Mohammad Asghar v. State Farm Mutual Automobile Insurance Company, 2009 ONFSCDRS 114

Financial Services Commission of Ontario

Neutral Citation: 2009 ONFSCDRS 114 FSCO A08-000123

BETWEEN:

MOHAMMAD ASGHAR Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Fred Sampliner Heard: June 1 and 2, 2009 Appearances: Nancy Ng for Mr. Asghar Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mohammad Asghar, was injured in a motor vehicle accident on August 2, 2006. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Mr. Asghar’s disputes with State Farm about his entitlement to continuing payment of weekly caregiver benefits, housekeeping expenses and costs of examinations were not resolved through mediation, and he 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:

1. Is Mr. Asghar entitled to payment of $350 per week for caregiver benefits from the accident to August 2, 2008 under Part IV of the Schedule?
2. Is Mr. Asghar entitled to payment of $100 per week for housekeeping/home maintenance expenses from the accident until August 2, 2008 under section 22 of the Schedule?
3. Is Mr. Asghar entitled to payment of $1,325.29 for a functional abilities evaluation, $1,240.02 for an in-home assessment, $1,503.72 for a neurological assessment, and $1,503.72 for an orthopaedic assessment under section 24 of the Schedule?
4. Is Mr. Asghar entitled to interest on any overdue amounts under section 46 of the Schedule?
5. Are either of the parties’ entitled to their expenses of the arbitration under subsection 282(11) of the Insurance Act?

During the arbitration hearing, Mr. Asghar withdrew his $21.28 claim for his treatment at Prime Health Recovery under Part V of the Schedule, and also withdrew his claim for a special award under subsection 282(10) of the Insurance Act.

Result:

1. Mr. Asghar is not entitled to payment of caregiver benefits under Part IV of the Schedule.
2. Mr. Asghar is not entitled to payment of housekeeping expenses under section 22 of the Schedule.
3. Mr. Asghar is entitled to payment of $1,325.29 for the functional abilities evaluation and $500 for an in-home assessment, but he is not entitled to payment for a neurological assessment or the orthopaedic assessment under section 24 of the Schedule.
4. Mr. Asghar is entitled to interest on the overdue benefits under section 46 of the Schedule.
5. The issue of the parties’ claims for their expenses of the arbitration is deferred.

EVIDENCE AND ANALYSIS:

Mr. Asghar was a 66 year old front seat passenger of a vehicle that was rear-ended by another car on August 2, 2006. The airbags deployed and he was wearing a seat belt. Mr. Asghar was jolted back and forth by the impact of the collision and his knees struck the dashboard. He claims he sustained soft tissue injuries to his neck, back, knees and hands as a result of the accident. Mr. Asghar attended chiropractic, massage, physiotherapy and acupuncture treatment.

At the time of the accident, Mr. Asghar lived in a basement apartment along with his nephew, his nephew’s wife and their three children, then aged nine, four, and one year. The children’s father, Mr. Ashgar’s nephew Babar, was a full-time taxi driver before and after the accident. The children’s mother, Saima, clerked full-time at a dollar store before the accident. Babar’s father owned the home, and lived separately with his family on the main and upper floor of this suburban house.

Mr. Asghar was receiving public assistance benefits before the accident, from which he paid rent to assist the household. He claims he was taking care of the children, was responsible for housework at the time of the accident, and could not perform his pre-accident child care and household responsibilities due to his accident injuries.

Caregiver Benefits:

Part IV of the Schedule provides Mr. Asghar with a benefit of up to $350 per week for replacement child care services if he was the primary caregiver for the children at the time of the accident, and unable to perform his caregiver duties as a result of his accident injuries. However, the evidence does not persuade me on a balance of probabilities that Mr. Asghar was the children’s primary caregiver before the accident.

The evidence of Mr. Asghar along with Saima and Babar clearly establishes that everyone woke together in the morning. He stated he assisted Saima with dressing the children. She picked out their clothes, prepared their breakfasts and lunches while Mr. Asghar helped put the lunches in the children’s school packs. Mr. Asghar walked the two older children to the school bus stop with the youngest child after their parents left for work.

During the school day, Mr. Asghar played with and watched the baby. He gave bottled milk to the one year old, but he did not change diapers and had no responsibility for the two older children until after school when he walked them home from the bus stop mid-afternoon. The children and Mr. Asghar had snacks and watched television till Saima returned from her job around 6 o’clock p.m.

Mr. Asghar testified that Saima prepared the family dinner and both parents played with the children or helped them with homework till everyone went to bed. He cleaned up when the children ate snacks or played in the house after school and he sometimes played with them outside. On weekends when the parents were home, Mr. Asghar said he helped out as needed.

