Neutral Citation: 2014 ONFSCDRS 72

FSCO A11-003933

BETWEEN:

SIKANDER SEDIQYAR

Applicant

and

UNICA INSURANCE INC.

(formerly known as YORK FIRE & CASUALTY INSURANCE COMPANY)

Insurer

REASONS FOR DECISION

Before: Lloyd (J. R.) Richards

Heard: June 24, 25, 26, 27, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Alexei Antonov for Mr. Sediqyar Philip Tyborski for Unica Insurance Inc.

Introduction:

The Applicant, Sikander Sediqyar, was injured in a motor vehicle accident on June 25, 2010. He applied for and received statutory accident benefits from Unica Insurance Inc., payable under the Schedule.¹ Unica subsequently terminated the benefits it had been paying Mr. Sediqyar. The parties were unable to resolve their disputes through mediation, and Mr. Sediqyar applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Overview:

Mr. Sediqyar claims that prior to the motor vehicle accident he took care of his children, particularly his sick daughter, and played sports regularly. After the accident, his pre-existing condition impacted his recovery. He claims to suffer a complete inability to carry on a normal life as a result of the accident. He also asserts that he needed assistance up to 104 weeks after the accident to care for himself and to carry out his housekeeping duties.

The Insurer’s position is that Mr. Sediqyar had chronic, low back pain prior to the motor vehicle accident and that the accident did not lead to a complete inability for Mr. Sediqyar to lead a normal life. The Insurer claims that there are serious credibility issues with Mr. Sediqyar’s case, and that it is impossible to conclude that Mr. Sediqyar cannot carry on a normal life because he has not presented enough evidence to give a clear picture of his pre-accident life. Furthermore, Mr. Sediqyar has not presented evidence substantiating his need for assistance to care for himself or to engage in his housekeeping and home maintenance.

The particular issues in this hearing are:

Is Mr. Sediqyar entitled to a non-earner benefit in the amount of $185.00 per week from December 24, 2010 to date and ongoing?
Is Mr. Sediqyar entitled to an attendant care benefit in the amount of $836.57 per month from June 25, 2010 to August 8, 2010 and January 19, 2011 to June 24, 2012?
Is Mr. Sediqyar entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from June 25, 2010 to July 18, 2010 and $24.00 per week from September 13, 2010 to October 30, 2011 and $100.00 per week from October 31, 2011 to June 24, 2012?
Is Mr. Sediqyar entitled to a Special Award?
Is Mr. Sediqyar entitled to interest for the overdue payment of benefits?

Result:

Mr. Sediqyar is not entitled to a non-earner benefit in the amount of $185.00 per week from December 24, 2010 to date and ongoing.
Mr. Sediqyar is not entitled to an attendant care benefit in the amount of $836.57 per month from June 25, 2010 to August 8, 2010 and January 19, 2011 to June 24, 2012.
Mr. Sediqyar is not entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from June 25, 2010 to July 18, 2010 and $24.00 per week from September 13, 2010 to October 30, 2011 and $100.00 per week from October 31, 2011 to June 24, 2012.
Mr. Sediqyar is not entitled to a Special Award.
Mr. Sediqyar is not entitled to interest for the overdue payment of benefits.

EVIDENCE AND ANALYSIS:

Non-Earner Benefits

Is Mr. Sediqyar entitled to a non-earner benefit in the amount of $185.00 per week from December 24, 2010 to date and ongoing?

(a) The test for non-earner benefits

The Schedule makes provision for the payment of a non-earner benefit when an insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after an accident. The Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

I find that Mr. Sediqyar has not presented sufficient evidence to persuade me that he is continuously prevented from engaging in substantially all of the activities in which he engaged before the accident.

