the relevant evidence relating to them separately.

Mr. Prodensky

At the time of the motor vehicle accident, Alex Prodensky was working as an electronics engineer. He worked in this capacity in Moldova for several years before immigrating to Canada and he testified that he also had attended a technological college in the state of Virginia to obtain advanced training in this field after leaving his homeland. Mr. Prodensky testified that, on the date of the accident, he was driving down Bathurst Street in Toronto and had stopped at a red light. Shortly after stopping, he heard the noise of screeching brakes, followed by a loud booming sound. According to Mr. Prodensky, another vehicle travelling at “high speed,” impacted the rear of his car. He testified that he hit his head on the car headrest during this collision. Immediately afterwards he felt very disoriented, shocked, and he experienced the onset of a sense of panic. He said that he also immediately felt strong pain in his neck, head and lower back.

No ambulance was called to the scene of the accident. Nor were the police ever contacted. Mr. Prodensky’s evidence was that, since it was extremely cold at the time, and the other driver apparently had agreed that the accident was completely his fault, they just chose to leave the accident scene and drove their vehicle home. The Prodenskys however, almost immediately after arriving home, left their two children with some neighbours in their building who had never been involved with them before, and drove themselves to North York General Hospital. No x-rays were taken of Mr. Prodensky at the hospital, however he testified that he was prescribed Tylenol 3 for pain, as needed, and sent home.

The accident happened on Saturday, February 26, 2005, at approximately 7:40 p.m. After the accident, Mr. Prodensky never missed any time from work. On Monday February 28th, he reported as usual to his job at Tectrol Inc., where he worked as an associate sustaining engineer. Mr. Prodensky explained that this job required him to keep production lines running properly and to resolve problems if and when they occurred. It was not a sedentary job according to Mr. Prodensky’s description of his duties. He was required to be actively involved in monitoring and intervening in the production line process.

Mr. Prodensky completed an Election of Caregiver Benefits form (OCF-10), on April 5, 2005. He elected to receive caregiver benefits and had retained legal representation by this time, as demonstrably evidenced by the election form being faxed to RBC from the offices of Mazin and Rooz, his solicitors. Through this election, Mr. Prodensky is deemed to have advised RBC that he was the primary caregiver of his children prior to the accident, as only the primary caregiver is entitled to claim this benefit.³

During his direct examination at the arbitration, Mr. Prodensky was asked whether he had any health problems prior to the motor vehicle accident. His response was that he had “no health problems at all.” He was further asked how this accident had impacted on his life. His response was that, after the accident, he generally felt very bad, experienced regular headaches, had limited range of motion, experienced ongoing pain in his neck, and significant numbness in his hand which resulted in his inability to lift various tools and implements required in his job.

Mr. Prodensky further testified that these injuries resulted in his inability to stand or walk while at work. He stated that he could not lift various instruments that were used in his job, notwithstanding that these instruments were not, in his own words, particularly heavy. Mr. Prodensky’s evidence was that this inability to stand or walk for any significant length of time has persisted right up to the date of the arbitration hearing. He also testified that he still at times finds sitting to be very uncomfortable and that he continues to experience numbness in both his hands and legs.

Shortly after the accident, Mr. Prodensky attended at Downsview to seek treatment for his injuries. His evidence was that his family physician had encouraged him to access the modalities of therapy Downsview offered. Downsview provided Mr. Prodensky with physiotherapy, chiropractic, massage, exercise, hot and cold patches as well as electrical stimulation. When he was asked by his counsel on direct examination whether the treatment that Downsview administered had helped him, Mr. Prodensky’s specific response was that it “relaxed my muscles” and that it helped “a little.”

The most salient functional impact of Mr. Prodensky’s injuries, according to his evidence, was that he could no longer “help at home” and also that he was unable to perform normally at work. Initially RBC paid for his treatment at Downsview pursuant to its conclusion that his injuries were governed by a PAF⁴ protocol. Mr. Prodensky’s evidence was that his chiropractor’s, Dr. Liannos, general advice after the pre-approved treatment was completed was to just continue doing more of the same. RBC stopped paying for the treatment which Mr. Prodensky was receiving at Downsview after receiving the opinion of a medical rehabilitation DAC that the ongoing regimen of treatment proposed by Downsview was neither reasonable nor necessary.

Mr. Prodensky’s counsel asked him whether he was feeling any better in 2006, the time when treatment was suspended by Downsview. His answer was “not really.” He stated that he was shown how to do some home exercise and that he followed the instructions which he received after clinic based treatment ceased, but they did not help much.

