Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 87

FSCO A06-001646

BETWEEN:

ZEWDE BERHE

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

Before: Arbitrator John Wilson

Heard: December 3, 4, and 5, 2007 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ms. Jwan Desai for Mr. Berhe

Mr. Christoper A. Caston and Mr. Gaspare Di Salvo for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Zewde Berhe, was injured in a motor vehicle accident on November 17, 2004. He applied for statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Berhe applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Berhe entitled to a non-earner benefit?
Is Mr. Berhe entitled to a medical benefit for treatment and prescriptions?
Is Mr. Berhe entitled to attendant care benefits for services provided between November 17, 2004 and July 2005? I note that at the outset of the hearing, Mr. Berhe advised that he was not pursuing attendant care benefits and would be calling no evidence on that issue.
Is Mr. Berhe entitled to payment for housekeeping and home maintenance expenses?
Is either party liable to pay the other’s arbitration expenses?

Result:

Mr. Berhe is not entitled to a non-earner benefit.
Mr. Berhe is not entitled to a medical benefit for treatment and prescriptions.
Mr. Berhe’s claim for attendant care benefits was withdrawn.
Mr. Berhe is entitled to payment for housekeeping and home maintenance expenses at the rate of $100 per week until the two-year mark, subject to any amounts already paid by Security National, plus interest.

EVIDENCE AND ANALYSIS:

Mr. Berhe was riding his bicycle across an intersection in the east end of Toronto on the way to get pizza when he was hit by a Toyota van driven by Ms. Jennifer Coghill. While Mr. Berhe was able to pick himself up from the pavement and proceed to Auto Works, a car repair facility nearby, he maintained that he suffered considerable pain and discomfort arising from the collision with Ms. Coghill’s Toyota.

Although Mr. Berhe declined to be driven to the hospital immediately he claimed to have hit his right shoulder and struck the right side of his head while falling to the road. He believed as well that there was contact between the van and the left ankle and the outside of his left leg.

He also claimed to be subject to considerable restriction subsequent to the accident due to cervical/lumbar sprain and strains as well as knee and ankle sprains and strains.

Mr. Berhe’s initial disability certificate issued by Fatemeh Kazemi, a physiotherapist at Canadian Active Rehabilitation Centre, listed a possible claim for income replacement benefits and indicated that Mr. Berhe was limited with lifting, bending, prolonged standing and shoulder activities.

Mr. Berhe made an application for accident benefits in which he indicated that he was employed. He further submitted an employer’s confirmation of income form on which he listed his employment and his income from employment.

In a statement he apparently made at the office of his paralegal on January 31, 2005, he claimed to have been working at two jobs. The first, at Auto Works, was doing “maintenance.” The second, at Amber Kitchen Cabinets, was a casual employment working some 9-12 hours per week.

There are other employment documents filed as part of the record in this matter which give little flavour to Mr. Berhe’s claim. There is a series of documents related to a Workplace Safety and Insurance Board (WSIB) claim, which was rejected on the basis that Mr. Berhe was not employed at the time of the injury. Included in the claims materials from the WSIB are investigator reports and statements from the supposed employers minimizing their relationship to Mr. Berhe, and denying that he was their employee.

There was also evidence that Mr. Berhe was approved as a “Drive Clean” inspector, and that he provided inspection certificates, all within a framework of denied employment and little if anything in the way of a paper trail supporting earned income or an employment status. It seems likely that if Mr. Berhe was actively engaged in a workplace prior to the accident, his engagement was largely restricted to the underground economy.² This pattern had significant implications for Mr. Berhe’s accident benefits claim.

Section 2(5) of the Schedule defines “employed” as follows:

For the purpose of this Regulation, a person is employed, if, for salary, wages, other remuneration or profit, the person is engaged in employment, including self-employment, or is the holder of an office, and “employment” has a corresponding meaning.

As noted above, Mr. Berhe has now claimed for a non-earner benefit rather than an income replacement benefit.

In the context of Mr. Berhe’s election to claim a non-earner benefit, it is important to note the changes to the Schedule which now specify that an insured can only base an income replacement benefit on income that is declared for taxation purposes.

In this matter, whatever Mr. Berhe’s attachment may have been to a particular workplace, there is no evidence of any declared income from employment within the time periods necessary to qualify for an income replacement benefit.

Consequently, Mr. Berhe’s income replacement benefit claim mutated into a “non-earner benefit” claim. A non-earner benefit is described by section 12(1) of the Schedule:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:
The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

On the other hand, section 4(1) of the Schedule provides:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:
The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

The Insurer has taken the position that if Mr. Berhe is entitled to anything, it would be an income replacement benefit, since by his own admission during the claims proceeding, he was employed. It bases this position on the wording of section 12(1)1 which includes the phrase “does not qualify for an income replacement benefit.” It is the Insurer’s position that Mr. Berhe qualifies for an income replacement benefit due to his employment. However, the quantum of that benefit would be zero. This is based on section 64.1(1) of the Schedule which reads as follows:

64.1 (1) If, under the Income Tax Act (Canada) or legislation of another jurisdiction that imposes a tax calculated by reference to income, a person is required to report the amount of his or her income, the person’s income before an accident that occurs after April 14, 2004 shall be determined for the purposes of this Regulation without reference to any income the person has failed to report contrary to that Act or legislation.

