Haleh Shokat v. AXA Insurance (Canada), 2014 ONFSCDRS 163

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

Neutral Citation: 2014 ONFSCDRS 163

FSCO A12-001462

BETWEEN:

HALEH SHOKAT

Applicant

and

AXA INSURANCE (CANADA)

Insurer

REASONS FOR DECISION

Before: Isoken Osunde

Heard: February 26 and 27, 2014, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were completed on June 16, 2014.

Appearances: Shahen Alexanian for Mrs. Shokat Rachel Stephenson for AXA Insurance (Canada)

Issues:

The Applicant, Haleh Shokat, was injured in a motor vehicle accident on April 23, 2010. She applied for and was denied statutory accident benefits from AXA Insurance (Canada) (“AXA”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Shokat 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 Mrs. Shokat entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from April 24, 2010 to April 22, 2012?
Is Mrs. Shokat entitled to receive a medical benefit in the amount of $612.72 for custom orthotics recommended by Quality Health Assessments Ltd. in a treatment plan dated September 13, 2010?
Is Mrs. Shokat entitled to interest?
Which party is liable to pay the other’s arbitration expenses?

Result:

Mrs. Shokat is entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from April 24, 2010 to November 30, 2010 and $50.00 per week from December 1, 2010 to April 22, 2012.
Mrs. Shokat is entitled to receive a medical benefit in the amount of $612.72 for custom orthotics recommended by Quality Health Assessments Ltd. under a treatment plan dated September 13, 2010.
Mrs. Shokat is entitled to interest on all overdue payments pursuant to section 46(2) of the Schedule.
There is no order on the issue of expenses. I remain seized of this issue should the parties be unable to resolve this issue on their own.

Background:

Mrs. Shokat’s injuries in this case arose out of an accident that is now no longer covered under the Schedule. On April 23, 2010, while attempting to climb aboard a public transit bus in order to get to work, she fell on her right side, inside the bus, beside the driver as a result of a sudden acceleration by the driver.²

Mrs. Shokat continued on her journey to work, but because of the pain to her right side, she left work early to go to a walk-in clinic where she was advised to go to the Emergency Room. She subsequently attended the emergency department at York Central Hospital where several x-rays were conducted.

Prior to the accident, Mrs. Shokat worked at two jobs. One at a Mexican restaurant performing duties such as chopping vegetables, cooking meals, cleaning up after the lunch hour and working as a cashier at the till. She worked from 10:00 a.m. to until 6 p.m. or 7 p.m. every day except weekends. She also worked three hours per week part time as an International Language teacher in York Region.

Mrs. Shokat took 10 days off her job at the Mexican restaurant after the accident.

Mrs. Shokat is 54 years old. She is married with three children ages 24, 26 and 28. At the time of the accident, she lived in a four-bedroom house with her husband and two of her children.

In this arbitration, Mrs. Shokat claims housekeeping and home maintenance benefits for up to two years at the rate of $100.00 per week. This is the maximum benefit available for non-catastrophic claims under the Schedule. She also claims the cost of custom orthotics, interest and her expenses in respect of the arbitration.

AXA submits that Mrs. Shokat does not suffer from a substantial inability to perform her housekeeping and home maintenance tasks and is therefore not entitled to housekeeping and home maintenance benefits. AXA also disputes that the custom orthotics are reasonable and necessary.

For the reasons that follow, I find that Mrs. Shokat is entitled housekeeping and home maintenance benefits at the rate of $100.00 per week from April 24, 2010 to November 30, 2010 and $50.00 per week from December 1, 2010 to April 22, 2012.

I also find that the custom orthotics are reasonable and necessary.

EVIDENCE AND ANALYSIS:

LAW:

Section 22 of the SABS states that:

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 test, as laid down in Waheed and RBC General Insurance Company³, requires three elements to be fulfilled in order for an applicant to prove an entitlement to housekeeping and home maintenance benefits:

The insured must have performed housekeeping and home maintenance services before the accident;
The insured must suffer a substantial inability to perform those housekeeping and home maintenance services, as a result of the accident-related impairment, and;
Additional expenses must be incurred for someone else to perform those services.

