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

Neutral Citation: 2014 ONFSCDRS 166

FSCO A10-000269 FSCO A11-004338

BETWEEN:

JIN XING CAI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Eban Bayefsky

Heard: February 11, 12, 13 and 14, 2013, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Shahram Bahmadi for Mr. Cai Todd McCarthy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Jin Xing Cai, was injured in a motor vehicle accident on January 7, 2009. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm denied certain of Mr. Cai’s claims. The parties were unable to resolve their disputes through mediation, and Mr. Cai 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. Cai entitled to income replacement benefits, from March 23, 2010 to January 7, 2011, pursuant to section 5(1) of the Schedule?
Is State Farm entitled to deduct from any income replacement benefits owing to Mr. Cai post-accident employment income, pursuant to section 6(2) of the Schedule?
Is Mr. Cai entitled to attendant care benefits, from May 1-7, 2009, at a rate of $2,947.12 per month, and from May 8, 2009 to October 3, 2010, at a rate of $2,035.20 per month, pursuant to section 16 of the Schedule?
Is Mr. Cai entitled to housekeeping benefits, from April 7, 2010 to October 3, 2010, at a rate of $100 per week, pursuant to section 22 of the Schedule?
Is Mr. Cai entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

Mr. Cai is entitled to income replacement benefits, from March 23, 2010 to January 7, 2011.
State Farm is entitled to deduct from the income replacement benefits owing to Mr. Cai the post-accident employment income he received.
Mr. Cai is not entitled to attendant care benefits.
Mr. Cai is not entitled to housekeeping benefits.
State Farm shall pay to Mr. Cai interest on any income replacement benefits owing to Mr. Cai following the deduction of post-accident employment income.
If required, the parties may request an expense hearing in accordance with the process set out in rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background – Mr. Cai’s Accident and Injuries

Mr. Cai was involved in a motor vehicle accident on January 7, 2009, when the car he was driving spun out of control in snowy conditions, hit a curb and then collided with another vehicle. Mr. Cai was taken by ambulance to Scarborough Grace Hospital (where he was diagnosed with a ruptured spleen) and then transferred to St. Michael’s Hospital to undergo abdominal surgery. He was discharged after a week, with prescriptions for painkillers and sedatives to help him sleep. Mr. Cai returned to the emergency ward at St. Michael’s in early February 2009, with complaints of severe abdominal pain. Mr. Cai was admitted for three days, assessed and released, with appointments to follow up at the hospital and with recommendations to avoid strenuous physical activity for another two months. Mr. Cai continued to be monitored at St. Michael’s, and on April 22, 2009, Dr. M.D. Ouchterlony, a physician who was treating Mr. Cai in the Head Injury Clinic there, reported that Mr. Cai was “doing much better” and was “ready for an aggressive rehabilitation program.”

Dr. P. Counti, a chiropractor at Optimum Health Clinic, recommended continued therapy “based on Mr. Cai’s subjective reports and our own objective examination...”, in accordance with treatment plans from January 2009 to May 2011. Mr. Cai participated in physiotherapy at Optimum Health until April 2009, then from July 2009 to October 2009, and then from December 2009 to February 2010. Mr. Cai testified that he was in China for approximately two months in May and June 2009, where he received additional treatment.

Dr. R. Kwan, Mr. Cai’s family physician, reported throughout his post-accident clinical notes and records that, in addition to his physical injuries, Mr. Cai suffered from various psycho-emotional injuries, such as anxiety, depression, driving phobia, sleep disturbance and concentration and memory problems.

On May 11, 2009, Dr. A. Bodnar, a psychologist who assessed Mr. Cai at the request of his counsel, reported that Mr. Cai’s presentation was “consistent with the DSM-IV criteria for the diagnoses of Major Depression, Post Traumatic Stress Disorder, and Specific Phobia (Driver and Passenger Anxiety).” Dr. Bodnar also reported that Mr. Cai’s prognosis was good, since he was “motivated to return to his pre-accident level of functioning, as well as resolve issues emerging directly as a result of the accident, such as his anxiety, trauma and depression.” Dr. Bodnar stated that it was “likely that [Mr. Cai’s] psychological/emotional status will ameliorate with the recommended psychotherapeutic intervention and as his physical condition improves.”

Mr. Cai continued to experience abdominal pain after the accident and underwent a gastroscopy in June 2010 which did not show any significant problems. On October 5, 2010, Dr. Ouchterlony reported Mr. Cai as saying that his pain was “not that bad right now” and that he was “not willing to go ahead with the [suggested nerve block] injections.”

Dr. Counti testified that, overall, Mr. Cai made significant progress, with his abdominal injury being “somewhat of a barrier to his progress.” Dr. Counti stated that Mr. Cai was emotionally upset, and that this was also potentially a barrier to his progress. On October 28, 2010, Dr. Counti reported that Mr. Cai still required treatment, and indicated the following as his “clinical impression” of Mr. Cai’s condition:

Sprain and strain of ribs and sternum
Other and unspecified abdominal pain
Sprain and strain of hip
Tension-type headache
Injury of muscle and tendon at neck level
Muscle strain, shoulder region
Sprain and strain of lumbar spine
Sprain and strain of sacroiliac joint
Injury of other intra-abdominal organs

Dr. Counti acknowledged an October 5, 2010 report of Dr. Ouchterlony, to the effect that Mr. Cai “was unable to participate well in therapy due to pain”, was doing “a little bit better”, needed to “get back into a therapy program” and that pain was a “limiter” in Mr. Cai’s participation in Dr. Counti’s therapy and rehabilitation.