(2) Where the amount of a person’s income before an accident is determined for the purposes of this Regulation in accordance with subsection (1), the amount of the income may be adjusted to reflect any change in the amount of the person’s income reported or determined in accordance with the Income Tax Act (Canada) or legislation of another jurisdiction that imposes a tax calculated by reference to income.

There is no evidence before me that Mr. Berhe reported income from either Auto Works or Amber Kitchen Cabinets, or that any determination was ever made by the Canada Revenue Agency with regard to such income. Consequently, the exception under section 64.1 (2) is not available to Mr. Berhe.

Arbitrator Lee in McRitchie considered some of the further attributes of an employment situation. He described an employment situation as one with “a significant measure of predetermined regularity of what had to be accomplished, with direction as to when and how the assigned duties might be carried out” that was not characterized by “an ad hoc, sporadic connection to the workplace.”³ In this matter, I have little credible evidence as to the exact nature of Mr. Berhe’s employment, nor as to his particular attachment to the workplace.

On first glance, Security National’s argument with regard to entitlement to an income replacement benefit seems to be just another of those absurd pieces of twisted logic beloved of lawyers, but making no practical sense. By any reasonable interpretation of the phrase non-earner, Mr. Berhe would seem to qualify. He is, after all, deemed by section 64(1) to have earned no eligible income. Is it then reasonable to disqualify a party from entitlement to a non-earner benefit on the basis of his or her eligibility of an income replacement benefit of zero?

In the Insurer’s position, the phrase “does not qualify for an income replacement benefit” seems to be the equivalent of “was not employed.” This is not an unheard interpretation of that phrase. Certainly, some arbitrators have treated it as an equivalent. Arbitrator Bayefsky in Garcia stated as follows:

The only basis upon which Mr. Garcia maintained that he did “not qualify” for income replacement benefits within the meaning of section 12(1) of the Schedule was State Farm’s determination that he was entitled to an IRB of nil pursuant to section 64.1(1). However, I agree with State Farm that this was an issue of quantum, not entitlement to IRBs. It is entirely possible for a person to meet the substantive eligibility criteria for IRBs (for example, being employed at the time of the accident and suffering a substantial inability to perform the essential tasks of the pre-accident employment) without being entitled to a “positive quantum” of IRBs (due, for example, to the deduction of post-accident income or collateral benefits). I, therefore, find that State Farm’s determination under section 64.1(1) only went to the issue of the quantum of IRBs (pursuant to sections 6 and 61 of the Schedule, concerning the “Amount of Benefit” and the “Net Weekly Income Formula”, respectively), not to whether Mr. Garcia was substantively qualified for IRBs. Consequently, State Farm’s determination of “nil IRBs” did not entitle Mr. Garcia to non-earner benefits pursuant to section 12(1) or to an election for such benefits pursuant to section 36(2) of the Schedule. ⁴

There is however some tension between the concept of a zero benefit as advanced by the Insurer and the definition of “employment” contained in section 2(5) of the Schedule. If the concept of employment involves “salary, wages, other remuneration or profit”, then it would be unlikely that entitlement to a benefit as a result of employment would not also entail the same expectation of some positive entitlement.

In the end, resolving this question boils down to how one interprets the phrase as used in both the contract of insurance and in the supporting legislation which is incorporated into the contract.

The Supreme Court in Rizzo v. Rizzo Shoes⁵ has adopted the late Elmer Driedger’s approach to statutory interpretation as its guiding light. Rizzo, which dealt with the interpretation of the provisions relating to an employer’s obligation to pay severance pay at a time when the employer was under receivership, looked at both the individual words of the provision and the overall intent of the legislation as a whole.

Iacobucci J., in writing the decision for the court, framed the problem as follows:

At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.

Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.

Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues. [emphasis added]

What then is the spirit of the Bill 59 Schedule, and can that spirit be harmoniously reconciled to section 12(1) of that Schedule?

Eberhard J., in Gill v. Zurich⁶, made the following comments on the purposes of the statutory accident benefit scheme:

I adopt the statement of purpose articulated by Arbitrator Mackintosh at page 12 in Edgar v. Wellington Insurance Co. [1994] O.I.C.D. No. 34 File A-005441 that SABS is remedial, that is to be interpreted in a broad and liberal way, and that its principal object is to provide a “fair and adequate income stream to those who are injured and disabled from work”. The victim is to receive an approximation of wages, and not be compensated more or less.

In Smith v. Co-operators General Insurance Co.⁷, one of the few accident benefit cases to have made its way to the Supreme Court, Gonthier J. made the following comment:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.

Neither the Insurance Act nor the Schedule defines the word “benefit.” The Canadian Oxford Dictionary, however, defines it as:

1 a favourable or helpful factor or circumstance; advantage, profit 2 (often in pl.) allowance of money etc. to which a person is entitled from a pension plan, government support programs, etc. (unemployment insurance benefits). 3 (often in pl.) An advantage other than salary associated with a job, e.g. dental coverage, life insurance, etc. …

The French version of the Schedule uses the word “indemnité” for the word “benefit.” The French word is much more explicit in its meaning than the English. Harrap’s New Shorter French and English Dictionary translates “indemnité” as:

(a) Indemnity, indemnification, compensation (for loss sustained)

(b) penalty (for delay, non-delivery) (c) allowance, grant.