Pre-accident housekeeping and home maintenance services

Mrs. Shokat testified that prior to the accident, she was responsible for all of the housekeeping tasks around the house, particularly preparing the meals, sweeping, ironing, vacuuming, cleaning the washrooms, taking the garbage out and bringing the bins back into the house. She further testified that she did not receive any assistance from anyone with regards to her housekeeping duties.

AXA submits that Mrs. Shokat’s testimony that she did all the housekeeping duties for her family, including her children who were in their twenties at the time of the accident, is improbable.

It submits that Mrs. Shokat did not tender corroborating evidence to prove her usual pre-accident housekeeping services. It submits that Mrs. Shokat did not specify the number of hours she spent doing her various housekeeping tasks before the accident.⁴

I find Mrs. Shokat’s testimony with respect to her pre-accident housekeeping duties plausible and I accept her testimony.

Evidence relating to disability

Mrs. Shokat testified that after the accident she felt severe pain in the right side of her neck, right hand, right wrist, right leg, right ankle and lower back. She further testified that she had difficulty walking up and down the staircase at her house. She testified that after the accident she couldn’t perform any of her pre-accident housekeeping and self-care tasks.

Mrs. Shokat testified that she commenced physiotherapy at Quality Care Clinic about two months after the accident. According to her, she knew about Quality Care through a friend she met at one of her community programmes. She testified that she received about 10 to 15 sessions of physiotherapy from Quality Care Clinic at AXA’s expense.

Mrs. Shokat’s medical evidence

The disability certificate (OCF-3)⁵, dated May 31, 2010, submitted in support of her application for benefits, indicates that Mrs. Shokat had “Difficulty completing household tasks due to acute pain over the right ankle and knee. When patient returns from work, she need to rest due to pain.”

Mrs. Shokat made several visits to Dr. M. Eftekhari, her family doctor following the accident, and Dr. Eftekhari’s clinical notes and records indicate that Mrs. Shokat complained of pain in her lower back, right ankle, neck, right wrist, joints and right shoulder, on several occasions.⁶

Dr. Eftekhari testified on behalf of Mrs. Shokat. She testified that she had been Mrs. Shokat’s family doctor since 2009. She further testified that following the accident, she examined Mrs. Shokat on several occasions and she complained of wrist pain, neck pain and numbness of her right thigh. She testified that upon examining Mrs. Shokat, she observed tenderness on her ankle on June 22, 2010 and on several other occasions. She testified that on February 2, 2013 when she met with Mrs. Shokat, her complains were neck pain, back pain and right shoulder pain. She testified that to her knowledge, Mrs. Shokat had not complained of shoulder pain prior to that visit.

A report of an MRI of Mrs. Shokat’s right ankle conducted on January 26, 2011⁷, states

A small ankle effusion is noted. Mild sprain of the deltoid ligament is noted. No bone bruise is evident. Mild subcutaneous edema is present along the anterolateral aspect of the ankle. Mild tenosynovitis of the tibialis posterior tendon is noted. A 3.4 cm small subcutaneous lipoma may be present along the medial aspect of the right hind-foot.

Dr. Eftekhari opined in her oral testimony at the hearing that an effusion of the ankle could cause pain and affect range of motion.

As a result of Mrs. Shokat’s ongoing complains, Dr. Eftekhari made several referrals to different specialists and further referrals were made from some of the specialists.⁸

Dr. V. Chen

On February 10, 2011, Mrs. Shokat met with Dr. Chen, a physiatrist, at the request of Dr. Eftekhari. He opined that Mrs. Shokat appeared to have chronic pain disorder with clinical features consistent with fibromyalgia.

His report⁹ indicates that at the time of her visit, Mrs. Shokat reported having

diffuse body pain, affecting upper and lower trunks. She described her pain complaint as “cramping, burning, sharp, numb, and tingling.”