Mr. Cai testified that he continues to suffer abdominal pain, as well as neck, shoulder, back and chest pain.

1) Mr. Cai’s Substantive Claim for Income Replacement Benefits

Mr. Cai claims income replacement benefits (“IRBs”) from March 23, 2010 to January 7, 2011 (the two year anniversary of the accident). Pursuant to section 5(1) of the Schedule, Mr. Cai is entitled to IRBs within the first two years of the accident if, as a result of the accident, he suffered a “substantial inability to perform the essential tasks” of his pre-accident employment. In order to determine whether Mr. Cai meets this test, it is necessary to consider the nature of his accident-related injuries and whether these substantially prevented him from performing his essential pre-accident work duties.

(i) Vocational and Medical Evidence of Disability

At the time of the accident, Mr. Cai worked as a chef at a Thai-Vietnamese restaurant, for 60-70 hours per week, where he was responsible for preparing meals, which involved cutting vegetables and meats, and stir-frying them. The physical demands of his job involved continuous standing and walking, frequent lifting, carrying, pushing, pulling, gripping, handling, bending, twisting, crouching, kneeling, squatting, reaching, crawling and balancing.

Mr. Cai testified that, after the accident, he could not return to work right away because of the numbness in his arm, and his inability to lift boxes that were shipped to the restaurant and that weighed 50-60 pounds.

Mr. Cai testified that, in April 2009, he knew his job as a cook was no longer available to him. He acknowledged that, in that month, he reported to his chiropractor, Dr. H. Mohsini, that “his job is no longer available if he returned”, but stated that he did not contact his employer at that time for the purpose of going back to work. He said that he was still sick and had pain at the time, so that he was not able to go back to work. He said that, approximately a year post-accident, he called his boss to see if he could return to work, but was told that someone else had been hired to do his job. He also said that he contacted his employer approximately a year and 9 months after the accident for this purpose. Mr. Cai did not return to work in the two years following the accident. However, in February 2011, Mr. Cai returned to part-time modified duties at the restaurant where he worked before the accident, and according to records provided by his employer, earned $400 per month.

On January 15, 2009, Dr. D. Shin, a chiropractor who conducted an in-home assessment of Mr. Cai at the request of his counsel, reported that Mr. Cai was presently suffering from pain symptoms that were “affecting his…work tasks.” Dr. Shin stated that Mr. Cai was “unable to perform at his pre-injury physical level.”

On April 4, 2009, Dr. A. Owliaei, a chiropractor who, at the request of Mr. Cai’s counsel, conducted a Functional Abilities Evaluation, reported that Mr. Cai “revealed static strength levels ranging between Sedentary, Light and Medium categories” and that “[d]ynamic testing revealed levels within the Sedentary level….” Mr. Cai testified that he did not agree with this assessment, since he was at his “worst point.” In any event, Dr. Owliaei stated that, “[f]rom a functional perspective this indicates a level of functional strength to perform limited…job related tasks” and that Mr. Cai’s job “requires strength demands that are beyond [his] capabilities at this time.” Dr. Owliaei also stated that “[c]ertain tasks are tolerable and with some modification can be managed without significant difficulties”, but “the full scale pre-accident workload…cannot be tolerated at this time due to symptom aggravation and significant pain.” Dr. Owliaei noted that Mr. Cai “put forth maximal effort” during the examination and that the test results were reliable.

On July 16, 2009, Richard Wong, a physiotherapist at Optimum Health Clinic, completed a Disability Certificate in which he reported that Mr. Cai was substantially unable to perform his pre-accident work activities, explaining that Mr. Cai “may have difficulties in performing his regular work duties as a chef in a restaurant.”

On January 29, 2010, Dr. J. Heitzner, a physiatrist who assessed Mr. Cai at the request of the Insurer, reported that, “from a musculoskeletal point of view, [Mr. Cai] does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a cook….” Dr. Heitzner testified that pain could prevent Mr. Cai from performing his work as a chef, since pain is subjective, but that it is necessary to consider pain in light of the whole clinical picture. Dr. Heitzner testified that Mr. Cai’s pain did not prevent him from performing his pre-accident employment. He also stated that, although Mr. Cai suffered pain, there were no “alarming contraindications” to his doing his job. Mr. Cai testified that Dr. Heitzner’s examination lasted only 10 or 11 minutes, that he did not ask about his job functions, and that he did not explain that the purpose of the assessment was to determine Mr. Cai’s ability to return to his job. Dr. Heitzner testified that, although his assessment of Mr. Cai was only 10-15 minutes long, based on his general familiarity with Mr. Cai’s job requirements, the full clinical picture, as well as his own medical experience, Mr. Cai could return to work despite his pain and without fear of re-injury. Dr. Heitzner acknowledged that he did not test Mr. Cai’s ability to lift a 50-60 pound weight. Dr. Heitzner testified that he did not review Dr. Kwan’s notes or the hospital notes, but that in seeing what they had said regarding the nature of Mr. Cai’s problems, it would not alter his opinion at all that, from a musculoskeletal perspective, there were no limitations to Mr. Cai performing his pre-accident work.

