Neutral Citation: 2009 ONFSCDRS 95

FSCO A08-000116

BETWEEN:

MUHAMMAD QURESHI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Edward Lee

Heard: February 2, 3, 4 and April 21, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Riaz Ahmed and Michelle Whiteman for Mr. Qureshi Carla Falkeisen for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Muhammad Qureshi, was injured in a motor vehicle accident on December 13, 2005. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on August 25, 2006, and housekeeping and home maintenance benefits on July 14, 2006. The parties were unable to resolve their disputes through mediation, and Mr. Qureshi 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. Qureshi entitled to receive a weekly income replacement benefit of $277.04 from August 25, 2006 and ongoing, pursuant to section 4 of the Schedule?
Is Mr. Qureshi entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from July 14, 2006 to December 12, 2007, pursuant to section 22 of the Schedule?
Is Mr. Qureshi entitled to payments for the cost of a Functional Abilities Examination prepared by Dr. Super in the amount of $1,325.29, pursuant to section 24 of the Schedule?
Is State Farm liable to pay Mr. Qureshi's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Qureshi liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Qureshi entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Qureshi is entitled to receive a weekly income replacement benefit of $277.04 from August 25, 2006 to January 15, 2007, less a deduction under section 6(2) of the Schedule to account for the net income received during the three-and-a-half week return to work period in September and October 2006.
Mr. Qureshi is not entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from July 14, 2006 to December 12, 2007, pursuant to section 22 of the Schedule.
Mr. Qureshi is not entitled to payments for the cost of a Functional Abilities Examination prepared by Dr. Super in the amount of $1,325.29, pursuant to section 24 of the Schedule.
State Farm is not liable to pay Mr. Qureshi's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Mr. Qureshi is not liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Mr. Qureshi is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

Mr. Qureshi was struck by a motor vehicle while crossing a street on December 13, 2005. He was taken to a hospital and diagnosed with injuries to his left hip and right thumb; and to the left knee and left shoulder regions. He remained in hospital until December 30, 2005. Following his discharge, he received treatment in the form of physiotherapy, massage and chiropractics at home and then at various rehab clinics. He continued receiving treatment until April 2008, and has also been performing home exercises.

Throughout this time and up to the present, he has experienced and continues to experience pain in his left pelvis, left hip, right thumb, left knee, left shoulder and his low back. He also has headaches. Mr. Qureshi claims that this pain has prevented him from returning to work (expect for a short period in September and October 2006), and from performing the tasks of housekeeping and home maintenance that he had done before the accident.

INCOME REPLACEMENT BENEFITS:

To succeed in his claim for Income Replacement Benefits ("IRBs") of $277.04 per week from August 25, 2006 to December 13, 2007, Mr. Qureshi must prove that as a result of the accident, he suffered a substantial inability to perform the essential tasks of his pre-accident employment.²

For the period from December 13, 2007 and following, Mr. Qureshi must prove that as a result of the accident, he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.³

Mr. Qureshi's Employment:

At the time of the accident, Mr. Qureshi was employed at the Erie Meat Company on an assembly line. He testified that he worked from 6:45 a.m. to 4:15 p.m. each day for a salary of $10.00 per hour. He was a general labourer, working in a large room with fifteen to twenty others, who ranged in age from twenty to the mid-fifties. His job was to place trays of chicken slices onto an assembly line which ran into a freezing and packing area.

Typically, Mr. Qureshi was required to reach into a large box (which was approximately three feet high) on the floor, and to transfer chicken slices from the box onto a tray which was approximately one-and-a-half feet square by six inches high. He would bend his body and sometimes place his whole head into the box to reach the chicken slices. When full, the tray weighed approximately eight to ten pounds. He would then transfer the chicken from this tray into another larger tray near the assembly line. It took two to three smaller trays to fill the larger tray. He lifted the larger chicken tray six to seven times every ten minutes.