In Dr. Chen’s opinion “pain is axial-dominant, with occasional radiation down to right arm and leg. However, it is not associated with significant limb weakness and mobility impairment. …

Dr. R. Madronich

On October 27, 2010, Mrs. Shokat met with Dr. Madronich, a plastic surgeon, at the request of Dr. Eftekhari, in relation to the pain in her right wrist. In his report dated November 17, 2010¹⁰, Dr. Madronich stated that Mrs. Shokat reported having pain with the movement of her right wrist and, as a result, he recommended an MRI of her wrist.

On December 31, 2010, an MRI of her right wrist was conducted at York Central Hospital and it revealed a triangular fibrocartilage tear.¹¹

Dr. V. Tuli

On June 20, 2011, Mrs. Shokat met with Dr. Tuli, an orthopedic surgeon, at the request of Dr. Madronich, for a further examination of her right wrist. Dr. Tuli recommended that Mrs. Shokat consider doing surgery on her right hand.¹²

Dr. M. Elahi

Dr. Elahi, a plastic surgeon, who met with Mrs. Shokat in August of 2011¹³, described the situation on her hand as complicated and referred her to the hand service at Toronto Western Hospital.

Dr. M. Schofield

Dr. Schofield assessed Mrs. Shokat at the Toronto Western Hand Clinic on October 19, 2011 and found that there was a global restriction in the active range of motion of her right wrist and that she became tearful with light palpitation of her wrist. Dr. Schofield recommended that Mrs. Shokat perform ongoing exercise to improve her grip strength gradually and opined that she would not benefit from surgery.¹⁴

Dr. M. West

The most recent assessment was conducted on January 20, 2014¹⁵ by Dr. West, an orthopaedic surgeon, and he diagnosed Mrs. Shokat with chronic pain syndrome and opined that her prognosis for a complete and full recovery at the present time was guarded.

AXA’s medical evidence

AXA relies on two Insurer Examination (IE) reports: one by Dr. Urovitz dated August 25, 2010¹⁶ and the other by Dr. Waisman dated August 23, 2010¹⁷, which state that Mrs. Shokat does not suffer a substantial inability to engage in her pre-accident housekeeping duties.

Dr. E. Urovitz

Dr. Urovitz, an orthopaedic surgeon, who assessed Mrs. Shokat on behalf of AXA, stated in his report dated August 25, 2010¹⁸ that Mrs. Shokat’s complains at the time of her visit were constant daily pain in her right wrist, right ankle, right fifth finger, central neck and central lower back. He diagnosed her with a “soft tissue injury to the right wrist and right ankle, contusional injury to the right lower extremity, neck strain … and lower back strain” … as a result of the motor vehicle accident.

He opined that Mrs. Shokat had suffered a soft tissue injury to her right wrist and that, from an orthopaedic perspective, Mrs. Shokat did not suffer a substantial inability to engage in her pre-accident housekeeping duties.

He however recommended an MRI of the right wrist because of the ongoing complaints to her wrist to rule out the possibility of an internal derangement particularly meniscal damage.

Dr. Waisman

Dr. Waisman, a psychiatrist, assessed Mrs. Shokat on behalf of AXA on July 30, 2010. In his report dated August 23, 2010¹⁹, Dr. Waisman stated that Mrs. Shokat reported having mood fluctuations based on the degree of pain felt. She further reported having poor concentration and memory since the accident. He opined that Mrs. Shokat was not substantially unable to perform her pre-accident housekeeping tasks from a psychiatric perspective.

Findings on Disability

There is no evidence that Dr. Urovitz or any of AXA’s assessors reviewed the results of the MRI of December 2010 which revealed a triangular fibrocartilage tear to Mrs. Shokat’s right wrist.²⁰ I find it pertinent that the only assessors who had the benefit of reviewing the MRI of her wrist before forming an opinion on Mrs. Shokat’s physical injuries were her assessors.

