Ananthakowry Varatharajah v. Economical Mutual Insurance Company, 2010 ONFSCDRS 112

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 112

FSCO A08-002202

BETWEEN:

ANANTHAKOWRY VARATHARAJAH

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Alec Fadel

Heard: April 12, 13, 14, 15 and 16, 2010, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were completed on May 11, 2010.

Appearances: Eric J. Boschetti, student-at-law, for Ms. Varatharajah

Nicholaus de Koning and Ashleigh Leon for Economical Mutual Insurance Company

Issues:

The Applicant, Ananthakowry Varatharajah, was injured in a motor vehicle accident on October 16, 2007. She applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ A dispute arose concerning Ms. Varatharajah's entitlement to certain accident benefits. The parties were unable to resolve their dispute through mediation, and Ms. Varatharajah 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. Varatharajah entitled to receive weekly caregiver benefits pursuant to section 13 of the Schedule at the rate of $400 from October 16, 2007 to June 23, 2008?
Is Ms. Varatharajah entitled to receive a medical benefit for physiotherapy, chiropractic and massage treatments in the amount of $7,854.16 claimed pursuant to section 14 of the Schedule?
Is Ms. Varatharajah entitled to attendant care benefits pursuant to section 16 of the Schedule in the amount of $888.21 per month from October 16, 2007 to June 23, 2008?
Is Ms. Varatharajah entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule at $100 per week from October 16, 2007 to June 23, 2008, less amounts paid?
Is Ms. Varatharajah entitled to payments for the cost of examinations for a functional ability examination, report dated March 11, 2008, in the amount of $1,386.87, pursuant to section 24 of the Schedule?
Is Economical liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Varatharajah?
Is Economical liable to pay Ms. Varatharajah's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Varatharajah liable to pay Economical's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Varatharajah entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Ms. Varatharajah is not entitled to receive weekly caregiver benefits pursuant to section 13 of the Schedule.
Ms. Varatharajah is entitled to receive a medical benefit in the amount of $2,384.59 pursuant to section 14 of the Schedule, less any amounts Economical has already paid toward the treatment at Crystal Healthcare, plus applicable interest.
Ms. Varatharajah is not entitled to attendant care benefits pursuant to section 16 of the Schedule.
Ms. Varatharajah is not entitled to further payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule.
Ms. Varatharajah is not entitled to payment for the cost of a functional abilities examination of March 11, 2008.
Economical is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act R.S.O. 1990, c. I.8.
The parties are encouraged to resolve the issue of expenses in respect of the arbitration under section 282(11) of the Insurance Act.

EVIDENCE:

Background to the Dispute

Ananthakowry Varatharajah was driving a dodge caravan with two of her children when it was t‑boned on the front passenger side. She testified that the third party vehicle did not remain at the scene and she was forced to physically run after the vehicle and speak to the driver when they stopped at a traffic light. The applicant testified that she felt anxious and unable to speak after the impact and for some time thereafter. She indicated that she telephoned her husband who arrived at the scene of the accident. The applicant stated that it was later that evening, when she went to lay down and felt severe pain, that she realized she had hit the left side of her neck in the van. The applicant testified that she felt pain in the left side of her neck, coming down into the shoulder area and that she had a headache throughout the night and could not sleep. The next day she went to her family doctor who prescribed Tylenol 3 for pain and physiotherapy for muscle tightening in the neck.

The applicant claims that she was unable to manage her pre-accident housekeeping and home maintenance activities after the motor vehicle accident. She stated that she lived in a three bedroom bungalow with her husband and four children who at the time of the hearing were an autistic 20 year-old boy, a 17 year-old girl, an 11 year-old girl and a 5 year-old boy. Prior to the accident, the applicant stated that she was primarily responsible for the majority of the household and caregiving activities and that her husband would assist with these duties when he was not working. She stated her children did not assist with these tasks before the accident.

The applicant testified that two service providers were hired to assist with her housekeeping and caregiving and she received this assistance until June 2008. She also stated that her husband, Mr. Varatharajah Suppiah, who testified at the hearing, assisted her for some months with her attendant care by way of helping her dress and shower as she was unable to lift her arm and driving her to medical appointments.

The applicant stated that she attended Crystal Healthcare in Scarborough ("Crystal") within one week of the motor vehicle accident where she received treatment until May or June of 2008. The applicant testified that she attended Crystal initially three times a week which was reduced to twice and then once a week. She testified that she would do the treadmill for 5 to 10 minutes, some stretching exercises for 5 minutes, 20 minutes with a hot pack, 20 minutes of massage and she received acupuncture 3 to 4 times in total. On cross examination, the applicant stated that she was seen for a chiropractic examination 2 or 3 times but did not receive chiropractic treatment and also indicated she could not recall the exact amount of acupuncture received indicating that it could have been up to 8 sessions. The applicant indicated that she was still in a lot of pain when she stopped the treatment and that she found the massage and hot pack therapy helped her at the time but only for a little while before the pain would return.

A treatment plan dated October 18, 2007 was denied by the insurer resulting in an insurer examination conducted by Dr. Finn, a chiropractor, who concluded that the applicant's injuries fell under the Pre-approved Framework Guideline for Whiplash Associated Disorder Grade I or Grade II (the PAF Guideline) resulting in a partial approval of the disputed treatment plan. A subsequent treatment plan dated December 3, 2007 was also the topic of an insurer examination with Dr. Finn, who again concluded that the proposed treatment was partially reasonable and necessary. Despite the recommendations from the insurer examinations, the insurer's evidence was that it paid less than $1,000 toward the treatment since it was unable to determine what goods and services were actually delivered to the applicant in compliance with the insurer examination recommendations.

Also in dispute is a third treatment plan from Crystal dated February 15, 2008 proposing a further $1,583.72 in medical treatment and assessment. The applicant claims that this treatment plan was initially delivered through the Health Claims for Auto Insurance ("HCAI") system on February 29, 2008 and again directly to the insurer on March 20, 2008, each time with no response and is therefore payable. Similarly, an OCF-22 dated February 20, 2008 prepared by Century Diagnostics ("Century") proposed a functional abilities examination that according to the applicant was delivered through the HCAI system on February 20, 2008 with no response. The applicant also sent this OCF-22 by fax directly to the insurer on March 3, 2008 and claims that since there was no response, that assessment is payable under s. 38.2 of the Schedule. The insurer takes the position that it did not receive either the treatment plan or the OCF-22.

Dawn Brillinger, the adjuster on the claim, testified on behalf of Economical. She stated that after receiving the application for accident benefits, the insurer sent a letter to the applicant dated November 16, 2007 which indicated that the applicant may be entitled to either a caregiving or a non-earner benefit. Also, based on the provided OCF-2, the insurer indicated in this letter that the applicant qualified for housekeeping and attendant care, attached a blank Form 1 and asked a number of questions pursuant to s. 33 of the Schedule.