On March 23, 2010, Dr. Mohsini prepared a response to Dr. Heitzner’s January 29, 2010 report, stating that Mr. Cai “continues to suffer from a substantial inability to fully and safely engage in some of his routine pre-accident level of ADL and employment tasks as a cook, and especially the heavier and demanding activities, and requires ongoing therapy, avoidance of aggravating activities and in my opinion would benefit from the provision of adequate…income replacement benefit[s], so he may heal from his injuries, avoids a regression of his condition and returns to his pre-accident level of ADL, strength and endurance.”

On April 10, 2011, Dr. Owliaei performed a Functional Capacity Evaluation (finding again that Mr. Cai’s full participation in the evaluation produced reliable test results), and reported as follows:

Overall the client revealed static strength levels ranging between the Sedentary, Light and Medium categories. Dynamic testing revealed levels within the Sedentary category…[and] while the patient is currently working part time with modified duties, his full scale pre-accident job duties require strength demands that are still beyond this patient’s capabilities at this time. For example, certain pre-accident job duties, such as prolonged standing and walking and repetitive lifting and carrying (e.g. food supplies, pots, pans) and bending/twisting, would significantly aggravate his symptoms. In addition, in order to help alleviate the pain, the patient finds it necessary to take more frequent breaks at work. Furthermore, even after work, the patient continues to feel pain at home due to the physical demands of his work….

Certain tasks are tolerable and with some modification can be managed without significant difficulties. However the full scale pre-accident workload… responsibilities are limited at this time due to symptom aggravation and significant pain.

(ii) Findings on the Substantive Claim for Income Replacement Benefits

I find that, as a result of the January 7, 2009 motor vehicle accident, Mr. Cai suffered a substantial inability to perform the essential tasks of his pre-accident employment, from March 23, 2010 to January 7, 2011.

State Farm acknowledged the injuries Mr. Cai suffered as a result of the accident, and paid him IRBs until March 22, 2010, at which time it terminated benefits primarily on the basis of Dr. Heitzner’s January 29, 2010 report. At the hearing, State Farm maintained that, while Mr. Cai might have continued to experience pain as a result of the motor vehicle accident after this date, he was no longer substantially disabled from his pre-accident employment.

State Farm attempted to suggest that Mr. Cai’s claims (for IRBs, as well as attendant care and housekeeping benefits) lacked credibility, on the basis that he had not provided the proper address for his tax returns or driver’s licence, and (as discussed in more detail on the issue of the quantum of IRBs) had neither reported on his tax return some cash he had received from his employer before the accident, nor reported to the Insurer income he had received from informal business dealings following the accident. While these matters are problematic, I do not find that they undermine Mr. Cai’s credibility as it pertains to his claim of disabling accident-related pain.

The evidence establishes that Mr. Cai suffered significant injuries in the accident, and consistently complained of physical, as well as psycho-emotional, problems for at least two years following the accident. In my view, State Farm rightly paid Mr. Cai IRBs for a year-and-a-half following the accident. None of the relevant medical practitioners questioned Mr. Cai’s credibility in relation to his medical complaints. The only person to comment directly on this issue was Dr. Owliaei, who noted that Mr. Cai participated fully in the assessments and that the test results were, therefore, reliable. Mr. Cai did, at the request of the Insurer, undergo a psychological assessment by Dr. W. Campbell, who, on March 1, 2010, reported that Mr. Cai’s “profile does suggest symptom exaggeration with regards to his symptoms of general emotional functioning such that his self-report may not be a wholly accurate or reliable representation of his current psychological functioning.” However, Dr. Campbell did not state that Mr. Cai was, in fact, misrepresenting his condition, and indicated that she lacked sufficient information to determine the source and extent of Mr. Cai’s psycho-emotional complaints. In any event, State Farm indicated at the hearing that it had only introduced Dr. Campbell’s report in the event that a special award was being claimed (which it is not), and that it was not relying on the report in relation to Mr. Cai’s claim for IRBs. In all of the circumstances, including his forthright and consistent testimony at the hearing, I find that Mr. Cai provided credible evidence of his post-accident injuries and abilities.

The issue, then, is whether, from March 23, 2010 to January 7, 2011, Mr. Cai’s legitimate medical problems substantially disabled him from performing the essential tasks of his pre-accident employment. I find that they did.

Mr. Cai clearly described the essential tasks of his work as a chef. State Farm did not dispute, and I find, that Mr. Cai’s pre-accident job was a demanding one, both in terms of the physical requirements of the job, as well as the number of hours he had to work.

I do not accept Dr. Heitzner’s assessment of Mr. Cai’s ability to return to this demanding job. Dr. Heitzner did not dispute that Mr. Cai continued to experience pain as a result of the accident. Dr. Heitzner did not say that Mr. Cai could, in fact, perform his pre-accident work; he simply stated that there were no “alarming contraindications” to his doing this. Dr. Heitzner performed a perfunctory physical examination, without either asking about the specific requirements of Mr. Cai’s job or testing his ability to do those tasks. I do not find Dr. Heitzner’s assessment to be persuasive evidence of Mr. Cai’s ability to return to his pre-accident employment.