The threshold test for entitlement to a non-earner benefit is particularly strict and requires a significant degree of impairment and a marked, measurable impact on levels of function and consequent ability of the insured person to continue in his pre-accident activities.²

The factors that should be considered when determining entitlement to a non-earner benefit are neatly articulated in Heath and Economical Mutual Insurance Co.³ and I paraphrase them here:

Start the analysis by comparing a claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.
The analysis requires more than taking a snap-shot of a claimant’s life in the timeframe immediately preceding the accident.
All of a claimant’s pre-accident activities should be considered when determining whether a claimant is able to engage in “substantially all” of his pre-accident activities.
Greater weight may be assigned to those activities which the claimant identifies as being important to his pre-accident life.
A claimant must establish that the changes amount to his being continuously prevented from engaging in substantially all of his pre-accident activities.
“Engaging in” activities means more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The manner in which an activity is performed and the quality of post-accident performance must also be considered.
Where pain is a primary factor, one must consider whether the pain practically prevents an individual from engaging in pre-accident activities.

(b) Pre-accident activities and life circumstances

Mr. Sediqyar claims that prior to the motor vehicle accident his life was “normal.” He was busy with his children and spent a significant amount of time caring for them. His daughter has had leukemia since 2003, and even though she is better now, she is still in treatment. Prior to the accident, he took his daughter to hospital almost every day for 1 to 2 years. He states that he used to swim, play soccer and attend picnics. Since 2003 his activities have been limited because of his daughter. He worked at Domino’s Pizza for 2-3 months prior to the accident for 2 months, but was on Ontario Works assistance immediately prior to the accident. He claims that he had pain prior to the motor vehicle accident, but that the pain was neither severe nor troubling. Significantly, he claims that pain never prevented him from working at Domino’s.

Mr. Sediqyar claims that he did not use medication prior to the motor vehicle accident and that he did not suffer from depression. Zarmina Mohammad, Basir Mohammad, and Mujghan Pirmohammadi, who all testified on Mr. Sediqyar’s behalf, claimed that prior to the accident Mr. Sediqyar was a good father, husband, and worker. He helped his children and wife and supported members of his family. He was active, fun loving, would go to the beach 2 times per week, and would swim, play soccer and volleyball.

Mr. Sediqyar claims that he had no back pain prior to moving to Canada in 2002. He admits to having problems with his lower back prior to the motor vehicle accident, but the issues were not troubling so he claims he did not tell his medical practitioners about the pain.

(i) Dr. Phillip Mah

Dr. Phillip Mah was Mr. Sediqyar’s family doctor from April 2009 to February 2012. In evidence at this hearing, Dr. Mah stated that an MRI of Mr. Sediqyar’s back in 2005 indicated that Mr. Sediqyar had a disc problem. The MRI was not put into evidence at the hearing. Dr. Mah notes in his records⁴ that Mr. Sediqyar saw him on April 15, 2009 for back and knee pain. On April 20, 2009, Dr. Mah’s notes indicate that Mr. Sediqyar was suffering from degenerative disc disease in his back. Dr. Mah’s notes indicate that he referred Mr. Sediqyar to an orthopaedic surgeon named Dr. Kaidish on April 20, 2009. At the hearing Mr. Sediqyar stated that he does not recall ever seeing Dr. Kaidish.

On September 28, 2009, Dr. Mah again saw Mr. Sediqyar for back pain and on October 7, 2009 and February 22, 2010, Dr. Mah prescribed Mobicox for the back pain, although Mr. Sediqyar states that he does not recall the October 7, 2009 Mobicox prescription. Dr. Mah’s opinion is that Mr. Sediqyar had lumbar disc problems prior to the motor vehicle accident that affected Mr. Sediqyar’s pre-accident activities. However, he is of the opinion that Mr. Sediqyar’s health was good prior to the accident.