Ms. Brillinger testified that around December 12, 2007 she received a statutory declaration from the applicant sworn December 10, 2007. She sought clarification regarding the caregiving and housekeeping claim as the statutory declaration only contained the first name and last initial of both service providers (namely Thevanithini G. who already provided the caregiving service and Punithawathy T. who allegedly provided the housekeeping service). She indicated that she was able to contact Thevanithini by phone, who stated that she was attending the applicant's home on Mondays and Wednesdays and the occasional Friday and was paid $8 per hour receiving $200 to $300 in cash every 2 weeks. Thevanithini confirmed to Ms. Brillinger that there were 4 children in the house and that she took the children to school and assisted only sometimes with the eldest son, whom Thevanithini described as disabled. Ms. Brillinger set out her conversation in a letter dated December 14, 2007 which was sent to Thevanithini, and copied to the applicant's solicitor. Ms. Brillinger referred to a phone call she received on December 31, 2007 from someone identifying himself as "Roger" who advised that he was interpreting for Thevanithini and that she had misunderstood some of the information in their earlier conversation. Ms. Brillinger stated that "Roger" told her that the caregiver was paid $12 per hour and that she worked every day from Monday to Friday. Ms. Brillinger stated that at the time she did not know who "Roger" was but after hearing Mr. Suppiah testify she now wondered if he was in fact the "Roger" who contacted her earlier.

Ms. Brillinger testified that the information given by Thevanithini did not correspond with that submitted on the expense forms and as a result she made a referral to the Investigative Services Unit. The insurer stated that a number of discrepancies appeared in the information it gathered when compared with the expenses as claimed. Ms. Brillinger stated that she continued to gather information with regard to the caregiver benefit until ultimately the benefit was terminated for material misrepresentation pursuant to s. 48 of the Schedule by letter dated July 23, 2008. With regard to the housekeeping claim, Ms. Brillinger stated that she tried to contact Punithawathy and was able to speak to someone by telephone at her home who confirmed that Punithawathy was providing housekeeping to a home in Whitby. Ms. Brillinger indicated that she was never able to contact Punithawathy directly. The insurer did pay 21 weeks of housekeeping plus interest which appears to be mainly because it was unable to contact the alleged service provider to verify the accuracy of the applicant's information during its investigation. The housekeeping benefit was ultimately terminated based on the assessments of Ms. Roberts, occupational therapist, who gave evidence at this hearing.

Caregiver and Housekeeping Benefit

Applicant's Evidence

The applicant testified that after the motor vehicle accident she was unable to do anything, stating that she could not mop because she could not use her hand, could not carry the laundry basket to the basement and could not cook as she was unable to lift pots with water. She testified that after the accident she was assisted by her husband and about one week after the accident by PunithaVathyoi (this name was phonetically spelled by the interpreter but this person is mostly referred to as Punithawathy in the evidence and this decision) whom she did not know prior to the accident. She stated that Punithawathy would attend mostly on Saturday and Sunday for 5 hours each day and would do the laundry (which she stated there was a lot because of her autistic son) mopping, dusting, garbage disposal and general cleaning of the house. The applicant could not recall when Punithawathy stopped giving assistance but stated that it was around June 2008. The applicant also stated that Punithawathy at one point took over the caregiving duties when the individual providing the caregiving took a full time job in or around April 2008. The applicant stated that after Punithawathy stopped providing the service she was able to do some of these activities, with pain, noting that some time after the accident she started doing some things herself as her autistic son needed her personal service

In her testimony, the applicant could only provide the first name of the service provider that she claims assisted with caregiving duties and noted that she needed assistance for all of her four children. She claimed that Thevanithini (also referred to as Nithini in the evidence) provided child care after the accident stating that she would come early in the morning to accommodate her autistic son's leaving for school by bus at 8 a.m.. She stated that Thevanithini did all the preparations for her autistic son before he went to school. She stated that her 14 year old daughter got to school on her own and that she had arranged for her second youngest child to be taken to school by a neighbour. Therefore, after the eldest left for school, Thevanithini was needed to assist with the infant in giving constant care throughout the day and assisting with the preparation of meals. The applicant testified that she did not recall the exact details of the days Thevanithini provided service but that she worked for 3 to 5 hours each day, depending on the workload.

In cross-examination, the applicant was asked about the invoices for her caregiving and housekeeping claims and she agreed that they were the documents used to support her claims. When asked about the specific invoice that indicates that service was provided the day after the accident she stated that both providers came into the home about 2 to 3 days or one week after the accident and would not say whether the invoices were accurate or not, even when shown that the invoices were inconsistent with her testimony. She also stated that she did not know the service providers before the accident and that her husband made all of the arrangements and she did not ask him anything about them except that her husband told her they were "good people".

Mr. Suppiah, the applicant's spouse, testified on behalf of the applicant. He stated that he was presently working for Metro (formerly known at Dominion) as bakery manager and had been an employee there for 6 or 7 years, typically working from 7 a.m. to 3:30 p.m. He indicated that he had medical benefits available through the workplace and that they were also available for his wife to access at the time of the motor vehicle accident. He confirmed that he hired Punithawathy to assist his wife with her housekeeping duties. Mr. Suppiah stated that he did not know the last name of this service provider and did not know her prior to the accident. He stated that he called her the day after the accident and that she started providing assistance a few days later, working weekends from 3 to 5 hours per day. Mr. Suppiah confirmed that he prepared the invoices which were filled out mostly at the end of each month and signed by the service provider. He stated that for the most part the invoices were accurate, that the tasks indicated were accurate but the hours may not be accurate. He stated that he did not keep an accurate record of the specific days the service was provided but he knew that she did the job because the tasks were completed.

Mr. Suppiah also testified that he hired Thevanithini to complete the caregiving tasks and found her after a recommendation from a friend. He stated that after his friend asked Thevanithini if she was interested, Mr. Suppiah then telephoned Thevanithini explaining the situation; that there were 4 children, one of whom was autistic and one a baby, and that they needed additional assistance. He indicated that Thevanithini agreed and began providing assistance 1 to 2 weeks after the accident which included cooking, helping the children, assisting his eldest autistic son with the shower (as he could not do it for himself), all the preparations for the eldest son, all the preparations for the baby, organizing the house, a little housekeeping and babysitting. He stated that Thevanithini provided this service mostly from Monday to Friday in the mornings at various times. After examining the invoices submitted for caregiving, Mr. Suppiah agreed that they reflected more or less the hours and days the service was provided.

In cross-examination, Mr. Suppiah was shown the applicant's statutory declaration, sworn December 10, 2007, and he agreed that at that time she stated that she had made the arrangements for the service providers. Mr. Suppiah explained that this must have been a misunderstanding on his wife's part even though he was the one doing the interpreting at the time, and confirmed that he made the arrangements, not his wife. Mr. Suppiah was shown the invoices that indicate Thevanithini provided service on October 17, 2007 which contradicted his earlier testimony that the caregiver started several days after the accident. Mr. Suppiah replied that the invoices reflected the service provided but were not accurate with regards to the days and hours. He stated that Thevanithini was doing the job and he was recording approximately what she was doing. Mr. Suppiah became confused when the insurer asked him if he did not mind putting on an invoice that he owed $60 on a day that service was not provided and after some clarification, though he did not answer the question, agreed that he filled out the invoices in order to get money from the insurer and then pay the service provider as he did not have the money to pay her himself.