Mr. Prodensky was also asked by his counsel whether his ability to do housekeeping had improved at all since the accident. His response was that his improvement in this regard has been “insignificant.” A follow up question inquired as to why he stopped accessing housekeeping services and his answer was that he and his wife simply could not afford to pay for the assistance any longer. He then stated that he has resumed doing all housekeeping tasks again but “only because he had to do them.”

Mr. Prodensky testified that he and his wife found their housekeeper/childcare provider from a notice affixed to a bulletin board in the laundry room of their apartment complex. He stated that after seeing her name they called her, interviewed her and then hired her. It is important to note at this juncture that, although the Prodenskys were at the hospital for most of the evening of February 26, 2005, having left their children, who were also involved in this accident, at home with people who had never cared for them before, they searched out the housekeeper/child care provider in their laundry room, contacted her by telephone, interviewed and retained her in time to provide the family with 10 hours of housekeeping services on the next day, Sunday February 27, 2005 according to the invoice records submitted by the Applicants to RBC.⁵

On cross examination, Mr. Prodensky was asked to clarify the timeframe for retaining this service provider. His response, which I find particularly salient, was that the invoices that he admits that he had prepared and submitted to RBC for these services must be “mistaken.”

When Mr. Prodensky was also asked about comments found in various insurer examinations and DAC assessments suggesting that he had advised some assessors that he had regained somewhere in the neighbourhood of 40 to 60 per cent of his functional capacity by the time of those evaluations. He responded that he had no idea how the various assessors came up with such claims, as he was not feeling much better, if he felt better at all, as of the time those assessments took place.

On cross examination Mr. Prodensky gave evidence which, I find, is particularly relevant to assessing the credibility of his evidence:

When asked whether he had supplementary insurance coverage available through his employer with Sun Life, Mr. Prodensky acknowledged that he did and that he had made claims to that insurer for some medical coverage. However, he also stated that he never “heard back” from Sun Life. But Mr. Prodensky further stated that he believed that Sun Life had paid for various treatments for himself and his wife, despite the suggestion being put to him that Sun Life had advised RBC in writing that they had no file on the Prodenskys and had paid nothing on their account. Mr. Prodensky eventually admitted that he had no idea whether Sun Life had paid them anything or not.
Mr. Prodensky’s evidence in chief was that “immediately” after the accident he experienced pain in the head, neck and back and also that he was in a state of panic. However, the emergency triage records of North York General Hospital note that he presented to them in “no acute distress, no obvious discomfort.”
Mr. Prodensky’s performance review from his employer, Tectrol, for the period from June 1, 2005 through November 30, 2005 reflects no indication at all that Mr. Prodensky had alerted his employer to any job-related challenges or disability which he may have been experiencing as a result of this automobile accident. The general tenor of the performance review is that Mr. Prodensky, who was a relatively new hire, was having trouble coping with the volume of work which he was being faced with in this job. His supervisor notes at one point within the review that her main concern was that there seemed to be a very significant gap between Mr. Prodensky’s self assessment and view of his job responsibilities and the organization’s views. Notwithstanding this, Mr. Prodensky was evaluated as being at the level of “approaching expectations” and was apparently retained on staff in the hope that he would soon improve his performance and move up into the desired category of “solid contributor.” In fact, there is a section of the self assessment portion of the performance review where Mr. Prodensky is asked to comment on anything which he thinks may be relevant to his appraisal. His comments there, significantly in my view, relate only to his belief that some projects take more time than others to complete and therefore achieving the “quantity” of problem solutions which his employer targeted was not always possible if they also wanted “quality” results. The relevant point being that there is absolutely no indication in this material that Mr. Prodensky was experiencing any health-related challenges which may have contributed to his capacity to meet company job expectations, such as limitations in standing or sitting stamina, psychological stress, or restrictions in his ability to use his required tools.
Mr. Prodensky testified that, prior to the accident, he used to walk his children to school every morning and that either he or his wife would pick them up and walk them home daily. Mr. Prodensky’s evidence was that it was also his habit to walk the children to various extracurricular activities, such as swimming, skating, drawing and dancing, prior to the accident. These activities took place at local community centres and other locations near their apartment. He stated that he used to do this extracurricular activity accompaniment “a couple of days a week.” Notwithstanding the injuries to his head, neck and back, Mr. Prodensky was able to continue to work in a job which he explicitly acknowledged was not particularly sedentary in nature, never missing a day as a result of this automobile accident. Despite his ability to continue to do his job without interruption, and his choice not to request any form of accommodation from his employer, Mr. Prodensky claims that he was rendered totally unable to do any of the housekeeping or parenting chores which he had engaged in prior to the accident.
Mr. Prodensky initially testified that he and his wife interviewed their housekeeper/caregiver, Irina, a “couple of days” after the accident. However, the first invoice for housekeeping, which Mr. Prodensky admits that he prepared, is dated the very next day after the accident and outlines a number of specific services which were ostensibly provided to the family over ten hours on that Sunday February 27, 2005. Beyond this, Mr. Prodensky testified that he and his wife had absolutely no prior knowledge or experience of their service provider prior to hiring her, did not ever know where she lived, and did not know how to contact her any longer. He also testified that they did not interview or consider interviewing any alternative service providers and that they had always paid her in cash.