Dr. Mah saw Mr. Sediqyar 2-3 days after the motor vehicle accident for treatment of lower back and knee pain. Mr. Sediqyar also had some problems with his neck. Since the accident, Mr. Sediqyar states that he has not been able to spend time with his children. In addition, he cannot be as active and has to take medication. Since the accident, he claims that he cannot bend to the floor, cannot lift heavy objects and if he sits too long his back pain will increase. In the 18 months to 2 years after the accident, he claims that he has attempted to do activities but has had severe pain. He states that a 10 minute walk will lead to lower back and knee pain. He claims to now take Gabapentin, Celebrex, Pregabalin and Ratio-Lenoltec to deal with the issues that have arisen since the accident. Since the accident he has had 1 knee operation and 3 hernia operations. He states that he is scheduled for a back operation in the future.

Dr. Mah’s post-accident notes indicate that he ordered a CT scan of Mr. Sediqyar’s back on July 27, 2010. The results⁵ indicated mild degenerative wear and tear and spondylolyses, which is mild displacement of the vertebrae. Dr. Mah noted that this condition could have been present prior to the accident, however his opinion is that Mr. Sediqyar’s back condition worsened after the accident. Dr. Mah’s March 23, 2011 notes reference a previously completed knee x-ray. The record for the x-ray was not presented at the hearing. An August 9, 2011 knee x-ray shows slight osteoarthritic changes to the medial compartment of Mr. Sediqyar’s left knee. Dr. Mah remarked at the hearing that osteoarthritis can be from wear and tear. Dr. Mah again noted in his October 2, 2011 disability certificate that Mr. Sediqyar suffered from lumbar strain, shoulder pain, neck strain and knee pain and strain.⁶ Dr. Mah concluded in the disability certificate that Mr. Sediqyar would suffer a 9-12 week complete inability to engage in substantially all of the activities in which he ordinarily engaged before the accident.

(ii) Dr. Thomas Blau

Dr. Thomas Blau, chiropractor at Rouge Valley Rehabilitation Centre, saw Mr. Sediqyar soon after the accident and completed a disability certificate.⁷ Dr. Blau noted that Mr. Sediqyar had difficulty with bending, twisting, sustained right arm reaching, and prolonged sitting, standing and walking. Dr. Blau did not address the non-earner test, but instead stated that Mr. Sediqyar would be substantially unable to engage in his pre-accident employment for 9-12 weeks.

(iii) Dr. Karen Lin

Dr. Karen Lin gave evidence on Mr. Sediqyar’s behalf. She first saw him on January 13, 2010. She prescribed a number of medications for Mr. Sediqyar, including arthrotec (an anti-inflammatory drug), celebrex and naproxen. She also prescribed medication for depression and sleeping difficulties. Dr. Lin’s physical examination of Mr. Sediqyar revealed “nothing in particular” although Mr. Sediqyar complained about his knee occasionally giving way when walking. She diagnosed knee osteoarthritis on March 8, 2011, although she could not be certain of when the osteoarthritis began.

(iv) Dr. Ian Harrington

Mr. Sediqyar had an MRI of his left knee completed on May 3, 2012,⁸ which showed a complex tear and the development of tri-compartmental osteoarthritis. Dr. Ian Harrington commented on the MRI in his report, dated June 26, 2012.⁹ Dr. Harrington noted that Mr. Sediqyar had full range of motion of his left knee, although he complained of pain. Dr. Harrington also stated that his neurological assessment of Mr. Sediqyar’s lower extremities was normal. Dr. Harrington’s conclusion was that Mr. Sediqyar’s knee pain was likely due to a complex tear involving the posterior horn of the medial meniscus.

Dr. Paul Marks and Dr. G. Ilacqua both testified at the hearing. I will discuss their evidence in the following section.

(d) Mr. Sediqyar’s credibility

In arbitration hearings an applicant’s credibility is vital, especially so when there are competing medical opinions. As stated in Faryna v. Chorny:¹⁰

The credibility of [an] interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried the conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

I have had an opportunity to subject Mr. Sediqyar’s story to a test of credibility.