When asked about his prior relationship with Thevanithini, Mr. Suppiah stated that even though he got her name from a friend, Thevanithini was an employee working for him in the bakery at his workplace Metro at the time of the motor vehicle accident. Mr. Suppiah explained that in direct examination he said that he got her name from a friend because even though he knew her and she worked with him, he was unaware that she did this kind of work. Mr. Suppiah was also asked about the time when two individuals from Economical came to his workplace to speak with Thevanithini on March 19, 2008 (details of this incident are below) and he stated that he remembered when they came but at the time was not aware that they were from Economical and thought they were her friends. Mr. Suppiah recalled that these two people were speaking with Thevanithini and that he approached them only to inquire how much longer they would be as they were speaking for a long time and another employee needed to take their break. He stated that he never spoke with either of the two individuals.

Dr. Pavacic, chiropractor, of Crystal completed a disability certificate dated October 18, 2007 that indicated that the applicant sustained a sprain/strain to her cervical spine, thoracic spine and lumbar spine as well as post-traumatic headache and sprain/strain to her left shoulder girdle. The disability certificate indicates that the applicant suffered a substantial inability to engage in her pre-accident caregiving and housekeeping activities noting an anticipated duration of 9-12 weeks. Dr. Pavacic completed another disability certificate on February 15, 2008 in which he described the applicant's injuries as chronic cervical joint dysfunction and myofascial symptoms; chronic lumbar joint dysfunction; and, headache - tension type. The anticipated duration for caregiving and housekeeping was indicated to be a further 5-8 weeks with a recommendation that the applicant be evaluated in 8 weeks to determine functional capacity.

The applicant relied on the clinical notes from Century where a number of assessments throughout the relevant period were conducted. Dr. Uy, chiropractor, completed an in-home assessment on January 21, 2008. He stated that based on his assessment the applicant demonstrated "impairments that restrict her ability to conduct her pre-accident essential tasks," and that these "limitations disable Ms Varatharajah from completing her pre-accident level of activities." Dr. Uy concluded that since the applicant was "limited in her ability to complete" her household and caregiving duties it was recommended that she receive 37.5 hours of housekeeping assistance and 60 hours of caregiving assistance per week. I note that in his provided breakdown he allots 14 hours for cooking under "housekeeping duty" and 14 hours a week for "making meals at home" under "childcare duty" with no explanation for the duplication. Dr. Uy also completed a Form 1 as a result of this assessment which recommended that the applicant receive over 18 hours per week in attendant care for a total monthly benefit of $888.21. Incidentally, Dr. Uy also allows for 420 minutes or 7 hours per week in attendant care under the category "Feeding" and specifically "provides assistance, either in whole or in part, in preparing serving and feeding meals." This duplication is problematic and was never addressed in the evidence.

The applicant was assessed by Dr. Ventrella, a chiropractor of Century, by way of a rebuttal in‑home assessment. In his report dated April 12, 2008, Dr. Ventrella supported that the applicant continued to need assistance with her pre-accident caregiving stating that the applicant was "limited in the ability to complete most of their household and child care duties." He recommended assistance with housekeeping duties in the amount of 7 hours a week and 4 hours a day for childcare. He also stated that the applicant should be encouraged to gradually resume performing or assisting with her home management tasks using task modifications or assistive devices.

Dr. Polyvos, chiropractor of Century, in his rebuttal report of June 6, 2008 supported that the applicant was entitled to caregiving benefits noting that he disagreed with Ms. Roberts earlier finding that she was not substantially unable to complete these tasks. Dr. Polyvos wrote that that there was "obvious subjective and objective evidence of ongoing injury and impairment," and concluded that there was a need for caregiving because the applicant "continues to demonstrate significant ongoing physical impairment which would preclude her from complete resumption of her previous care-giving duties."

Dr. Adrian Joaquin, chiropractor, assessed the applicant resulting in a report of March 10, 2010 and concluded that she suffered from chronic mechanical neck pain and low back pain secondary to the motor vehicle accident. He stated in his report that the applicant was "currently completely unable to engage in her pre-accident level of housekeeping and home maintenance." Dr. Joaquin testified at the hearing and in cross-examination explained that the comment in his report on her present ability to do housekeeping meant that she was unable to be at her pre-accident level. He clarified that he did not want to give the impression that the applicant was unable to do all of her housekeeping and that the comments in his report may have been a result of his own misunderstanding of the term used in the Schedule. In redirect, Dr. Joaquin further clarified that in his report he was trying to state that the applicant was not able to conduct herself at the pre-accident level, that she fell short of performing at this level.

Insurer's Evidence

Charmaine Smith, claims specialist for Economical, testified at the hearing. Ms. Smith confirmed that she became involved in the applicant's file in December 2007 because of discrepancies with the submitted expenses for caregiving which were not consistent with information the adjuster obtained from the service provider. Ms. Smith stated that she and Ms. Brillinger decided to obtain some surveillance and to contact the service providers directly. Ms. Smith stated that after the surveillance came back, she went out to see if she could meet with Thevanithini. She attended Thevanithini's residence on March 19, 2008 with a Tamil interpreter. The woman who answered identified herself as Thevanithini's mother and stated that her daughter was at work and that she worked two jobs, one at KFC and the other at Dominion; this information was also confirmed at the same time by a man identifying himself as Thevanithini's brother.

Ms. Smith testified that she then attended at the Dominion store and asked the cashier if she could speak with Thevanithini. She said that a man named "Raj" was paged who came out to speak with her. Ms. Smith stated that "Raj" wanted to know what she was there for and she told him that she was from an insurance company and said no more. She followed "Raj" to the back of the store and he went into an employee only area while she waited for five minutes before Thevanithini came out. Ms. Smith stated that she identified herself to Thevanithini and asked some questions about the services she was providing to the applicant. Ms. Smith stated that Thevanithini told her that she was providing care for the applicant's 4 children and began doing so in October about a week after the accident, working for about five days a week starting at 7 or 8 a.m. until 4 or 5 p.m. Thevanithini also stated that at the end of January she had to change her hours and attend later in the day and would start at 4 or 5 p.m. until 7 or 8 p.m.. She further stated that Thevanithini told her that the applicant's eldest son was autistic and that she did not do much for him or the eldest daughter and that care was being provided for the two youngest which included taking the 7 year old to school for the first couple of months. Ms. Smith stated that Thevanithini was a polite young lady but noted that when asked for specifics about dates of service or the applicant's attendance at therapy her answers became vague or non-responsive. Thevanithini confirmed that she worked the two jobs at KFC and Dominion for the last year. Thevanithini then identified "Raj" to Ms. Smith as the applicant's spouse who according to the witness had been walking around almost hovering in their conversation. Ms. Smith noted that Mr. Suppiah had started fixing baked goods on the various tables around where she was speaking to Thevanithini and interrupted their conversation on two occasions asking when they would be done so Thevanithini could return to work.

Ms. Smith testified that the information subsequently obtained from the applicant in her examination under oath in May 2008 revealed a number of discrepancies with the information obtained from Thevanithini. These included inconsistent days worked, inconsistent hours, the applicant stating that she arranged for her neighbour to take her 7 year old to school and Thevanithini stating she did that for the first couple of months. In addition, Thevanithini stated that she assisted only minimally with the eldest child whereas the applicant stated in her examination under oath that this was mostly Thevanithini's job. These inconsistencies never seem to have been clarified, even at the hearing.

