Financial Services Commission of Ontario

Neutral Citation: 2013 ONFSCDRS 1 FSCO A11-000762

BETWEEN:

ELI KASIK Applicant

and

INTACT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Joyce Miller Heard: February 22 and March 16, 2012, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on April 27, 2012 Appearances: Marko Djukic for Mr. Kasik Robert G. Plate for Intact Insurance Company

Issues:

The Applicant, Eli Kasik, was injured in a motor vehicle accident on August 7, 2009. He applied for and received statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ Intact denied Mr. Kasik’s continuing claims for medical benefits, housekeeping and home maintenance and cost of examination. The parties were unable to resolve their disputes through mediation, and Mr. Kasik 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:

1. Is Mr. Kasik entitled to receive a medical benefit for services provided by Osler Rehabilitation Centre in the amount of $6,567.47 pursuant to section 14 of the Schedule?
2. Is Mr. Kasik entitled to a benefit for housekeeping and home maintenance pursuant to section 22 of the Schedule from August 8, 2009 to April 4, 2010 less amounts paid?
3. Is Mr. Kasik entitled to payment for the cost of an examination pursuant to section 24 of the Schedule for an orthopaedic assessment in the amount of $2,022.50?

At the commencement of the hearing, Mr. Kasik withdrew his claim for attendant care benefits listed in the prehearing letter as an issue for arbitration.

Result:

1. Mr. Kasik is not entitled to receive a medical benefit for services provided by Osler Rehabilitation Centre in the amount of $6,567.47, pursuant to section 14 of the Schedule.
2. Mr. Kasik is not entitled to a benefit for housekeeping and home maintenance pursuant to section 22 of the Schedule from August 8, 2009 to April 4, 2010 less amounts paid.
3. Mr. Kasik is not entitled to payment for the cost of an examinations pursuant to section 24 of the Schedule, for an orthopaedic assessment in the amount of $2,022.50.
4. If the parties are unable to agree on expenses, I can be spoken to on this issue within 30 days of receipt of the decision.

BACKGROUND:

Mr. Kasik who is 25 years old, testified that he works as a programmer. He testified that, at the time of the accident he was on the way to the Bruce Peninsula for a camping trip with his girlfriend (now wife) and two other friends. He was stopped to make a left hand turn, when a car behind his car tried to pass him and the cars collided on the left at his side of his car.

Mr. Kasik testified that he estimated the other car was going 90 kilometers an hour in an area where the speed limit was 70 kilometers per hour. He stated that as a result of this accident his car was written off.

Mr. Kasik testified that on impact, his head hit the headrest on the back of the seat. He stated that although he felt stiff in the evening, he did not feel any body pain until the next day. On the recommendation of a friend he sought treatment at Osler Rehabilitation. There he received physiotherapy, massage, acupuncture, counselling and was taught exercises to do at home.

Mr. Kasik testified that he went for treatment three times a week until November when it was reduced to twice a week. From January 2010 to April 2010 he went once a week. He stated that the pain went away by the end of March. After April 2010, he no longer had any pain.

Mr. Kasik testified that at the time of the accident he lived at 248 Arnold Avenue. He testified that he lived there from the Spring of 2009 until December 2010. He said he lived with Yehuda Kaufman, in a basement apartment of Mr. Kaufman’s home. The apartment had three rooms, a kitchen and a bathroom.

Mr. Kasik testified that prior to the accident, he did 90 per cent of all the housekeeping. This included, vacuuming one hour a week, cleaning the kitchen, and washing the dirty dishes, dusting, taking out the garbage, cleaning the bathroom and doing the laundry – not the ironing. He also did the grocery shopping. He stated that he did the housework on a weekly basis. He stated that Mr. Kaufman was too busy with his school to assist in housekeeping.

After the accident he hired a friend of his, Eugene Krulevich, to do the housekeeping. Mr. Krulevich testified at the hearing that he began housekeeping duties for Mr. Kasik at 248 Arnold Avenue the day after the accident until April 4, 2010. He stated that Mr. Kasik owed him $2,000 for his housekeeping duties.