First, I find Dr. Marks’ and Dr. Ilacqua’s evidence convincing in this case. Drs. Mark and Ilacqua both found that Mr. Sediqyar engaged in symptom magnification when examined. Dr. Marks found specifically that Mr. Sediqyar can function at a higher level than he demonstrated.

Dr. Marks completed an examination and report on behalf of the Insurer, dated October 6, 2011.¹¹ Dr. Marks’ report states that there were no organic signs that supported Mr. Sediqyar’s behaviour. Dr. Marks found that there was a discrepancy between Mr. Sediqyar’s responses when he was asked to do straight leg raising in the sitting and supine positions. In addition, both Mr. Sediqyar’s shoulders would be tender when palpated in one instance, yet there would be no response when they were palpated again. Dr. Marks opined that the small central disc herniation in Mr. Sediqyar’s back is common for his age group. In addition, it is extremely rare to get a meniscal tear from a motor vehicle accident and it is distinctly uncommon for knee problems to appear 2 years after an accident. Dr. Marks’ conclusion is that Mr. Sediqyar’s issues are a result of long-standing degenerative issues. Dr. Marks found no evidence of any significant accident-related orthopaedic injury, impairment or disability. Dr. Marks considered this in the context of Mr. Sediqyar’s significant pain behaviours and multiple discrepancies on testing. From an orthopaedic perspective, Dr. Marks found Mr. Sediqyar medically cleared to resume all of his pre-accident activities without restriction.

Dr. Ilacqua completed a psychological report for the Insurer, dated October 11, 2011.¹² Dr. Ilacqua found that Mr. Sediqyar engaged in symptom magnification, although he allowed that this could have been due to cultural and language barriers. Dr. Ilacqua concluded that Mr. Sediqyar’s emotional symptoms are not severe enough to prevent him from engaging in his pre-accident activities.

I find that Mr. Sediqyar has not presented evidence to persuade me that his osteoarthritis and the meniscal tear in his knee are accident related. Mr. Sediqyar consulted his doctor for back and knee issues in 2009. The doctors who testified on his behalf noted that his conditions could very well have predated the accident.

I also find that Mr. Sediqyar has not presented evidence to persuade me that his osteoarthritis, back pain and knee condition are accident related and have continuously prevented him from engaging in activities he ordinarily engaged in before the accident.

Second, I also find Mr. Sediqyar’s claims to be inconsistent and not reasonable.

Mr. Sediqyar claimed in evidence that he is still affected by the motor vehicle accident and that he has difficulties engaging in his pre-accident activities. I find that he has not presented enough evidence to substantiate his claims.

Mr. Sediqyar listed his pre-accident activities as spending time with his family, in particular taking care of his ill daughter. He also stated that he engaged in swimming, soccer, volleyball and going to the beach. In considering the evidence, I find that the most important activity in Mr. Sediqyar’s life was taking care of his daughter and spending time with his family. I find that Mr. Sediqyar has not persuaded me that his back and knee pain continuously prevent him from engaging in these activities. In addition, I do not find that Mr. Sediqyar was as regularly active with sports and physical activity prior to the accident as he claims. Zarmina Mohammad, Basir Mohammad, and Mujghan Pirmohammadi, all seem to have rehearsed their evidence and all gave evidence about Mr. Sediqyar’s activity level in the same way.

In addition, Mr. Sediqyar did not put his 2005 MRI into evidence, which could have clarified the extent of his pre-accident back condition. Nor did he elaborate on seeing Dr. Kaidish for back issues prior to the motor vehicle accident. He claims he could not remember the referral or visit. I am not convinced that Mr. Sediqyar would forget a referral for an issue about which he had consulted his own doctor on a number of occasions. I find that Mr. Sediqyar experienced back problems prior to the accident that, in all likelihood, prevented him from being as active as he claims.