Other dictionary definitions, including the Petit Robert, underline the compensatory nature of an indemnité: “Ce qui est attribué en compensation de certains frais”;

It is clear that the common thread between both the English and French versions is a sense that to be a benefit, it must be a benefit to someone.

A “benefit” must also be a positive notion that compensates, indemnifies or punishes as the case may be. When someone speaks loosely of a “zero benefit”, they are really speaking of a lack of entitlement to a benefit, or the amount of the resulting payment arising from the determination of a benefit, subject to statutory deductions or set-offs. A zero benefit in itself would neither indemnify nor compensate and would be both an oxymoron and an absurdity.

Where there are potentially different interpretations available for a word or a phrase in legislation, every attempt should be made to find not only a meaning that coincides with the purpose of the legislation but one that avoids absurdity. This approach was specifically endorsed by Iacobucci J. in Rizzo.

It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.

(Sullivan, Construction of Statutes, supra, at p. 88). [emphasis added]

As noted, a benefit or an indemnity must have some sort of positive aspect, a consideration that has not been specifically addressed in most of the jurisprudence.

In Garcia (supra), Arbitrator Bayefsky observed that a nil benefit was not an unreasonable concept and pointed to the quite conceivable situation where an established income replacement benefit could be reduced to zero by the availability of collateral payments from other insurance or income replacement benefits. I accept Arbitrator Bayefsky’s observation that where collateral benefits are involved it is possible to have a nil benefit payable but still “qualify for an income replacement benefit.” I disagree, however, that the same reasoning should apply in a case where there is no income from employment to consider at all due to the effect of section 64.1(1).

In the example put forward in Garcia, there is no question of entitlement to benefits. Indeed, the insured would be entitled to a positive amount for benefits from which the insurer would be entitled to, in effect, set off payments from collateral sources received by the insured. The benefit would be a positive amount, but the payment actually made could be reduced to nil by collateral payments. In the event, however that the collateral benefits cease, an insured would be entitled to payment of the entire benefit amount. When Arbitrator Bayefsky states that “this was an issue of quantum,” it is clear that he is speaking of the quantum of the ultimate payment to the insured, not the benefit entitlement prior to deductions.

On the other hand, the cumulative effect of sections 64.1(1) and the definition of employment contained in section 2(5)⁸ is to remove any undocumented wages received from consideration, not only with regard to the quantum, but with regard to the question of whether there was qualifying employment. If a person is deemed to have no income, then it is hard to find that they are working for “salary, wages, other remuneration or profit” as required by the Schedule’s definition of employment.

Consideration must also be given to the wording of section 36(1) of the Schedule, dealing with election. It specifically recognizes that a claimant may “qualify for more than one of the benefits referred to in subsection (1)” (non-earner, caregiver and income replacement benefits). While the idea of a simultaneous qualification for caregiver and non-earner does not present any significant challenges, the fact that the legislature contemplated the possibility of a simultaneous qualification for non-earner and an income replacement benefit suggests that Security National’s interpretation of the phrase “does not qualify for an income replacement benefit” is incorrect.

I would suggest as well that Security National’s current position on qualification could be seen as at best ingenuous, and at worst inconsistent and misleading. It should be noted that on the Explanation of Benefits issued March 18, 2005, with regard to income replacement benefits, the Insurer stated:

…We have determined that you where (sic) paid cash by both your previous employers, Auto Works and Amber Kitchen Cabinets. As per section 64 of the Statutory Accident Benefits Schedule we are unable to process an Income Replacement Benefit for any income that is not reported to revenue Canada.

It is difficult to understand how an insurer can insist that that an insured is entitled to an income replacement benefit that it refuses to process or consider at all. If Security National wished to rely on entitlement as a bar to a non-earner, it should have processed the application, and determined that the amount of the benefit was nil, due to the above reasons. There is no evidence that it withdrew its refusal to process an income replacement benefit.

Another alternative reason for preferring an interpretation of the phrase “qualify for an income replacement benefit” that does not allow for a “zero benefit” is the application of the fundamental principles of the interpretation of insurance contracts to the phrase. It is, after all the incorporation of the Statutory Accident Benefits Schedule into each motor vehicle insurance policy that gives the no-fault scheme its commercial application.

The answer to this appeal does not lie in statutory interpretation alone. The statutory conditions are only a part of the policy evidenced by an insurance contract, and contracts should be interpreted as a whole. In my view, it must first be determined whether the contract treats the rights of co-insured as joint or several. It is within this context that the statutorily provided notice requirements under the policy can be understood.⁹

One of the consequences of this dual nature is that different aids to interpretation are available. Goudge J.A. in Taggart made the following comments:

Where a policy is clear and unambiguous, the rights of the parties are determined by its express terms. Where it is ambiguous or capable of more than one interpretation, generally, a construction will be adopted which favours the insured. Moreover, it is to be remembered that we are dealing with an endorsement that extends coverage. Such a provision is to be interpreted liberally or broadly in favour of the insured.¹⁰

In the light of the above, I have no hesitation in finding that, in Mr. Berhe’s case, a zero or nil benefit does not necessarily imply that he “qualifies for an income replacement benefit” as the phrase is used in section 12(1)1 of the Schedule.

