Neutral Citation: 2009 ONFSCDRS 161 FSCO A08-000498

BETWEEN:

RAJEEV KASHYAP Applicant

and

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

REASONS FOR DECISION

Before: Judith Killoran Heard: August 24 and 26, 2009

Appearances: Nancy Ng for Mr. Kashyap Alexander Lempp for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Rajeev Kashyap, was injured in a motor vehicle accident on April 5, 2006. 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. Kashyap 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. Kashyap entitled to receive a medical benefit for treatment plans from Prime Health Recovery Centre dated November 15, 2006 and May 22, 2007 respectively, claimed pursuant to section 14 of the Schedule?
Is Mr. Kashyap entitled to payments of $100 weekly from April 5, 2006 to March 31, 2008 for housekeeping and home maintenance services pursuant to section 22 of the Schedule?
Is Mr. Kashyap entitled to payment for the cost of examinations, in the amount of $1,325.29 for a Functional Abilities Evaluation pursuant to section 24 of the Schedule?
Is Mr. Kashyap entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Mr. Kashyap is not entitled to receive a medical benefit for treatment plans from Prime Health Recovery Centre dated November 15, 2006 and May 22, 2007 respectively, pursuant to section 14 of the Schedule.
Mr. Kashyap is not entitled to payments of $100 weekly from April 5, 2006 to March 31, 2008 for housekeeping and home maintenance services, pursuant to section 22 of the Schedule.
Mr. Kashyap is not entitled to payments for the cost of examinations in the amount of $1,325.29 for a Functional Abilities Evaluation pursuant to section 24 of the Schedule.
Mr. Kashyap is not entitled to interest under subsection 46(2) of the Schedule.

BACKGROUND

Mr. Kashyap was involved in an accident on April 5, 2006 when the vehicle in which he was a passenger hit a median and then a light pole. On July 29, 2006, he was the victim of an assault and robbery when he was working full-time as a security guard. As it was not until September 25, 2006 that he applied to Security National for accident benefits, Security National has raised an issue of causation with respect to his claim.²

Mr. Kashyap testified that at the time of the motor vehicle accident, he was a security guard continuing with his part-time studies in clinical research at Humber College and doing volunteer work at Toronto General Hospital. He lived with his family which consisted of his wife, his daughter, 19, and his son, 23.

EVIDENCE AND ANALYSIS:

Medical Benefits

At the outset of the hearing, there were 3 treatment plans in dispute. The first treatment plan dated August 21, 2006 from Dr. Sam Calicchia, chiropractor, was invoiced from Prime Health Recovery Centre (“Prime Health”) on November 14, 2006 for $2,462.³ Security National agreed at the hearing to pay the full amount of the first treatment plan together with interest. The issue before me was whether the second and third treatment plans meet the test of entitlement set out in subsection 14(2) of the Schedule and are “reasonable and necessary expense incurred by or on behalf of the insured person as a result of the accident.”

The second treatment plan dated November 15, 2006 from Dr. Sam Calicchia totalled $1,852 and was submitted on November 20, 2006.⁴ It was rejected by Security National on November 24, 2006 which required that Mr. Kashyap be examined by an assessor to determine if the goods and services were reasonable and necessary.⁵ It appears that this treatment plan was invoiced on December 7, 2006 for $1,272.00.⁶ On December 18, 2006, Security National relied on the assessment completed by Dr. Stephen Balsky, chiropractor, to deny the treatment plan.

The third treatment plan dated May 22, 2007 from Dr. Sam Calicchia totalled $1,263.72.⁷ Security National did not agree to pay for the treatment plan pending an assessment to determine if the treatment was reasonable and necessary.⁸ The third treatment plan is linked to an invoice of $658.72 dated July 9, 2007 from Prime Health. However, it appears that Mr. Kashyap stopped attending therapy at Prime Health after the submission of the second treatment plan.

Prior to the accident, Mr. Kashyap testified that he was never ill and was active in athletic activities such as rafting and paragliding. After the accident, he was not successful in finding a clinic which would accept him as a patient so he purchased Tylenol and Advil to deal with his pain. After he rested for 3 or 4 days, he returned to work. A co-worker recommended that he attend at Prime Health for therapy relating to his post accident injuries which included stiffness and pain in his neck, right shoulder, spine and right knee. Mr. Kashyap received treatments at Prime Health which included some ultrasound, acupuncture, yoga and exercise.

Mr. Kashyap claimed that his life changed after the motor vehicle accident so that he gained weight and developed sleep apnea, and hypertension as a result of being sedentary. Also, his back and knee hurt to such a degree that he was unable to climb stairs. This did not prevent him from monitoring screens in his security guard position or taking the history of patients as part of his clinical research. He testified that the accident did affect his housekeeping abilities and his relationships with the members of his family.

