Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 4

FSCO A05-001285

BETWEEN:

ESMAT ZAIDAN

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before: Anne L. Sone

Heard: January 14, 15 and 16, 2008, at the offices of the Financial Services Commission of Ontario in Toronto and May 9, 2008 by teleconference call arranged by the Financial Services Commission of Ontario. Final written submissions were received on June 16, 2008.

Appearances: Owen Elliot for Esmat Zaidan Darrell March for RBC General Insurance Company

Issues:

The Applicant, Esmat Zaidan, was in a motor vehicle accident on July 19, 2004. She applied for and received some of the statutory accident benefits she applied for from RBC General Insurance Company (“RBC”), for medical benefits payable under the Schedule.¹ She applied for but did not receive statutory accident benefits from RBC, for caregiving and housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Ms. Zaidan 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 Ms. Zaidan entitled to receive weekly caregiver benefits pursuant to section 13 of the Schedule from July 20, 2004 to August 14, 2005 with respect to two children, Abedalrahman born May 14, 2001 and Omar born July 9, 2004?
Is Ms. Zaidan entitled to receive a medical benefit for services provided by East Sheppard Rehabilitation Company Ltd. in the amount of $4,493.05 claimed pursuant to section 14 of the Schedule?
Is Ms. Zaidan entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule from July 19, 2004 to August 14, 2005?
Is Ms. Zaidan entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is RBC liable to pay Ms. Zaidan’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Zaidan liable to pay RBC’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

Ms. Zaidan is not entitled to receive weekly caregiver benefits from July 20, 2004 to August 14, 2005 with respect to two children, Abedalrahman born May 14, 2001 and Omar born July 9, 2004.
Ms. Zaidan is not entitled to receive medical benefits for services provided by East Sheppard Rehabilitation Company Ltd.
Ms. Zaidan is not entitled to payments for housekeeping and home maintenance services from July 19, 2004 to August 14, 2005.
Ms. Zaidan is not entitled to interest.
The issue of legal expenses claimed pursuant to subsection 282(11) of the Insurance Act may now be addressed in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition Updated – October 2003).

EVIDENCE AND ANALYSIS:

Background:

The Applicant, Ms. Esmat Zaidan, was a seat-belted passenger in the middle row of a van driving along Highway 401. The right front wheel came off, and the van bumped down to the road. It then skidded to a stop. Her husband was driving the van, and his mother was sitting in the front seat beside him. The Applicant was in the back of the van with their four children. They were travelling from Mississauga to Windsor where they were living at the time. They were not going very fast because the highway was very busy.

Ms. Zaidan testified that her head hit and her knee touched the seat in front of her and she felt pain mainly in her lower back and neck. She also felt pain in her leg when she got out of the van. When the police arrived at the scene, she did not request an ambulance or medical attention at the time. They used a rental car to go back to Windsor on the same day.

The next morning Ms. Zaidan went with her mother-in-law to a walk-in clinic in Windsor. When they arrived, Ms. Zaidan discovered that she had forgotten her OHIP card. Ms. Zaidan testified that, as a result, Dr. Maha Naif, the doctor at the clinic, would not see her. She did not go home to retrieve the card. Rather, when the doctor was seeing her mother-in-law, Ms. Zaidan testified that she spoke to the doctor and the doctor told her to call the obstetrician who had taken care of her during her pregnancy and who was at her delivery 10 days before. Ms. Zaidan testified that she called the obstetrician and got an appointment, but they left Windsor before the appointment, so she had to cancel it. She did not remember how the family’s belongings were moved from Windsor to Mississauga.

On cross-examination, Ms. Zaidan said they paid for her mother-in-law to see the doctor in the walk-in clinic because her mother-in-law did not have OHIP. Ms. Zaidan claimed that the doctor at the walk-in clinic said that there was nothing she could do for her because she needs her file. Ms. Zaidan admitted that she did not attempt to see any other medical doctor regarding her injuries from the car accident.

Interpreter:

Ms. Zaidan confirmed that she did not require an interpreter for the hearing.

Surveillance:

The Applicant questioned whether RBC had provided all the investigator’s notes with respect to the surveillance in this case conducted in April and June 2005, as required by Rule 40.1(b) of the Dispute Resolution Practice Code (Fourth Edition updated – October 2003).

RBC provided an affidavit from James Bradley², which stated that he was an Investigations Manager at Profile Investigations and that:

He personally copied the original unedited investigator’s notes with respect to surveillance on this file.
A copy of these unedited investigator’s notes were provided to Mr. March’s office.
Profile Investigations have no further investigator notes pertaining to surveillance on this file.

In light of this affidavit, the Applicant dropped her objection to the production of the surveillance in this case.