I prefer the evidence of the other practitioners (most notably Dr. Owliaei) regarding Mr. Cai’s ability to work. The other practitioners consistently found Mr. Cai’s physical symptoms to be a barrier to his returning to his regular duties. Dr. Owliaei conducted comprehensive testing of Mr. Cai’s functional abilities, with a full understanding of the physical demands of Mr. Cai’s job. I find significant (as noted by Dr. Owliaei) that, even after Mr. Cai returned to work in February 2011, he was only able to do so on a part-time basis and with modified duties. Mr. Cai was, of course, earning significantly less at that time as well. I accept Dr. Owliaei’s finding (both before and after the Insurer terminated benefits) that Mr. Cai’s accident-related injuries and pain prevented him from doing various essential employment tasks, such as prolonged standing, repetitive lifting and carrying, and bending and twisting. I find Dr. Mohsini’s findings to be consistent with those of Dr. Owliaei, particularly his observation that Mr. Cai could not “fully and safely” perform the essential tasks of his job, especially the heavier and more demanding activities, which (while not raising any “alarming” concerns, in Dr. Heitzner’s words) could certainly aggravate Mr. Cai’s condition. As noted by Dr. Owliaei, Mr. Cai suffered significant increased pain merely performing part-time modified duties, upon his return to work in early 2011.

Finally, I find significant that, despite his ongoing pain, Mr. Cai contacted his employer about the possibility of returning to work. He was ultimately able to do so, but, as discussed, on a much reduced basis.

In all of the circumstances, therefore, I find that, from March 23, 2010 to January 7, 2011, Mr. Cai’s accident-related injuries substantially disabled him from performing the essential tasks of his pre-accident employment.

2) The Quantum of Income Replacement Benefits

Mr. Cai claimed IRBs at the rate of $400 per week. At the hearing, State Farm indicated that, while it did not formally accept this amount, it could not dispute that this was the appropriate rate at which any IRBs should be paid, and that, on the evidence before me, this was probably the correct amount. However, State Farm maintained that, any IRBs to which Mr. Cai would be entitled, should be reduced by income he received following the accident, in accordance with section 6(2) of the Schedule, which states that an insurer may deduct from IRBs “80 per cent of the net income received by the insured person in respect of any employment subsequent to the accident.” Mr. Cai argued that the income he received post-accident was not from employment, but was more in the nature of a gratuity. For the following reasons, I find that, as a general matter, $400 per week is the proper rate at which IRBs should be paid, but that State Farm is entitled to deduct from those benefits the income Mr. Cai received following the accident, in accordance with section 6(2) of the Schedule.

Mr. Cai testified that he started working at the restaurant in May 2008, and was initially paid in cash. After two months of employment, he was paid with cheques. He said he was paid $1,200 per month, except during busy months (such as December), when he was paid more than $2,000 per month (approximately $2,800). Mr. Cai testified that his 2008 income tax return, which showed total earnings of $8,296 did not include the $2,400 he received in cash for the first two months of work. Mr. Cai testified that his 2009 and 2010 income tax returns, which showed total earnings of $6,680 and $6,785, respectively, reflected commission he earned from referring customers to a friend in the roofing business. Mr. Cai testified that he did not know that he needed to report this income to the Insurer, and that his accountant advised him that he was not required to do this.

In an Employer’s Confirmation Form dated January 12, 2009, the employer reported that Mr. Cai had worked from May 1, 2008 to January 7, 2009, and had been paid $700 per week in the four weeks immediately preceding the accident.

By letter dated February 19, 2010, the employer reported that Mr. Cai had worked from May to November 2008, for 40 hours per week, at a salary of $1,200 per month, and that “[s]tarting December he received $2,800 for that month as he worked six days per week from 11:00am to 10:00pm.”

Based on Mr. Cai’s testimony, the documentary evidence from his employer, and his 2008 tax return, I find that, as a general matter, $400 per week is the appropriate rate at which Mr. Cai’s IRBs should be paid.

However, I also find that Mr. Cai received employment income following the accident, which should be deducted from his IRBs in accordance with the Schedule. I do not accept, as submitted by counsel for Mr. Cai, that the post-accident income Mr. Cai received was more in the nature of a gratuity, than employment income. Mr. Cai did not call any evidence to suggest that the funds he received for referring customers to his friend in the roofing business was akin to a tip or a gift. On the contrary, Mr. Cai referred to the money he received as a “commission” and a “referral fee.” I note, as well, that Mr. Cai’s 2009 and 2010 tax returns record the income he received from his friend as “business income.” Section 6(2) of the Schedule states that the deduction of post-accident income is in respect of “any employment” subsequent to the accident. While it is unclear whether the arrangement between Mr. Cai and his friend was one of employment or self-employment, I am satisfied that Mr. Cai was engaged in some form of employment for his friend, such as to entitle State Farm to deduct the income he received from any IRBs owing, in accordance with section 6(2) of the Schedule.

