Neutral Citation: 2009 ONFSCDRS 32 FSCO A07-002320

BETWEEN:

GURINDER TOOR Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

Before: William J. Renahan Heard: January 27 and 28, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Rameshwer Sangha for Mrs. Toor Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Gurinder Toor, was injured in a motor vehicle accident on November 4, 2005. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company, payable under the Schedule.¹ State Farm terminated weekly caregiver and housekeeping benefits on June 27, 2006. Mrs. Toor claimed weekly benefits to November 4, 2007. The parties were unable to resolve their disputes through mediation, and Mrs. Toor 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 Mrs. Toor entitled to caregiver benefits pursuant to section 13 of the Schedule after June 27, 2006, and, if so, in what amount?
Is Mrs. Toor entitled to weekly housekeeping benefits pursuant to section 22 of the Schedule after June 27, 2006, and if so, in what amount?
Is either party entitled to expenses of the arbitration pursuant to section 282(10) of the Insurance Act?

Result:

Mrs. Toor is not entitled to further caregiver benefits.
Mrs. Toor is not entitled to further housekeeping benefits.
The issue of expenses is deferred.

EVIDENCE AND ANALYSIS:

Background

At the time of the motor vehicle accident on November 4, 2005, Mrs. Toor worked full-time as a lab technician and 20 hours a week part-time at "2 for 1 Pizza." Mrs. Toor had just returned to her work as a lab technician for two weeks following her maternity leave when the accident occurred. She testified that her vehicle was struck from behind on the highway by another vehicle travelling 100 km. per hour. She was taken to hospital and released after a few hours. She testified that her major injury was a severe whiplash in the neck. Her family doctor, Dr. Yasmin Thobani, testified that Mrs. Toor did not often complain of neck pain. She mostly complained of chronic recurrent back pain. This was one of several contradictions in the evidence which was not explained.

An x-ray of the neck revealed a small amount of degenerative arthritis. An MRI of the head was normal.

At the time of the accident, Mrs. Toor was 31 years old and the mother of a one year old daughter, Alisha. She claimed caregiver and housekeeping benefits for services provided by her mother. State Farm paid $250 per week as a caregiver benefit and $100 per week as a housekeeping benefit until June 27, 2006.

Mrs. Toor did not return to her employment as a lab technician because the company moved. However, she continued to work part-time at 2 for 1 Pizza until February 2006. At the beginning of June 2006, before State Farm terminated benefits, Mrs. Toor started to look for full-time employment. She started full-time nights with Tim Horton's on June 19, 2006 and continued to work there until August 2006 when she obtained a better paying job at Wal-Mart. She worked nights stocking shelves at Wal-Mart. She testified that it was light work because she worked in the health and beauty department, however, she injured herself in March 2007 trying to move a box containing 24 heads of lettuce. She did not explain why she was moving heads of lettuce when she worked in the health and beauty department. Wal-Mart placed her on modified duties. Under cross-examination, Mrs. Toor continued to claim that her regular work was light and did not appreciate that her regular work must have entailed heavier aspects if she was given modified duties after her injury.

Mrs. Toor claimed caregiver and housekeeping benefits for services provided by her mother, Surinder Padda, from June 27, 2006 to November 4, 2007. During the hearing, Mrs. Toor and Mrs. Padda admitted that Mrs. Padda could not have performed caregiver and housekeeping tasks from July to October 2006, because Mrs. Padda was in Australia at the time. They claimed that Mrs. Toor's brother performed these tasks during this period. I declined Mr. Sangha's offer to have the brother submit new forms for the period he allegedly performed these services. The brother did not testify.

Caregiving benefits

The material parts of section 13 are as follows:

13.(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

(2) The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care.

Primary caregiver

Mrs. Toor's parents came to Canada in 2004 to assist her with her pregnancy. Mrs. Toor admitted that on her return to work two weeks before the accident, her mother took care of Alisha. Mrs. Toor worked eight hours a day, five days a week as a lab technician and spent two hours each day commuting. In total she was away from the home 50 hours a week on account of this job. She also worked 20 hours a week for 2 For 1 Pizza prior to the accident. She did not tell any of the doctors she saw about her part-time work. She testified that her mother took care of Alisha when she was at work. This is the only evidence I heard on the issue of whether Mrs. Toor was the primary caregiver of Alisha. Given the admissions and the amount of time Mrs. Toor was away from home working, I find that Mrs. Toor was not the primary caregiver of Alisha at the time of the accident. It is more likely that her mother was the primary caregiver. Accordingly, Mrs. Toor is not entitled to a caregiver benefit.

