Masood Hejran v. Personal Insurance Company of Canada, 2014 ONFSCDRS 187

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 187

FSCO A11-002435

BETWEEN:

MASOOD HEJRAN

Applicant

and

PERSONAL INSURANCE COMPANY

OF CANADA

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: August 27, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Hejran represented himself

Thomas Hughes for Personal Insurance Company of Canada

Issues:

The Applicant, Masood Hejran, was injured in a motor vehicle accident on November 26, 2009. He applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Personal denied certain of Mr. Hejran’s claims. The parties were unable to resolve their disputes through mediation, and Mr. Hejran 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. Hejran entitled to attendant care benefits, from November 26, 2009 to November 25, 2011, at a rate of $1,032.94 per month, pursuant to section 16 of the Schedule?
Is Mr. Hejran entitled to receive a medical benefit for a treatment plan from East Rehabilitation Centre, dated March 15, 2010, in the amount of $412.82, pursuant to section 14 of the Schedule?
Is Mr. Hejran 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. Hejran is not entitled to attendant care benefits.
Mr. Hejran is not entitled to medical benefits.
Mr. Hejran is not entitled to interest.
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:

Mr. Hejran’s Accident and Injuries

Mr. Hejran was involved in a motor vehicle accident on November 26, 2009, when the car in which he was a passenger collided with another vehicle. He was 20 years old at the time. He testified that he injured his neck, back and shoulders, and suffers headaches and dizziness, as a result of the accident. In a Statutory Declaration to the Insurer, dated April 22, 2010, Mr. Hejran stated that he had been in a previous car accident on October 18, 2009, where he hurt his back and shoulders, and that these injuries were exacerbated by the November 26, 2009 accident. Mr. Hejran testified that he was involved in a third car accident on December 23, 2010, where he apparently fractured his spine. Mr. Hejran testified that he went to his family doctor, Dr. W. W-L. Chan, a couple of days after the November 26, 2009 accident, although in cross-examination, he acknowledged that there were no references in Dr. Chan’s notes or the OHIP summary to an accident on that date. Mr. Hejran said he “maybe…saw another doctor.” Mr. Hejran testified that his October 18, 2009 accident was not relevant to his November 26, 2009 accident and injuries. He acknowledged that he began to work as a customer service representative on December 21, 2009, where he worked full-time until October 28, 2011, but he said that he had to work, and that it was a flexible, desk job.

Mr. Hejran’s Claim for Attendant Care Benefits

In an Activities of Normal Life form (an OCF-12), dated December 21, 2009, Mr. Hejran indicated that, as a result of the accident, he had difficulty walking for long distances, his back became stiff while sitting, he felt unsafe driving in a car, and he could not bathe his “side arms.” In his Statutory Declaration, Mr. Hejran stated that he was able to perform his personal care activities before the accident, but that afterwards, his mother (with whom he lived) assisted him with these activities. Mr. Hejran indicated that his mother helped him to put on and take off his jacket and boots, accompanied him as required, and assisted him with meal preparation. He also said that it was “painful for [him] to perform [his] personal care duties.” Mr. Hejran testified he promised to pay his mother for her attendant care assistance.

In an in-home assessment, dated February 23, 2010, conducted in connection with the October 18, 2009 accident, Joanna Di Lorenzo, an occupational therapist at Core Integrated Health Resources Inc., reported as follows:

In regards to attendant care, Mr. Hejran stated that he was independent and had minimal concerns. Upon demonstration of his personal care routine, Mr. Hejran demonstrated the functional ability [to] reach his upper and lower extremities for dressing, bathing and grooming activities and access his bedroom, bathroom and kitchen. On that note, it is this therapist’s opinion that Mr. Hejran does not have a substantial inability to perform his pre-accident attendant care activities and therefore does not require attendant care assistance at this time.

Ms. Di Lorenzo prepared an Assessment of Attendant Care Needs (Form 1), confirming that Mr. Hejran did not require any attendant care assistance.

In an in-home assessment, dated April 8, 2010, conducted in connection with the October 18, 2009 accident, by Dr. J.R. Clarke, a chiropractor at Century Assessment and Diagnostic Centre, Mr. Hejran is reported as saying that he currently “experience[d] difficulty with personal care….” Dr. Clarke completed a Form 1, indicating that Mr. Hejran required assistance with brushing, shampooing and drying his hair, cutting his toenails, meal preparation, cleaning the bathroom, making the bed, laundry, and general supervision, at a rate of $1,036.10 per month.

Mr. Hejran participated in an Examination Under Oath (“EUO”) on May 5, 2010 in connection with his October 18, 2009 accident. In that examination, the following exchange is reported:

Q Personal care routine involves hair care, showering, bathing, dressing, undressing, flossing and brushing teeth, nail care, shaving and toilet routine. Did you have any problems with your personal care routine following the accident?

A Ahh no, I did not

Q Did you have anyone’s help with any element of your personal care routine following the accident?

A no

Q Do you now need anyone’s help with any element of your personal care routine?

A no

Asked about this at the hearing, Mr. Hejran testified, “I don’t remember, I don’t know.” Mr. Hejran is noted as saying that he was not involved in his meal preparation either before or after the October 2009 accident.