3) Mr. Cai’s Claim for Attendant Care Benefits

Mr. Cai maintained that, as a result of the injuries he suffered in the accident, he required assistance with various personal care needs. State Farm paid Mr. Cai attendant care benefits until April 30, 2009, at a rate of $2,947.12 per month, based on an Assessment of Attendant Care Needs (Form 1), prepared by Dr. D. Shin, a chiropractor at Optimum Health Clinic. Mr. Cai sought attendant care benefits, from May 1-7, 2009, at the rate recommended by Dr. Shin, and then from May 8, 2009 to October 3, 2010, at the rate of $2,035.20 per month, based on a new Form 1, prepared by Dr. A. Skolnik, another chiropractor at Optimum Health.

Pursuant to section 16 of the Schedule, an insurer is required to pay reasonable and necessary expenses, as a result of an accident-related impairment, incurred by a person for an attendant. Pursuant to section 16(4) of the Schedule, the monthly amount payable for attendant care is to be determined in accordance with a Form 1. Pursuant to section 16(5), the amount of attendant care benefits is a maximum of $3,000 per month for a person (as in this case) who has not sustained a catastrophic impairment.

(i) Personal and Medical Evidence on Attendant Care

Mr. Cai testified that, before the accident, he had no limitations in respect of his personal care. He said that, after the accident, he could not put on his clothes or wash his hair or back, and that his ex-wife Ms. Yi Mei Zhang, has had to help him with these activities. He said that someone also has had to help him going up stairs and cutting his nails. He said that, over time, he needed less help with these activities. He said that he required this type of assistance in May 2009. He also testified that he paid his ex-wife for attendant care and housekeeping assistance (sometimes with the help of a loan from his friends), and submitted those expenses to the Insurer. He said that he told his ex-wife that, whenever his insurance company sends him a cheque, he would give it to her.

Ms. Zhang testified that she used to help Mr. Cai get up in the morning, go to the washroom, take a bath, and put on his clothes. Ms. Zhang testified that she provided the attendant care services set out in Mr. Cai’s attendant care expense forms “until after 9 months”, that he was then getting better and that she did some, but not all of the noted tasks. However, she said that she provided some services to him until he moved out, approximately 2 years after the accident.

Mr. Cai submitted Applications for Expenses to the Insurer, indicating that Ms. Zhang assisted Mr. Cai with the following activities:

dressing/undressing
bathing and shampooing
toileting
walking
feeding/assisting with meals
exercise

The relevant expense forms note that Ms. Zhang provided attendant care assistance for the following dates and times:

May 1 to October 4, 2009 - 11 hours per day
October 5 to November 29, 2009 - 8 hours per day
November 30, 2009 to January 24, 2010 - 7 hours per day
January 25 to October 3, 2010 - 6 hours per day

On January 15, 2009, Dr. Shin conducted an in-home assessment of Mr. Cai, and reported that Mr. Cai, who had been self-sufficient in his daily household activities before the accident, was now suffering from pain symptoms that were “affecting his daily living activities, [and] caregiving…tasks.” Dr. Shin stated that Mr. Cai was “unable to perform at his pre-injury physical level” and prepared a Form 1, recommending attendant care assistance at a rate of $2,947.12 per month.

On March 17, 2009, Ms. A. Chan, an occupational therapist who conducted an in-home attendant care assessment of Mr. Cai at the request of the Insurer, reported that Mr. Cai’s ability to return to his pre-accident attendant care activities was being impeded by “[s]elf-limiting behaviours due to subjective reports of pain within the left side of his body”, “[d]ecreased sustained stooping tolerance” and “[f]atigue and decreased activity tolerances.” Ms. Chan reported that Mr. Cai “currently possesses the physical capabilities to complete all aspects of attendant care in a safe and independent manner.” Ms. Chan prepared a Form 1 indicating that Mr. Cai did not require any attendant care assistance. Ms. Chan testified that, although Mr. Cai was impeded somewhat by certain factors in her assessment of him, once he rested and by using different body mechanics, he was able to perform all tasks independently. Ms. Chan stated that Mr. Cai’s pain was not sufficient to prevent him from performing the different tasks, and that he did not require any type of formal assistance with them.

On April 30, 2009, Dr. Mohsini prepared a rebuttal report in response to Ms. Chan’s attendant care assessment, stating that his assessment of Mr. Cai “indicated significant positive objective findings along with his accounts of his ongoing limitations and impairments, abilities, endurance and strength that clearly indicate that the client has suffered from substantial accident related injuries with resultant limitations while attempting most of his activities of daily living and especially the heavy and more physically demanding ones that warrants ongoing therapy and the provision of adequate Attendant Care Benefits for the client.”

On June 30, 2009, Ms. Chan prepared a critique of Dr. Mohsini’s rebuttal report, indicating that while she did not “discount or deny the fact that Mr. Cai continues to experience pain and discomfort due to his injuries”, this “discomfort does not lead to the conclusion that he is unable to perform his pre-accident attendant care tasks.” Ms. Chan noted that Mr. Cai was able to “endure a 2 hour assessment requiring him to complete an interview, range of motion testing, strength testing and functional demonstration of tasks”, and that, unlike Dr. Mohsini’s rebuttal report, Ms. Chan conducted an in-home assessment of Mr. Cai’s attendant care needs. Ms. Chan noted that Dr. Mohsini did not “provide any objective data related to strength” and indicated that the ranges of motion noted by Dr. Mohsini in his assessment were “sufficient for [Mr. Cai] to complete attendant care tasks.” Ms. Chan reported that “[a]s Mr. Cai continues his therapy treatment he should be encouraged to complete his attendant care tasks independently to maintain the range of motion and tolerance gained during his recovery”, that “the completion of personal care tasks does not require a ‘heavy’ level of work” and that “[m]ost tasks do not require full range of motion in the upper and lower extremities to complete.”

