Neutral Citation: 2011 ONFSCDRS 48 FSCO A09-002953

BETWEEN:

MURUGIYAH RAJENDRAN Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: William Renahan Heard: April 11, 12, 13 and 14, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Peter Quansah for Mr. Rajendran Alison Varga and David Smagata for TD Home and Auto Insurance Company

Issues:

The Applicant, Murugiyah Rajendran, was injured in a motor vehicle accident on August 18, 2008. He applied for and received statutory accident benefits from TD Home and Auto Insurance Company, payable under the Schedule.¹ TD Home terminated weekly caregiver, attendant care and housekeeping benefits after about six months. The parties were unable to resolve their disputes through mediation, and Mr. Rajendran 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. Rajendran entitled to caregiver benefits pursuant to section 13 of the Schedule from January 6, 2009 to August 18, 2010?
Is Mr. Rajendran entitled to attendant care benefits pursuant to section 16 of the Schedule from January 3, 2009 to August 18, 2010?
Is Mr. Rajendran entitled to housekeeping benefits pursuant to section 22 of the Schedule from November 19, 2008 to August 18, 2010?
Is Mr. Rajendran entitled to $137.96 for the cost of a psychological assessment pursuant to section 24 of the Schedule?
Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?

Result:

Mr. Rajendran is not entitled to caregiver benefits pursuant to section 13 of the Schedule.
Mr. Rajendran is not entitled to attendant care benefits pursuant to section 16 of the Schedule.
Mr. Rajendran is not entitled to housekeeping benefits pursuant to section 22 of the Schedule.
Mr. Rajendran is not entitled to $137.96 for the cost of a psychological assessment pursuant to section 24 of the Schedule.
The parties may make written submissions on the issue of entitlement to expenses of the arbitration proceeding.

EVIDENCE AND ANALYSIS:

Background:

At the time of the accident Mr. Rajendran was 45 years old, married and the father of a son aged 6 years and a daughter aged 12 years. He worked six days a week, 60 hours a week as a truck driver for a grocery store chain. Skids of products were delivered to one store and his job included breaking down the products into smaller lots, loading them onto a truck and delivering and unloading the products to other stores in the chain. At the time of the accident, his wife worked irregular hours and days in factories through a placement agency.

The accident occurred as Mr. Rajendran was driving to work. He drove into a vehicle which suddenly changed lanes in front of him. The collision report describes damage to the "front end complete to the firewall."

His Application for Accident Benefits indicates that he had pain in the neck, back, both legs and shoulder. The medical records indicate that about a year and a half before the accident he was investigated for symptoms of C6 radiculopathy involving the left arm. At that time, a neurosurgeon diagnosed degenerative disc disease at C4-5, C5-6 and C6-7 and advised Mr. Rajendran to come back if the condition got worse after heating and stretching.

Mr. Rajendran returned to work two to six days after the accident. Except for his chiropractor, Mr. Rajendran and all other assessors describe his return to work as light duties which included driving but not heavy lifting.

According to the notes of his family doctor, Mr. Rajendran saw her two days after the accident for a scheduled appointment. Dr. Elizabeth George was treating Mr. Rajendran for diabetes and saw him every four months. Dr. George did not record the accident in her notes of August 20, 2008. Her first note mentioning the accident was on December 17, 2008, four months after the accident.

Mr. Rajendran saw his lawyer two days after the accident. She referred Mr. Rajendran to the Scarborough Physiotherapy & Rehabilitation Centre where Mr. Rajendran immediately received treatment for soft tissue injuries.

Mr. Rajendran has a grade 9 or grade 10 education from Sri Lanka. He testified with the assistance of a Tamil interpreter. Most, but not all of the assessors, used a Tamil interpreter.

Caregiver Benefits:

Section 13 of the Schedule describes the critera for entitlement to caregiver benefits.

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

At the time of the accident,

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

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

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

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

In his Application for Accident Benefits, Mr. Rajendran said that he was the main caregiver for his daughter and son. Prenala Mahendran completed invoices for caregiving services she provided with respect to the son. At different times, Mr. and Mrs. Rajendran described her as a neighbour, friend and distant relative. Mr. Rajendran testified that he paid Prenala Mahendran from the caregiving benefits he received from the insurer and when the insurer stopped paying benefits he paid her out of his own pocket.

He described his pre-accident caregiving. He said he and his wife shared caregiving before the accident. He also said that his wife was the primary care provider for his daughter. He did not describe anything he did for his daughter. As for his six year old son, he woke him before 6:00 a.m. and gave him a bath. He made breakfast of bread and jam or cereal and milk. He organized his knapsack for school with his books. Mr. Rajendran left for work at 6:30 a.m. and his son started school at 8:30 a.m. Mrs. Rajendran took their son to school if she was not working. If she was working, Mr. Rajendran took their son to the neighbour, Prenala Mahendran, who took him to school. Mr. Rajendran got home from work between 6 and 7 p.m. and his son went to bed at 8:00 p.m. after doing homework or watching TV.