At an examination under oath conducted May 10, 2013,¹³ Mr. Sediqyar undertook to provide his Ontario Works file for 1 year prior to the motor vehicle accident. Producing this file could have corroborated Mr. Sediqyar’s claim that he was not in receipt of Ontario Works benefits because of physical disability. In addition to not producing the Ontario Works file, Mr. Sediqyar did not make his daughter or his spouse available for testimony. Evidence from these parties would have assisted in substantiating Mr. Sediqyar’s claims about his pre-accident activities. I draw an adverse inference from Mr. Sediqyar not producing the file or the witnesses as requested by the Insurer. I find that Mr. Sediqyar did not produce the file or the witnesses in an attempt to tailor the evidence presented at the hearing for his benefit.

The Insurer also conducted surveillance of Mr. Sediqyar.¹⁴ On April 26, 2013, Mr. Sediqyar is seen going to what he claims is his nephew’s workplace at 8:25 a.m. He carried what appeared to be a lunch bag. In giving evidence, Mr. Sediqyar claims to not remember what was in the bag. He claims that the contents might have been water or medications, but not lunch. He also carried tools that he claims belong to his nephew. Mr. Sediqyar left the work site at 4:53 p.m. He states that he waited in the garden of the location until his nephew arrived. Mr. Sediqyar states that he was not working but that he wanted to be active and left the house. At his examination under oath, Mr. Sediqyar stated that he had gone to the work site to see his nephew, and since his nephew was not there when he arrived, he left and went back later. At this hearing, Mr. Sediqyar claims that he stayed at the work site the entire day waiting for his nephew. The only time Mr. Sediqyar is seen leaving the location is at 4:53 p.m.

Mr. Sediqyar’s explanation for his activities under surveillance are simply not consistent or credible. He claims that he experiences difficulty sitting for long periods and walking. Yet, he remained at what appears to be a work site for an entire work day. Prior to the hearing, Mr. Sediqyar undertook to provide the complete address and telephone number for his nephew, Mortaza Sediqyar. When the Insurer attempted to serve Mr. Sediqyar’s nephew on June 18, 2013, the process server was advised that Mr. Sediqyar’s nephew was no longer at that address. Mr. Sediqyar’s nephew did not appear at this hearing.

I draw an adverse inference from Mr. Sediqyar’s nephew not being produced for cross-examination. I find that his failure to attend is another attempt by Mr. Sediqyar to tailor the evidence in this hearing for his benefit.

I find that Mr. Sediqyar is not as impaired as he claims. I also find that he does not suffer a complete inability to carry on a normal life as a result of this accident and has not sustained an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

Is Mr. Sediqyar entitled to an attendant care benefit in the amount of $836.57 per month from June 25, 2010 to August 8, 2010 and January 19, 2011 to June 24, 2012?

(a) The test for entitlement to attendant care benefits

The Schedule states that an insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit. The benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person for the services of an aide or attendant. The monthly amount of the benefit shall be determined in accordance with a Form 1. Within 10 days of receiving a Form 1, an insurer is required to give the insured person notice of what it will or will not pay or advise the insured person that the insurer requires the insured person to be assessed in relation to the benefit. An insurer is not required to, but may pay an expense incurred prior to a Form 1 being submitted.

Mr. Sediqyar claims attendant care benefits in the amount of $836.57 per month from June 25, 2010 to August 8, 2010 and January 19, 2011 to June 24, 2012. The Insurer received an attendant care assessment report and Form 1 from Mr. Sediqyar, by fax dated August 16, 2010.¹⁵ The Insurer asserts that it paid attendant care benefits from August 9, 2010 to January 18, 2011, which is the date the Insurer conducted an assessment.