Ms. Delise Roberts, occupational therapist, testified on behalf of the insurer. She stated that she assessed the applicant on two separate occasions in her home and prepared two reports as a result. The first assessment took place on January 28, 2008 when the insurer arranged a psychological, physiatry and in-home assessment through SIMAC. Ms. Roberts completed the in-home assessment and wrote the executive summary for the multidisciplinary assessments which were conducted by Dr. Schwartz, psychologist and Dr. Singh, physiatrist. Ms. Roberts opined that with assistive devices the applicant would be independent in her housekeeping duties and confirmed that she had the necessary strength, range of motion and physical tolerance to do her housekeeping. She also stated that the applicant was independent in her caregiving duties but needed assistance of 3.5 hours per week to assist with lifting the 3 year old while bathing.

Ms. Roberts testified that at the outset of the in-home assessment, the applicant's youngest child was running around and the eldest was trying to get involved in the assessment. Ms. Roberts noted that she had expertise with autistic children stating that she graduated from university with a degree in psychology and worked in a group home for autistic children for five years. She stated that people with autism have variable needs as some may be higher functioning. She noted that the son seemed easily redirectable and noted that when the applicant's husband attempted to get him into the kitchen for a snack he went without having to be physically taken. Ms. Roberts concluded that the applicant's pre-accident caregiving tasks were more of a supervisory nature for her eldest son and found that the applicant was not prevented from completing these duties.

Ms. Roberts conducted a second in-home assessment on March 31, 2008 in order to assess the applicant's caregiving needs. Ms. Roberts testified that at the time of the assessment, the applicant was doing very well which was confirmed in the reports of her kinesiologist and chiropractor. She noted Dr. Finn's January 2008 report where the applicant told him that she was 70% improved. Ms. Roberts noted that although the applicant did very well during her assessment, she only reported to be functioning at 25%. Ms. Roberts report of April 8, 2008 refers to the physical examination findings noting:

Functional cervical range of motion with moderate restrictions to left lateral flexion and right rotation.
Functional bilateral upper extremity (with some restrictions with left shoulder mobility), bilateral elbow, bilateral wrist, bilateral hip, bilateral knee and bilateral ankle range of movement.
Functional bilateral lifting / carrying ability of lightweight objects, functional grip strength and functional balance.

Ms. Roberts concluded that the applicant was substantially able to perform her former tasks and did not require any additional caregiver assistance.

Surveillance

Mr. Paul Torrens, private investigator for Able Investigations was hired by the insurer. Mr. Torrens testified that he and his partner were asked to run surveillance at 2 addresses, one of which was the address in Ajax the applicant had indicated in her statutory declaration was Thevanithini's address, the caregiver, and that the other address was for the applicant's residence in Whitby.

Mr. Torrens testified that the first day of surveillance was December 19, 2007(for which there was no video evidence) and Thevanithini was not seen that day, but the applicant was seen at her own address taking her children to school by car. The applicant was seen returning to her home, manually lifting the garage door and removing the small child and her purse from the car and entering the house.

Mr. Torrens further testified that surveillance was conducted on December 20, 2007 and again Thevanithini was not seen but the applicant was seen taking her daughter to school at approximately 8:30 a.m.. On December 28, 2007 again Thevanithini was not seen but the applicant was seen taking out the garbage. Mr. Torrens testified that on February 20, 2008 Thevanithini was seen at her own address and she drove to and entered a Dominion store at 6:50 a.m. Her vehicle was viewed throughout the day and had not moved by 1 p.m. when the surveillance ended. Mr. Torrens indicated that Thevanithini could not be located inside the Dominion store.

Subsequent to the hearing, I reviewed the surveillance video in the file as I indicated I would to the parties. I agree that on February 20, 2008 it appears that Thevanithini's vehicle was parked in the Dominion parking lot from at least 7:41 a.m. throughout that day until at least 6:20 p.m. (despite Mr. Torren's testimony, the video and surveillance report for February 20, 2008 show that surveillance ended at 6:40 p.m. not 1 p.m.). I also note that the applicant's invoices for her caregiving claim indicate that Thevanithini provided 5 hours of care on that day. Further surveillance was conducted on March 2 and 3, 2009, however, this will not be discussed as it does not pertain to the time period in dispute.

ANALYSIS:

I accept that it is settled law that the burden of proof rests on the applicant to prove on a balance of probabilities that she has a right to recover under the Economical policy. In this instance, and for the reasons set out in this decision, the applicant has not met that onus.

Credibility

The applicant is asking that I find she is entitled to a caregiver and housekeeping benefit at the maximum allowable rates and attendant care at a rate of $888.21 per month. The applicant testified that her husband was responsible for finding and hiring the service providers, dealing with financial arrangements and completing the invoices that were submitted to the insurer as proof these benefits were incurred and that he, not she, should be asked about those details. The applicant called her husband as a witness to support her claims.

In many cases that come before an arbitrator at the Commission, credibility is a key factor in the decision making. In this instance, I find that credibility of the applicant and Mr. Suppiah is imperative given the ongoing concerns of the insurer regarding the inconsistencies in the claim and the fact that the applicant failed to call the actual service providers for these benefits. For the reasons that follow, I do not find that the applicant and Mr. Suppiah are credible witnesses. Their evidence surrounding the claims for housekeeping, caregiving and attendant care was insufficient to show that the benefits were incurred and their explanation concerning the inconsistencies was mostly not believable.

The applicant testified that she did not prepare the caregiving and housekeeping invoices and could not speak to what they contained. Despite the applicant's evidence that her husband made these arrangements, including filling out the invoices, these invoices were submitted on her behalf and she maintained throughout, and in her testimony that the service was being provided at a rate similar to that set out on the invoices. I find that there are at least a few days that the invoices show service was provided when the evidence does not support that any was provided. These days include October 17 and 18, 2007 which are the two days following the motor vehicle accident when both the applicant and Mr. Suppiah testified there was no service provided, as well as February 20, 2008 when the surveillance shows the service provider's vehicle parked outside her place of employment at Dominion for the entire working day and during the time when the applicant testified service would normally have been provided. I find it curious that the applicant says both service providers only started 2 to 7 days after the accident but would not agree that the invoices were not accurate when it was clearly pointed out to her that they indicated the earliest service was provided one day after the accident. This leads me to the conclusion that the applicant is tailoring her evidence so that it supports her claims.

There were also a number of statements the applicant made in testimony that contradicted the evidence the insurer presented as a result of its investigation. According to the insurer, Thevanithini initially informed it that she was only working 2 days a week and sometimes 3, however, the applicant testified that she worked 5 days a week Monday to Friday. Thevanithini's mother informed the insurer that her daughter worked long hours in two jobs which was also confirmed by her brother. This was sufficient to raise questions in the insurer's mind as to how Thevanithini could handle two jobs and complete the caregiving 5 days a week for 3 to 5 hours a day; something that may have been explained had Thevanithini testified. The applicant stated that care was provided by Thevanithini during the daytime but surveillance shows that Thevanithini worked at Dominion during the day and this was confirmed to the insurer by Thevanithini's mother and supported by the surveillance of February 20, 2008. Thevanithini told the insurer that she had little involvement with the autistic child whereas the applicant stated that caring for him was Thevanithini's main job and Mr. Suppiah stated that Thevanithini assisted this child, even with his showering. Thevanithini told the insurer that she was responsible for taking the children to school when the applicant testified that she had arranged for her second youngest to be taken to school by her neighbour and the eldest two did not need assistance with this. Also, Thevanithini informed the insurer that she was receiving $8 per hour and was paid bi-weekly in an amount of $200 to $300 whereas Mr. Suppiah testified that he paid her a total to date of $1,000 at $200 per month at a rate of $12 per hour.