Several times a week, he was required to work at a different section in the packaging department, lifting boxes from a conveyor belt (at the height of his waist) and placing them on a skid on the floor three to four feet away. These boxes weighed as much as twenty-five to thirty pounds. He placed as many as twenty-five trays onto each skid. He also had to bend his whole body to perform these actions.

Mr. Qureshi testified that the injuries caused by his accident in December 2005 prevented him from returning to work. In March 2006, he still had throbbing and constant pain in his hip, pelvis, right thumb, left knee and shoulder. He also had difficulty sleeping. He was taking and receiving some relief from Mobicox. By July 2006 he still had pain in his knee, shoulder and pelvis. He could do only very light housework with his right hand. He did not wash dishes or sweep the floor. He had pain walking and in his low back from standing.

In December 2006, one year post accident, he had pain in his shoulder, pelvis, and knee. It took him ten minutes to walk up the stairs in his house. He could not lift a magazine in his left hand without pain. He could stand only five minutes without pain and sit fifteen to twenty minutes. He was taking Tylenol III.

At the present, he still has pain in his hip, pelvis, left knee, shoulder and numbness in his hands and fingers. The pain is constant; his shoulder feels as though someone is striking him. He receives but temporary relief from his medications. He has to change his seated and standing position constantly. He can stand without pain for only fifteen to twenty minutes and sit without pain for fifteen to twenty minutes. He now takes Mobicox twice daily for his pain.

Mr. Qureshi attempted a return to work from September 2006 to October 2006, but was informed by his employer that he was too slow and was unable to do the work as required.

Medical Evidence:

Dr. N. Khawaja, family practitioner, testified on behalf of Mr. Qureshi. He first examined Mr. Qureshi on January 4, 2006, and saw him on numerous occasions afterward for approximately three years. Dr. Khawaja diagnosed Mr. Qureshi with bursitis of the left shoulder following an ultrasound⁴ on February 22, 2006, and with chronic shoulder pain in August 2006. He pronounced Mr. Qureshi unfit to perform heavy labour, and found him unfit to return to work from October 2006 to as late as January 2008.

Dr. A. Sekyi-Otu, orthopaedic surgeon, conducted an Independent Orthopaedic Evaluation for the insurer and filed a report⁵ and addendum.⁶ Dr. Sekyi-Otu testified that Mr. Qureshi's accident- related injuries had healed by the time he made his examination in June 2006, approximately six months after the accident. He was of the opinion that there were no objective pathologies that disabled Mr. Qureshi from returning to his pre-accident employment. There was no organic pathology that lengthened his healing time.

Dr. Sekyi-Otu also reviewed the Functional Abilities Examination⁷ of July 11, 2006. He stated that this examination did not cause him to alter the summary or conclusions of his report.⁸ In his opinion, that Functional Abilities Examination showed self-limiting behaviours, and less than maximal efforts on the part of Mr. Qureshi, rather than true pathologies. He also attributed the failure of Mr. Qureshi's return to work to a lack of education about the use of proper body mechanics to perform his pre-accident tasks.

Tony Jung, Occupational Therapist, conducted a Functional Abilities Evaluation⁹ on July 11, 2006 at the request of the Insurer. Mr. Jung reported that Mr. Qureshi presented as "pain focused", and that he demonstrated the ability to perform sedentary work, defined as "lifting 10 lb maximum and occasionally lifting and/or carrying such articles as dockets, ledgers and small tools..."

Dr. A. Shaul, psychologist, prepared a psychological report¹⁰ on August 24, 2006 at the request of the Insured. He diagnosed Mr. Qureshi with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and determined that it was a direct consequence of the motor vehicle accident of December 13, 2005. He recommended three to four months of counselling sessions to deal with his "depressed affect, difficulty with sleep, decline in concentration, lack of motivation and driving anxiety."¹¹ No opinion was expressed in regard to his ability to return to work.