I find it very difficult to accept Mr. Prodensky’s timeframe for all of these occurrences. If he and his wife were at the hospital on February 26th until sometime after 10:30 p.m., having left their distraught children alone with strangers after the accident, it is implausible to believe that these parents returned home, immediately went down to the laundry room of their building to look for a housekeeper/babysitter, called her up very late in the evening, interviewed her, and had her working in their home within a few hours. The fact that the Prodenskys needed “housekeeping” within a few hours after the accident, as opposed to childcare is in itself puzzling, given the nature of the health problems which, they say that, they were experiencing. Even though I accept that families differ in their priorities and their child-rearing practices, it is simply incredible that these parents had absolutely no need for anyone to care for their frightened children immediately after the accident, but that they did immediately need someone to vacuum and take the garbage down the hall to the garbage chute. I find it to be rationally significant that the Prodenskys’ pattern of claiming housekeeping during weekends and childcare during weekdays started within hours after the accident occurred and apparently never varied thereafter. It is also challenging to believe that, despite the anxiety and distress the children were apparently in after the accident, the Prodenskys chose not to take the children to the hospital and have them medically assessed along with themselves. In fact, the evidence was that they never had them checked out. When asked about how this decision was made, Mr. Prodensky stated that the children told him that they were all right. This, in my view, is completely inconsistent with his evidence that the children were very distraught and crying at the time. I also find it relevant that the Prodenskys never knew where Irina lived and never had any contact with her whatsoever after she stopped working for them, yet 30 days before the original arbitration hearing she was identified by their counsel as a witness for the hearing. If they really had absolutely no way of contacting this woman I would be surprised that their counsel put her on the witness list, as he clearly would have had to contact her and perhaps even summons her attendance promptly.

Mr. Prodensky claimed that Irina walked the children to school and back home daily. He was asked, on cross-examination, why he could not walk them to school and his specific answer was “I don’t know.” This evidence must be also evaluated in the context of Mr. Prodensky also being asked why he could not drive the children to school on his way to work. He said that he was always in too much pain, but interestingly enough, also that “it never occurred” to him to do so. Mr. Prodensky further stated, in cross-examination, that he liked to be fresh for his arrival at work and that it was “better for his health” not to have to drive the children to school. I find it extremely difficult to understand how Mr. Prodensky could continue to drive himself regularly to work without any problem but also found it too challenging to ever drop his children off along the way. I further note in this light that Mr. Prodensky testified that he continued to drive his wife to work at times after the accident, and apparently experienced no difficulty in doing that. Even if Mr. Prodensky experienced some pain while driving, the test for caregiving benefits is disability related, not just pain related. Pain obviously, based on the evidence in this hearing, was not so debilitating that it prevented Mr. Prodensky from driving himself or his wife around as needed.
At some point in early 2006, Mr. Prodensky was released from his engineering job and he chose to change careers. He began to prepare for a career as a life insurance agent. After studying and writing the requisite examinations he began working in this field around May or June 2006. Mr. Prodensky, for a period of a few months, continued to work as an engineer while adding to his regular daily activities the self-study program required to become a licensed life insurance agent. He stated that this involved a couple of hours of intense study at least a few nights per week. He testified that he did not take any time off from his engineering job to prepare for his new career but rather did it in his spare time. He further testified that he was not feeling any better physically than at the time of the accident when he started to study for his insurance career. In fact his evidence was that it was only within the few days before the arbitration hearing that he had started to feel “a little bit better.” Thus, despite the fact that Mr. Prodensky was able to continue working as an engineer and added to his life the concentrated effort involved in studying to become a life insurance agent, even while experiencing what he described as ongoing pain, he claims that he was unable to do any housekeeping or caregiving duties.
Mr. Prodensky’s invoices for housekeeping and caregiving consistently reflect that caregiving was claimed on weekdays and not on weekends. This leads to the conclusion that there was no significant inability on the parents’ part to care for their children on the weekends, but only on weekdays. It is fair to observe that during most of these weekday times, the children were in school.
The housekeeping receipts, which Mr. Prodensky prepared, indicate that the dishes were washed by Irina only on Saturdays and Sundays. Both of the Prodenskys testified that they were unable to do this activity themselves and also that the children did not do them. The necessary inference to be drawn here is that this family let the dishes pile up during the week only to have them washed by Irina on the weekends, notwithstanding the fact that Irina was supposedly there all week long to care for the children. I find this to be completely implausible.
Mr. Prodensky testified that despite the fact that Irina had to cook for the children, she did not cook for either him or for his wife. The Prodenskys apparently remained functionally able to prepare food for themselves. His evidence was that he and his wife cleaned up after themselves after eating. I find it particularly difficult to believe that Mr. Prodensky washed the dishes related to his meals but left those associated with his children’s meals until the weekend for Irina to do. I decline to find that there is any fundamental functional difference between adults’ and children’s dirty dishes. If Mr. Prodensky could wash his own dishes, then there is no reason that he was completely “unable” to wash his children’s dishes.
Mr. Prodensky testified that one of his most significant pre-accident housekeeping activities was dusting and that he was completely unable to do it after the accident. This was notwithstanding that he could continue to work, drive, and study for insurance examinations. His response, when he was asked about this on cross-examination, was that dusting was a very painful activity for him and that his house was covered with dust. I find this evidence to be completely implausible, especially Mr. Prodensky’s claim that for the full period he is claiming housekeeping benefits for he was completely unable to do “any” dusting at all. This is fundamentally inconsistent with his other functional abilities at the time. In addition, if the house was that dusty I do not understand why Irina was not asked to dust on weekdays, especially while the children were at school.