Submissions

The Insurer submitted that Mr. Hejran had not provided sufficient evidence to establish that any injuries he might have suffered in an accident on November 26, 2009 resulted in a need for attendant care. The Insurer submitted that Mr. Hejran had provided no evidence respecting a treatment plan of East Rehabilitation Centre, dated March 15, 2010, in the amount of $412.82. The Insurer submitted a letter, dated February 28, 2013, from Dr. C. Campbell, a chiropractor, apparently in response to questions from counsel for the Insurer concerning a Form 1 dated February 10, 2010, for attendant care benefits at the rate of $1,032.94 per month. In the letter, Dr. Cameron states that he never assessed Mr. Hejran in person, and did not author the February 10, 2010 Form 1.

In response to the Insurer’s submission that he had not provided supporting documentation in relation to his November 2009 accident and injuries, Mr. Hejran maintained that he had given all of the records to his lawyer (who had been allowed to withdraw as Mr. Hejran’s representative approximately a year and a half before this hearing).

Findings

I find that Mr. Hejran is not entitled to either attendant care benefits or the cost of a treatment plan from East Rehabilitation Centre.

Mr. Hejran testified very briefly at the hearing. He did not call any witnesses in support of his claim or introduce any documents. I do not accept Mr. Hejran’s claim that he suffered significant injuries in the accident of November 26, 2009. Contrary to his claim that he visited his family doctor a couple of days after the accident, Dr. Chan’s notes contain no record of such a visit, and in fact do not refer to any injuries that Mr. Hejran may have suffered in the accident. Mr. Hejran suggested he may have seen another doctor about the accident, but there is no evidence to that effect. I find significant that Mr. Hejran began working within a month of the accident. I do not find that he suffered significant injuries in the accident.

Assuming, however, that Mr. Hejran suffered significant injuries in the accident, I do not accept that they were such as to entitle him to attendant care benefits. 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(1.1), no attendant care benefit is payable to an insured person whose impairment is a Grade I or Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline. 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.

Mr. Hejran claimed attendant care benefits, for the two years following the accident, at a rate of $1,032.94 per month. However, Mr. Hejran did not introduce a Form 1 either in relation to the November 26, 2009 accident, or that sets out the rate of $1,032.94 per month. The only Form 1 that might assist Mr. Hejran was introduced by the Insurer, was in relation to the October 18, 2009 accident (which Mr. Hejran maintained was not relevant to his November 26, 2009 accident and injuries, and the November 26, 2009 accident is the one in respect of which he applied for arbitration), and recommended attendant care at a rate of $1,036.10 per month. I find that there is no reliable Form 1 evidence upon which attendant care benefits for the November 26, 2009 accident can be assessed or ordered.

While Mr. Hejran may have been injured in the November 26, 2009 accident, I am not satisfied that he suffered an accident-related impairment requiring attendant care assistance. Mr. Hejran claimed that he required the assistance of his mother. However, within three months of the November 26, 2009 accident, Mr. Hejran reported to Ms. Di Lorenzo that he was “independent” with attendant care and had “minimal concerns.” Three months after this, Mr. Hejran stated under oath that he did not have any problems with his personal care, and did not receive or need any assistance with his personal care. I do not accept Mr. Hejran’s testimony that he did not know about or remember these responses. I further find that his statements to Ms. Di Lorenzo and at the EUO significantly undermine both his report to Dr. Clarke in April 2010 that he had “difficulty with personal care” and Dr. Clarke’s conclusion that he required various types of attendant care assistance. I note, as well, that Mr. Hejran also said during the EUO that he was not involved in meal preparation either before or after the October 2009 accident, one of the more significant components of his request (and Dr. Clarke’s recommendations) for attendant care.

Mr. Hejran stated that he promised to pay his mother for the attendant care she provided. However, Mr. Hejran did not call his mother to corroborate this evidence or submit any expense forms detailing any assistance his mother may have provided. Based as well on Mr. Hejran’s statements to Ms. Di Lorenzo and at the EUO, I do not accept that Mr. Hejran received attendant care assistance from his mother or promised to pay her for any such assistance. I, therefore, find that Mr. Hejran did not “incur” any attendant care expenses (even in the broadest sense of that term) in relation to the November 26, 2009 accident and within the meaning of section 16 of the Schedule.

Finally, Mr. Hejran did not introduce any evidence to suggest that the injuries he suffered in the November 2009 accident were anything but minor and/or were more than a Grade I or Grade II whiplash-associated disorder. While not necessarily determinative of the matter, I find that this further undermines Mr. Hejran’s claim that he required and was entitled to attendant care benefits under section 16 of the Schedule.

I, therefore, find that Mr. Hejran is not entitled to attendant care benefits.

Mr. Hejran claimed the cost of a treatment plan, dated March 15, 2010, in the amount of $412.82. However, Mr. Hejran did not introduce the treatment plan itself, any evidence that it was submitted to the Insurer, or any evidence as to what it was for or why it might be reasonably necessary. I find that he is not entitled to medical benefits for this item.

As Mr. Hejran is not entitled to any benefits, he is not entitled to any interest in respect of those benefits.

EXPENSES:

The parties did not address the issue of expenses. If required, they may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

December 11, 2014

Eban Bayefsky

Arbitrator

Date