Dr. S. Callcchia, chiropractor, prepared a Disability Certificate¹² on December 18, 2006 and determined that Mr. Qureshi was substantially disabled from performing the essential tasks of his pre-accident employment. He indicated that the anticipated duration of this disability would be for 5-8 weeks. He also indicated that he believed Mr. Qureshi was able to return to modified work duties.

Dr. J. Super, chiropractor, performed a Functional Abilities Evaluation¹³ on January 1, 2007 at the request of the Insured. His conclusions were the following:

Based on the physical findings and the history, Mr. Qureshi will have difficulty if he returns to his pre-accident employment at his pre-accident level of physical exertion at this time. If a modified work environment is made available, Mr. Qureshi may be able to assume some of the pre-accident work activities.

The functional limitations due to pain and ROM that Mr. Qureshi is experiencing, concomitant limitations in bending over, lifting, carrying and repetitive activities substantially disable Mr. Qureshi from performing his pre-accident Activities of Daily Living (ADL's). In addition, limitations in ranges of motion and lifting limit his ability to perform housework activities comfortably.¹⁴

He also determined that Mr. Qureshi had not achieved maximum medical improvement.¹⁵

Dr. B. Souter, chiropractor, performed an insurer's independent chiropractic evaluation¹⁶ on April 30, 2007. He determined the following:

My examination on April 30, 2007 did not detect any objective findings of injury or impairment in regards to the left shoulder, left knee, left pelvis, lower back, cervical spine or upper back as a consequence to the December 13, 2005 accident. His fracture of the pelvis appears to have healed. There was no neurological injury detected. His right thumb fracture appears to have healed.¹⁷

Doctor S. Esmail, M.D. conducted an Independent Orthopaedic Assessment on May 4, 2007 and produced a report¹⁸ at the request of the insured. He concluded that there was a "probable causal relationship between the current complaints and the injury reported",¹⁹ and determined that Mr. Qureshi had not reached his maximum medical recovery. He also found the following:

Based on the physical findings this man is not capable of returning to any competitive meaningful employment at the present time. With regards to doing activities of daily living, he will require assistance while doing medium to heavy level of activities of daily living. He should undergo functional capacity evaluation and also a home assessment so as to give a better idea of what he can do and what he cannot do."²⁰

Dr. E. Mah, Chiropractor, performed an Insurer's examination²¹ on August 24, 2007. He determined the following:

...[I]t is my clinical opinion that Mr. Qureshi's accident-related injuries have achieved maximum medical recovery. If he did indeed sustain accident related fractures, at this point in time (greater than 20 months post accident), unless there are complications, these fractures should have healed. The current physical examination failed to reveal ongoing objective signs of accident related musculoskeletal impairment that would support his reported symptomatic complaints.

Dr. G. Conn, orthopaedic surgeon, performed a Functional Medical Evaluation for the Insurer on September 8, 2008, approximately three years post accident. In his discussion, Dr. Conn concluded that Mr. Qureshi had not displayed consistent performance in the functional testing and his demonstration of profound weakness was indicative of voluntary inhibition of effort.²²

In responses to specific questions posed in the report, Dr. Conn found that there were "...no objective findings to indicate any significant residual impairment related to the motor vehicle accident."²³ Dr. Conn concluded that Mr. Qureshi had reached maximum medical recovery and that the fractures, if he had suffered any in the accident, had healed "quite satisfactorily." He also had the following conclusions:

As such I did not find any specific objective findings to suggest any ongoing musculoskeletal impairment related to the December 13, 2005 accident.

He does not in my opinion suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.²⁴

Dr. M. Mandel, psychologist, conducted a psychological assessment²⁵ of Mr. Qureshi on September 9, 2008 and concluded the following:

Mr. Qureshi's total score on the measure [Structured Inventory of malingered Symptomolgy SIMS] was 40. He responded higher than one would expect on all scales by an excessive margin. These results call into question the veracity of Mr. Qureshi's claims and it is unclear why he would present himself in this manner.