It was while working as a security guard on July 29, 2006 that Mr. Kashyap was assaulted and his cell phone was stolen. His supervisor called the police. Afterward he was given some lighter duties temporarily and he attended at a walk in clinic the next morning. Iona Doctors Clinic documented that he had pain in his lower and mid back, his right groin and right knee as a result of being pushed from behind in the course of a robbery. Dr. S. Papneja completed a functional abilities form and a first report for the Workplace Safety and Insurance Board which stated that Mr. Kashyap had no prior history of mid and lower back pain, right groin and right knee pain. Mr. Kashyap testified that this physician referred him to Physio Fix Clinic. He attended Physio Fix for six or seven treatments of chiropractic, hot and cold compresses and massage. As the travel time to the clinic was greater than 3 hours, he moved to Unihealth Clinic for treatment because of continued pain.

Mr. Kashyap testified that he left his position as a security guard in July 2007 after he obtained a job in clinical research. He worked at Alpha Medical Research in June 2007 concurrently with his security guard job. He also volunteered at Toronto General Hospital after the motor vehicle accident and averaged 6 to 8 hours a week. He researched articles and collected data and entered the data in a spreadsheet. As well, he was attending courses at Humber College for approximately 3 to 6 hours per week. In 2008, he was laid off from his clinical research position so he attended additional courses at Humber College.

At Alpha Medical Research, Mr. Kashyap acted as the Clinical Research Coordinator. He screened subjects, performed ECGs, administered pulmonary function tests, and filed and stored materials, from June 25, 2007 until March 28, 2008. As a security guard, he sat and reviewed monitors with one walk around inspection of the building during his 12 to 8 a.m. shift.

Mr. Kashyap testified that he could not remember how many times he went to Prime Health, the date of his first visit, and when he stopped attending Prime Health. After he attended at Prime Health, he was very sore and often had pain. He found that the therapies at Unihealth were more beneficial to him and he paid for them.

Dr. Adrian Joaquin was an expert witness for Mr. Kashyap. He was qualified as a chiropractor with expertise treating motor vehicle accident patients. Dr. Joaquin examined Mr. Kashyap on January 31, 2009. He reviewed the file and then took a history from Mr. Kashyap who reported left knee pain and difficulty with bending and crouching. His lower back examination revealed a mild tenderness with palpation. Dr. Joaquin found that Mr. Kashyap should limit his lifting to carrying groceries or doing laundry. He recommended altering his bending tasks but found he was not impaired from doing housekeeping. He concluded that his job as a security guard required only light work and did not require lifting or bending.

Dr. Joaquin performed no treatments on Mr. Kashyap but was retained by Century Diagnostic & Assessment Centre to do an assessment and a report. Dr. Joaquin testified that Mr. Kashyap complained of low back and left knee pain. However, every medical report before me and Mr. Kashyap’s own testimony describes a right knee injury and subsequent pain. Dr. Joaquin testified that Mr. Kashyap did not attend Prime Health until August 2006 and continued to attend until May 2007. Apparently, Mr. Kashyap told Dr. Joaquin that the treatment at Prime Health did not assist him much.

Dr. Joaquin’s evidence had no relevance to the issues before me. Dr. Joaquin was only given Treatment Plan 1 which was not in dispute. He, at no point, reviewed Treatment Plans 2 and 3. The first time Dr. Joaquin examined Mr. Kashyap was some 3 years after the accident. Dr. Joaquin was not informed of the work-related accident which occurred on July 29, 2006, which would have been relevant for his assessment. As well, he was not informed that Mr. Kashyap received therapy at 2 other clinics while attending Prime Health.

Dr. Stephen Balsky, a chiropractor, testified for Security National and was qualified as an expert witness. He reviewed treatment plans 1 and 2 but not treatment plan 3. His reports were dated September 27, 2006 and December 6, 2006.⁹ In his September report, Dr. Balsky determined that Mr. Kashyap had only minor residual impairments resulting from the motor vehicle accident. He concluded that he had suffered minor soft tissue injuries to his neck. He could not detect any orthopaedic impairment to his knees or thighs and diagnosed cervicothoracic sprain/strain injuries. He found the first treatment plan by Dr. Calicchia of Prime Health dated August 21, 2006 to be reasonable and necessary as Mr. Kashyap had not received any formal treatment for his injuries prior to the first treatment plan. Dr. Balsky found the second treatment plan not reasonable or necessary as Mr. Kashyap had participated in therapy recommended under the first treatment plan which had not provided either significant objective or subjective improvement. He concluded that as eight months had elapsed from the motor vehicle accident, the provision of similar treatment would not provide the anticipated gains.