On May 8, 2009, Dr. Skolnik performed a follow-up in-home assessment of Mr. Cai, and reported that “[r]eported pain, concomitant limitations in bending, lifting, reaching, carrying and repetitive activities substantially disable him from performing his pre-accident Activities of Daily Living (ADL’s)” and “limitations in ranges of motion and lifting substantially limit his ability to perform housework activities comfortably.” Dr. Skolnik prepared an Assessment of Attendant Care Needs (Form 1), in which he recommended attendant care assistance at a rate of $2,035.20 per month.

Ms. Chan testified that it is possible that, at the time of Dr. Skolnik’s assessment, Mr. Cai required that amount of assistance. However, Ms. Chan noted that Dr. Skolnik simply stated that Mr. Cai could not do housekeeping activities “comfortably” and that this did not suggest that he was unable to perform his activities of daily living and required attendant care. Mr. Cai testified that he did not agree with Ms. Chan’s report that he demonstrated the ability to kneel and squat, as well as other physical activities.

On January 29, 2010, Dr. Heitzner reported Mr. Cai as saying that he was “able to dress himself and do his personal hygiene tasks slowly.” Mr. Cai testified that he did not tell Dr. Heitzner that he could dress himself. Mr. Cai also said that a year to a year-and-a-half after the accident, he began to do housekeeping tasks “bit by bit” and that he was eventually able to do restricted activities. Dr. Heitzner reported that, “from a musculoskeletal point of view, [Mr. Cai] does not suffer a substantial inability to perform…the housekeeping or home maintenance tasks that he did prior to the accident.” Dr. Heitzner testified that, although Mr. Cai had restricted range of motion in his neck, it did not prevent him from performing his usual housekeeping tasks, as there were strategies to compensate and overcome this. Dr. Heitzner testified that pain could prevent Mr. Cai from performing his housekeeping tasks, since pain is subjective, but that it is necessary to consider pain in light of the whole clinical picture. Dr. Heitzner testified that Mr. Cai’s pain did not prevent him from performing his pre-accident housekeeping tasks.

On March 23, 2010, Dr. Mohsini prepared a response to Dr. Heitzner’s assessment report, stating that Mr. Cai “continues to suffer from a substantial inability to fully and safely engage in some of his routine pre-accident level of ADL…and requires ongoing therapy, avoidance of aggravating activities and in my opinion would benefit from the provision of adequate housekeeping/home maintenance benefits for his limited activities…so he may heal from his injuries, avoids a regression of his condition and returns to his pre-accident level of ADL, strength and endurance.”

(ii) Findings on Attendant Care Benefits

I find that, while Mr. Cai may have required some level of attendant care from May 2009 to October 2010, he has not established that he required the amounts claimed (and recommended by Dr. Shin and Dr. Skolnik).

I accept, as documented in Dr. Kwan’s clinical notes and records, and as evidenced from the various assessments conducted after the accident, that Mr. Cai suffered ongoing pain as a result of the accident. While Dr. Chan mentioned “self-limiting behaviours due to subjective reports of pain”, none of the assessors, including Dr. Chan, seriously questioned the legitimacy of Mr. Cai’s pain complaints, and as discussed above, I have found Mr. Cai to have provided credible evidence of his post-accident injuries and abilities.

However, in contrast to my findings on Mr. Cai’s ability to return to his pre-accident employment (which involved demanding physical tasks over long hours), I find that his personal care requirements were less physically taxing, and did not require the assistance of an attendant, at least to the extent claimed. I accept that in the months immediately following the accident, Mr. Cai required attendant care as a result of the significant injuries he suffered in the accident. State Farm paid Mr. Cai attendant care benefits during this period. However, I find that, while Mr. Cai continued to experience pain, he did not require the relatively significant degree of attendant care claimed (and provided by Mr. Cai’s ex-wife). In this regard, I prefer the analysis offered by Ms. Chan to that of Dr. Mohsini, for the following reasons.

Dr. Mohsini did not conduct an in-home assessment of Mr. Cai’s abilities or provide objective data related to strength. Dr. Mohsini found that Mr. Cai’s injuries limited “most” of his activities of daily living, and “especially the heavier and more demanding ones.” However, it is unclear which tasks Dr. Mohsini is referring to, since he did not conduct an in-home assessment. As noted by Ms. Chan, despite complaints of pain and fatigue, Mr. Cai was able to complete the various personal care tasks independently. I find significant that Ms. Chan stated that she was cautious in her testing of Mr. Cai. As pointed out by Ms. Chan, while Dr. Mohsini (and Dr. Skolnik) found Mr. Cai to have limited ranges of motion, these were not sufficient to preclude Mr. Cai from completing his attendant care tasks. Ms. Chan did say that “most” personal care tasks did not require full range of motion, suggesting that Mr. Cai may have been restricted in some of his daily activities. However, in the absence of more specific evidence on this issue, I am unable to conclude which tasks and to what extent he required assistance.