Mr. Qureshi's performance on the [Test of Memory Malingering] (TOMM) would suggest he was not giving forth his best effort and may have been deliberately and knowingly been giving the wrong answer.

Given a 50/50 chance on obtaining the right answer from guessing, it is improbable to obtain these scores listed above. It is unclear why Mr. Qureshi would attempt to portray himself in this manner.

Dr. A. Joaquin, chiropractor, prepared a report²⁶ at the request of the Insured after performing an examination on Mr. Qureshi on December 22, 2008. He determined that Mr. Qureshi was unable to perform his pre-accident employment and activities of daily living, but made no comment about whether he was completely disabled from any employment for which he was reasonably suited by education, training or experience.

Dr. K. Baker, chiropractor, provided a Disability Certificate²⁷ dated December 11, 2008. She found that Mr. Qureshi was substantially disabled from performing the essential tasks of his employment at the time of the accident and anticipated that the duration of the disability would last from five to eight weeks. Again, no opinion was expressed in regard to the post 104 week period.

ANALYSIS:

Overall, the weight of the medical evidence convinced me that there were few objective physical findings to substantiate Mr. Qureshi's claims of persistent and severe pain in his left shoulder, left knee, left hip, low back and right thumb. Dr. Sekyi-Otu's testimony was the most convincing of the medical witnesses. His report was consistent and clear. There were no internal contradictions or inconsistencies.

Dr. Sekyi-Otu's conclusions were echoed by Dr. Conn, who also testified before me, and Dr. Souter and Dr. Mah. Although Dr. Khawaja initially diagnosed Mr. Qureshi with bursitis and chronic shoulder pain, he agreed that a later ultrasound²⁸ revealed that the bursitis had healed, and that the degenerative changes he saw in the x-rays of Mr. Qureshi's back were consistent with the changes that might be seen in the back of a man of similar age with a similar work history.

I gave less weight to the reports of Dr. Super and Dr. Esmail, both of which contained inaccuracies and internal contradictions. Dr. Super's report, when discussing the impact of the accident-related injuries on Mr. Qureshi's functional abilities, stated the following:

"... [Mr. Qureshi] has not been able to perform his usual home activities as before the accident and states that he is now responsible for very little housework

Currently, he has family help out in the home with the above-stated activities. He states that he still performs occasional house work when he has to, but that the workload is of minimal demand physically.

He states that he is the only one who performs housework, therefore he has to do it all."²⁹ [emphasis mine]

Dr. Esmail's report also contained inaccuracies. He determined that Mr. Qureshi had suffered fractured ribs³⁰, a left rotator cuff tear, and even a head injury.³¹ None of the other medical experts or reports mentioned such injuries, and I found these inaccuracies rendered his report wholly unreliable. Despite the inaccuracies, this report suggested that Mr. Qureshi was able to perform light housekeeping, and that Mr. Qureshi might return to work with modified duties.

Even Dr. Callcchia's Disability Certificate of December 2006 anticipated that the duration of the accident-related disability would be only 5-8 weeks. He also believed that Mr. Qureshi could return to modified duties.

Nevertheless, the mere lack of objective medical evidence is not necessarily determinative of Mr. Qureshi's pain-related complaints, as pain is a subjective experience that might not be measurable or traceable to an objective pathological component.

In the present instance, Dr. Khawaja clearly accepted Mr. Qureshi's pain-related complaints and decided that Mr. Qureshi was unfit to return to work commencing in October 2006 and continuing to January 2008. He was the only medical professional to describe Mr. Qureshi as having chronic shoulder pain. He completed and sent forms on Mr. Qureshi's behalf to Human Resources Development Canada³², stating that Mr. Qureshi would be unable " ...to do heavy labour work ever", although he sent those forms before receiving the second ultrasound that showed the bursitis had healed.