ANALYSIS AND FINDINGS:

1. Is Mr. Kasik entitled to receive a medical benefit for services provided by Osler Rehabilitation Centre in the amount of $6,567.47 pursuant to section 14 of the Schedule?

Section 14 of the Schedule provides:

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

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

The burden of proof rests with Mr. Kasik to show on a balance of probabilities, that as a result of the car accident he is entitled to his claim for medical benefits pursuant to section 14 of the Schedule. For the following reasons, I find that Mr. Kasik has not met his burden of proof.

At issue are nine treatment plans, over a period of ten weeks. The treatment plans amount to approximately 66 treatments, averaging, 6.6 to 7 treatments per week.

Mr. Kasik provided very little evidence to support his claim. He neither provided any medical evidence from a family doctor, such as clinical notes and records, nor, most importantly, except for a disability certificate and treatment plans, he did not provide any report from his alleged treating practitioners regarding the reasonableness and necessity for his alleged treatment. It is also significant, that Mr. Kasik did not call any of his alleged treating practitioners to testify on his behalf regarding whether the treatment claimed was reasonable and necessary. Accordingly, I draw an adverse inference from this failure to call his alleged treating practioners.

Intact, on the other hand, presented a detailed insurer’s examination report from an experienced chiropractor, Dr. Richard Wolbeck. In addition, Intact called Dr. Wolbeck to testify on its behalf.

Dr. Wolbeck examined Mr. Kasik on October 22, 2009, approximately two and one half months after the accident. Although Dr. Wolbeck retroactively partially approved of some of the treatment plans, he concluded that the balance of the treatment plans were neither reasonable nor necessary.

In his report, dated November 4, 2009, he made the following comments on the various treatment plans for exercise sessions training and instruction as well as passive modalities:

Mr. Kasik reported returning to work immediately following the subject accident to normal duties and hours. He also reported being able to perform all domestic duties and activities of daily living. Today’s physical examination did not reveal objective clinical findings to indicate the presence of musculoskeletal impairment. Based on reported return to normal function, and the lack of objective findings of impairment it is this examiner’s opinion that the goods and services previously approved would have been sufficient to treat the soft tissue injuries sustained.

In respect of a treatment plan for passive modalities, Dr. Wolbeck reported:

At the time of submission, Mr. Kasik would have been five weeks post-accident, at which time passive modalities should have been weaned off in favour of an active component to the rehabilitation program. Furthermore, previous Treatment Plans submitted have provided for the provision of passive modalities which have included massage therapy, hyperthermy interferential current, electrical stimulation, as well as, a course of massage therapy. It is this examiner’s opinion that this would have been sufficient passive therapy to allow for pain control.

In his report, Dr. Wolbeck concluded:

The objective clinical findings, the information obtained in the interview and a review of the available documentation did not show any compelling objective clinical findings that would indicate the presence of an ongoing musculoskeletal impairment.

It should be noted there were no objective clinical findings that would support a diagnosis of Whiplash Associated Disorder Grade III as listed within two of the five Treatment Plans currently in dispute.

Dr. Wolbeck testified that Mr. Kasik’s physical examination revealed that Mr. Kasik had no functional limitations in range of motion, no limitation in strength and by self-report he said he could do his domestic and work duties. In his view, Mr. Kasik had an uncomplicated soft tissue injury – with no neurological issues, such as nerve root irritation.

Dr. Wolbeck testified that the number of treatment plans submitted were excessive. He noted that 10 weeks prior to seeing Mr. Kasik, he had had 10 sessions of acupuncture, 14 sessions of massage, 21 hours of physical therapy, three counselling sessions by a chiropractor and six education sessions.

In his view, Mr. Kasik had had sufficient treatment and his physical finding confirmed that he did not need further treatment. With respect to his finding of mild hyper tonicity on the right side of the cervical spine raised in cross-examination, Dr. Wolbeck explained that hyper tonicity is found in the normal population.

Mr. Kasik submits that Dr. Wolbeck is biased in his opinion as he is retained solely by insurance companies to provide assessments. Accordingly, Mr. Kasik submits, Dr. Wolbeck would have a financial incentive to provide an opinion which an insurance company would view favourably. I disagree.