Mrs. Prodensky

Mrs. Prodensky immigrated to Canada after working as a pharmacy technician in Azerbaijan. She had obtained a bachelor’s degree in pharmacy before coming to this country. According to her evidence, during the accident Mrs. Prodensky hit her head on the car headrest and also injured her left elbow and back. She, like her husband, testified that she was stressed, scared and panicky immediately afterwards. Mrs. Prodensky, unlike her husband however, did have x-rays taken at the hospital and was advised that nothing was fractured. She was prescribed Tylenol 3, given a splint for her elbow, and advised to use hot and cold packs as needed for pain and swelling in her elbow.

As with Mr. Prodensky, I find that there were a number of specific comments made by Mrs. Prodensky that relate strongly to the credibility of her claims:

Mrs. Prodensky’s evidence was that she never experienced any health problems prior to the accident and that, as of the date of the arbitration, she had only achieved partial recovery. She said that she still regularly experienced headaches, as well as a sore back and neck.
On a functional level, Mrs. Prodensky testified that her main limitations and challenges related to her abilities to care for her children and her home after the accident. She, like Mr. Prodensky, continued to work after the accident without any interruption. Initially, she was employed as a pharmacy assistant but eventually she completed her Canadian accreditation to practise as a pharmacist and began to work in that capacity. She noted in her evidence that she initially could only work part time after the accident and that she required and received assistance with reaching for and lifting boxes on the job due to her elbow injury. However, her evidence also indicated that prior to the accident she had not worked every day either. Mrs. Prodensky testified that when she returned home from work after the accident she was regularly very tired and dizzy. Although her pre-accident activities included caring for her children, her evidence was that she could no longer cope with cleaning or cooking for them afterwards. Her explicit evidence was that her inability to care for her home or children was due to her being “stressed out and anxious.” It was, for this reason, that she sought out Irina’s services. I find it salient that Mrs. Prodensky never testified that physical limitations specifically kept her from caring for her children or doing her housework; rather it was stress and anxiety.
Like her husband, Mrs. Prodensky attended Downsview for various modalities of treatment after the accident. Some of this treatment was approved and paid by RBC under the PAF Guidelines. She was asked, during her direct evidence, how the treatment at Downsview had helped her and she responded that it “helped me, relieved stiffness and soreness of muscles and relaxed me.” As time wore on, Downsview proposed, as it had with her husband, that she continue with the treatment regimen in which she had been engaging. In a follow-up assessment conducted in July 2005, Mrs. Prodensky is noted to have stated that she was still experiencing significant levels of pain. During her evidence she stated that at that point in time she was “not doing very well.” The treatment at Downsview continued and in another follow up assessment in late June 2006 she complained, once again, that she was experiencing basically the same pain as she had experienced after the accident and also that her ability to care for her children had not improved at all.
When questioned about her ability to do housework, Mrs. Prodensky, once again, testified that she was stressed and depressed and could not concentrate enough to do it. Her pain, she said, seriously limited her ability to do housework. She also stated that, while Irina was in the home, she never attempted to help with the children because she always “had to rest.” The only exception to this, Mrs. Prodensky noted, was that she tried to organize breakfast once in awhile for the children but never could actually accomplish that task.
When Mrs. Prodensky was asked during her direct examination about the reports of DAC assessors which stated that she had advised them of having regained approximately 60 per cent of her pre-accident capacity by the time of the assessment, she stated, like her husband had, that she had no idea where the assessors came up with such information and that she did not remember saying anything like that to any DAC or IE assessors.
On cross-examination, Mrs. Prodensky described the process which she went through to qualify as a pharmacist in Ontario. She stated that she did not have to return to school but did have to write an “evaluation” examination as well as a “qualifying” examination. The evaluation examination tested her technical expertise in pharmacy and the qualifying examination evaluated, among other things, her clinical and communication skills. The latter examination was spread over a 2-day period at the University of Toronto. The relevance of this accreditation process to this arbitration is that Mrs. Prodensky testified that she needed to engage in an intense period of preparation for these examinations. She stated that she had to study for approximately three months, August through November 2005, to prepare for the evaluation examination and that it required a very detailed knowledge of biochemistry, drug interactions, etc. She prepared very thoroughly and, as a result, passed the examination on her first attempt. This preparation involved approximately three to four hour periods of regular study. She testified that although it did not entail daily preparation, she did it as often as she could. Her estimate was that the study in fact occupied roughly five out of seven days each week. During this accreditation preparation time Mrs. Prodensky continued to work, as she had before the accident, as a pharmacy assistant.