Claim for Caregiver Benefits:

Ms. Esmat Zaidan and her husband, Mr. Ammar Abulibdeh, moved to Canada on February 18, 2004. They are both civil engineers. Ms. Zaidan testified that she had planned to attend a Master’s Program in Engineering in September 2004, but that the car accident turned her life upside down. She did get accepted to a Master’s Program in Local Economic Development in the Faculty of Environmental Studies at University of Waterloo, which she started in September 2005. It took her one-and-a-half years to complete this program. At the time of the hearing, she was enrolled in a doctoral program at University of Waterloo.

Ms. Zaidan and Mr. Abulibdeh are the parents of four children, namely, Rawan, born February 22, 1997; Mira, born March 16, 2000; Abedalrahman, born May 14, 2001; and Omar, born July 9, 2004. By letter dated February 2, 2005, the Applicant’s counsel wrote RBC advising that

Mr. Abulibdeh was the primary caregiver for the older two children, Rawan and Mira, who were seven and four respectively at the time of the accident.

When the accident took place, Mr. Abulibdeh was not employed, and was living with his wife, children and his mother in Windsor, Ontario. He planned to move to Mississauga where he had obtained work. Ms. Zaidan had submitted she was the pre-accident primary caregiver for the younger two children.

Ms. Zaidan claims caregiver benefits of twenty hours a week (except for four weeks, when seventeen hours a week are sought) at $15 an hour, from July 20, 2004 to August 14, 2005. Invoices filed note the names of the care providers as A. Musameh from July 20 to August 1 2004; A. Zace, from August 2 to October 24, 2004; and S. Khan from October 25, 2004 to August 14, 2005. None of these individuals testified at the hearing.

Mr. Abulibdeh claimed caregiver benefits for the oldest two children for the exact same time period, based on his own injuries. His claims for caregiving, housekeeping and medical benefits were the subject of a decision by Arbitrator Blackman in Abulibdeh and RBC General Insurance Company.³

Ms. Zaidan testified that she was disabled from providing caregiving to her two younger children, aged three years and 10 days old, respectively, at the time of the accident, because she could not follow their daily personal regime which required feeding and cooking for them, tutoring and washing them. She said she required someone to be with them if they were sick. She did not provide any evidence as to why she could not tutor her children or be with them when they were sick. She did not explain what tutoring a three year old child and a 10 day old baby required.

She also stated that pain and depression made her unfocused to the point that sometimes she was not concentrating, and, as a result, burnt the baby’s toe while turning off the burner on the stove. She testified that before the accident she had a normal life and was able to walk and swim. She admitted that her ability to provide caregiving to her children has, over time, improved since the accident.

Ms. Zaidan testified that the invoices for housekeeping and caregiving were completed daily. She said that the housekeeper would fill it out and that she and her husband would review it. She also stated that the assistance she received lasted for 10 to 12 months after the accident. She was not exactly sure.

Ms. Zaidan had a lawyer when she filled out her Application for Accident Benefits dated August 5, 2004. She testified that she reviewed the contents of the Application before signing it and that it was true. On cross-examination she admitted that she had filled in that three people were dependent on her for support and care. She stated that she had left out one child by mistake. When told that her husband had claimed a caregiver benefit because he said he was the primary caregiver for two of his children, Ms. Zaidan stated that it was a mistake in the Application. She also had to admit that there were no references to neck or knee injuries in her Application for Accident Benefits.

Ms. Danielle Wilson is an occupational therapist with Functional Rehabilitation Inc. She assessed the Applicant on August 19, 2004. Her August 22, 2004 In-Home Assessment reported that Ms. Zaidan was the primary caregiver for her four children, and that she did not require caregiver assistance beyond some assistive devices to assist with bathing.

By Explanation of Benefits Payable by Insurance Company dated August 24, 2004, RBC advised Ms. Zaidan that in view of the report completed by Functional Rehabilitation Inc., she did not suffer a substantial inability to perform her caregiving activities. RBC advised that her caregiving benefits would be stopped effective September 11, 2004. No caregiving benefits had been paid.

The Applicant did not argue that RBC had conceded entitlement for any period. The evidence indicates Ms. Zaidan first submitted caregiving invoices by letter dated October 29, 2004 (covering the initial claim period July 20 to October 24, 2004).

RBC notes that Ms. Zaidan had invoiced three hours on Saturday, June 5, 2005 for Ms. Khan accompanying, supervising, feeding and taking the children for walks and that an additional three hours were claimed by Mr. Abulibdeh for caregiving expenses that same day.

At his hearing, Mr. Abulibdeh conceded, on cross-examination, that he, his wife and their four children had spent that entire day either at the African Lion Safari or in transit, as shown in the surveillance. Amongst other things, the Applicant is noted at various times holding a child, making lunch for her family, changing a diaper, climbing on and off an elephant and playing and splashing with her children in a wading pool. They arrived home at 7:56 p.m. and proceeded to unload the van. At his hearing, Mr. Abulibdeh further conceded that no caregiver services were provided that day. He stated that he had not noticed this unintentional error in his invoices when reviewing the documentation during his examination-in-chief. Ms. Zaidan testified at her hearing that claiming for caregiving on June 5, 2004 “maybe was a mistake.”