Saima’s evidence adds more detail to the division of family child care. Saima testified that she dressed or set out clothes for all three children, bathed/changed the baby and supervised hygiene for the two older children. Saima’s evidence that it was her responsibility to help dress the children is more compelling than Mr. Asghar’s because he admits he did not participate in the children’s hygiene or change diapers. Saima confirmed Mr. Asghar helped the parents put the children to bed.

Child care responsibilities should be evaluated both quantitatively and qualitatively.² The evidence is that each weekday Mr. Asghar supervised the baby for about eight hours until Saima returned home around 6 p.m., and he also spent about three hours supervising the other two children. Comparatively, Saima’s responsibility for all three children is comprised of one hour each morning, four evening hours from 6 p.m. to 10 p.m. bedtime, and all weekend with both parents. Her responsibility is greater than Mr. Asghar’s responsibility for them.

Qualitatively, the evidence establishes that the two older children relied on Saima and Babar for homework assistance, all meals, most of their hygiene, dressing and main supervisory guidance as parents. Mr. Asghar’s basic supervision of the children while the parents were not at home does not equal the value of Saima’s meals, dressing of the children and changing diapers, their hygiene and school homework assistance. On the facts, I find that Saima was the primary caregiver for the children at the time of the accident, and consequently that Mr. Asghar was not the children’s primary caregiver.

If I am wrong in finding that Mr. Asghar was not the children’s primary caregiver, there is little evidence supporting his disability claim during the first three months after the accident. Mr. Asghar did not go to his family physician or treatment during this period and he testified that his symptoms developed slowly. He did not file his claim for accident benefits until early November 2006.

Mr. Asghar testified that his inability to care for the children progressed with the onset of the cold weather. In late October 2006 Mr. Asghar filled out an activities form that stated he needed assistance with or was unable to perform almost all daily activities.

Mr. Asghar began receiving treatment for his accident injuries in late October 2006, and he and Saima testified that in December 2006 she quit her clerk job to resume her full-time household and child care duties. She and Mr. Asghar did not explain if the children had alternative care between the onset of his disability in October 2006 and December 2006.

A chiropractor conducted the first post-accident health care examination of Mr. Asghar in late October 2006. Dr. Sam Calicchia reports Mr. Asghar had mild pain and restriction of his cervical spine, more elevated in the lumbar region, along with bilateral knee pain. There are no diagnostic tests showing a structural abnormality attributable to the accident, and I accept that Mr. Asghar suffered modest soft tissue injuries from this accident.

Dr. Calicchia’s treatment of Mr. Asghar commenced with a disability certificate in October 2006, simply stating Mr. Asghar had impaired normal activities and recommended an in-home assessment. He does not mention Mr. Asghar took care of the children before the accident, identify the specific activities he was unable to perform or address the eligibility tests for the benefits at issue in this arbitration. Dr. Calicchia’s initial report has little weight in respect of the caregiver benefit.

Dr. Calicchia notes Mr. Asghar’s headaches, stress, anxiety and sleep loss complaints. However, he is not qualified to evaluate psychological problems. I rely on the opinion of Dr. Mel Perlmutter, a psychologist. Mr. Asghar’s treating clinic referred him for assessment in January 2006. After an interview and psychological tests, Dr. Perlmutter found no significant psychological or emotional problems, and there is no qualified psychological opinion otherwise. I find that Mr. Asghar sustained no psychological or emotional problems as a result of the accident.

Mr. Asghar reported in December 2006 to the chiropractor who conducted an in-home assessment that he looked after the children before the accident. Dr. Mikhail Shteynberg’s report is the first to indicate he was the primary caregiver.

Dr. Shteynberg’s opinion is that Mr. Asghar suffered cervical/lumbar restrictions due to pain, decreased tolerances and impairment of his pre-accident activities. He recommended eleven hours a week child care assistance as well as approximately twelve and a half hours a week for Mr. Asghar’s attendant care needs.

Dr. Shteynberg recommended Mr. Asghar receive personal assistance to wash his hair, dress, bathe and eat. I heard no evidence from the lay witnesses to support Dr. Shteynberg’s opinion, and no other health care opinion supports that Mr. Asghar required this level of personal care. Dr. Shteynberg’s exaggeration of Mr. Asghar’s condition leads me to place little weight on his opinion.

Dr. Calicchia’s second disability certificate in January 2007 likewise indicates Mr. Asghar was the children’s primary caregiver before the accident and he suffered difficulty caring for the children post-accident. The document does not specify the child care duties Mr. Asghar was unable to perform or give any reasoning to support the disability claim. Again, Dr. Calicchia’s second disability certificate carries little weight.

In his evidence at the hearing, Dr. Calicchia did not give details about Mr. Asghar’s child care duties or discuss the accident-related impairments affecting his duties. Dr. Calicchia did not address the caregiver disability test. His opinion provides little support for Mr. Asghar’s caregiver benefits claim.