The question of Mr. Berhe’s substantive qualification for non-earner benefit is no less troubled than the question of whether he was employed and thus barred from claiming the non-earner benefit. Once again however, Mr. Berhe’s difficulties in demonstrating entitlement to a non-earner benefit may be traced to his anomalous status prior to and after the motor vehicle accident.

Mr. Berhe however ultimately did elect to proceed to arbitration on his claim for a non-earner benefit rather than a claim for an income replacement benefit. He, therefore, must meet the more rigorous standards set by the non-earner benefit claim, and, indeed, has the general onus of proving entitlement to a non-earner benefit.

There are many myths that have developed over the years concerning the non-earner benefit and its interaction with income replacement benefits, myths that may well have affected the way Mr. Berhe approached his claim, and possibly the decision to elect a non-earner benefit.

The most pervasive myth is that a non-earner benefit constitutes the default floor for income replacement benefit entitlement, with the corollary being that a non-earner benefit responds to the same criteria as an IRB without the necessity of proving income entitlement. While these beliefs have their roots in the legislative history of the benefit, with the exception of the post-104 week benefit¹¹, the amount of the non-earner no longer serves as a minimum amount for the benefit. Instead, reference to the non-earner benefit must be made in the context of its own stringent requirements, including meeting the test of “a complete inability to carry on a normal life.” In addition, an insured must elect the benefit, as provided for in section 36(1) of the Schedule.

Perhaps due to the shift in mid-claim from an income replacement benefit to a non-earner, information that would assist in finding that Mr. Berhe clearly met the criteria for a non-earner was less than overwhelming. Indeed, the early supporting paperwork supplied by Mr. Berhe seemed intent upon addressing the requirements of an IRB claim rather than the non-earner benefit. Based on the evidence filed in this arbitration, it seems that the transition from addressing an IRB claim to meeting the “complete inability to carry on a normal life” test was never fully completed.

Brockenshire J. in Walker considered the interpretation of the complete inability test in the context of a claim for non-earner benefits.

I have considered the many arbitrators’ decisions which Mr. Adams assembled for me. I found in many of them that the arbitrator was unfortunately led into detailing a whole shopping list of various physical activities and into a consideration of whether or not the person was completely prevented from doing that activity, despite the fact that what was done was being done so poorly it could not be said to have contributed to a “normal life”. However I accept that the legislation now, in speaking of “complete inability”, has imposed a stricter test than used to be imposed under previous similar provisions, which spoke of “substantial inability”.

He continued:

In my view the regulation should be looked at in a purposive way, and the factual situation has to be considered contextually. I note that s. 12(1) starts off by speaking of an insured person “... who sustains an impairment ...”. It does not talk about someone who is completely disabled or, for that matter, disabled. The qualifier is that the person has to suffer “... a complete inability to carry on a normal life ...”. The definition of what that means again speaks of an “impairment” before speaking of “... continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.¹²

Even if the threshold for a “complete inability” under the Schedule is only a functional inability that impairs the ordinary activities of life, Mr. Berhe, on the evidence presented at this hearing, would have some difficulty in meeting such a test. While the initial disability certificates predominately relate to physical concerns, it is clear from Mr. Berhe’s testimony that pain and addiction issues also played an important role in his post-accident disability.

Following the workplace incident investigated by the WSIB and subsequent surgery, and still prior to the accident, Mr. Berhe had complained, inter alia, of pain. One of the treatments he was provided for his pain was the provision of prescription painkillers containing opiates.

There is no question that Mr. Berhe became a significant user of these medications, and continued as such up to the time when he was knocked off his bicycle. He claims, however, that at the time of the accident he had managed to ratchet down his consumption of these drugs, and was making progress with what could only be characterized as an addiction.

Following the accident, there is no doubt that the consumption of such painkillers increased. While an increase in consumption could be linked to the physical symptoms Mr. Berhe claimed to suffer following his fall, there was also a likely link both to an ongoing opiate addiction and possibly the increased availability of prescriptions for such painkillers arising from the circumstances of the accident.

Mr. Berhe suggests that that although he was a consumer of prescription analgesics¹³ prior to the accident, the increase in consumption due to the accident rendered him incapable of carrying on a normal life. In his analysis, the accident was a significant material contributor to a post-accident disability – namely opiate addiction.¹⁴

The significant contribution test or the Athey test has been given new vigour by the decision of the Court of Appeal in Monks.¹⁵

Athey v. Leonati, supra is the leading Canadian case on causation in tort law. In Athey, Major J. reiterated the following well-established principles:

(1) The general, but not conclusive, test for proof of causation is the “but for” test, which requires a plaintiff to show that his or her injury would not have occurred but for the negligence of the defendant (para. 14).