Dr. Wolbeck impressed me with his expertise, knowledge of the facts, thoroughness of his examination and the balanced manner in which he provided his opinion. His answers to questions both in chief and in cross-examination, were thoughtful and reasonable. He did not advocate for his position but fairly presented his opinion in an objective manner.

Mr. Kasik failed to provide any objective, supportive evidence to counter Dr. Wolbeck’s opinion. As noted above, I draw an adverse inference that none of Mr. Kasik’s alleged treatment providers were called to support his claim. Accordingly, I give full weight to Dr. Wolbeck’s opinion and conclusion that the outstanding treatment plans are neither reasonable nor necessary.

For all of these reasons, I find that Mr. Kasik has failed to meet his burden of proof that the medical benefits claimed are reasonable and necessary. As a result, I find Mr. Kasik is not entitled to receive a medical benefit for the alleged services provided by Osler Rehabilitation Centre in the amount of $6,567.47 pursuant to section 14 of the Schedule.

2. Is Mr. Kasik entitled to a benefit for housekeeping and home maintenance pursuant to section 22 of the Schedule from August 8, 2009 to April 4, 2010 less amounts paid?

Section 22 of the Schedule provides:

(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.

The onus rests with Mr. Kasik to prove on a balance of probabilities that as a result of the accident he is entitled to housekeeping benefits pursuant to section 22. For the following reasons, I find that Mr. Kasik has not met his onus of proof.

Mr. Kasik testified that at the time of the accident he was living at 248 Arnold Avenue. He stated that he had been living there since Spring of 2009. The objective evidence, however, contradicts this testimony.

• The Application for Benefits dated August 11, 2009, lists Mr. Kasik’s address as 133 Cactus Avenue, Toronto. He explained that he lived at this address until March 2009, before he moved to Arnold Street.
• The Disability Certificate from Osler Rehabilitation dated August 14, 2009 lists Mr. Kasik’s address as 245 Humberland Drive, Richmond Hill. He explained that this was his mother’s address. He never lived there but stayed there for two days after the accident and was the address where he got his mail.
• The OCF 6 Application for Expenses for housekeeping for the period of August 8 to October 4, 2009 also lists Mr. Kasik’s address as 133 Cactus Avenue, Toronto.
• Invoices for housework done from August 8 to October 19, 2009 lists Mr. Kasik’s address as 115 Farmstead, Richmond Hill. Mr. Krulevich testified that it was his address on the invoice and that Mr. Kasik filled out the invoice.
• An Attendant Care Assessment on August 13, 2009, states Mr. Kasik lives by himself on campus in a private house, rents room on main floor, laundry on 2nd floor above him. Mr. Kasik denied living on campus.
• In a section 42 Chiropractic Assessment by Dr. Richard Wolbeck on October 22, 2009, Dr. Wolbeck notes the following in his report:

At the time of the accident, Mr. Kasik lived in a five bedroom house whereby he rented one bedroom within the home. Mr. Kasik stated he was responsible for all his own domestic duties associated with the home.

Mr. Kasik stated that following the accident he went back to work immediately to his normal duties and normal hours. Mr. Kasik stated that since the accident he has moved to a basement apartment and that he is currently able to do all domestic duties associated with the home. Mr. Kasik stated that he is independent with all personal tasks.

• A section 42 In Home Occupational Therapy Assessment for Attendant Care on November 9, 2009 states that Mr. Kasik “resides in a basement apartment with his friend Yehudah Kaufman, whose family lives in the home. Mr. Kasik reports that he … has been living in the apartment since October 2009.
• A section 42 Psychological Assessment on January 22, 2010 states:

He stated he is currently living in a basement apartment of a family friend’s home in the Thornhill area since October 2009. He stated prior to this he was residing with his mother, as well as in residence at York University.

When confronted with these discrepancies, Mr. Kasik failed to provide a reasonable, plausible or credible explanation for all the different addresses recorded. I find these discrepancies regarding where he lived at the time of the accident material to his claim for housekeeping expenses.