There is also surveillance of Ms. Zaidan on April 14 and 15, 2005 which shows her putting her baby in and out of the car, taking her child to and from school, shopping and carrying her baby in her left hand and three bags of groceries in her right hand. In her caregiving invoices, Ms. Zaidan claimed that Ms. Khan provided a total of seven hours of caregiving assistance on those two days, including claims for “Accompanying/Supervising” and “Taking for walks.” Ms. Zaidan failed to provide any explanation for the discrepancy between her claims and these videotaped activities.

Claim for Housekeeping Benefits:

The Applicant testified the she had a person coming three to four hours a day, six days a week, to do the housekeeping tasks.

The Applicant’s husband, Mr. Abulibdeh, claimed housekeeping benefits for the exact same time period, based on his own injuries. The forms that he submitted were identical to the forms submitted by the Applicant.

The Applicant provided invoices from three different individuals. As noted above, A. Musameh provided invoices for the first two weeks; A. Zace from August 2 to October 24, 2004; and S. Khan from October 25 to August 14, 2005. For every week, seven hours of housekeeping are charged at $15 an hour (except for two weeks when five hours are invoiced). The invoices, on prepared forms, have a variety of duties ticked off, including dusting every second day, mopping daily and laundry twice a week.

Ms. Danielle Wilson is an occupational therapist with Functional Rehabilitation Inc. She assessed the Applicant on August 19, 2004. Her August 22, 2004 In-Home Assessment stated that Ms. Zaidan “reports that she is not participating in most housekeeping tasks, however demonstrated adequate functional abilities to be able to complete them.” Ms. Wilson opined that Ms. Zaidan is not considered disabled from performing her required housekeeping tasks with recommended assistive devices such as a Swiffer Wet Jet, a tub scrubber and a wheeled buggy. She also stated that as a result of the accident, Ms. Zaidan did not sustain an impairment that resulted in a substantial inability to perform some housekeeping and home maintenance services.

housekeeping benefits will be stopped, effective August 19, 2004.

Similarly to the caregiving claim, the Applicant did not argue that RBC had conceded entitlement for any period. The evidence indicates Ms. Zaidan first submitted housekeeping invoices by letter dated October 29, 2004 (covering the initial claim period July 20 to October 24, 2004).

Decision Regarding Caregiver and Housekeeping Benefits:

In order to be entitled to a caregiver benefit, pursuant to section 13 of the Schedule, Ms. Zaidan must prove on a balance of probabilities that as a result of the accident she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident.

She also must show that she was the primary caregiver for her two younger children, for which she is claiming a caregiver benefit.

In order to be entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule, Ms. Zaidan must prove on a balance of probabilities that as a result of the accident she sustained an impairment that results in a substantial inability to engage in the housekeeping and home maintenance services which she normally performed before the accident.

The Applicant relies on the evidence of Dr. Alyea, a chiropractor practicing at East Sheppard Rehabilitation Company Ltd. (“East Sheppard”) located on Sheppard Avenue East in Toronto.

Dr. Alyea’s August 3, 2004 Disability Certificate states that Ms. Zaidan was suffering a complete inability to carry on a normal life which continuously prevented her from engaging in substantially all of the pre-accident activities in which she ordinarily engaged, as well as a substantial inability to engage in the housekeeping and caregiving activities (four children being noted)⁴ in which she engaged prior to the accident.

Dr. Alyea anticipated five to eight weeks of disability due to functional limitation arising from pain. Dr. Alyea’s September 16, 2004 Discharge & Status Report states that the patient is improving on page 1. In a Progress Report dated September 17, 2004, Ms. Zaidan states that her pain levels have improved 50 to 55%. On the last page, Dr. Alyea notes that the “patient is progressing slowly possibly due to physical involvement of looking after 3 kids and a newborn.”

In a Progress Report from East Sheppard dated November 13, 2004, Ms. Zaidan states that her pain levels had improved between 60 to 65%.⁵

At the arbitration hearing, Dr. Alyea testified that because of limitations involving Ms. Zaidan’s mid and low back and knee, it was unsafe for her to participate in her normal activities of daily living and child care. He did not explain how or why. He was asked on cross-examination if he had asked Ms. Zaidan what her activities were before and after the car accident. He admitted that he did not.

Arbitrator Blackman did not accept Dr. Alyea’s evidence regarding Mr. Abulibdeh’s disability because Dr. Alyea had little, if any, knowledge as to the specifics of Mr. Abulibdeh’s pre-accident caregiving and housekeeping duties. He had little knowledge of Mr. Abulibdeh’s post-accident employment and school attendance.