(b) Medical witnesses

Dr. Leon Kushnir completed the attendant care assessment report on behalf of Mr. Sediqyar. He found that Mr. Sediqyar had a range of motion rated as 71-91%. He stated that Mr. Sediqyar needed assistance with dressing, cutting toenails, preparing meals, bathroom and bedroom cleaning and with scheduling attendant care. He also noted that Mr. Sediqyar had the ability to sit for only 15 minutes, could only stand briefly and did not demonstrate the ability to push, pull, lift, carry or sustain a vertical reach. He recommended $836.57 per month in assistance.

Kim Teggelove completed an in-home assessment on behalf of the Insurer dated January 18, 2011.¹⁶ She recommended no attendant care. She noted that Mr. Sediqyar will have ongoing difficulty with tasks requiring back bending, as well as activities requiring heavier pushing, pulling, lifting and carrying. However, she also noted that he reported being independent with all personal care tasks, although he reported occasionally asking for assistance to dress, undress and wash his face when feeling unwell. In response to Dr. Kushnir’s assessment, Ms. Teggelove was of the opinion that allotting 20 minutes a week for trimming toenails seemed excessive, since Mr. Sediqyar had no special requirements like soaking his feet because of diabetes. Further, that allotting the maximum time to Mr. Sediqyar for coordinating attendant care was out of the ordinary. Nothing suggested that Mr. Sediayar had sustained injuries that would require someone to arrange his attendant care services for him. She recommended assistive devices, but no attendant care. She also recommended a reassessment once Mr. Sediqyar received the devices.

The reassessment was conducted by Shauna Watt and she completed a report dated October 3, 2011.¹⁷ Ms. Watt found that Mr. Sediqyar provided sub-maximal effort on testing and that there were inconsistencies between formal range of motion testing and informal observations. Mr. Sediqyar demonstrated a full range of motion informally including bending fully at his back when getting into a squatting and kneeling position. However, he denied the ability to bend more forward than his upper thighs when she requested formal observation of his back range of motion. For grip strength, Mr. Sediqyar would shake his entire arm in an attempt to indicate full effort, while providing minimal grip strength, which was evidenced by minimal knuckle blanching and tendon protrusion. His grip strength scores indicated below the 10th percentile for his age category, however he was observed to have functional grip strength during the assessment. She found that he had no range of motion deficits or limitations and no deficits in manual muscle testing. She also noted that assistive devices were recommended for Mr. Sediqyar in the prior assessment, yet he denied attempting to use them. Ms. Watt therefore found no substantial inability to engage in his attendant care activities.

The witnesses who testified at the hearing as Mr. Sediqyar’s service providers gave inconsistent evidence. Mujghan Pirmohammadi states that she spent at least 5 hours per day on her tasks with Mr. Sediqyar. She claims to have engaged in a variety of tasks. She claims to have ironed clothes, supervised the children and provided food to Mr. Sediqyar. On his psychological assessment, Mr. Sediqyar stated that his spouse did the majority of the housekeeping and childcare tasks with “someone” coming in to help.¹⁸ However, at the hearing, Ms. Pirmohammadi claims that she did not see Mr. Sediqyar’s wife do dishwashing, laundry or perform bed changes. She states that Mr. Sediqyar’s wife only provided instructions on housekeeping and childcare tasks.

Zarmina Mohammad also submitted attendant care invoices. She states that she provided services 10 hours per week and perhaps more up to the summer of 2012. She also states that Mr. Sediqyar’s wife only supervised tasks, contrary to Mr. Sediqyar’s report. She also claims that at times she physically had to feed Mr. Sediqyar, although she could not remember how many times or when she last fed him.

Basir Mohammad claims to have spent 7 hours per day, 7 days per week providing services to Mr. Sediqyar. He claims to have gotten into the shower to help Mr. Sediqyar bathe for 30-40 minutes per day. He claims that he spent up to 18 hours per week engaging in caregiving tasks.