(2) In certain circumstances, where the “but for” test is un-workable, causation may also be established where it is demonstrated that the defendant’s negligence “materially contributed” to the occurrence of the tort victim’s injury. It is not necessary for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury (paras. 15 and 17).

(3) Liability will be imposed on a defendant for injuries caused or materially contributed to by his or her negligence. That liability is not reduced by the existence of other non-tortious contributing causes (paras. 22 and 23). [Citations omitted.]

More recently, in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, the Supreme Court of Canada clarified the exceptions to the “but for” causation test and the circumstances in which the material contribution test may be applied. I do not understand Resurfice to alter the basic causation principles that I have described.¹⁶

Mr. Berhe, as noted, had addiction problems prior to the accident. He was taking a methadone treatment programme. There is no dispute however that the dependency issues were never resolved in the period prior to the accident. Mr. Berhe still maintains that, but for the accident, they would have been either resolved or controlled by treatment. The comments of Lalonde J. in Monks (at first instance) suggest that the pre-existing addiction need not be a bar to entitlement due to an addiction-related impairment post-accident.

In accident benefits cases, it is a matter of a contract of insurance. The test is not whether the insurer need only place its insured in his or her original position. The test is whether the insurer is required to fulfill its contract with the insured and pay him or her the required benefits. Whether the insured would have experienced certain effects in any event is not relevant. The fact is that the insured experienced those effects when he or she was an insured of the insurer and as long as the insured event made a material contribution to the condition, then the insurer must fulfill its contract.¹⁷

As noted by Brockenshire J. in Walker, disability in the terms of a non-earner benefit must be examined “contextually.” In this sense he means that one must look at Mr. Berhe’s existence, and the nature and quality of his life both before and after the accident in order to determine whether the impairment prevents him from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

Notwithstanding Mr. Berhe’s testimony, I have only an imperfect view of what constituted his life before the accident, and how that changed after the accident. On the evidence, I can accept that he had a marginal attachment to the workforce prior to the accident, due to chronic low back pain, and the consumption of narcotic analgesics, a situation that may not have changed substantially following the accident.

The medical opinion filed from Dr. Olsheski of the Albany Medical Clinic, one of Mr. Berhe’s treating physicians, dated October 18, 2006, states that:

Mr. Berhe suffers from Chronic Lower Back Pain and failed Back Surgery. Mr. Berhe has been unable to work since February 2003 following a lift injury in his workplace of 2 February, 2003. He underwent back surgery in October, 2003. His symptoms of excruciating lower back pain and radiation of his pain to his lower left extremity did not improve post surgery.

Dr. Olsheski continued:

Mr. Berhe also suffers from insomnia and depression. He was first treated for depression on October 25, 2003. Mr. Berhe continues to suffer from depression, and although I have tried numerous anti-depressants, his depression remains suboptimally controlled due to treatment refractive depression.

It should be recalled that the accident in question in this arbitration took place on November 17, 2004.

The addition of the adjective “material” in the phrase “material contribution” suggests that something more than a nominal involvement is intended. “Material” has been defined as “…significant, influential, esp. to the extent of determining a cause, affecting a judgment etc. (a material witness).”¹⁸

While Dr. Olsheski considered that the motor vehicle accident “further aggravated his lower back condition”, the continuity of the disabling symptoms that he describes from the pre-accident period to the date of the report suggests to me that the “material contribution” test set out in Athey is not met.

While I do not dispute that Mr. Berhe seems to be significantly compromised, and indeed could likely be classified as disabled due to the confluence of symptoms reported by Dr. Olsheski and repeated by Mr. Berhe in his testimony, I am not convinced that the motor vehicle/bicycle collision of November 17, 2004 necessarily played a significant role in this disability. While it may have aggravated his pain symptoms, and consequentially increased his oxycontin consumption, there is insufficient credible evidence to establish the necessary nexus between the accident and the current disability claimed as the basis for a non-earner benefit.

In the context of the admitted addiction to painkillers although there is evidence as to addiction, I have no evidence of the effect that any increase in the use of oxycontin played in actually impairing Mr. Berhe’s functioning, and whether the increased doses themselves increased his level of disability.

The analysis of disability is an analysis of a person’s individual function. Patently different individuals react differently and have differing degrees of tolerance for intoxicants, including drugs. While addiction to oxycontin cannot be a good thing, I do not feel comfortable drawing an inference that it would necessarily be responsible for a substantial decrease in Mr. Berhe’s functionality following the accident without more convincing evidence.

It was clear that he had a significant addiction problem pre-accident, which he apparently managed to live with. I am not certain exactly what the functional impact of the painkillers was post accident. ¹⁹

Consequently, I find that there is no evidence that Mr. Berhe’s impairments were actually increased due to further oxycontin use in the period after the accident.

This finding with regard to causation of the disability is particularly important in the context of a non-earner benefit, in which entitlement cannot arise until some six months after the accident. I find no compelling evidence that any aggravation of the symptoms of back pain that may have occurred lasted into the qualification period for a non-earner benefit.