In the Abulibdeh case, Dr. Alyea initially opined that Mr. Abulibdeh was continuously prevented from engaging in substantially all of the pre-accident activities in which Mr. Abulibdeh ordinarily engaged, when there was no evidence to support such a conclusion, including that of the Applicant, who testified that he drove a truck at the end of July 2004 from Windsor to Mississauga when his family moved after the accident and that he helped unload light items.

I also do not find Dr. Alyea’s evidence persuasive to support a claim for housekeeping or caregiving in Ms. Zaidan’s case. In fact, his reports indicate that Ms. Zaidan continued to perform the same caregiving duties for her children after the accident as she did before the accident.

Ms. Zaidan saw Dr. Gawel, a neurologist, on October 22, 2004. She produced his very brief, two page, double-spaced report dated October 24, 2004. In it he states that she now has pain in the neck and lower back, and suffers headaches which are probably being generated from the neck. He concludes that she is unable to carry out her activities of daily living⁶ due to pain, but does not address whether she is substantially disabled from performing caregiving or housekeeping tasks.

Ms. Zaidan did not provide any medical evidence regarding her alleged depression.

In a report prepared for RBC dated January 27, 2005, Dr. R. Zarnett, an orthopaedic surgeon, observed that Ms. Zaidan attended at the assessment on that date with two of her children with her. At page 5 of his report he states that:

Other than some minor discomfort in the lumbar spine, the examination today did not demonstrate any significant abnormalities. Specifically, she had a full range of motion in the lumbar spine. There was no spasm. There were no nerve root tension signs.

On the same page, he opines that the examination did not demonstrate any significant abnormalities to suggest that Ms. Zaidan was currently impaired as a result of the motor vehicle accident. On page 6, he states that “Ms. Zaidan’s complaints are somewhat out of proportion to what I would have expected given the physical findings.” In his opinion, Ms. Zaidan was not suffering from a substantial inability to perform the essential tasks of her caregiving or housekeeping duties.

RBC also sent Ms. Zaidan to Dr. Tyndel, neurologist, for an insurer’s examination on

February 3, 2005. His report of the same date states that he did not identify any neurological impairment as a result of accident related injuries.

Arbitrator Blackman made many findings in the Abulibdeh case which pertained to Ms. Zaidan’s husband. In many ways Mr. Abulibdeh’s and Ms. Zaidan’s cases overlap, and these findings are relevant to Ms. Zaidan’s case. For example, they both submitted identical invoices with respect to their caregiver and housekeeping claims. Despite working full-time and going to school at night, Mr. Abulibdeh claimed that he was the primary caregiver for the older two children.

Ms. Zaidan claimed that she was the primary caregiver for the younger two children. Arbitrator Blackman stated as follows:

Nor did he [Mr. Abulibdeh] provide any insight as to why he and his wife had divided the primary caregiver duties in the manner alleged…

I note that under section 13 of the Schedule, if one person is the caregiver for four children, the maximum weekly benefit is $400, whereas if two insureds are each found to be the primary caregivers for two children apiece, each would be entitled to a maximum benefit of $300, representing a total additional benefit of up to $200 a week to the family unit.

In addition, Mr. Abulibdeh’s mother was living with the family at the time of the accident and Arbitrator Blackman made findings about her role in the family.

Mr. Abulibdeh further stated, under oath, that his mother did nothing to help the family before the accident except the day of the birth of his fourth child, when she babysat the other children and the only assistance she provided after the accident was perhaps giving some advice on cooking, and only if it was a special meal, and nothing more. There was no explanation by the Applicant as to his mother’s inability pre-accident to assist in the care of her grandchildren. There was some evidence that his mother sustained some injury from this accident.

I do not accept the Applicant’s evidence regarding the pre-accident role performed by his mother, in accordance with the judgment in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), as being inharmonious “with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” Likewise, I am not persuaded, on the evidence provided with the noted contradictions, that the family had neatly divided caregiving duties between the two parents in the manner submitted.

Further, Arbitrator Blackman drew an adverse inference from the failure of the three alleged service providers to testify.

The period of the claim, July 20, 2004 to August 14, 2005, is roughly 55 weeks. 27 hours a week is claimed, generally, for caregiving and housekeeping benefits, at $15 an hour. This comes to about $22,275. This money is apparently still owing to the alleged service providers, who would thus have an incentive to testify to support the Applicant’s claim. The unexplained failure of any of the service providers to attend and to provide supporting evidence for the Applicant is a further weakness in his case, specifically given the Insurer’s strong challenge to his credibility.

I adopt Arbitrator Blackman’s findings with respect to the unlikelihood of:

The alleged division of caregiving duties for the four children between husband and wife,⁷;
The assertion that the Applicant’s mother-in-law performed virtually no caregiving or housekeeping duties prior to the accident;
The alleged service providers failing to testify when collectively they had $22,276 owing to them; and
The dubious veracity of the mostly identical invoices for caregiving and housekeeping provided by Mr. Abulibdeh and Ms. Zaidan.