The surveillance shows the applicant taking one or more of her children to school on December 19, 2007, December 20, 2007 and February 20, 2008 and taking out the garbage on December 28, 2007 despite her testimony that she was doing neither of these things during that period after the accident. The applicant testified that she would take her eldest to school if he missed his bus but did not explain taking out the garbage, a task she specifically testified was the responsibility of the housekeeping service provider. As well, these were all days that the applicant claimed a service provider attended but they were not seen attending. The applicant and Mr. Suppiah testified that they had to be flexible with the caregiver's schedule, given her work schedule but given my concerns about credibility it appeared that the applicant was tailoring her evidence.

I find the testimony of Mr. Suppiah particularly troubling and do not find that he was a credible witness. Again, the main issue concerns the evidence surrounding the service providers. When questioned about how he found them, Mr. Suppiah stated that they were referred to him by a friend. It was only on cross-examination, that Mr. Suppiah admitted that one of the service providers worked for him at the bakery at Dominion and explained that he said a friend recommended her only because at the relevant time he was unaware that she did this kind of work. I do not find this sequence of events plausible, without confirmation from the service provider. Also, when referring to the incident at Dominion when Ms. Smith and an interpreter came to speak to Thevanithini, Mr. Suppiah testified that he thought that they were Thevanithini's friends and not from Economical. However, Ms. Smith testified that she specifically told "Raj" that she was there from an insurance company prior to his going to the back of the store to retrieve Thevanithini. Also, it seems unlikely that Mr. Suppiah would remember an incident such as this, which happened more than two years prior, if he really thought Thevanithini was speaking only to friends. All of these instances, coupled with the problem of the invoices lead me to question whether any caregiving and housekeeping assistance from these service providers were provided at all. With these inconsistencies in the file, it was imperative that the applicant call one or both of the service providers as witnesses to this hearing so that these discrepancies could be addressed once and for all. Without this evidence, I find that the applicant has not met her onus in proving that she is entitled to either a caregiving or housekeeping benefit.

CAREGIVER BENEFIT

Part IV of the Schedule sets out that an insured person who sustains an impairment in a motor vehicle accident may qualify for a caregiver benefit if "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." The Schedule provides that 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." Given my finding on credibility and for the following reasons, I find that the applicant has not proven entitlement to a caregiver benefit.

Given the testimony surrounding the creation of the invoices, it would be imperative for the applicant to call the actual service provider to give oral testimony at this hearing. That was the case in the decision referenced by the applicant, Ramball et al and Wawanesa Mutual Insurance Company (FSCO A08-000036 and A08-000037, September 25, 2009), where Arbitrator Ashby found that despite the poor record keeping there was entitlement to a caregiver claim given the straightforward testimony and credibility of the service provider. In this instance, I did not have the opportunity to assess the credibility of the service provider in order to come to a conclusion of whether or not caregiving services had been provided.

Ms. Roberts noted that with regard to the applicant's three eldest children, the applicant did not require any assistance to perform her caregiving requirements. She did conclude that the applicant required assistance bathing the youngest child, who was three years old at the time, and it was recommended that she receive 3.5 hours per week in assistance. In her in-home assessment of March 31, 2008, Ms. Roberts confirmed that the applicant was no longer in need of this caregiving assistance.

In the report of June 6, 2008 Dr. Polyvos criticized the findings of Ms. Roberts, noting that although she found that the applicant had mild to moderate restriction in the cervical spine, she concluded that the applicant was substantially able to complete her pre-accident caregiving. Dr. Polyvos recommended 20 hours per week of caregiving assistance stating that the applicant should continue to participate in an active and passive rehabilitation program. Dr. Polyvos was critical of Ms. Roberts findings which were clearly based on the test as enunciated in the Schedule. Dr. Polyvos concludes that the applicant is in need of a caregiver benefit because her impairments preclude her from complete resumption of her pre-accident caregiving duties. This is not the test set out in the Schedule and therefore I give this report little weight in supporting entitlement to a caregiving benefit.

I find Dr. Uy's report of January 21, 2008 of no assistance in determining what, if any, level of assistance the applicant actually required at the time. A main concern is that throughout his report and most importantly in his conclusions, Dr. Uy is not referencing the relevant test from the Schedule to support his recommendations and instead found that the applicant was limited in her ability to complete her housekeeping and caregiving duties. In addition, the services Dr. Uy recommends are duplicated in each of the three claimed benefits and there was no evidence explaining this duplication. For similar reasons, Ms. Roberts' opinion holds more weight because she clearly put her mind to the level of activity the applicant was able to do and the test for entitlement in the Schedule. She quoted the exact test in her reports and in her testimony so that I am satisfied that this was a significant factor in her conclusions. I find that the reports of Drs. Polyvos, Uy and Joachin do not support that the applicant is entitled to a caregiver benefit as defined in the Schedule.

There is little evidence to support that a caregiving benefit was incurred by the applicant and what scant reliable information exists was actually provided by the insurer from its initial investigation. However, even in the insurer's evidence, there were many inconsistencies that were never addressed by the applicant in this hearing. The applicant therefore has not met her onus of proving on a balance of probabilities that she is entitled to reimbursement for this benefit and I find she is not entitled to a caregiver benefit.

HOUSEKEEPING AND HOME MAINTENANCE

The applicant identified the period in dispute being from October 16, 2007 to June 23, 2008 less amounts paid toward housekeeping pursuant to s. 22 of the Schedule. The insurer claimed that it paid housekeeping at the rate claimed up to March 15, 2008, a total of 21 weeks plus applicable interest pursuant to the Schedule. This was not disputed by the applicant and therefore the issue before me is entitlement to housekeeping and home maintenance from March 16, 2008 to June 23, 2008.

Section 22(1) of the Schedule states:

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. O. Reg. 403/96, s. 22 (1).

Given my findings on credibility and for the following reasons, I find that the applicant has not proven entitlement to a further housekeeping benefit.

Ms. Roberts testified that after being supplied with the assistive devices mentioned in her first report the applicant would have been independent in her housekeeping duties and able to complete them initially by taking breaks. Ms. Roberts referenced the specific test for entitlement to this benefit noting, at the time of her initial report, that with the recommended devices the applicant would be "substantially able to perform her household" duties. In his in-home assessment, Dr. Uy recommended that the applicant receive assistance with housekeeping since she was "limited in her ability to complete her household duties." This is not the test as set out in the Schedule and I find that this report is not sufficient to support entitlement to the benefit. In my review of the medical reports the applicant provided from Century, the only report that supports entitlement to housekeeping is that of Dr. Ventrella, in his rebuttal report of April 12, 2008 where it was found that the applicant was limited in the ability to complete most of her household duties supporting 7 hours of housekeeping assistance (and 4 hours of caregiving daily).