Albeit, Dr. Schofield, who assessed Mrs. Shokat in October of 2011, seemed to have a different opinion from Dr. Tuli in that he did not think that surgery would be beneficial to Mrs. Shokat’s hand and instead recommended ongoing exercise to gradually improve her grip strength, I note that his report is indicative of the fact that her symptoms continued to persist at the time of her visit. Therefore, I find it reasonable to infer that resuming her pre-accident housekeeping tasks at that time would result in an exacerbation of her symptoms.

I find on a balance that the objective medical evidence does not support AXA’s evidence on Mrs. Shokat’s inability to perform her pre-accident housekeeping tasks, particularly Dr. Urovitz’s opinion. I find that the objective medical evidence supports the disability certificate − therefore, I prefer this evidence.

Incurred expenses

Mrs. Shokat testified that the next day after the accident, the service provider, fondly called Sally, started attending at her house to assist her with some of her self-care tasks, and housekeeping tasks such as preparing meals, cleaning, ironing, taking out garbage and cleaning the wash rooms, and that she paid Sally $10 an hour by cash for her services.

She testified that Sally attended at her house three times a week for five hours on each day from April until September and then reduced her visits to once a week for about ten to twelve hours each visit, predominantly cleaning, attending to some of her personal care needs and cooking. She submitted expense receipts – OCF-6s from April 24, 2010 to November 30, 2010.²¹ The OCF-6s indicate that Sally performed the following tasks from April 24, 2010 to November 30, 2010:

dusting, vacuum, mopping, sweeping, bed making, bath room, kitchen, dining room, oven, sewing, dishes, cooking, grocery, ironing, laundry, garbage, appliances, living room, refrigerator

She testified that Sally stopped coming to her sometime around the middle of October 2010.

Under cross-examination, Mrs. Shokat conceded that Sally might have stopped in November of 2010 and that she did not remember. I accept this explanation. Given that the accident occurred more than four years ago, I do not find it unusual for an accident victim to have some memory lapses with regard to dates.

Mrs. Shokat testified that after Sally left, her children and husband assisted with her housekeeping tasks, particularly ironing, vacuuming, laundry, washing dishes, mopping the floors and taking out garbage. She testified that her youngest daughter assisted her with her personal care and preparing light meals.

She testified that she did not provide any receipts for the services provided by her family members because she did not make any payments to them for their services. I accept this explanation. Given the expectation that the relationship between her and her husband and children would be less formal, I do not find it unreasonable to believe that she did not document the services they provided to her.

Conclusions and Findings

I found several aspects of Mrs. Shokat’s case particularly troublesome. For example, all of the OCF-6 expense receipts were identical despite the reduction in the number of hours Sally spent doing the housekeeping tasks in September 2010. Some of the duties Sally reported doing for Mrs. Shokat in the expense receipts such as dusting and cooking overlap with what Mrs. Shokat reported being able to do to Dr. Waisman. Therefore, I give the expense receipts no weight in determining the actual services provided by Sally. I find, however, that they provide some corroboration to Mrs. Shokat’s oral testimony that Sally assisted her with her housekeeping. I accept Mrs. Shokat’s testimony regarding the number of hours Sally spent on the housekeeping tasks. Therefore, I find a weekly entitlement to housekeeping benefits in the amount of $100.00 from April 24, 2010 to November 30, 2010.

Mrs. Shokat testified that Sally stopped coming to her in November as a result of being deported. I reject AXA’s submission that an adverse inference must be drawn from Sally’s absence at the hearing. In the absence of any evidence to the contrary, I accept Mrs. Shokat’s testimony that Sally was deported and therefore unavailable to testify at the hearing. However, there was no evidence that her family members, who then took on the housekeeping after Sally left, were unavailable to testify. Their evidence may have been of assistance in clarifying the post-accident housekeeping services actually provided by each member of the family and the amount of time spent on these tasks.