Mr. Rajendran provided little care for his six-year old son and I am not satisfied that his description of the care he provided before the accident makes him the primary caregiver.

Prior to the hearing, Ms. Varga asked counsel to produce Prenala Mahendran for cross-examination at this hearing and Mr. Quansah agreed. Counsel indicated that they expected Prenala Mahendran to testify and I scheduled time on the second day of the hearing for her testimony. I heard no evidence as to whether Prenala Mahendran was summonsed to appear. The only evidence relevant to her non-appearance was that she used to live next door to the Applicant, that she was a distant relative of the Applicant and that she moved to Ajax. As well, the Applicant paid her caregiving benefits from the benefits he received from the Insurer and that he paid her out of his own pocket when the Insurer stopped paying. On the second day of the hearing, Mr. Quansah advised that Prenala Mahendran probably would not appear.

The authors of The Law of Evidence in Canada states "an unfavourable inference can be drawn when, in the absence of an explanation, a party ... fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party."²

I find that Prenala Mahendran had knowledge of the facts relevant and probative of the caregiving claims since she allegedly performed the caregiving. I find that she would normally be willing to assist Mr. Rajendran since she was a friend, former neighbour, distant relative and he paid her. I do not except that the explanation that she moved to Ajax, by itself, as an explanaton for her non-attendance when at the opening of the hearing, both counsel expected her to appear. I place little weight on the invoices for caregiving benefits.

Dr. Damnish Saini is a chiropractor who assessed Mr. Rajendran. He recommended much more child care than Mr. Rajendran provided pre-accident. I place little weight on his opinions.

Dr. Mark Gonneau is a chiropractor who also assessed Mr. Rajendran. He reported on four occasions that Mr. Rajendran had returned to normal duties at work when I accept the evidence of Mr. Rajendran and all other assessors that Mr. Rajendran was on light duties for seven months. Dr. Gonneau's testimony of Mr. Rajendran's needs were based on Mr. Rajendran's subjective complaints. As well, he mistakenly thought that Mr. Rajendran had returned to normal duties at work. Dr. Gonneau demonstrated little understanding of Mr. Rajendran's ability to function and I place little weight on his opinions.

I am not satisfied that Mr. Rajendran was the primary caregiver for either child. I find it likely that Prenala Mahendran assisted with the children when both Mr. and Mrs. Rajendran were unable to take them to school, but this was no more than she did before the accident.

Attendant Care:

The criteria for entitlement to attendant care benefits are in section 16 of the Schedule.

16(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit.

(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; or

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.

Mr. Rajendran testified twice in examination in chief that he did not require attendant care after the insurer terminated this benefit and that he was able to resume his personal care. Mrs. Rajendran testified that the types of attendant care she provided her husband were cooking, dressing and taking him to the bank and appointments. This took three hours a day, Monday to Friday. Mr. Rajendran was to pay her either $600 or $400 a week for these services.

Mrs. Rajendran prepared Mr. Rajendran's meals before the accident and I heard no evidence that her cooking changed after the accident. Mr. Rajendran said he did not need help dressing and Mrs. Rajendran could not explain why she invoiced the insurer to help her husband to dress some days but not every day. Mr. Rajendran drove his car at least an hour getting to and from work and he drove the company truck at least another four hours a day, six days a week. I do not accept that he could not drive to appointments.

I find that Mr. Rajendran did not need or receive attendant care after the Insurer terminated benefits in January 2009 and that he is not entitled to further attendant care benefits.

Housekeeping Expenses:

Section 22 of the Schedule sets out the criteria for entitlement to a housekeeping benefit.

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.

Mr. Rajendran answered twice in examination in chief and once in cross examination that Prenala Mahendran providing housekeeping help. Mrs. Rajendran testified that she did the housekeeping. Mr. Rajendran paid $200, $300 or $400 to Prenal Mahendran for housekeeping. He did not describe what period this covered. Mrs. Rajendran testified that she did additional housekeeping for her husband on Saturday and Sunday and that she charged $400 for housekeeping. She did not describe the period this was for. The invoices were signed by Mrs. Rajendran for $100 per week.

Mr. and Mrs. Rajendran's testimony concerning who did the housekeeping was inconsistent. As well, the testimony concerning what extra services were preformed was inconsistent with the invoices which Mrs. Rajendran submitted.

Again, the chiropractors' opinions were repetitions of Mr. Rajendran's subjective opinions of his needs without any objective understanding of Mr. Rajendran's pre-accident housekeeping activities or post-accident level of function.

Mr. Rajendran is not entitled to housekeeping expenses beyond what the Insurer paid.

Psychological Assessment:

I heard no evidence concerning this claim for $137.96 and therefore dismiss it.

EXPENSES:

The parties may make written submissions on the issue of entitlement to expenses of the arbitration proceeding. After I determine entitlement to expenses, and if the parties cannot agree on the amount, they may make written submissions on the amount of expenses.

May 25, 2011

William Renahan Date Arbitrator

ARBITRATION ORDER

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

The Application for Arbitration is dismissed.
The issues of entitlement and amount of expenses of the arbitration proceeding are deferred.