Mr. Asghar relies on the July 2007 functional abilities evaluation of Dr. Kevin Bar, chiropractor, and the July 2007 attendant care/housekeeping assessments of Dr. Jamie Devassy, also a chiropractor.

Dr. Devassy concluded Mr. Asghar needed a modest amount of supervisory assistance with his hygiene in a July 2007 attendant care assessment. In his in-home assessment that same month he found that Mr. Asghar’s neck, low back, knee pain and restricted motion decreased his tolerance for almost all physical motion, recommending fifteen hours per week housekeeping assistance.

Dr. Devassy indicates Mr. Asghar required help to mop, dust, vacuum, clean the bathroom and kitchen, take out garbage, do laundry and ironing, shop and tidy the household. However, Mr. Asghar gave no explicit evidence supporting that he did these types of housework before the accident. He picked up after the children, sometimes took out garbage, and while his evidence was unclear, I understood that he used his hand or a brush to clear dirt from furniture.

The significant conflict between the household tasks Mr. Asghar describes and those listed by Dr. Devassy undermines the value of his opinion because Dr. Devassy had no basis to put this in his report. More important, Dr. Devassy does not address Mr. Asghar’s disability respecting caregiver tasks. I give his evidence no weight.

Dr. Bar’s functional abilities report indicates that Mr. Asghar measured with low grip strength and significant cervical/lumbar spine impairments. I accept the results of Mr. Asghar’s performance on dynamic testing because no other expert evidence diminishes its value and it is generally consistent with Mr. Asghar’s complaints.

However, Dr. Bar does not address the eligibility test for caregiver benefits by relating his findings to Mr. Asghar’s caregiver tasks. Instead, his opinion is that Mr. Asghar could not perform his pre-accident housekeeping duties. This renders Dr. Bar’s opinion of little value on the caregiver benefits issue.

On the one hand, none of Mr. Asghar’s experts provide a cogent opinion addressing the requisite caregiver disability test. They generally note his pain, state he is impaired or tick off a box indicating he is eligible for caregiver benefits. None of his health care experts indicate they knew his specific pre-accident caregiver tasks and therefore do not analyze his ability to meet those specific physical requirements.

On the other hand, Mr. Asghar’s health care evidence is all there is. State Farm did not retain a health care expert to examine him. The chiropractor, neurologist and orthopaedic specialist were retained to evaluate on paper the reasonableness of Mr. Asghar’s applications for further health care examinations, but do not examine the caregiver disability issue and I accord them little or no value to this benefit. Thus, there is no opposing health care opinion from the Insurer on the caregiver benefits issue.

The unopposed evidence of Dr. Calicchia together with Dr. Bar’s findings that Mr. Asghar suffered significant neck/back impairments are generally supported by Saima’s and Mr. Asghar’s testimony that he suffered symptoms and problems with child care beginning with the colder weather in 2006. Relying on the circumstantial time link, coupled with the health care evidence that Mr. Asghar suffered impairments as a result of the accident, there is sufficient evidence to meet his burden of proof.

If Mr. Asghar was the primary caregiver for the children, I would find on balance that he suffered a substantial inability, and was eligible to receive caregiver benefits from the November 7, 2006 date when State Farm received his application for accident benefits until the second anniversary of the accident, subject to proof of the amount.

Mr. Asghar submitted invoices to State Farm for caregiver services from January 1, 2007 to October 6, 2007, but agreed in final submissions that the January, February and March 2007 invoices were not sent to State Farm. He testified he had no idea who completed the caregiver invoices and was unable to offer any information about them. The evidence is that Babar and two other different family members signed the invoices as if they performed the caregiver services, but Saima’s evidence that she alone performed the post-accident caregiver tasks is unchallenged. No evidence explains this convoluted situation.

Saima testified she gave her information about her child care services to her sister-in-law, who completed the forms. State Farm received caregiver bills varying between $1,800 and $400 per month. Neither Saima nor any other witness explained the significant difference in the amounts billed or elaborated on the time she spent on the various caregiver services for the children. More importantly, the varying amounts on the invoices are inconsistent with Saima’s evidence that she was taking care of the children full-time since December 2006.

The conflicting amounts billed and signatures on the invoices from people who did not perform services renders this evidence unreliable. Saima did not either confirm the times and duties through her testimony or provide another plausible basis upon which to make a reasonable determination of the amount. Therefore, even if Mr. Asghar were the primary caregiver for the children, I would decline to order State Farm to pay him anything because he has not established the amount of the caregiver benefits under Part IV of the Schedule.³

Housekeeping/Home Maintenance Expenses:

Mr. Asghar is eligible to receive reasonable and necessary housekeeping expenses for pre-accident duties he could not perform as a result of his accident injuries under section 22 of the Schedule. The evidence is quite clear that Mr. Asghar’s housekeeping responsibilities were minor before the accident.