Based on her high level of achievement in education, which continued after the accident⁸, I find that Ms. Zaidan is very intelligent and fluent in English. She is obviously an extremely energetic and highly motivated person. Although she may have suffered some injuries in the accident, her claim that she suffered a substantial inability to perform her caregiving and housekeeping duties for 10 to 12 months⁹ is simply not believable based on the vagueness of her testimony on many issues and the numerous inconsistencies, contradictions and gaps in the evidence.

For example:

Ms. Zaidan testified at the hearing that during the accident she hit her head on the back of the seat in front of her; however, Ms. Wilson, the occupational therapist, in her report dated August 22, 2004 (prepared approximately one month after the accident), states “She denies hitting her head…”
Further, Dr. Gawel, the neurologist who Ms. Zaidan saw in support of her case, specifically states in his report dated October 24, 2004, “She did not hit her head…”
Ms. Zaidan testified at the hearing that when they took her mother-in-law to the walk-in clinic the day after the accident, Dr. Naif said there was nothing she could do for

Ms. Zaidan because Dr. Naif needed to have her file; however, according to the report of

Ms. Anne Ruebottom, registered massage therapist, (one of the medical rehabilitation assessors at Ms. Zaidan’s Designated Assessment Centre (“DAC”) assessment),

Ms. Zaidan told Ms. Ruebottom that Dr. Naif was her family physician and had been her physician for six months.

Ms. Zaidan brought her two younger children when Ms. Ruebottom assessed her on November 18, 2004, despite claiming for four hours of caregiving on that date for activities such as “Accompanying/Supervising” and “Tutoring.”
On January 27, 2005, the same day Ms. Zaidan attended an insurer’s examination with Dr. Zarnett, orthopaedic surgeon, with her two younger children, invoices show that she claimed for four hours of caregiving assistance, including for “Accompanying/Supervising” and “Tutoring.” The name, address, telephone number and signature of the service provider are not legible. I presume Mr. Abdulibdeh also claimed for caregiving assistance on this day for the older two children. One wonders why Ms. Zaidan would bring young children with her to an assessment if she had a caregiver available to assist her.
Aside from accompanying her mother-in-law to the walk-in clinic and attending for treatment at East Sheppard, Ms. Zaidan sought no medical treatment whatsoever.
In describing her pain complaints, Ms. Zaidan failed to mention her neck in any assessment for approximately one month after the accident.
Ms. Zaidan testified that she could not cook after the accident, but also testified that she burnt the baby’s toe on the stove (presumably while cooking).
Ms. Zaidan testified that when her mother-in-law moved in with them a few months before the birth of their fourth child, she was 65 years old and in good health. Ms. Zaidan also testified that her mother-in-law used to do a little bit around the house, such as vacuuming. She could not remember if she cooked or cleaned. Ms. Zaidan stated, under oath, that her mother-in-law used to play with the children, talk to them, and tell them stories. Ms. Zaidan’s testimony is not similar to that of her husband on the issue of her mother-in-law’s activities both pre- and post-accident. Mr. Abulibdeh stated under oath that his mother did nothing to help the family before the accident, except on the day of the birth of his fourth child, when she babysat the other children. He testified that the only assistance his mother provided was perhaps giving some advice on cooking, and only if it was a special meal, and nothing more. Arbitrator Blackman did not accept Mr. Abulibdeh’s evidence on this point and I do not find Ms. Zaidan’s evidence on the limited involvement of her mother-in-law in caregiving and housekeeping duties before and after the accident to be credible either.
As indicated in Arbitrator Blackman’s decision, it is a mystery what “Tutoring” a baby who is 10 days old at the time of the accident and a three year old child would require three days a week, winter and summer. It is also unclear why Ms. Zaidan was disabled from providing it.
The surveillance obtained by RBC shows her performing her caregiving activities, such as looking after her children at the African Lion Safari, taking them to and from school and to the grocery store. It shows her taking the baby in one arm and grocery bags in the other to her apartment building. She does not perform these activities haltingly or with difficulty. Most of the time, she has a smile on her face and a spring in her step.
When it was pointed out to Ms. Zaidan that she had claimed for caregiver benefits on the day that they were at the African Lion Safari, she claimed that it must have been a “mistake.” This is not credible, given her testimony that the invoices were filled out daily.
Arbitrator Blackman drew an adverse inference from the failure of the three people who allegedly provided caregiving and housekeeping services to testify. I also draw an adverse inference from their failure to testify. Their lack of testimony is all the more surprising given the strong statements made in the Abulibdeh decision.
Ms. Zaidan does not offer any explanation has to why she travelled to a service provider located approximately 45 minutes to one hour in traffic from her home, when there was a facility at Square One close to where she lived in Mississauga. She testified that it was not her decision to come to a facility so far away.¹⁰
Ms. Zaidan stated, under oath, that she did not remember what she did with her children when she went for treatment. I find that statement not credible.
Ms. Zaidan stated, under oath, that she does not remember how her family’s belongings were moved from Windsor to Mississauga. I also find that this statement is not credible.