When Mrs. Prodensky was asked on cross-examination about the functional abilities needed to successfully qualify as a pharmacist in Canada she admitted, with some very puzzling reluctance, that working as a pharmacist required good mental concentration and careful attention to detail, otherwise people’s health could potentially be in jeopardy. She also agreed that, while she worked as a pharmacy assistant, she was often delegated certain responsibilities for filling prescriptions due to her professional background and education. Although the licensed pharmacist was ultimately responsible for the drugs dispensed, she was relied on regularly to fill prescriptions and at all times did her job well.
Mrs. Prodensky stated that, after completing her qualifying examinations, she also had to complete both a “studentship” as well as an “internship.” As I understand her evidence, the internship is a period of working under the mentorship of a pharmacist, but during the earlier “studentship” she also had to prepare and submit to her regulatory college various written assignments for evaluation. The studentship lasted from February through August 2006. She testified that during this period she was permitted to counsel patients under the supervision of a pharmacist. Mrs. Prodensky completed her final qualifications for practising as a pharmacist in December 2006. After that date, her evidence was that she travelled with her family for four months and, upon return, quickly found a job as a pharmacist in April 2007.
Mrs. Prodensky was asked about accompanying the children to and from school after the accident. Her evidence was that the children had to be at school at 8:30 a.m. and that, prior to the accident, either she or her husband walked them to school daily. After the accident, despite her claim that it became too painful for her to walk, Mrs. Prodensky also testified that it “wasn’t convenient” for either her husband or her to drive the children to and from school on their way to and from work. Mr. Prodensky’s evidence was that her husband’s work hours were quite flexible, but also that there was “no time” to drive the children to school because her husband “had to go to work early.” I note here that this evidence is inconsistent with Mr. Prodensky’s explicit evidence that his hours of work were very in fact very flexible.
Mrs. Prodensky was asked what she was specifically was unable to do for her children after the accident. Her answer was that she was unable to help the children put their boots and clothing on. When she was asked whether an eight-to-twelve year old child needed help putting his/her jeans on in the morning, she answered “yes.” She also advised that she had to monitor whether they had tied, or clasped, their shoes before leaving the house and that she was unable to do this after the accident. Mrs. Prodensky was asked whether her children were healthy and developmentally normal and she responded that they were healthy, intelligent and well adjusted children. Notwithstanding this, she continued to assert that they needed help with “all” aspects of their care, including supervision of their getting dressed and undressed each day as well as eating. Mrs. Prodensky did not testify that she had any problem with dressing herself during this period of time, and I find it implausible that she was unable to check whether the childrens’ shoes were tied.
Mrs. Prodensky was asked about how the children got to their extracurricular activities before the accident. Her response was that she and her husband shared this responsibility. However, her evidence was contradictory when it came to explaining how either she or her husband could have possibly accompanied them on the regular basis she described based on their work hours.
Despite the fact that Mrs. Prodensky testified that she had no health concerns before the accident, she also admitted that she had experienced a “semi-fracture” of her elbow on the day before this accident in a slip and fall situation. When asked about this seeming contradiction in her evidence, Mrs. Prodensky noted that she never claimed that her elbow injury was “caused” by the motor vehicle accident, only that it was “aggravated” by the accident. Mrs. Prodensky was particularly evasive in answering questions about whether she presented to the hospital in an arm-sling after the accident. Ultimately, she admitted that she may have been in a “scarf” at the time. I find that Mrs. Prodensky’s significant reluctance to acknowledge this fact to be rationally related to her overall credibility.
Although Mrs. Prodensky’s first language is not English, she acknowledged that she is fluent in the English language and that she prepared for her pharmacy qualifications in English. Notwithstanding this, she claims that tutoring was necessary for her children in English because she was unable to assist them. It is relevant that Mrs. Prodensky was not able to clarify what proficiency their caregiver had in the English language. Nor did she clarify why her injuries precluded her from speaking English to the children when required. She was clearly able to communicate in English at work and at school throughout the relevant period of time.