Dr. Sekyi-Otu did not accept Mr. Qureshi's subjective pain complaints. In his opinion, Mr. Qureshi displayed less than maximal efforts and self-limiting behaviours in his assessments. He was not even convinced that Mr. Qureshi needed the cane he used. He was not the only assessor to make this observation. Dr. Conn also found evidence of voluntary inhibition of effort and less than maximum effort in testing. Dr. Mandel also commented on the veracity of Mr. Qureshi's claims. Even Dr. Joaquin, a chiropractor and assessor engaged by Mr. Qureshi, made a similar comment about the use of the cane in his report.³³

Mr. Qureshi did not have an extensive work history in Canada. He testified that he worked as a typist and stenographer for approximately thirty years in Pakistan until 2000 when he ceased work and remained at home until August 2003 when he came to Canada. In Canada he found work as a security guard commencing in December 2003. He worked in that capacity and as a labourer (cleaning machine parts) for other agencies until he started his job at the Erie Meat Company in February 2004. He worked there until September 2004, when he returned to Pakistan. There he did not work. On his return to Canada in January 2005, he resumed his job at the Erie Meat Company. He continued there until his accident of December 2005. In total, his work experience as a labourer lasted approximately seventeen months.

I did not find Mr. Qureshi a forthright witness. I found his testimony often seemed exaggerated. For instance, he stated that in December 2006, he could not even lift a magazine in his hand or a plate of food. I found it difficult to believe this testimony, given that he had been able to return to work for a three-and-a half week period in September and October 2006. He also testified that he and his wife lived in a basement apartment for approximately six months after the accident, where there were approximately ten steps leading down to the basement. Nevertheless, in the functional evaluations of Dr. Conn and Dr. Super, he declined to (or was unable) climb stairs.

These considerations lead me to conclude that Mr. Qureshi's complaints of pain and disability were likely exaggerated, and that he was not as disabled as he claimed.

Nevertheless, there is no doubt that Mr. Qureshi's pre-accident job was physical and fast paced. I accept that his work required him to move quickly and repetitively and that he sometimes lifted objects that weighed as much as 25 pounds. I also note that he indeed attempted a return to work from September 2006 to October 2006, and failed because he was no longer able to keep up with the pace demanded by his employers.

Further, the ultrasound of February 2006 did reveal a bursitis in Mr. Qureshi's his left shoulder. The second ultrasound of January 15, 2007 showed that the bursitis had healed. There was thus some objective evidence to substantiate Mr. Qureshi's accident-related complaints of pain in his shoulder until January 15, 2007.

Taking all this into consideration, I find that despite the credibility issues that hampered his testimony, Mr. Qureshi was substantially disabled from performing the essential tasks of his pre-accident employment from August 26, 2006 until January 15, 2007, and that accordingly he is entitled to income replacement benefits of $277.04 per week, during that period, minus the appropriate deduction for the income he made during the return to work period of September 2006 to October 2006.

I do not find that he is entitled to income replacement benefits after January 15, 2007.

HOUSEKEEPING AND HOME MAINTENANCE:

Mr. Qureshi claimed housekeeping and home maintenance benefits in the amount of $100.00 per week from July 14, 2006 to December 12, 2007. To succeed in his claim, he must prove (1): that he sustained an accident-related impairment that substantially disabled him from performing the housekeeping and home maintenance services he normally performed before the accident; and (2): that he incurred reasonable and necessary expenses for these housekeeping and home maintenance services.³⁴

Mr. Qureshi testified that at the time of the accident, he lived in a 1,300 square feet home. The home had a basement, and a first and second floor. There were three bedrooms, three baths, a living room, family room and a dining room. All the bedrooms were carpeted, the kitchen had a tile floor, and hardwood was laid over the main floor.

Mr. Qureshi lived with his wife, two adult sons (aged approximately 25 and 20 at the time of the accident), one daughter-in-law, and two young grandsons (aged 8 and 3). Previous to the motor vehicle accident, he testified that he and his wife shared the housekeeping duties in approximately equal proportions. He shopped for groceries, helped with cleaning, cooking, dusting, laundry, and removing snow, and doing backyard maintenance. He also vacuumed the carpet, cleaned floors, washed the bathrooms and washed dishes. He cleaned the bathroom twice weekly.