I also prefer Ms. Chan’s evidence to that of Dr. Skolnik. While Dr. Skolnik did perform an in-home assessment, and concluded that Mr. Cai was substantially disabled from performing his activities of daily living, he also concluded that Mr. Cai’s limited range of motion substantially limited his ability to perform his housework activities “comfortably.” I find this to be a significant qualifier of Dr. Skolnik’s findings. I agree with Ms. Chan (particularly in light of Mr. Cai’s demonstrated ability to perform his personal care activities independently) that, while Mr. Cai may have experienced pain while doing activities around his house, this does not establish that he was substantially disabled from doing them and that he required attendant care to the extent claimed. It may have been helpful for Dr. Skolnik (as well as Dr. Mohsini) to have testified at the hearing to address these matters.

While Dr. Heitzner did not perform an in-home assessment, his findings are consistent with those of Ms. Chan. And while Dr. Mohsini prepared a response to Dr. Heitzner, as noted above Dr. Mohsini also did not perform an in-home assessment. I note that in responding to Dr. Heitzner’s report, Dr. Mohsini simply said that Mr. Cai was unable to do “some” of his daily activities. Again, it is unclear for which activities Mr. Cai required an attendant and to what degree.

Finally, Mr. Cai claimed attendant care from May 8, 2009 to October 3, 2010, at the constant rate of $2,035.20 per month. However, both Mr. Cai and Ms. Zhang testified that Mr. Cai required less and less attendant care as time went on, and the attendant care expense forms Mr. Cai submitted indicate a gradually decreasing amount of assistance provided by Ms. Zhang. Therefore, in conjunction with my finding that, from a functional/medical perspective, I am unable to determine the extent to which Mr. Cai required attendant care (and that he has, therefore, not substantiated his claim to the monthly rates of attendant care benefits claimed), I am also unable to conclude, based on the oral and documentary evidence of the assistance provided, that Mr. Cai required ongoing attendant care of $2,035.20 per month.

In all of the circumstances, I find that Mr. Cai is not entitled to the attendant care benefits claimed.

4) Mr. Cai’s Claim for Housekeeping Benefits

State Farm paid Mr. Cai housekeeping benefits until April 6, 2010, at the maximum rate of $100 per week, and terminated them on the basis of Dr. Heitzner’s January 29, 2010 report and Dr. Campbell’s March 1, 2010 psychological report (discussed earlier). Mr. Cai maintained that, as a result of his ongoing accident-related injuries, he continued to require assistance with his housekeeping tasks. He claimed housekeeping benefits from April 7 to October 3, 2010, at a rate of $100 per week.

Pursuant to section 22 of the Schedule, an insurer is required to pay for reasonable and necessary expenses incurred by an insured person if, as a result of the accident, the 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. This test requires a comparison of the insured person’s pre- and post-accident housekeeping abilities, and a determination of whether the difference amounts to a substantial inability.²

(i) Personal and Medical Evidence on Housekeeping

Mr. Cai testified that, prior to the accident, he lived on his own in a small house he rented, doing vacuuming, laundry, grocery shopping, general cleaning and cooking. He said that, after the accident, he moved back in with his ex-wife, Ms. Zhang, for approximately two years, where he lived in a small living room. He testified that he could not do any of his previous housekeeping, and that this was done by his ex-wife for approximately two years, until he went back to work. As indicated above, he said that he paid his ex-wife for housekeeping assistance, and that he told her that, whenever his insurance company sends him a cheque, he would give it to her.

Ms. Zhang testified that she did housekeeping for her ex-husband, and that she did not clean the small living room before the accident. She said that, every day after the accident, she cleaned the small living room for her husband (sweeping and mopping), and did laundry and grocery shopping. She said that she spent 2 hours every day doing these tasks. Ms. Zhang testified that she did the housekeeping services set out in Mr. Cai’s housekeeping expense forms. She said that Mr. Cai stayed with her for approximately two years after the accident, and that she did housekeeping for him for approximately one year.

Mr. Cai submitted Applications for Expenses to the Insurer, indicating that Ms. Zhang assisted Mr. Cai with the following activities, from the time of the accident to October 3, 2010, consistently for 13 hours per week:

sweeping/mopping
dusting
vacuuming/tidying house
cleaning bathroom
garbage removal
laundry/ironing
grocery shopping

In her March 2009 attendant care assessment, Ms. Chan reported that Mr. Cai was capable of cleaning the bathroom and doing his laundry. Ms. Chan did not address the other forms of housekeeping for which Mr. Cai claimed benefits.

In his April 4, 2009 report, Dr. Owliaei reported that, “[f]rom a functional perspective [Mr. Cai had] a level of functional strength to perform limited in-home tasks…” and that he had not yet met “all of the requirements/tolerance that are associated with his functional independence at home including housekeeping duties….” Dr. Owliaei also stated that “[c]ertain tasks are tolerable and with some modification can be managed without significant difficulties”, but “the full scale pre-accident…housekeeping responsibilities cannot be tolerated at this time due to symptom aggravation and significant pain.”

As noted, on May 8, 2009, Dr. Skolnik reported that Mr. Cai’s injuries “substantially disable[d] him from performing his pre-accident Activities of Daily Living (ADL’s)” and “substantially limit his ability to perform housework activities comfortably.”