Dr. Liannos

Dr. Liannos was the treating chiropractor for both Mr. and Mrs. Prodensky at Downsview. After the pre-approved treatment ended, he concluded that both patients were experiencing ongoing barriers to recovery such as: emotional disturbances, sleeping difficulties, problems in employment, as well as aggravation of their symptoms resulting from having “multiple dependents.” He therefore recommended that they continue with the treatment regimen which they had been receiving, presumably on the assumption that it would yield better results in the future than it had in the past. Significantly, neither Mr. nor Mrs. Prodensky testified that they were significantly helped by the Downsview treatment which they had received. They did state that they experienced some symptom relief, but neither claimed that their health status had improved much after receiving treatment.

When he was asked in direct examination why he would prescribe ongoing similar treatment to the Prodenskys when it had apparently not been particularly effective in the past, Dr. Liannos stated that by the end of July 2005 he had concluded that both of these patients manifested ongoing objective and subjective evidence of injury. In his view, this meant that they then fit the diagnosis criteria of being chronic pain patients and therefore that it was reasonable and necessary to continue to address their ongoing pain symptoms. Specifically, Dr. Liannos testified that, after three months, both he, and scientific literature which he did not identify, regard patients who have not fully recovered as being “chronic” pain patients.⁶

When he was asked whether chronic pain patients ever recover, Dr. Liannos stated that, in his professional experience, they rarely fully recover but that they may have episodic periods of time when they do feel better. They also are quite liable to having their injuries re-aggravated. Dr. Liannos’ philosophy of practice in such cases is to educate his patients on how to live effectively with their chronic pain, anticipating that they will probably experience it forever. When he was asked about whether his treatment plans were reasonable and necessary, Dr. Liannos animatedly stated that, had he not thought so, he would never have recommended them. I note at this juncture that Dr. Liannos manifested a very strong animus against the independent assessor who concluded that the recommended treatment was not reasonable or necessary. Dr. Liannos clearly stated that he simply disagreed with the insurer’s assessors. However, he offered no insight as to what grounds he relied on in his disagreement with their conclusions. To this extent his testimony was not particularly helpful.

On cross-examination, Dr. Liannos noted that the Prodenskys were referred to him by their legal representative. This, however, is inconsistent with Mrs. Prodensky’s evidence that she found Downsview through a newspaper advertisement. Even more puzzling is that Mr. Prodensky’s evidence was that Downsview referred them to their legal representatives, not the other way around.

Dr, Liannos was asked on cross-examination whether he had reviewed any records from physicians or other health care practitioners before or during his treating of the Prodenskys. His response was that chiropractors are primary health care practitioners and that they do not need to review any other health care practitioner’s records prior to providing treatment. I find this response to be salient, as Dr. Liannos was extraordinarily animated in his insistence that he had no need to review any medical history from other disciplines before treating. It may be true that chiropractors do not professionally need to review such information before making treatment decisions, but Dr. Liannos’ testimony went well beyond this and reflected an outright, and in my view completely unreasonable, disdain for the observations and opinions of all other health care providers. I do not understand how it is potentially helpful to a patient for any health care practitioner to, on principle, ignore any compiled medical history simply because it was recorded by a practitioner from a different disciplinary background. This strongly suggests to me that Dr. Liannos was much more concerned with some turf battle between chiropractors and physicians than he was with the ultimate welfare of his patients.

Dr. Liannos was asked whether the forces of impact in the accident had any relevance to his conclusions in this case. His answer was that he rarely concerned himself with such matters. In this case the only clinical note he had made related to this issue was that the accident was a rear-end collision. He further testified that he believed that there generally was a poor correlation between the forces of impact in a collision and injuries sustained, so he did not take such information into account. Dr. Liannos stated that he had not viewed any pictures of the damage to the vehicle in this accident and also that such data was not important to him at all.