The other adults in the home did not help with housekeeping; they had their own jobs to do. Mr. Qureshi and his wife were responsible for the housekeeping of their own space. The other adults did housekeeping in their own space. Every day, Mr. Qureshi spent three hours doing household chores. Sometimes he prepared breakfast and his own lunch. He spent three hours cooking every day in the afternoons and he went for groceries on the weekends. On the weekends he did six to seven hours of housework. He was up at 4:15 a.m. and left his home at 5:00 a.m. to go to work.

Medical Evidence in Regard to Housekeeping and Home Maintenance

The termination of the housekeeping and home maintenance benefit was based on the independent medical examination and report prepared by Dr. Sekyi-Otu after his assessment of July 6, 2006. Dr. Sekyi-Otu determined that Mr. Qureshi did not suffer a substantial inability to perform the housekeeping and home maintenance services he normally performed before the accident.³⁵

Manish Patel, chiropractor, performed an In-Home Assessment on July 6, 2006 and prepared a report.³⁶ He recommended 10 hours per week of housekeeping and home maintenance services for Mr. Qureshi, but also suggested that Mr. Qureshi "... should be encouraged to gradually resume performing and/or assisting with the home management tasks using task modifications and/or the assistive devices recommended."

Overall, I again preferred the medical opinion of Dr. Sekyi-Otu in regard to Mr. Qureshi's substantial disability to perform his housekeeping and home maintenance needs. His report was clear and his testimony was convincing. For reasons already stated, I did not find that the Functional Abilities Evaluation of Dr. Super was of much probative value. Mr. Qureshi's medical witness, Dr. Khawaja, was silent on the issue of housekeeping, and only referenced Mr. Qureshi's inability to perform heavy labour in his notes and records.

I also found that Mr. Qureshi's credibility in regard to his housekeeping services was lacking. First, I found it difficult to accept Mr. Qureshi's statements that he lived in a three-bedroom household with his wife, two adult sons, a daughter-in-law and two grandchildren, but they were all so completely segregated in their housekeeping and home maintenance tasks that no adult ever cooked or cleaned or did any housework for the benefit of the others.

Second, I found there were inconsistencies in regard to Mr. Qureshi's testimony about the housekeeping he actually performed. Initially, he testified that he did three hours of housekeeping every day of the week and six to seven hours on the weekend. Nevertheless, on cross examination, it was revealed that he rose between 4:00 a.m. and 5:00 a.m. every morning to go to work, and did not get home until 6:00 p.m. He went to bed at 9:00 p.m. Mr. Qureshi then amended his testimony to say that he did only two hours of housekeeping per night, which was comprised of his cooking lunch for the next day. He later amended that to say that he also ate supper and watched television during that two hour period.

The housekeeping invoices³⁷ showed that Mrs. Qureshi took over Mr. Qureshi's tasks. Mrs. Qureshi admitted on cross-examination that she could not read the invoices as they had been prepared in English, and that she had not kept track of the housekeeping she had done for her husband. Mrs. Qureshi stated that Mr. Qureshi often went to the mosque on weekends and sometimes spent the entire day there.

I was not convinced that Mr. Qureshi performed as much housekeeping and home maintenance as he claimed. Further, the weight of the medical evidence (despite the left shoulder ultrasound), did not convince me that he sustained an accident-related impairment that substantially disabled him from performing the housekeeping and home maintenance services he normally performed before the accident for the period from July 14, 2006 to December 12, 2007.

Therefore, I do not find that Mr. Qureshi is entitled to housekeeping and home maintenance benefits from July 14, 2006 to December 12, 2007.

SECTION 24 ASSESMENT:

Mr. Qureshi claimed entitlement to the cost of a Functional Abilities Examination³⁸ conducted by Dr. Super on January 3, 2007 for Century Assessment and Diagnostic Centre.