(d) Analysis

I agree with Ms. Teggelove’s assessment in this case and find that Dr. Kushnir’s recommendations were excessive, particularly since Dr. Kushnir found Mr. Sediqyar to have a range of motion of 71-90%. I find that the Insurer had no obligation to pay attendant care benefits prior to receiving a Form 1, and further that the Insurer properly terminated the benefit after receiving Ms. Teggelove’s report. I find that Mr. Sediqyar could function at a higher level than he demonstrated. His evidence in this case and his performance in his assessments are attempts to bolster his case and do not reflect his true level of impairment.

I place no weight on the service providers’ evidence in this case. I find that their accounts are not credible or consistent. I find that, even if I accept Dr. Kushnir’s assessment, the number of hours the service providers claim they spent caring for Mr. Sediqyar are far more than what would be required. I am not persuaded that Basir Mohammad spent the majority of his time off work assisting Mr. Sediqyar. Nor am I convinced that he entered the shower with Mr. Sediqyar when Mr. Sediqyar had access to assistive devices and admits to not having used them. Zarmina Mohammad claims she assisted Mr. Sediqyar up to the summer of 2012, although Mr. Sediqyar is seen in surveillance in April 2012 appearing active. Her claim that she also had to physically feed Mr. Sediqyar is just not believable considering that no assessor ever suggested that he warranted such care.

In considering the evidence, I find that Mr. Sediqyar’s claims for an attendant care benefit are not reasonable and necessary. He is therefore, not entitled to the attendant care benefits he claims.

Is Mr. Sediqyar entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from June 25, 2010 to July 18, 2010 and $24.00 per week from September 13, 2010 to October 30, 2011 and $100.00 per week from October 31, 2011 to June 24, 2012?

(a) The test for entitlement to housekeeping and home maintenance benefits

Mr. Sediqyar must satisfy three elements in order to prove entitlement to housekeeping and home maintenance benefits. He must have performed housekeeping and home maintenance services before the accident. He must suffer a substantial inability to perform those housekeeping and home maintenance services, as a result of an accident-related impairment. He must also have incurred additional expenses for someone else to perform those services.¹⁹

Mr. Sediqyar claims $100.00 per week from June 25, 2010 to July 18, 2010 and $24.00 per week from September 13, 2010 to October 30, 2011 and $100.00 per week from October 31, 2011 to June 24, 2012. Neither Mr. Sediqyar nor the Insurer clarified why Mr. Sediqyar claims benefits from June to July 18, 2010. The Insurer terminated benefits with Ms. Shauna Watt’s October 3, 2011 reassessment report.²⁰

(b) Analysis

I am not persuaded that Mr. Sediqyar was responsible for the housekeeping duties in his home prior to the accident. I find that the evidence concerning housekeeping responsibility is conflicting and inconsistent.

In some instances Mr. Sediqyar stated that he assisted his wife considerably with housekeeping duties prior to the accident. In other instances he claims that he did not spend much time on housekeeping duties because of his sick daughter. At his examination under oath, Mr. Sediqyar claimed that his wife cooked in the pre-accident period. In giving evidence, he claims that he did the cooking prior to the accident. Several of the service providers who gave evidence on Mr. Sediqyar’s behalf gave testimony that conflicted with Mr. Sediqyar’s claims when he was examined by medical assessors.

As with his attendant care claim, I find that Mr. Sediqyar could function at a higher level than he demonstrated. His evidence in this case and his performance in his assessments are attempts to bolster his housekeeping claim and do not reflect his true level of impairment.

I also place no weight on the service providers’ evidence in this case. I find that their accounts are not credible or consistent.

I find that Mr. Sediqyar is not entitled to his housekeeping and home maintenance claim for benefits.

SPECIAL AWARD

I have already found that Mr. Sediqyar is not entitled to any of his benefit claims. Since there are no benefits on which to base a special award, I find that a special award is not payable in this case.

EXPENSES:

The parties made no submissions on expenses. They are encouraged to resolve the issue. If they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

April 29, 2014

Lloyd (J.R.) Richards Arbitrator

Financial Services Commission of Ontario