In his July 16, 2009 Disability Certificate, Dr. Wong, reported that Mr. Cai suffered a substantial inability to perform his pre-accident housekeeping activities, explaining that, based on his physical limitations, he “may have difficulties in performing his housekeeping/home maintenance duties.”

In his January 29, 2010 report, Dr. Heitzner reported Mr. Cai as saying that he was “able to dress himself and do his personal hygiene tasks slowly.” Mr. Cai testified that he did not tell Dr. Heitzner that he could dress himself. Dr. Heitzner testified that pain could prevent Mr. Cai from performing his housekeeping tasks, since pain is subjective, but that it is necessary to consider pain in light of the whole clinical picture. Dr. Heitzner concluded that, from a “musculoskeletal point of view, [Mr. Cai] does not suffer [a] substantial inability to perform the housekeeping or home maintenance tasks that he did prior to the accident.” Mr. Cai also said that a year to a year-and-a-half after the accident, he began to do housekeeping tasks “bit by bit” and that he was eventually able to do restricted activities.

In her March 1, 2010 report, Dr. Campbell concluded that, from a strictly psychological perspective, Mr. Cai “has not sustained a substantial inability to perform the housekeeping and home maintenance services he performed prior to the accident” (emphasis in original).

In his March 23, 2010 response to Dr. Heitzner, Dr. Mohsini stated that Mr. Cai continued to “suffer from a substantial inability to fully and safely engage in some of his routine pre-accident level of ADL” and “would benefit from the provision of adequate housekeeping/home maintenance benefits for his limited activities….”

(ii) Findings on Housekeeping Benefits

In a manner similar to my findings on attendant care, I find that, while Mr. Cai may have required a certain degree of housekeeping assistance after the Insurer terminated benefits, he has not established that he is entitled to the benefits claimed, namely $100 per week from April 7 to October 3, 2010.

The only reports of direct relevance to Mr. Cai’s claim for housekeeping benefits during the period in question are those of Dr. Heitzner and Dr. Mohsini. At the hearing, Mr. Cai did not attempt to argue that he was psychologically disabled from performing his housekeeping tasks, and so did not take issue with Dr. Campbell’s report (particularly in light of the fact that State Farm did not rely on Dr. Campbell’s report during the hearing). In any event, as indicated earlier, I found Dr. Campbell’s report deficient in certain important respects. Left with Dr. Heitzner’s and Dr. Mohsini’s reports, then, I prefer to rely on Dr. Heitzner’s report, to the extent that it was more consistent with the earlier assessment and findings of Ms. Chan (particularly in light of the fact that she addressed two key areas of housekeeping in the context of her evaluation of Mr. Cai’s attendant care needs), and given that it was unclear from Dr. Mohsini’s (and Dr. Skolnik’s) opinion which housekeeping duties (and to what extent) Mr. Cai was not capable of performing.

Again, however, even if Mr. Cai required some degree of housekeeping assistance during the relevant period, I find significant problems in the evidence of the nature and extent of the assistance Ms. Zhang is said to have provided. Mr. Cai said that he lived with Ms. Zhang for approximately two years after the accident, and that Ms. Zhang provided housekeeping assistance until he went back to work (which was in February 2011). However, Mr. Cai and Ms. Zhang only submitted expense forms for housekeeping until early October 2010. Mr. Zhang testified that she spent 2 hours each day doing laundry, grocery shopping and sweeping and mopping the small living room in which Mr. Cai lived. This would be a total of 14 hours per week. However, the expense forms submitted indicate that Ms. Zhang did dusting, vacuuming, cleaning the bathroom and garbage disposal, as well as the other duties, for a total of 13 hours per week. Unlike Mr. Cai’s (and Ms. Zhang’s) claim for attendant care services, the expense forms for housekeeping assistance consistently claim 13 hours per week from the date of the accident to October 3, 2010. However, both Mr. Cai and Ms. Zhang testified that Mr. Cai’s condition improved and that he was able to do more of his household activities (with Ms. Zhang doing fewer housekeeping tasks).

Finally, while not necessarily determinative, Mr. Cai and Ms. Zhang submitted housekeeping claim forms during the time that Mr. Cai and Ms. Zhang were in China, namely, May 5 to July 12, 2009 (which, admittedly, was before the period in question). I note that the claim for housekeeping benefits at this time begins prior to Dr. Skolnik’s in-home assessment on May 8, 2009. I also heard no evidence of Mr. Cai’s living arrangements in China or whether he required the same types of housekeeping services as Ms. Zhang is said to have provided in her home.

In all of the circumstances, I find that Mr. Cai has not provided reliable evidence of the degree to which he received and/or required housekeeping assistance from Ms. Zhang. I, therefore, find that Mr. Cai is not entitled to the housekeeping benefits claimed.

5) Interest

To the extent that Mr. Cai is entitled to any income replacement benefits during the period of March 23, 2010 to January 7, 2011 (given the deduction of the relevant post-accident employment income), Mr. Cai is entitled to interest on those benefits, calculated in accordance with section 46(2) of the Schedule.

EXPENSES:

If required, the parties may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

October 9, 2014

Eban Bayefsky Arbitrator

Date