For the reasons set out above, I find the medical evidence provided by RBC including

Ms. Wilson, occupational therapist; Dr. Zarnett, orthopaedic surgeon; and Dr. Tyndel, neurologist, more persuasive than the medical evidence provided by Dr. Alyea, chiropractor, and Dr. Gawel, neurologist, provided by Ms. Zaidan. In addition, I adopt Arbitrator Blackman’s findings in the Abulibdeh case as set out above. These findings are relevant to Ms. Zaidan’s claims for caregiving and housekeeping benefits. Further, as detailed above, there are too many unexplained inconsistencies, contradictions and gaps in the evidence for me to give much weight to Ms. Zaidan’s evidence.

In view of all these factors, I find that Ms. Zaidan has not discharged her onus to prove on a balance of probabilities that as a result of the accident she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. In case

I have erred in this finding, I am prepared to find that Ms. Zaidan was the primary caregiver for her two younger children prior to the accident, notwithstanding some concerns I have regarding the activities of Ms. Zaidan’s mother-in-law prior to the accident.

Based on the factors I have discussed above, I also find that Ms. Zaidan has not discharged her onus to prove on a balance of probabilities that as a result of the accident she sustained an impairment that results in a substantial inability to engage in the housekeeping and home maintenance services which she normally performed before the accident.

Claim for Medical Benefits:

Ms. Zaidan testified in examination-in-chief that her treatment at East Sheppard consisted of massage for her back and ultrasound for her knee and neck. She stated under oath that she could not do any other treatment because she was breastfeeding. She testified that Dr. Alyea assessed her, but did not provide treatment. In Ms. Zaidan’s words, “He was supervising us.” She also learned exercises she could do at home for her knee, back and leg.

Ms. Zaidan admitted on cross-examination that the drive from her home in Mississauga to East Sheppard could take 45 minutes to one hour in traffic, and a similar lengthy drive on her way home. She testified that it was not her decision to come to a facility so far away from home, and that she never inquired if there were facilities closer to where she lived. As stated earlier, she testified, under oath, that she could not remember what she did with her children when she was having her treatment at East Sheppard.

Like her husband, Ms. Zaidan testified that the treatment was helpful, especially since she could not have drugs for pain relief. The treatment also gave her more strength. At the start she went for treatment four days per week. She then went three days per week, and then two days per week. By the end of the treatment she was going one day per week. She stopped treatment at the end of August 2005 because she and her husband moved their family to Waterloo to start graduate studies at the University of Waterloo.

The Applicant submits that the claim for treatment consists of the OCF-21 invoices provided by East Sheppard, some of which were undated.¹¹ The invoices appear to have been issued from August 10, 2004 to August 5, 2005. According to a summary provided by the Applicant, the amount claimed in these invoices total $6,457.30.¹² The invoices state the treatment included chiropractic manipulation, rehabilitative exercises, stimulation, hot pack, and massage.

The Applicant admits that the portion of the invoices pertaining to treatment plans and progress reports are not properly claimed under the heading of medical expenses.¹³ This reduces the amount set out above by $586, resulting in an outstanding amount of $5,871.30 for treatment (according to the invoices).¹⁴

The amounts in the treatment plans do not correlate with the amounts of the invoices. After deducting the cost of one treatment plan included in the calculation in Exhibit 7C¹⁵, the amount remaining outstanding for the treatment plans is $5,070.

The Applicant further admits that RBC has paid $1,964.25 towards her treatment at East Sheppard. RBC has provided a list of payments for treatment made to East Sheppard as follows:¹⁶

Date of Cheque	Cheque #	Cashed Yes/No	Amount
August 15, 2004	164074	No	$304.00
September 21, 2004	168285	Yes	$717.00
October 5, 2004	169994	Yes	$488.00
December 8, 2004	177700	Yes	$467.00
April 29, 2005	196766	No	$1,650.00

$3,626.00 in total.¹⁷

Two cheques totalling $1,954 ($304 + $1,650) that RBC sent to East Sheppard for

Ms. Zaidan’s treatment were not cashed. I did not receive an explanation of why that may have happened.

Ms Zaidan’s initial treatment fell under the Pre-Approved Framework Guideline for Whiplash Associated Disorder Grade I or Grade II (“PAF”), and Ms. Zaidan acknowledges that this portion of her treatment has been paid in full. I will now address the amounts set out in the treatment plans submitted after the PAF treatment.

Dr. Alyea’s treatment plan dated September 17, 2004 recommended a further six weeks of chiropractic treatment, massage, modalities (IFC), hot pack and active rehabilitative exercise two times a week for a total amount of $1,650.