He was asked, on cross-examination, whether he was aware that the Prodenskys’ two young children were also in the car during the collision. He answered that he had noted that there were four occupants in the car but that he had no information as to whether anyone else was injured in the collision. In his words, only Mr. and Mrs. Prodensky presented to Downsview as patients, and thus he had no reason to be concerned about the fate of any other occupants. He testified that he never asked the Prodenskys anything about the health status of the children after the accident. I find this to be puzzling at best.

Dr. Liannos was asked about his personal involvement with the treatment of the Prodenskys. He stated that an initial examination could take anywhere between twenty minutes and an hour but that he had no records which could clarify exactly how much time he spent with either of them. He further testified that he always takes at face value the claims made by patients that their injuries were sustained in an automobile accident and that he never probes any further into the causes of their injuries. When he was asked about any knowledge he may have had of Mr. Prodensky’s job situation, Dr. Liannos stated that he did not know much about it but did recall that “he sat at a desk all day.” He had no recollection of, or notes recording, whether Mr. Prodensky had missed any time from work after the accident. He also did not consider this lack of file annotation particularly relevant.

The significance of this impression about Mr. Prodensky’s work requirements is that Dr. Liannos filled out a Disability Certificate on his behalf which opined that Mr. Prodensky was disabled from working even though he continued to work. The rationale for this conclusion, according to Dr. Liannos, was that Mr. Prodensky told him that he had difficulty in sitting and that he primarily sat down on the job; therefore, logically, Mr. Prodensky must have been substantially disabled from working. Dr. Liannos admitted that he had conducted no testing to evaluate Mr. Prodensky’s sitting tolerance; however he observed that there is five times more load on the lumbar spine in sitting than there is in standing. When he was asked again about what, if anything, he knew about Mr. Prodensky’s work environment, Dr. Liannos acknowledged that he really knew nothing about the situation at all.

When Dr. Liannos was asked how he had extrapolated his observations into conclusions about caregiving and housekeeping, he admitted he had not ever inquired into what the Prodenskys did in this regard before the accident. Notwithstanding this, Dr. Liannos still believed that he was reasonably able to conclude that the Prodenskys were unable to do their caregiving and housekeeping. He had no basis to offer in support of this conclusion.

Dr. Liannos testified that, in his view, if there is pain at the “end” of someone’s range of motion they are most likely disabled. Thus, according to Dr. Liannos’ logic, if someone only experiences pain in reaching to the limits of their range of motion, such as in putting things away in a high cupboard, they are, by definition, substantially disabled. In response to this conclusion, Dr. Liannos was asked whether all housekeeping tasks require the ability to access a complete range of motion. His response was that, yes they did, as it reflected the “natural movement of our bodies.” I find that Dr. Liannos was evasive in answering this question and that, even if some activities require people to have access to full range of motion, there are many others that do not require such full extension. The fact that Dr. Liannos was adamantly unwilling to accept this common sense conclusion speaks to his credibility.

Dr. Liannos was asked whether he was actually present during all of the treatment the Prodenskys received at his clinic. His response was that he supervised the treatment in general, but that he did not always participate in its administration. Following up on this admission, he was asked about some treatment which was administered by a clinic massage therapist to Mr. Prodensky’s shoulder, notwithstanding the fact that there seems to be no evidence that Mr. Prodensky’s shoulder was implicated in this accident in any way whatsoever. His response was that there is musculature in the body that connects the neck and shoulder and that the massage therapist was properly treating that muscle because of the connection. However, there are no clinical notes related to the need for this treatment and Dr. Liannos’ only explanation for it was that one has to always “assume basic anatomy.” Without deciding whether this particular treatment was reasonable or not, I find that Dr. Liannos’ answer to the question he was posed reflects an unwillingness to articulate the underlying rationale for the treatment which Downsview provided to Mr. Prodensky.

Dr. Liannos was asked how he arrived at the conclusion that Mrs. Prodensky was disabled from working even though she continued to work as she always had before the accident. His response was that, despite the fact she had continued to work, she reported to him some difficulty in standing, and therefore “if” she had to stand on the job she “therefore” had a disability that substantially precluded her from working. He went on to say that he only had concluded that she had “difficulty” in working, not in actually working. Without getting into the logical circularity of this explanation, it is fair to observe that Dr. Liannos’ testimony reflected that his conclusions were what they were notwithstanding the facts of the specific case. This I find to be relevant to the credibility and weight that should be accorded to his evidence.