In addition, I find it implausible that after the accident on Friday evening, Mr. Kasik would immediately hire Mr. Krulevich to come and clean his apartment for the next two days while he was at his mother’s home. I find this most implausible, especially when Mr. Kasik was already sharing the apartment with Mr. Kaufman. His explanation that Mr. Kaufman was too busy with school work to do any of his own housework did not ring true. I draw an adverse inference that Mr. Kasik did not call Mr. Kaufman as a witness to verify his claim that he was living with Mr. Kaufman at the time of the accident.

Based on all of the objective evidence provided, I find it is more likely than not that Mr. Kasik was not living at 248 Arnold Avenue at the time of the accident. It follows from this that Mr. Kasik has failed to provide any credible evidence of his housekeeping requirements pre-accident.

As a result, I find that Mr. Kasik failed to meet the onus on him to prove that as a result of the accident he sustained a substantial inability to perform the housekeeping and home maintenance services that he allegedly normally performed before the accident.

Accordingly, for all these reasons, pursuant to section 22 of the Schedule, I find that Mr. Kasik is not entitled to his claim for housekeeping benefits.

3. Is Mr. Kasik entitled to payment for the cost of examination pursuant to section 24 of the Schedule for an orthopaedic assessment in the amount of $2,022.50?

The onus of proof rests with Mr. Kasik to prove on a balance of probabilities that an orthopaedic assessment was “reasonably required” pursuant to section 24 of the Schedule. For the following reasons I find that Mr. Kasik has not met the onus of proof.

Mr. Kasik’s OCF 22 application for an orthopedic examination on November 30, 2009 was denied by Intact pursuant to a report by Dr. E. White on December 17, 2009 wherein he stated:

Mr. Kasik sustained soft tissue injury due to a motor vehicle accident now four months remote. In my opinion all issues of diagnosis, prognosis, impairment, disability and management have been addressed in the above-noted Insurer’s Examination [i.e. Dr. Wolbeck’s chiropractic examination] and a further assessment of the soft tissue injuries associated with this motor vehicle accident is not clinically warranted.

Mr. Kasik submits that Dr. White’s opinion is biased in his conclusion in that it did not take “into consideration the contents of Dr. Wolbeck’s Chiropractic Assessment.” Mr. Kasik further submits that “in the interest of fairness the Orthopaedic Assessment by Dr. P. Ansari should have been approved to provide another opinion on the Applicant’s musculoskeletal impairments following the motor vehicle accident.”

Intact submits:

Per the various assessors, Mr. Kasik’s ortho assessment was unnecessary. His injuries were described by Dr. Wolbeck as uncomplicated WAD1 injuries which did not require further investigation.

In my view, Dr. White did in fact take into consideration Dr. Wolbeck’s report. In his detailed report Dr. Wolbeck had concluded:

The objective clinical findings, the information obtained in the interview and a review of the available documentation did not show any compelling objective clinical findings that would indicate the presence of an ongoing musculoskeletal impairment.

In my view, there is nothing inconsistent in Dr. White’s conclusion from Dr. Wolbeck’s opinion that would support Mr. Kasik’s submission that he was biased and had not considered Dr. Wolbeck’s assessment.

Moreover, I find that Mr. Kasik failed to provide any objective medical evidence to support his claim for an orthopaedic assessment.

Accordingly, for these reasons I find that Mr. Kasik has failed to meet his onus of proof that his claim for an orthopaedic assessment is reasonably required pursuant to section 24 of the Schedule.

Accordingly, I find that Mr. Kasik is not entitled to payment for the cost of examination pursuant to section 24 of the Schedule for an orthopaedic assessment in the amount of $2,022.50.

EXPENSES:

If the parties are unable to agree on expenses, I can be spoken to on this issue within 30 days of receipt of the decision.

January 8, 2013

Joyce Miller Arbitrator

ARBITRATION ORDER

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

1. The arbitration is dismissed.
2. If the parties are unable to agree on expenses, I can be spoken to on this issue within 30 days of receipt of the decision.

January 8, 2013

Joyce Miller Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.