Ms. Roberts described her initial assessment of the applicant noting that she had the applicant move around, checked her balance, ability to kneel, squat, bend over, and reach over head with both hands. Ms. Roberts noted that the applicant declined to perform quite a few items indicating that the housekeeper did a number of those activities. It was noted that the applicant declined to do some of the bending and was only able to manage climbing 4 stairs at the time. Despite the applicant's presentation at the assessment, Ms. Roberts concluded that the applicant had sufficient joint range of motion, strength and physical tolerances to be able to perform her housekeeping tasks. Recommendations were made for some assistive devices indicating that once they were delivered, the applicant would be able to resume her housekeeping duties. Ms. Roberts testified that it is not always the case that the patient will demonstrate with her what they are actually able to do. Ms. Roberts testified that her job was to get the patient doing what they are able to do and if she was able to recommend some assistive devices to address the applicant's limitations then the applicant would be able to move and perform the activity in order to improve. This was her finding with regard to the housekeeping duties of the applicant, that with the assistive devices she would be able to do her pre-accident housekeeping, albeit with necessary breaks if required.

Despite attempts to contact the alleged service provider, the insurer was only able to speak by phone with an unidentified individual who confirmed that Punitawathy was providing housekeeping to a home in Whitby. By not calling this service provider the applicant has failed to prove on a balance of probabilities that she has incurred a housekeeping benefit and is therefore not entitled to a further housekeeping benefit beyond March 15, 2008.

ATTENDANT CARE BENEFIT

Given my findings on credibility and for the following reasons, I find that the applicant has not proven entitlement to an attendant care benefit.

Section 16 of the Schedule sets out that the insurer shall pay an attendant care benefit and specifies:

(2) The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) services provided by an aide or attendant;

An attendant care benefit under the Schedule is an "incurred" benefit and I find there is no persuasive evidence to support that it was incurred. Ms. Brillinger testified that other than the Form 1s that were provided there was no other claim made for the attendant care benefit. She noted that the information in the statutory declaration indicated that Mr. Suppiah was providing some service but did not recall any other information being provided.

In her final submissions, the applicant points to her own testimony that she required attendant care assistance from her husband for several months following the accident. In her evidence the applicant testified that Mr. Suppiah assisted her with showering (she testified he would shampoo her hair) and dressing as she was unable to lift her left arm and that he took her to all of her medical appointments. However, the applicant had the opportunity to question Mr. Suppiah about the care he provided and despite the applicant's closing submissions suggesting that Mr. Suppiah testified that he provided this assistance, the applicant actually did not question him on this matter and Mr. Suppiah did not in fact give evidence that he actually provided this assistance. Mr. Suppiah did not testify at all to the care he provided as outlined in the two Form 1s from Century.

Ms. Roberts assessed the applicant in January 2008 and concluded that the applicant did not require attendant care assistance, however she recommended a long handled sponge and a bath chair with a back to address the applicant's reported difficulty with bathing tasks. This is the only compelling evidence that supports entitlement to an attendant care benefit. However, in absence of corroborating evidence from Mr. Suppiah, I cannot find that this attendant care was actually provided and therefore this benefit is not payable.

I find Dr. Uy's Form 1 of no assistance for the reasons already set out, and particularly because "cooking" for all of the caregiver, housekeeping and attendant care benefit was recommended. Dr. Ventrella also prepared a Form 1 as part of his assessment from April 12, 2008. At that time, he recommended that the applicant receive 9.8 hours per week in attendant care. Dr. Ventrella's Form 1 set out that the applicant needed assistance with dressing and undressing upper and lower body, grooming hair, fingernails and toenails, cleaning the bedroom, bathroom and laundry, applying creams for skin care and applying creams bathing as well as bathing and drying. The total amount of care recommended in the Form 1 is $465.64 per month. In his report, Dr. Ventrella states that the applicant continued to require some assistance with her activities of daily living noting that the rebuttal assessment "revealed limitations that suggest that the client would benefit from housekeeping, personal care, and child care assistance." However, without corroborating evidence from the applicant that she actually received the various services on the Form 1 and the silence from Mr. Suppiah on this point I find no entitlement to an attendant care benefit.

MEDICAL BENEFITS

The applicant is claiming an outstanding balance in treatment received at Crystal and at the start of the hearing referenced an amount of $8,104.16 but clarified that the issue in dispute actually pertains to three treatment plans.

Collateral Insurance

The applicant agreed that she had collateral benefits through her husband's employer and a copy of the policy was provided at the hearing. In her final submissions, she stated that any benefits found owing should be deducted by the allowable coverage under the collateral benefit plan. While this is not the ideal way that the collateral benefit coverage is to be accessed, the insurer is entitled to the deduction given that its policy is secondary to any collateral policy.

The first treatment plan is dated October 18, 2007 and outlines a need for chiropractic treatment (6 sessions), acupuncture (8 sessions), massage (12 sessions), a functional exercise program (14 sessions), hot/cold gel packs and passive modalities (10 sessions) totalling $3,021.72. This treatment plan was prepared by Dr. Pavacic.

This plan was denied by the insurer and the applicant attended an insurer examination with Dr. Finn, chiropractor, on December 3, 2007. In his report, Dr. Finn noted the treatment the applicant stated she was receiving at Crystal which consisted of 10-15 minutes of electrotherapy, 15-20 minutes of heat, followed by a 20 minute massage and some treadmill and stretching exercises for 10 minutes each. At the time of Dr. Finn's assessment, the applicant informed him that she had reduced her attendance to twice a week from 3 times a week. Dr. Finn noted that the applicant reported having received 2 acupuncture treatments in the last week and that she had been shown and was performing a home exercise routine. Dr. Finn noted that the applicant reported a 15-20% improvement at the time of her assessment and that she found massage most helpful. Dr. Finn concluded that it appeared as though the applicant "sustained uncomplicated soft tissue injuries to the cervical and thoracic, lumbar/pelvic joints and associated soft tissues" and stated that the impairments were "expected to resolve without any sequelae." Dr. Finn stated that the applicant should continue to attend for treatment with Dr. Pavacic noting specifically that she would benefit from a short course of spinal manipulation which had not been rendered to her to date. Dr. Finn also recommended hands on mobilization of the shoulder, range of motion and strengthening exercises and a few additional massage sessions. He therefore found that part of the proposed treatment plan was reasonable and necessary and recommended treatment afforded by the PAF Guideline supplementary goods and services in the amount of $1,209.24 and $166.79 and hot/cold gel packs at a fee of $10 per pack for a total recommended treatment at $1,396.53.

In examining the time records from Crystal and comparing them with the applicant's testimony and what she reported to Dr. Finn, it appears that the applicant received the treatment as recorded on the records. Despite the first two treatment plans allotting 10 sessions for chiropractic, the actual time records show that no chiropractic treatment was delivered up to the assessment for the third treatment plan. It does not appear that the applicant ever received chiropractic intervention; however, I note that spinal manipulation is listed under discretionary interventions for both the acute and sub-acute periods in the relevant PAF Guideline. I agree with Dr. Finn's opinion that the applicant should have initially been treated under the PAF Guideline. This was consistent with Dr. Joaquin's testimony that initially he would have treated her under the PAF. Dr. Joaquin testified that if the applicant's injuries did not alleviate after PAF treatment, he would then put in another treatment plan.