Dr. Liannos was asked whether he ever considered that Mrs. Prodensky might have required medication to treat her symptoms, based on her reported lack of improvement after the treatment he had recommended. His answer was “no,” curiously notwithstanding the fact that his patient was a pharmacist. Dr. Liannos did not testify about any discussions he may have had with Mrs. Prodensky about the possibility of pharmaceutical intervention. I find this to be utterly implausible given Mrs. Prodensky’s profession as a pharmacist. This is not to say that a pharmacist would, stereotypically, always choose pharmaceutical treatment; but it is extremely hard to imagine a pharmacist not even discussing the possibility of pharmaceutical intervention with her treating practitioner in these circumstances.

CONCLUSIONS

The burden of proof in this case is on the Prodenskys to persuade me, on a balance of probabilities, that they experienced the disabilities they claim and that the medical treatment they want the Insurer to pay for was reasonable and necessary. After carefully considering the totality of the evidence in this case I find that the Prodenskys have not satisfied this burden of proof, and in fact that their evidence strongly suggests that their claims are unwarranted.

As RBC has argued, the evidence in this case has serious contradictions and is largely implausible. Although I accept that it is possible for accident victims to be able to work but not be able to care for their dependents or do housework in appropriate circumstances, the evidence in this case clearly supports the opposite conclusion.

Most significantly in my view, not only were both of the Prodenskys able to continue to work as they had before the accident, but they were both able to add to their lives the physical and mental burdens of preparation for new careers during the time period in question. Both Mr. and Mrs. Prodensky claim that, after they returned home from work, they were too tired and stressed to care for their children and household. Yet the evidence was that they clearly were not too tired or stressed to study for professional examinations during the same period of time. Their evidence was not that they incrementally regained ability to engage in these daily activities, but rather that they remained completely unable to do them for the whole period notwithstanding that they were able to summon both the physical and psychological energy to train for these new careers. I find this evidence to be completely implausible.

I also find completely incredible the Prodenskys’ explanation as to why they needed a caregiver to take their children to and from school and to extracurricular activities. Specifically, there was no evidence presented to adequately explain why the children could not be driven to school and extracurricular activities. Both Mr. and Mrs. Prodensky testified that it was really for practical and convenience concerns that motivated this situation, not any accident-related disability.

I further find that the Prodenskys’ evidence related to the service provider, Irina, was disingenuous. The timeframe for hiring her, the explanation of what she was doing for them, and the mystery about what happened to her afterwards adds up to the conclusion that RBC is correct about the implications of her failure to testify at this hearing. I am prepared in the circumstances here to draw an adverse inference against the Prodenskys based on their unexplained failure to have Irina testify, or even explain the efforts they made to secure her attendance at the arbitration. I am unprepared to blindly accept the Prodenskys’ evidence that they simply lost track of this lady and have no idea what happened to her. Given the amount of time Irina allegedly worked for the Prodenskys I find it completely implausible that they never knew where she lived, how to contact her, or what her ongoing life plans were. She was allegedly involved in their life every day, and it seems reasonable for me to assume that the Prodenskys would have learned something about the person who was caring for them and their children during the time that she worked for them. I find it significant that neither of them testified that they made any attempt to contact Irina after she stopped working for the purposes of calling her as a witness.

With regard to the treatment provided by Downsview, my findings are that neither of the Prodenskys found it to be of much help in their recovery. I accept their evidence that they continued to experience pain after the pre-approved portion of the treatment had ended. However, I do not find that Dr. Liannos’ broad generalizations about the nature of chronic pain rationally support an ongoing regimen of simply doing more of the same, in the hope that his patients might eventually benefit from this treatment. In coming to this conclusion, I do not discount the subjective reports of ongoing symptoms which the Prodenskys seem to have reported. However, from a common sense point of view, if the treatment Downsview provided was not perceived by these patients as being effective, one has to wonder about what the reason was to continue it, particularly in light of Dr. Liannos’ refusal to even consider whether other modalities of treatment might be appropriate. I specifically find that Dr. Liannos, in his evidence in this hearing, manifested an unwillingness to consider whether these patients might benefit more from some other forms of treatment after the initial treatment that his clinic provided appeared to have reached its therapeutic limits.

In summary, I find that the Applicants have not met their civil burden of proof with regard to their entitlement to caregiving, housekeeping and medical benefits. Therefore their claims are dismissed.

EXPENSES:

As no submissions were made by the parties regarding expenses in the arbitration, I strongly encourage the parties to resolve this issue between themselves. If no resolution is achieved within thirty days of the date of this decision, an expense hearing may be arranged through the Case Administrator and I shall assess entitlement to and quantum of expenses as necessary.

May 9, 2008

Robert A. Kominar

Arbitrator

Date