While there is no doubt that Mr. Berhe suffered some important consequences from the accident and, indeed, may not have been in a position to perform heavy physical labour on a prolonged basis following the accident, I am not convinced that at the expiry of the six-month qualification period, there is sufficient evidence to prove that he met the “complete inability to carry on a normal life” test as required for entitlement to a non-earner benefit, whether due to pain, to addiction or to physical impairments arising from the accident.

Medical Benefits:

Mr. Berhe claimed for a treatment at New Age Recovery and for some $2,794.79 of prescription costs. The majority of the prescription expenses relate to oxycontin, a strong painkiller to which Mr. Berhe was addicted prior to the accident. Based on the limited evidence available to me on this issue, I am unable to determine what, if any, portion of the intake of oxycontin was due to the accident. While Dr. Pardis shed some light on Mr. Berhe’s problems with dependence, and on the attempts to address this with methadone treatment, it was incumbent upon Mr. Berhe to adduce some credible evidence, whether by way of report or testimony, clarifying the relationship of the increased oxycontin consumption to the accident. This was not done. While I accept Mr. Berhe’s evidence that there was an increased consumption of opiates post-accident, his complex addiction history, and the serious back injury and surgery pre-accident make it impossible to drawn any clear conclusions, in the absence of some expert guidance.

I find that Mr. Berhe has not met the burden of proving that his prescription expenses, whether reasonable or not, arose from the motor vehicle accident in question in this arbitration.

With regard to the treatment expense at New Age Recovery, there is even less information available as to its necessity and reasonableness in the context of this motor vehicle accident. I decline to make any award relating to this expense.

Housekeeping Benefits:

Mr. Berhe claimed housekeeping benefits following the accident on the grounds that his condition following the accident precluded him resuming his normal housekeeping and home maintenance activities. Section 22(1) of the Schedule, which provides for housekeeping benefits, reads as follows:

(1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

The threshold for entitlement for housekeeping benefits (substantial inability to perform the pre-accident household tasks) is somewhat lower than that for qualification to a non-earner benefit (a complete inability to carry on a normal life). As well, the benefit is payable without the six- month waiting period applicable to the non-earner benefit. Consequently, it would not be inconsistent to find for entitlement to a housekeeping benefit while discounting entitlement to a non-earner benefit.

Security National did apparently pay Mr. Berhe for up to some 17 weeks of housekeeping. It terminated this benefit based on the report of an O.T., Ms. Janita le Roux. Ms. le Roux observed:

Mr. Berhe demonstrated the following pain behaviours during the assessment, verbal report of pain, discontinuance of activities or decline to attempt activities due to anticipatory pain. Performance was often inconsistent between subjective report of abilities and observations of physical and functional performance.

Based on Mr. Berhe’s current functioning, it appears that he is not substantially disabled from performing his personal care and housekeeping activities.

As can be seen from Dr. Olsheski’s report, pain was a serious issue for Mr. Berhe both before and after the accident. Dr. Olsheski’s report also states that pre-existing problems were aggravated by the accident, something that is confirmed by Mr. Berhe’s own testimony and to some degree the report of Bhawani Gupta, Mr. Berhe’s O.T., who assessed Mr. Berhe on June 25, 2005. Mr. Gupta found a need for assistance doing heavy housework. The proposed housekeeping services totalled some 10.5 hours per week.

The two assessments by O.T.s took place within days of each other. It seems likely that Ms. le Roux’s obvious discounting of “pain behaviour” accounts for at least part of the discrepancy. Yet it is commonly accepted that pain can be potentially disabling in itself. Discounting pain as part of an impairment cannot but skew any analysis. I find that it likely did so in this case. Consequently, I prefer the opinion of Mr. Gupta that Mr. Berhe had a substantial inability to perform heavy housekeeping tasks.

Section 22 of the Schedule prefaces the substantial inability test with the words: “if, as a result of the accident, the insured person sustains an impairment”…

Clearly the question arises as it did under the rubric of non-earner benefit, as to whether any impairment should be attributed to the accident. While there is little cogent evidence supporting the opiate addiction as arising from the accident, there is un-contradicted evidence that the chronic pain was exacerbated by the accident. It is this same pain which would be a limiting factor in the performance of heavy housework.

While the use of terms such as “aggravated” invites an inference that after a period of time the pain would have returned to ordinary, chronic, pre-accident levels, I am mindful of the comments of E.A. Cronk J.A. in Monks²⁰:

At trial, ING argued that this was “a classic, unequivocal case of a crumbling skull Plaintiff” and, therefore, that ING need only pay “for those expenses for those injuries caused by our accident, being a cervical strain”, which expenses had already been paid. The trial judge rejected this argument, holding at para. 852: “[T]here is no room for the crumbling skull theory in accident benefit cases.” [para95] I agree. There is no indication in the SABS of a legislative intent that an insurer’s liability for the accident benefits in issue in this case should be subject to discount for apportionment of causation due to an insured’s pre-existing injuries caused by an unrelated accident. The SABS simply states, in clear and unambiguous language, that an insurer “shall pay an insured person who sustains an impairment as a result of an accident” medical, rehabilitation and attendant care benefits (ss. 14(1), 15(1) and 16(1)).