At the hearing Mr. Asghar made a general statement that he cleaned the apartment between two and fours hours each day before the accident. This statement conflicts with his evidence that he looked after the children throughout the day, and is likewise inconsistent with Dr. Shteynberg’s in-home assessment report indicating he did no housekeeping whatsoever.

Saima testified she did most of the housework, explaining she worked three to five hours on the weekend to clean the entire apartment and do the family’s laundry. Saima stated Mr. Asghar sometimes helped her clean the bathroom and occasionally he took out the garbage. She confirmed Mr. Asghar’s evidence that he cleaned up when the children made a mess.

Saima’s detailed explanation is more plausible than Mr. Asghar’s general statements that are inconsistent with what he told Dr. Shteynberg. Relying on Saima’s evidence, I find that Mr. Asghar’s pre-accident housekeeping consisted of tidying the children’s things and cleaning snack and dirt debris when they made a mess, occasionally taking out the garbage and sometimes helping to clean the bathroom.

Mr. Asghar’s health care opinions respecting his housekeeping duties are not refuted by other evidence, and their weight is not sufficiently undermined by the overstatement of his disability. I find it was reasonable that Mr. Asghar receive housekeeping assistance for the above duties from November 7, 2007 to August 2, 2008, subject to proof of the amount.

The housekeeping expense invoices date from the beginning of December 2006 to the end of December 2008, although Mr. Asghar claims benefits to August 2, 2008. Mr. Asghar further concedes that housekeeping invoices were not sent to State Farm for January 1, 2007 through March 1, 2007.

Saima’s name appears on the invoices as the housekeeping service provider, but the evidence is that she did not sign all of the bills her sister-in-law wrote. It is most important that Saima admitted in her evidence that she did not keep track of her housekeeping time, and her failure to verify or supplement the times and dates noted on the invoices through her testimony, leaves me with little confidence in any of the evidence about the valuation of the housekeeping expenses.

The invoices and Saima’s evidence do not provide sufficient reliable information upon which to base housekeeping expenses.⁴ Mr. Asghar has not established on a balance of probabilities the amount of his housekeeping expenses, and I find that he is not entitled to payment of housekeeping expenses under section 22 of the Schedule.

Costs of Examination:

Mr. Asghar claims he is entitled to funding of a neurological examination and an orthopaedic evaluation under section 24 of the Schedule. There is no evidence he sustained any neurological injury or that his complaints have a neurologic origin. The health care evidence that Mr. Asghar had an uncomplicated modest soft tissue injury does not support the reasonableness of an orthopaedic evaluation either. I reject Mr. Asghar’s request for funding of both these claims.

Dr. Shteynberg significantly exaggerated Mr. Asghar’s condition by recommending personal assistance that is clearly not supported by other lay or expert evidence. While I find it was reasonable in his December 2006 in-home assessment to evaluate Mr. Asghar’s abilities at the outset of his claim, the value of Dr. Shteynberg’s report is significantly reduced, and I find it appropriate to award $500 for the in-home assessment.

Mr. Asghar claims reimbursement for the $1,325.29 July 2007 functional abilities evaluation by Dr. Bar and Dr. Devassy. They used standardized testing to objectively evaluate Mr. Asghar’s condition during the disputed claim period, and both the test results and his opinion should have provided the parties’ with guidance as to his treatment and evaluation of other benefits.

I find it was reasonable for Mr. Asghar to undergo a functional abilities evaluation in July 2007, and that the opinion is based on physical testing for which the cost is reasonable. I find that Mr. Asghar is entitled to $1,325.29 for Dr. Bar’s July 2007 functional abilities evaluation under section 24 of the Schedule.

EXPENSES:

I commend both counsel for their professional and efficient presentation of the evidence and submissions during this two day hearing. I suggest the parties review the criteria in Rule 75 of the Dispute Resolution Practice Code (“DRCP”) for awarding expenses and speak to each other about resolving this matter before they ask the Case Administrator for an assessment under DRCP Rule 79.

August 19, 2009

Fred Sampliner Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Asghar’s claims for caregiver benefits under Part IV of the Schedule, housekeeping/home maintenance expenses under section 22 of the Schedule, a neurological assessment and orthopaedic assessment under section 24 of the Schedule are dismissed.
2. State Farm shall pay $500 for Mr. Asghar’s claim for an in-home assessment and $1,325.29 for the functional abilities evaluation under section 24 of the Schedule, together with interest on these amounts in accordance with section 46 of the Schedule.
3. The parties’ claims for their expenses of the arbitration under subsection 282(11) of the Insurance Act are deferred.

August 19, 2009

Fred Sampliner Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Henry and Allstate Insurance Company of Canada (FSCO A-011487, January 12, 1996).
3. 3Mathur and RBC General Insurance Company (FSCO A06-000931, March 30, 2007).
4. 4Ibid.