I also consider the other aspects of the caregiver claim.

Caregiving activities at the time of the accident

In order to determine whether a person suffers a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident, it is necessary to first determine what caregiving activities the person engaged in at the time of the accident. I heard no testimony from Mrs. Toor or her mother as to what caregiver activities Mrs. Toor performed before the accident.

Substantial inability to engage in normal caregiving activities

Mrs. Toor submitted to State Farm several forms which purport to describe the caregiving duties that Mrs. Padda performed for her daughter on a monthly basis. Each monthly form is signed by Mrs. Toor and Mrs. Padda. Mrs. Toor did not know if the form was blank when she signed it, did not recognize the writing on the forms and did not know what the form represented. Mrs. Padda said that the form was blank when she signed it. Mrs. Padda admitted that she could not have performed the caregiving duties she claimed she performed from June or July 2006 to October or November 2006 because she was with her other daughter in Australia during this period. Mrs. Toor and Mrs. Padda testified that Mrs. Toor's brother, Rajinder Singh Kaur, performed these duties while Mrs. Padda was in Australia. I heard no evidence to explain these misrepresentations.

In May 2006, Mrs. Toor's counsel arranged for Cecilia So, an occupational therapist, to conduct an in-home assessment. Ms. So reported that Mrs. Toor had resumed most of her child care activities except bathing her daughter. She wrote that "Ms. Toor demonstrated and/or reported her ability to perform most of the childcare tasks except bathing her daughter." Despite this, Mrs. Toor continued to submit claims in excess of 100 hours a month for caregiving expenses. Mrs. Toor had no explanation as to how her occupational therapist arrived at her conclusion that she had resumed most of her child care activities.

Dr. Thobani, Mrs. Toor's family doctor, testified that Mrs. Toor had recovered quite well by June 2006, the time State Farm terminated caregiving benefits.

In August 2006, Ms. So performed another assessment in which she found that some of Mrs. Toor complaints had improved and some had gotten worse. She recommended that Mrs. Toor receive one hour of childcare assistance a day to support her efforts to work. Ms. So did not apply the correct test. She did not determine whether Mrs. Toor was substantially disabled from performing her pre-accident caregiving activities.

I found no reliable evidence that Mrs. Toor was substantially disabled from engaging in pre-accident caregiving activities.

Housekeeping benefits

The test for entitlement under section 22 of the Schedule is as follows:

22.(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.

This claim is much like the caregiving claim. Mrs. Toor and her mother both admitted that, except for the gardening, snow shovelling and groceries, Mrs. Padda did the housekeeping prior to the accident while Mrs. Toor was at work. Mrs. Toor submitted claims for housekeeping while she was sweeping at Tim Horton's and pulling crates of lettuce at Wal-Mart. She submitted claims for housekeeping performed by her mother for the three or four months her mother was in Australia. She submitted claims for housekeeping tasks after June 2006 when Ms. So reported in May 2006 that "Ms. Toor demonstrated her ability to perform most of the housekeeping tasks with pacing and task modification techniques."

Dr. Thobani testified that Mrs. Toor could not work at Wal-Mart if she was substantially disabled from performing her normal housekeeping activities.

In her report of August 14, 2006, Ms. So recommended additional housekeeping assistance to assist Mrs. Toor's efforts at work. Again, this is not the correct test. She did not determine that Mrs. Toor was substantially disabled from performing the housekeeping activities she normally performed before the accident.

I found no reliable evidence that Mrs. Toor was substantially disabled from performing the housekeeping services she normally performed before the accident.

EXPENSES:

If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding, they may make written submissions. The responding party shall have 14 days to respond to the Applicant's submissions.

If, after the issue of entitlement is resolved, the parties cannot agree on the amount of expenses, they may make written submissions in accordance with Rule 79.2 of the Dispute Resolution Practice Code (Fourth Edition).

March 11, 2009

William J. Renahan Arbitrator

Date

ARBITRATION ORDER

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

The application for arbitration is dismissed.
The issue of entitlement to and amount of expenses of the arbitration proceeding is deferred.