If I understand the Court of Appeal’s position correctly, once Mr. Berhe has established that the accident made a material contribution to his disabling pain disorder, then I am not to engage in the sort of inductive analysis invited by the “crumbling skull theory.” In other words, I am not to speculate as to the normal course of any pre-existing impairment or to draw inferences, however inviting, as to its normal course. Of course, in the presence of positive evidence that demonstrates that the accident no longer is a material contributor to any disability, I would be entitled to so find.

The maximum duration for the payment of a housekeeping benefit is two years. The ultimate limit for this claim would be 104 weeks, or November 2006, since there is no allegation that Mr. Berhe suffered a catastrophic impairment.

The two O.T. assessments took place some seven months after the accident. Invoices for housekeeping services run until the end of 2006, past the two-year mark.

The housekeeping service provider, Ms. Elen Haile, testified. She did not provide any services prior to the accident – only afterwards. She also stated that she ceased providing any services by June 2005, apparently because she was not being paid for her work.

While the housekeeping section refers to incurred expenses, it is not always appropriate to limit a housekeeping or an attendant care claim to amounts actually expended or costs incurred in situations where an insurer’s refusal to pay has forced an impecunious insured to decline a needed service.

It is incumbent, where possible, on an insured to make some effort to advance a claim, or to provide some particulars of a claim, be it for housekeeping or any other benefit. Mr. Berhe has provided some credible evidence as to his attempts to advance his own housekeeping claim. He has also provided his own supporting O.T. assessment as well, disability certificates, a retrospective report by his family physician, and his own statements as to disability and needs.

The Insurer, on the other hand, has provided little by way of credible responding evidence other than Ms. le Roux’s report, which for reasons which I will address later, is of little value.

As noted earlier, the Insurer somewhat tardily commenced paying housekeeping benefits, on the basis of the initial disability certificates²¹, and Mr. Berhe’s claim for such benefits. In the context of Mr. Berhe’s serious pre-existing pain problems and his fragile state at the time of the accident, the need for such assistance makes some sense. After all, the medical opinion of his treating physician was that the earlier, admittedly serious, problems were aggravated by the accident.

The disability certificate dated November 18, 2004, issued by Fatemeh Kazemi of the Canadian Active Rehabilitation Centre noted: “limited with heavy house chore.” The OHIP summary notes visits commencing November 16, 2004 with the diagnostic description of “lumbar strain, lumbago, coccydynia, sciatica” and visits commencing November 18, 2004 under the rubric of “sprains and strain injuries:cervical, cervicothoracis.” These latter treatments are noted as being with a chiropractor. I find that the references on the OHIP summary give credence to Mr. Berhe’s assertion that there was a change in disability following the accident.

In a statement made for the Insurer, and filed by the Insurer in this matter, dated January 31, 2005, Mr. Berhe reported that he “can’t lift anything at all, not even light things.” He further stated that he had his sister-in-law come “to help me to do my laundry and cooking.” He elaborated:

She does the laundry, the ruff (sic) cleaning, takes my daughter to swimming and ballet dancing. The “ruff” cleaning means cleaning the windows, living rooms, washrooms, dishes, everything that needs done [sic].

Mr. Berhe had noted in his statement that he had shared the household activities prior to the accident and was responsible for “approximately half of the duties each.”

The Insurer accepted responsibility for housekeeping initially up to twelve weeks, but no further, based on their finding that “the disability certificate indicates a 9-12 week disability from your housekeeping duties.” It is of some note that the examination referenced in the disability certificate took place on November 12, 2004, just a short time after the accident. This meant that the opinion on disability was at best an estimate, or prognosis. In any event, it appears to have been on the optimistic side.

Security National’s decision to pay limited housekeeping was made on June 15, 2005, some 14 days after receiving the formal application for benefits from Mr. Berhe’s new counsel on June 1, 2005. The explanation of benefits also noted that “no further medical documentation has been submitted to support ongoing disability with respect to your housekeeping duties.”

I note that the Insurer had Mr. Berhe’s statement on January 30, 2005, that he had difficulty with heavy housekeeping and with lifting. Mr. Berhe also made an application for approval of expenses for an assessment, including a functional abilities evaluation that was rejected by Security National on March 30, 2005. There is no doubt that such an assessment might have shed some light on Mr. Berhe’s ability to lift and perform heavy housekeeping tasks. Unfortunately, no information was obtained due to the denial. Nor is there evidence that the Insurer requested more information as to disability between December 2004 and June 2005.

Apparently in response to the Insurer’s comments that no supporting documentation had been received for the housekeeping claim Mr. Behe supplied an in-home O.T. report from Nautica Health Management Inc., with the assessments taking place on June 15 and July 8, 2005. This report concluded that Mr. Berhe still required assistance with heavy housework.

Concurrently, the Insurer arranged for its own assessment, which took place on July 4, 2005. This was the report by Ms. Janita le Roux, which has already been referenced. Ms. le Roux found that Mr. Berhe needed no assistance but made significant remarks concerning his pain behaviours.

The next application for housekeeping expenses filed appear to be dated July 8, 2005. The covering letter dated July 11, 2005 notes a claim for $3,294.79 of which $500.00 appears to be for housekeeping expenses until July 4, 2005.