Mrs. Shokat’s medical records indicate that she went to Quality Care Physiotherapy before seeing Dr. Eftekhari, her family doctor, but she insists that she saw Dr. Eftekhari before she went to Quality Care Physiotherapy. Her OHIP summary²² does not show any record of any visit to Dr. Eftekhari before June 2010. Albeit, Dr. Eftekhari testified that during this period there was a system upgrade at her clinic and it was possible that there was a visit but no record of it, I am persuaded by AXA’s submission that this explanation is a mere possibility and highly speculative. Therefore, I reject Dr. Eftekhari’s explanation.

Although I have these concerns, I find Mrs. Shokat’s testimony surrounding her symptoms credible and supported by objective medical evidence. Given the size of the house and the medical evidence, I am persuaded that she required assistance with her housekeeping tasks for the duration of her claim, particularly as a result of the injuries to her wrist and ankle. I find that throughout the period for which Mrs. Shokat is claiming housekeeping benefits, there was significant medical evidence to support her ongoing complaints.

The totality of evidence suggests that the housekeeping tasks for which Mrs. Shokat required assistance were reduced when her family members took on the housekeeping in November of 2010 from when Sally started assisting her with the housekeeping immediately after the accident. Therefore, I find an amount of $50.00 per week reasonable after November 30, 2010.

Jurisprudence has established that an insured need not actually receive an item or service or spend money or become legally obligated to do so for expenses to be incurred. Establishing the reasonableness and the necessity of a service and the amount of expenditure is sufficient to satisfy the meaning of the word incurred.²³ In this case, having found it reasonable that Mrs. Shokat continued to require assistance with her housekeeping tasks after Sally left at a weekly rate of $50.00, I find that the housekeeping expenses were incurred from December 1, 2010 to April 22, 2012.

Conclusion on housekeeping

I find that Mrs. Shokat is entitled to $100.00 per week for housekeeping and home maintenance benefits from April 24, 2010 to November 30, 2010, and $50.00 per week from December 1, 2010 to April 22, 2012.

Is the OCF-18 dated September 13, 2010 for custom orthotics in the amount of $612.72, recommended by Quality Health Assessments, reasonable and necessary?

Section 14 of the Schedule²⁴ states that an insurer shall pay a medical benefit for all reasonable and necessary expenses incurred by or on behalf of an insured person for treatment of an accident-related impairment.

Mrs. Shokat submitted an OCF-18 dated September 13, 2010²⁵ for custom orthotics. The OCF-18 was signed by Maryam Nik, a chiropractor from Quality Health Assessments Ltd.

Mrs. Shokat testified that the swelling in her right ankle as a result of the accident caused her to have difficulty walking up and down the staircase at her house. Dr. Eftekhari’s clinical notes and records indicate that Mrs. Shokat had ongoing complaints of pain in her right ankle.²⁶

An MRI of her right ankle conducted on January 25, 2011 revealed a small ankle effusion and a mild sprain of the deltoid ligament.²⁷ Dr. Eftekhari testified that an ankle effusion could cause pain and affect range of motion. She further testified that the custom orthotics could be beneficial to Mrs. Shokat, but it was not in her practice to recommend them if the patient had no coverage.

AXA denied this treatment plan based on Dr. Wolbeck’s²⁸ report dated August 13, 2010.²⁹ He diagnosed Mrs. Shokat with soft tissue injuries and opined that her prognosis was considered to be good. I find that the objective medical evidence does not support Dr. Wolbeck’s optimism. The MRI of her right ankle in January 2011 continued to show an ankle effusion. I find Dr. Eftekhari’s testimony that the custom orthotics could be beneficial to Mrs. Shokat sufficient to establish that they have some medical benefit to Mrs. Shokat’s recovery and therefore reasonable and necessary. Based on the evidence, I find that the custom orthotics are reasonable and necessary.

Interest:

Mrs. Shokat is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule. If the parties are unable to agree on the amount payable, I remain seized of this issue.

Expenses:

The parties did not make any submissions on expenses. I remain seized of this issue should they be unable to resolve it on their own.

October 3, 2014

Isoken Osunde Arbitrator

Date