RBC sent this treatment plan to a DAC assessment. The DAC assessment took place on November 2, 2004. Dr. N. Lishchyna, chiropractor, and Ms. A. Ruebottom, registered massage therapist, conducted the assessments.

Ms. Ruebottom was of the opinion that the disputed massage therapy is not reasonable and necessary. In her view, Ms. Zaidan had had a great deal of massage, and the reported symptomatic relief it brought was too brief to justify continuing. At that time, Ms. Ruebottom had no recommendations for future massage therapy.

Dr. Lishchyna notes at page 3 of her report that:

She [Ms. Zaidan] reports that she has seen the chiropractor at this facility one to two times in total and was assessed and she believes she had some form of spinal manipulation. After questioning in detail it appears that drop pieces were used. (My underlining.)

At this assessment, Ms. Zaidan indicated to Dr. Lishchyna that she was 75% improved.

In a report dated November 18, 2004, the DAC assessor, Dr. Lishchyna, found that the treatment plan dated September 17, 2004 was partially reasonable and necessary. The report recommended that Ms. Zaidan receive 12 sessions of chiropractic spinal manipulation at a cost of $30 per session. It also stated that she should receive a half-hour educational session on proper home self-directed stretching and strengthening exercises and that the cost for this should be $47.

It further stated that Ms. Zaidan should receive an exercise ball ($50) and a thera-band ($10) and that these should be incorporated in her self-directed exercise program.

The Insurer’s Explanation of Benefits Payable, dated November 22, 2004, confirmed the recommendations in the DAC report, noted that the total value of the recommendations was $467, and subsequently paid this amount by cheque # 177700 dated December 8, 2004.

Dr. Alyea’s treatment plan dated November 13, 2004 recommended a further four weeks of chiropractic treatment, massage, modalities (IFC), hot pack and active rehabilitative exercise once a week for a total amount of $550.

Dr. Alyea also submitted treatment plans dated January 8 and February 19, 2005 to RBC recommending similar modalities, each for an additional four weeks, each costing $550.

RBC referred these treatment plans for a DAC assessment. The DAC assessment report is dated April 22, 2005. Ms. Ruebottom was of the opinion that the disputed massage was not reasonable and necessary. At the time of the previous DAC she had no recommendations for future massage therapy. She states that there is no new information to suggest that she should change her opinion and that on the contrary, Ms. Zaidan’s reported level of improvement (50% or less) indicates that more treatment of a similar nature is not likely to provide enduring benefit.

Dr. Lishchyna reviewed the three disputed treatment plans. She states that the sum of the chiropractic treatment sought in the three treatment plans is equal to 12 sessions. She notes that this is the number of sessions that she recommended in her initial medical/rehabilitation DAC assessment of Ms. Zaidan. Dr. Lishchyna also states as follows:

However, upon questioning Ms. Zaidan with respect to chiropractic treatment, it appears that she did not actually receive spinal manipulative therapy during this period of time (between November 2004 and February 2005)…¹⁸

Dr. Lishchyna then states that given that the claimant did not receive the recommended therapies from her initial medical/rehabilitation DAC assessment, it is her opinion the proposed three treatment plans were reasonable for 12 sessions of chiropractic spinal manipulation. However, since it appears that this therapy was not provided to Ms. Zaidan, reimbursement is not necessary at this time.

On May 14, 2005, Dr. Alyea completed a treatment plan contemplating four sessions of chiropractic treatment, massage therapy, physiotherapy modalities, heat, active exercise, OCF-18 completions and a progress report, at a cost of $772.

RBC sent this treatment plan for a DAC assessment. In a DAC assessment report dated July 27, 2005, Ms. Ruebottom opined that the disputed massage therapy is not reasonable and necessary. She goes on to state that in an assessment she did with Dr. Lishchyna on March 22, 2005, approximately three months ago, she made no recommendations for future massage. Furthermore, in the palpation examination, she noted nothing unusual about her muscle tone. In her words, Ms. Zaidan’s muscle tone “is approximately the same as that of any massage therapy client who may or may not have been involved in a motor vehicle accident.”

In her Summary of Medical Treatment/Services, Dr. Lishchyna, chiropractor, states the following:

However, despite the recommendations made in my previous Medical/Rehabilitation DAC Assessment for 12 sessions of treatment, that being chiropractic spinal manipulation, these apparently have not been administered to the claimant. When I inquired why this was the case, she reported to me that although she has asked for it at this rehabilitation clinic, the chiropractor has not provided it to her.

As a result, Dr. Lishchyna recommends that Ms. Zaidan receive the 12 sessions of chiropractic spinal manipulative therapy. Dr. Lishchyna had recommended this treatment in both her first and second DAC assessment reports. She also encourages Ms. Zaidan to seek out another chiropractor who will deliver these services.