The explanation of benefits, dated July 19, 2005 notes that the Insurer issued a cheque for $500, but denied the prescription expenses.

Finally, an application for housekeeping expenses was submitted on September 8, 2005. This amounted to some $970.00 which covered the balance of July and August 2005. This was denied based on Ms. le Roux’s O.T. report. The Insurer’s notice further stated that “(N)o further housekeeping expenses will be considered.”

A subsequent claim was submitted on April 5, 2006 for the balance of 2005. The total of this claim was $1,550.00. The Insurer stated in response:

We are in receipt of the above-noted expenses. We are unable to approve these expenses as you have been medically cleared to perform your housekeeping duties by the Occupational Therapist that completed an in-home assessment at your residence on July 19, 2005. [emphasis added]

The Insurer’s use of the phrase “medically cleared” is problematic. Ms. le Roux was entitled to undertake occupational therapy assessments. Indeed, the Schedule includes O.T.s as “health practitioners” for the purpose of certain assessments.

“health practitioner”, in respect of a particular impairment, means a physician or,…

(b.1) an occupational therapist, if the impairment is one that an occupational therapist is authorized by law to treat,

The law defines the practice of occupational therapy as follows:

The practice of occupational therapy is the assessment of function and adaptive behaviour and the treatment and prevention of disorders which affect function or adaptive behaviour to develop, maintain, rehabilitate or augment function or adaptive behaviour in the areas of self-care, productivity and leisure.²² [emphasis added]

The use of the term “medically cleared” implies that a medical certificate has been issued clearing Mr. Berhe to resume his normal tasks. As the Canadian Oxford Dictionary notes, a medical certificate is “usu. issued by a doctor.” This impression coincides with the definition of the practice of medicine contained in the Medicine Act.

Scope of practice

The practice of medicine is the assessment of the physical or mental condition of an individual and the diagnosis, treatment and prevention of any disease, disorder or dysfunction.²³

The Regulated Health Professions Act ²⁴ states:

Controlled acts

(2) A “controlled act” is any one of the following done with respect to an individual:
Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis.

Ms. le Roux was not entitled to give “medical clearance.” She was entitled to make observations and recommendations concerning “self-care, productivity and leisure.” In this context, only a physician is entitled to give medical clearance. Deciding that the pain behaviours were feigned and not a significant part of Mr. Berhe’s symptomatology was a diagnostic act – “a diagnosis identifying a disease or disorder as the cause of symptoms of the individual.”

It should be recalled that the exact wording of Ms. le Roux’s report was as follows:

While Ms. le Roux was clearly entitled to undertake “the assessment of function and adaptive behaviour”, she was not however entitled to undertake “the assessment of the physical or mental condition of an individual and the diagnosis, treatment and prevention of any disease, disorder or dysfunction.” Her analysis and her discounting of the nature of Mr. Berhe’s pain complaints strays into the realm of diagnosis that is outside of her limited expertise.

As noted earlier, Ms. le Roux acknowledged in cross-examination that she had not seen any medical reports concerning Mr. Berhe, nor was she aware that his treating physician had found Mr. Berhe to be disabled. She also acknowledged having no particular expertise in pain.

Indeed, if one reads Ms. le Roux’s report carefully, it would appear that the limitations she observed, such as a “discontinuance of activities or decline to attempt activities due to anticipatory pain” might in themselves have supported a finding of impairment but for her belief that pain was irrelevant and that Mr. Berhe’s limitations were “pain behaviours.”

Taken together with her concessions in cross-examination, I do not find Ms. le Roux’s report convincing, especially in the light of the contemporary report by Nautica Health Management which made a finding of disability.

For the above reasons, I do not accept that Ms. le Roux’s report gave Security National the grounds to refuse to pay further housekeeping benefits.

As noted, Mr. Berhe submitted claims up to and perhaps beyond the two-year mark. While it is possible that his condition may have changed, and his need for assistance declined in that period, Security National continued to deny on the basis of Ms. le Roux’s report. It requested no further assessments. Dr. Olsheski, however, states in his October 18, 2006 report that “(A)ny physical exertion exacerbates his lower back pain syndrome.”

Security National had credible evidence that Mr. Berhe required some housekeeping assistance. It terminated on the basis of a questionable report that relied on assumption beyond the competence of its O.T. author, and did not reconsider in the light of another report submitted by Mr. Berhe that supported his housekeeping needs.

I note as well that Security National’s omission to cross-examine Mr. Bhawani Gupta, the author of Mr. Berhe’s O.T. report, an omission that seriously weakens any challenge of Mr. Gupta’s conclusions.²⁵

On the balance of the credible evidence before me I find therefore that it is likely that the inability to do heavy work continued and that Mr. Berhe is entitled to ongoing housekeeping assistance to the two-year mark.

Security National was apparently content to pay the usual $100 per week as housekeeping. It has suggested no alternative amount other than zero, which I find unreasonable in the circumstances. Consequently, an order will go for Security National to pay housekeeping at $100 per week to the two-year mark, less any amounts already paid.

EXPENSES:

If the parties are unable to agree on expenses within 30 days, I will receive brief written submissions on that issue.

May 30, 2008

John Wilson

Arbitrator

Date