The applicant is therefore entitled to treatment as supported by the insurer examinations in the amount of $1,396.53 less $300 for the collateral insurer's portion payable toward physiotherapy. There is no deduction for the collateral insurer's portion for chiropractic given that the applicant did not receive chiropractic treatment. Therefore I find that $1,096.53 is payable toward the first treatment plan.

The second treatment plan in dispute is dated December 3, 2007 and was prepared by Dr. Khalra, chiropractor, at Crystal. The second treatment plan proposed further treatment in the amount of $2,293.72 and included a follow-up assessment, chiropractic treatment (4 sessions), massage therapy (10 sessions), passive modalities (8 sessions), a functional exercise program (12 sessions) and laser acupuncture (6 sessions).

In her closing submissions the applicant refers to the functional abilities examination by Dr. Bar dated March 11, 2008, as supporting evidence that she had not yet returned to her pre-accident level of function and should continue with her treatment. I find that this report does not support that the applicant continue receiving the treatment at Crystal but instead calls for a new treatment protocol. Dr. Bar actually recommended that the applicant "begin an exercise protocol with greater emphasis on active stretching and strengthening to improve her muscular strength, flexibility and muscular endurance." He stated that this should be done in a gym setting under the guidance of a kinesiologist or fitness trainer with experience in the area and that she should be advised about the Hurt vs. Harm concept. There is no evidence before me that the treatment provided at Century changed to reflect the recommendations made by Dr. Bar and I find that this report does not support that the treatment being received at the time was reasonable and necessary. Further, there is no discussion in the report by Dr. Bar of the modalities of treatment the applicant had been receiving up to the time of the assessment which may be why the doctor did not comment on the reasonableness of her current treatment.

In his rebuttal report of April 12, 2008, Dr. Ventrella recommended that the applicant continue to participate in a rehabilitation program with an emphasis on increasing range of motion, general strengthening and stretching and pain management. In his report he did not comment on the treatment the applicant received at Crystal. He may have reviewed the treatment plans but as already determined the applicant was not receiving chiropractic treatment which is a modality listed on each of the three treatment plans. Therefore, I do not accept that Dr. Ventrella's recommendations support that the treatment she was receiving at Crystal was reasonable and necessary.

Although Dr. Polyvos in his report of June 6, 2008, supported continued treatment, nowhere in his report is there mention that he reviewed the treatment plans from Crystal or that the applicant explained the type of treatment she had actually been receiving. Similarly I give Dr. Polyvos' comments with regard to continuing treatment little weight.

Dr. Finn also examined the applicant in relation to the second treatment plan on January 11, 2008 by way of an insurer examination. He noted that the applicant reported being 70% improved. Dr. Finn concluded that the applicant had made significant progress in the month since the last assessment and remained of the view that she sustained uncomplicated soft tissue injuries to the cervical and thoracic, lumbar/pelvic joints and associated soft tissues as well as tension type headaches as a result of difficulty sleeping. It was again noted that the applicant stated she had not undergone chiropractic treatment and Dr. Finn recommended she do so to aid her ongoing spinal impairment. He also recommended additional massage sessions, stretching/strengthening exercises outside of a clinic setting and 4-6 half hour instruction/review sessions. He stated that at the applicant's stage of recovery, further acupuncture and heat was not recommended. Dr. Finn found the second treatment plan to be partially reasonable and necessary and recommended post-PAF treatment in the form of 12 chiropractic manipulations at $40, 6 massage therapy at $26.25 and 6 home exercise instruction/review sessions at $50.89 for a total, including assessment fees, of $1108.34. I agree with this approach however since the applicant did not receive chiropractic treatment this is reduced by $480 (12 x $40) leavening $628.34 owing.

In his report, Dr. Joaquin stated that the Applicant's prognosis was guarded and recommended that she return to a facility-based therapy program with a focus on stretching and strengthening with a substantial education program to assist with subsequent self-directed exercise. Dr. Joaquin testified that the applicant would have benefited somewhat from some treatment even at the time of his assessment. However, in his report he refers to the treatment the applicant underwent after the accident indicating that it included chiropractic treatment when it did not. As noted above, Dr. Joaquin supported that the applicant should have initially been treated under the PAF Guideline and gave no indication that his recommendations after the PAF treatment was exhausted would have been any different from Dr. Finn's.

The insurer raised the issue with regard to the $45 block fee for massage, charged by Crystal, pointing out that the Professional Services Guideline (Superintendant's Guideline 03/07) sets a maximum fee of $52.50 per hour for massage. The insurer states that since the applicant was receiving only 20 to 30 minutes of massage the fee charged was too high. It states that $45 should equate to a 51 minute massage. In reviewing the Professional Services Guideline, I note that it sets a maximum charge for a one hour massage of $52.50. I also note that Dr. Finn in his second assessment referenced a fee of $26.25 for a 30 minute massage which is exactly half the guideline amount. I find that approach reasonable in this instance given the applicant's testimony that the sessions lasted 20 to 30 minutes and there is no evidence to support a higher rate for this duration.

Also in issue in this arbitration is a third treatment plan dated February 15, 2008 prepared by Dr. Pavacic. The applicant claimed that this treatment plan was delivered to the insurer via HCAI which was a mandatory system in place at the relevant time. She provided a fax confirmation showing that it was faxed to HCAI on February 29, 2008. In addition, the applicant provided a fax confirmation indicating that this treatment plan was sent directly to the attention of Ms. Brillinger on March 20, 2008. It should be noted that this fax confirmation was not provided to the insurer in the production protocol set out under the Dispute Resolution Practice Code but was delivered to the insurer just a few days prior to the hearing. Despite the late delivery, I agreed to allow the fax confirmation to be entered as evidence.

The applicant has asked me to find that this treatment plan was delivered properly to HCAI and since the insurer did not respond pursuant to the timelines in the Schedule the goods and services are payable pursuant to s. 38(8.2) of the Schedule. In the alternative, the applicant asks that I find that the treatment plan was properly delivered directly to the insurer on March 20, 2008 and is therefore payable pursuant to s. 38(8.2). Section 38 (8.2) states that when the insurer fails to give notice:

In the case of a notice under paragraph 1 of subsection (8), the insurer shall pay for all goods and services provided under the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives the notice described in paragraph 1 of subsection (8). O. Reg. 281/03, s. 16 (4); O. Reg. 546/05, s. 14 (9, 10).

Although the Health Claims for Auto Insurance Guideline A-08/07 made submission to HCAI mandatory for all health care providers as of February 1, 2008 it specifically states that a participating provider "may elect to enrol for either electronic submission or paper submission, but not both at the same time." Given that the treatment plan was faxed to HCAI, the applicant is asking me to assume that Crystal was properly enrolled with HCAI's data entry centre. The HCAI Guideline also states that in cases where a document is received by the data entry system by a participating provider who has not enrolled in the paper submission process, the document will be deemed to have not been received by the insurer and will not be processed. There was no evidence before me as to whether or not Crystal had completed the enrolment process for paper submission and therefore I am unable to make this finding. However, it is evident that this treatment plan was delivered after suspension of the HCAI Guideline given that the Temporary Suspension of HCAI Guideline A-01/08 suspended the HCAI Guideline as of March 12, 2008. Since this treatment plan was delivered directly to the insurer by fax transmission dated March 20, 2008 and the insurer did not respond, it is deemed approved pursuant to s. 38(8.2) and all of the goods and services provided starting on the 11^th day of business, being April 4, 2008 for treatment received pursuant to this treatment plan are payable.