Conclusion re Claim for Medical Benefits:

Pursuant to section 14(2) of the Schedule, RBC shall pay for all reasonable and necessary expenses incurred by or on behalf of Ms. Zaidan as a result of the accident for chiropractic and physiotherapy services, and other goods and services of a medical nature that the insured person requires.

Like much of the evidence concerning the caregiver and housekeeping claims, much of the evidence regarding Ms. Zaidan’s claim for medical benefits was contradictory and confusing. According to the OCF 21’s East Sheppard submitted to RBC¹⁹, Dr. Alyea performed 30 chiropractic adjustments on Ms. Zaidan between September 17, 2004 and July 29, 2005.

Ms. Zaidan told her DAC assessors that Dr. Alyea did not perform any chiropractic adjustments after the initial one to two sessions. Ms. Zaidan testified, under oath, that her treatment at East Sheppard consisted of massage for her back and ultrasound for her knee and neck, plus exercises she could do at home. She stated that she could not do any other treatment because she was breastfeeding. She also testified, under cross-examination, that Dr. Alyea did the assessments, but did not do the treatment.

For reasons set out above, I have already placed little weight on Dr. Alyea’s evidence regarding Ms. Zaidan’s caregiver and housekeeping claims. Given the major discrepancies between the OCF 21’s submitted by East Sheppard and Ms. Zaidan’s sworn testimony, I have difficulty placing much weight on Dr. Alyea’s testimony in the context of Ms. Zaidan’s medical benefits.

The only treatment that the DAC assessment dated November 18, 2004 thought was reasonable and necessary was 12 chiropractic adjustments at a cost of $30 per session, a half-hour educational session on home exercises at a cost of $47, an exercise ball for $50 and a thera-band for $10. By cheque # 177700 dated December 8, 2004, in the amount of $467, RBC paid for the cost of 12 chiropractic adjustments and the other items.

In the second DAC assessment dated April 22, 2005, Dr. Lishchyna, the chiropractic DAC assessor (based presumably on what Ms. Zaidan had told her) thought that none of these chiropractic adjustments had occurred and ordered that the 12 chiropractic adjustments originally recommended be done. But since this was the same treatment as she had recommended in the first DAC, she stated that reimbursement is not necessary at this time.

By the time of the third DAC assessment, where Ms. Zaidan is still insisting that she has not received the recommended 12 chiropractic adjustments, even though she asked for it at East Sheppard, Dr. Lishchyna recommends that Ms. Zaidan change chiropractors.

Ms. Zaidan did not testify that chiropractic treatment was helpful to her. She testified that these treatments did not occur because she was breastfeeding. In view of this testimony, I fail to see how the chiropractic treatment was reasonable and necessary when the Applicant herself says she could not have it. The other DAC assessor, Ms. Ruebottom, dealt with the other aspects of the treatment that Ms. Zaidan is claiming and concluded in all three DAC assessment reports pertaining to all five treatment plans that, in her opinion, further massage therapy was not reasonable and necessary, and that passive modalities were no longer appropriate. In this case, I agree with Ms. Ruebottom’s conclusions regarding the non-chiropractic aspects of the treatment plans.

For some reason, East Sheppard never cashed two cheques pertaining to $1,954 of the amounts that RBC had approved for Ms. Zaidan’s treatment. These cheques were cheque # 164074 dated August 15, 2004, in the amount of $304.00, and cheque # 196766 dated April 29, 2005, in the amount of $1,650.00. It is not clear why these particular cheques were not cashed. In a letter dated June 5, 2008, RBC confirmed that it intended to re-issue these cheques to East Sheppard, so I am not inclined to make an order regarding these amounts.

INTEREST:

Section 46 of the Schedule provides that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under Part X. Subsection 38(18) of the Schedule (which was in place at the time of the accident) provides that within thirty days of receiving the application, the insurer shall pay the expenses or give the insured person notice of its reasons for not paying the expense. Subsection 38(18) falls within Part X.

Amendments effective March 1, 2006 state, pursuant to subsection 38(17.2) that an insurer shall pay an expense in respect of medical or rehabilitation benefits it has agreed to pay or that it is required under this section to pay within thirty days after receiving an invoice for the expense.

I agree with Arbitrator Blackman’s comments in Abulibdeh that this provision simply clarifies its predecessor.

Subsection 46(2) provides that if payment of a benefit is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of two per cent per month, compounded monthly.

The Applicant argued that since as two of the cheques to East Sheppard²⁰ were not cashed, payment was not made. From the scant evidence provided to me²¹, it appears that two cheques were issued and delivered. As payment was tendered, I find that no interest should accrue.

EXPENSES:

Should the parties not agree on the entitlement to or the amount of the legal expenses of this arbitration proceeding, either party may request that the question of expenses be dealt with in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition Updated – October 2003).

January 9, 2009

Anne L. Sone Date

Arbitrator