To succeed in his claim, Mr. Qureshi must prove that the examination was "...reasonably required in connection with a benefit that is claimed..."³⁹

The facts were not in dispute. Dr. Sekyi-Otu recommended that Mr. Qureshi undergo a Functional Abilities Evaluation at the conclusion of his Insurer's orthopaedic examination⁴⁰, in regard to Mr. Qureshi's ability to perform the essential tasks of his employment. A Functional Abilities Evaluation was conducted and a report⁴¹ was prepared by Tony Jung, Occupational Therapist, for the Insurer on July 11, 2006.

Mr. Qureshi then submitted an OCF-22⁴² (Application for Approval of an Assessment or Examination) on August 14, 2006, prepared by Dr. Kevin Bar, chiropractor, seeking approval for another Functional Abilities Evaluation. The rationale given for the proposed assessment was the following:

Functional Abilities Evaluation: As a result of the claimant's ongoing complaints and symptoms, an evaluation is recommended to be conducted by a Regulated Health Professional to determine if any disability exists beyond the acute stages of injury. The FAE would assess the claimant's handgrip strength, pinch grip strength, as well as range of motion for affected joints. All tests would be performed utilizing the ARCON Functional Testing System wherefrom the collected data is automated and the results are compared to established population norms in order to objectively determine degree of impairment as well as the reliability of effort. The result of the assessment can be used by the claimant's insurer and treating health care facility to modify the claimant's treatment regimen to facilitate recovery and to determine eligibility for benefits.

State Farm sent the Application for Approval of an Assessment or Examination to an Insurer's Examination. The resulting report by Dynamic Functional Solutions⁴³ was prepared on August 18, 2006. The report concluded:

Based on a review of the documentation provided, a Functional Assessment is deemed to be not reasonably required. As indicated, a similar such assessment was performed by a Regulated Health Professional, Mr. Tony Jung, Occupational Therapist, on July 11, 2006, and the proposed Functional Abilities Evaluation would be a redundancy in services. [with emphasis]

State Farm communicated its denial to Mr. Qureshi by way of an OCF-9⁴⁴ (Explanation of Benefits Payable) on August 24, 2006. Despite this denial, Mr. Qureshi underwent the Functional Abilities Evaluation on January 3, 2007.

No evidence was called in regard to the Functional Abilities Evaluation. In submissions, Mr. Qureshi's counsel argued that the Super report was reasonable because it gave a more detailed analysis of the results for the range of motion tests, and also chronicled a greater inventory of complaints from Mr. Qureshi.

State Farm argued that the Super report, while more detailed, was redundant and only repeated tests and assessments that had already been conducted in the Jung report six months previous. Not only was there no evidence as to why the second report was reasonable, there had also been no change of condition at the time the second evaluation was performed.

In the present case, Mr. Qureshi adduced no evidence to explain whether the Super report was in any way different from the Jung report. He did not call any medical witnesses to suggest that the testing done by Dr. Super was more effective or appropriate, given the nature of Mr. Qureshi's condition, or that the tests in the Jung report were insufficient or inadequate. On their faces, the two reports cover almost entirely the same ground; each assessor conducting various strength, grip, lifting, moving and range of motion tests, and normalizing the results with population data. I also note that no evidence was adduced that there had been some change in the circumstances of Mr. Qureshi's condition in the six months between the reports.

Arbitrators have held that when assessing reasonableness, it is also appropriate to consider the value of the ultimate opinion of the report.⁴⁵ I already noted some deficiencies in Dr. Super's observations and conclusions in regard to Mr. Qureshi's functional abilities.⁴⁶ Given all these considerations, I am not convinced that the Super report was reasonably required.

I do not find that Mr. Qureshi is entitled to the cost of the Super assessment.

EXPENSES:

Each party shall bear their own expenses in this arbitration.

July 9, 2009

Edward Lee Arbitrator

Date

Financial Services Commission of Ontario