A review of the treatment records from Crystal shows that the applicant attended for four further treatment sessions starting on April 7, 2008. According to the four entries, she received IFC (3), heat/ice (3), stretching (4), strengthening (3), cardio (3) and full back massage (4). There is also an entry for chiropractic on the last day of treatment. Given the applicant's own testimony that she did not receive chiropractic treatment and provided no explanation for this entry, I allot nothing toward the chiropractic session. The stretch/strengthening, heat/ice and cardio seem to fit logically under the functional exercise program totalling four sessions (although on the fourth session only stretching was indicated I am allotting a full session of functional exercise) at $70 totalling $280; four sessions of massage at the abovementioned rate of $26.50 (given the applicant's testimony that her longest massage was 30 minutes) totalling $106; 3 sessions with IFC at $30 totalling $90 plus $120 for the follow up assessment and $63.72 to complete claim forms. The total payable on this treatment plan dated February 15, 2008 is therefore $659.72 plus applicable interest pursuant to the Schedule.

The applicant referred to a visit to her family doctor last year where she attended with her husband complaining of her inability to lift heavy things, bathe her youngest child and care for her eldest child. She testified that she was referred to Dr. Su in Ajax who apparently wrote to the insurer after examining her and felt that she needed treatment. The applicant referred to an anticipated MRI for the end of April 2010. The applicant stated that she attended at her family doctor again concerning her pain and he sent her to another specialist in Pickering who prescribed some pain killers and anti-inflammatory medication and recommended physiotherapy. As well, the applicant stated that she attended a clinic in Whitby in 2009 and referred me to a treatment plan dated February 23, 2009 completed by Dr. Jerome Wong, a chiropractor, calling for 22 rehab sessions, 12 sessions of massage and assistive devices. The applicant indicated that the insurer refused to fund the treatment plan and she therefore only attended at that clinic two times. I find the claims of the applicant that the insurer denied her treatment unfairly (and therefore, that she was denied access to treatment) to be disingenuous. All the while, the applicant had access to $300 each for physiotherapy and chiropractic from the collateral policy through her husband's workplace. At the hearing, the applicant testified that she knew about the plan but did not know the details. The insurer noted in its letter of November 16, 2008 that the accident benefit coverage was secondary to any collateral policy. Given her testimony, I find that the applicant was aware of this coverage and her failure to access the benefits available to her from the collateral benefits leads me to conclude that her claims of ongoing pain for which she needed treatment are not accurate. In any event I have already dealt with the three treatment plans before me and Dr. Wong's treatment plan is not an issue before me.

To conclude, I find that the applicant is entitled to $1,096.53 pertaining to the first treatment plan; $628.34 pertaining to the second treatment plan; and, $659.72 pertaining to the third treatment plan. The total owing is therefore $2,384.59 plus applicable interest.

COST OF EXAMINATIONS

The applicant sought entitlement to a functional abilities examination as set out on an OCF-22 dated February 20, 2008 from Century for a total of $1,386.87. Similarly to the treatment plan dated February 15, 2008, this OCF-22 was faxed to HCAI on February 20, 2008 and the fax confirmation was only delivered to the insurer a few days prior to the hearing. I confirm that according to the HCAI Guideline an OCF-22 was an included form that could no longer be delivered directly to the insurer and had to be submitted through the HCAI system. The fax confirmation shows a destination of HCAI and has the first page of the OCF-22 on the printed form and shows that four pages were delivered successfully. There is general agreement that HCAI was in effect at the relevant time and the document by mandate could not have been delivered directly to the insurer.

The applicant's submissions were that the insurer never responded to this submission and the assessment is therefore payable pursuant to s. 38.2 of the Schedule. Similar to my comments above for Crystal, there is no evidence before me that Century was a participating provider in the HCAI system and further, no evidence before me as to whether Century was enrolled in the paper submission or electronic submission process. No one from Crystal was available to give evidence at the hearing and there were no documents provided which supported that Century was enrolled in either process within HCAI. I find that there is insufficient evidence to prove that the OCF-22 of February 20, 2008 was properly submitted to HCAI and it is therefore not payable pursuant to s. 38.2(9).

The applicant also submits that the OCF-22 was delivered directly to the insurer by fax on March 3, 2008 and provided, again a few days before the hearing, a fax confirmation showing that it was successfully delivered. Ms. Brillinger was shown the fax confirmation at the hearing and testified that it appeared that the fax was sent to the correct fax number. The applicant submits that the OCF-22 was delivered to Economical on March 3, 2008 because there was no response to the February 20 submission to HCAI. However, at the time this form was faxed to Economical, the HCAI system was mandatory and the insurer was not required to respond if it received the form directly.

MATERIAL MISREPRESENTATION

Having raised the issue of a material misrepresentation, the insurer bears the onus of proving that this occurred. I find that there is insufficient evidence before me to make a finding pursuant to the wording in s. 48 of the Schedule that the applicant "has wilfully misrepresented material facts with respect to an application for a benefit." The evidence of the insurer's in-house specialist was that she spoke with Thevanithini at the Dominion and she confirmed that she was providing caregiving services to the applicant albeit the details did not correspond with those given by the applicant. In order to make a finding of material misrepresentation, it would be necessary to have called the service provider as a witness to give evidence. Rules 41 and 73 of the Code enable any party to a proceeding the ability to call a witness by serving a summons. The insurer did not raise an issue before me with regard to its ability to call either service provider. It may well be that the applicant submitted invoices that grossly exaggerated the level of service being provided as it may also be that the applicant received close to the level of care claimed, however, in this instance, without corroboration from the alleged caregiver service provider, I am unable to make a finding that there was wilful misrepresentation just as I am unable to make a finding that the services had been incurred.

SPECIAL AWARD

The applicant was successful in recovering partial payment on the disputed treatment plans. Though I found that they are outstanding, I do not find that the insurer unreasonably withheld this benefit. The evidence shows that the insurer attempted to deal directly with Crystal when Ms. Smith made the appointment with them to speak about their treatment. This appointment was subsequently cancelled by the clinic. Also, the indication that the applicant was receiving chiropractic treatment as evidenced by the fact that it was set out on each of the first two treatment plans, when in fact the applicant was not receiving this treatment, is further reason why this benefit was not withheld unreasonably. There were circumstances in this file where the insurer was led to believe that the claims being made were not accurate and, in fact, even after a hearing on the matter, the applicant has failed to prove entitlement to most of the claimed benefits. The insurer therefore should not be faulted for being cautious with regard to payment of outstanding accounts.

EXPENSES:

The parties made no submissions on expenses. They are encouraged to resolve the issue. If they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

September 15, 2010

Alec Fadel Arbitrator

Date