I find that the treatment recommended by Prime Health in the two treatment plans which are in dispute is not reasonable or necessary. I find, based on the uncontroverted evidence before me, that it is more likely that Mr. Kashyap attended for treatment as a result of his workplace assault than the motor vehicle accident. All medical documentation is contemporaneous with the workplace assault and not the motor vehicle accident. The disability certificate dated August 21, 2006 was signed by Dr. Caliccia after the workplace accident. The first treatment plan from Prime Health was submitted 6 months after the motor vehicle accident but almost immediately following the workplace assault and robbery. The clinical notes and records of Mr. Kashyap’s family doctor, Dr. Papnea, commence in September 2006, much closer in time to his workplace assault than the motor vehicle accident. In fact, Dr. Papnea attributes his injuries and pain to the workplace assault and declares on August 3, 2006 in a Workplace Safety and Insurance Board form that Mr. Kashyap had no prior medical history of the documented symptoms.

Housekeeping

Section 22 of the Schedule requires that Security National shall pay for reasonable and necessary additional expenses incurred by or on behalf of Mr. Kashyap as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, Mr. Kashyap sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident.

Mr. Kashyap’s family lived in a 2-bedroom basement apartment. Mr. Kashyap testified that after he persuaded his wife to come to Canada, he was reluctant to pressure her about performing household chores. Mr. Kashyap testified at first that he performed all the household chores but later he conceded that his wife helped somewhat with their children. He claimed that he spent 12 to 16 hours a week performing household tasks. Their son was a mechanical engineer and their daughter was a university student. Before the accident, his wife did some cooking and cleaning for the children. His son and daughter sometimes did some household chores before the accident. He continued to live with his family 2 or 3 months after the car accident.

After the accident, Mr. Kashyap would leave for work at 11 p.m. and return by 8:30 a.m. when he would sleep. At 1 p.m., he would get up to study and work on his online courses. He went to Toronto General Hospital for his volunteer work perhaps once or twice a week.

Mr. Kashyap asked a friend to assist with housekeeping. Mr. Kashyap’s friend took him to the grocery store, did the laundry, and helped in all aspects of the housework. He claimed that his friend came 3 to 4 times a week to help with the household chores for 4 or 5 months because his family was not cooperating. Initially, he paid him and then promised later that he would pay him if he received any money from the insurer. Mr. Kashyap itemized the chores he was incapable of doing, such as cleaning the bathroom.

Mr. Kashyap moved in with friends in the summer of 2006 but returned to live with his family in November 2006. His only responsibility, when he lived with friends, was to take care of his room. He left his family again in January 2007 to live with another family. From January 2007 to the summer of 2009, he lived with the first family. He had a bedroom and meals prepared for him with no household responsibilities. He has not seen his family since December 2008. For the 2 months prior to this hearing, he was living with a second family. When he lived with the first family, he paid $450 a month for rent and cleaning and cooking. The second family also charged $450 a month for a similar arrangement.

Mr. Kashyap testified that the housekeeping provider is no longer living in the same city, he has lost his address and has not spoken to him in 1-1/2 years.

Mr. Kashyap was not credible when he testified about his level of function and the degree of housework he engaged in both before and after the accident. Also, the purported housework provider was not presented as a witness. In contrast, Security National submitted weightier evidence, which I preferred, which was an in-home assessment report dated November 15, 2006 prepared by Danielle Reich, occupational therapist, which concluded that Mr. Kashyap was physically able to perform his pre-accident housekeeping responsibilities.¹⁰

I find that Mr. Kashyap is not entitled to housekeeping and home maintenance expenses because any impairment sustained by him is attributable to the workplace assault and robbery and not the motor vehicle accident. As well, Mr. Kashyap failed to present evidence to meet the test for entitlement that, on a balance of probabilities, he sustained an impairment that resulted in a substantial inability to perform pre-accident housekeeping tasks.

Section 24 – Medical Examination

Security National denied Mr. Kashyap’s claim for payment of $1,325.29 for a Functional Abilities Evaluation (FAE) received on January 25, 2007 from a chiropractor, Dr. Kevin Bar. Dr. Balsky conducted a paper review of the denial and found that the claim for a Functional Abilities Evaluation was not reasonable or necessary in the circumstances. Dr. Balsky relied on his two physical examinations of Mr. Kashyap and the in-home assessment report dated November 15, 2006 by Ms. Reich that concluded Mr. Kashyap did not suffer from a substantial inability to perform his pre-accident housekeeping and home maintenance activities.

I find that Security National’s decision not to approve a Functional Abilities Evaluation was reasonable in light of my findings about causation. To the extent Mr. Kashyap sustained any impairment, it was as a result of the assault and robbery at his workplace and not the motor vehicle accident.

EXPENSES:

The parties are encouraged to resolve the issue of expenses. If they are not successful, they may apply for an expense hearing before me, pursuant to the Dispute Resolution Practice Code.

November 18, 2009

Judith Killoran Arbitrator

Date

Financial Services Commission of Ontario