Neutral Citation: 2014 ONFSCDRS 79 FSCO A12-007779

BETWEEN:

AHMAD JAWID ATA MOHAMMAD Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Richard Feldman Heard: February 24 and 25, 2014, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Ahmadreza Bazyar (licensed paralegal) and Shahen Alexanian (solicitor) for the Applicant Jonathan Schrieder for the Insurer

Issues:

The Applicant, Ahmad Jawid Ata Mohammad, was involved in a motor vehicle accident on April 16, 2010. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and the Applicant 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 the Applicant entitled to receive weekly caregiver benefits at the rate of $350.00 from March 23, 2011 to April 16, 2012 for the services provided by Faisal Baba Satar?
Is the Applicant entitled to attendant care benefits at the rate of $504.73 per month from March 7, 2011 through April 16, 2012 for the services provided by Faisal Baba Satar?
Is the Applicant entitled to receive payments for housekeeping and home maintenance services at the rate of $100.00 per week from March 23, 2011 through April 16, 2012 for the services provided by Faisal Baba Satar?
Is the Applicant entitled to receive a medical benefit for the following with respect to treatment plans from Kia Wellness Centre Inc. (“Kia Wellness”):

a. $263.72 for completion of a disability certificate dated December 11, 2010?

b. $285.00 for a progress report pursuant to a plan dated March 21, 2011?

c. $2,219.97 for treatment recommended on November 26, 2010?

d. $1,232.75 for treatment recommended in a plan dated February 18, 2011?

e. $742.32 for treatment recommended in a plan dated March 24, 2011?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is the Insurer liable to pay the expenses of the Applicant in respect of the arbitration under s. 282(11) of the Insurance Act?
Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration under s. 282(11) of the Insurance Act?

Result:

The Applicant’s claims are dismissed.
The issue of expenses is deferred.

EVIDENCE AND ANALYSIS

Background

In 2008, the Applicant and his family moved to Canada. He began studying English while his wife cared for their two children. They lived in a two bedroom apartment. In July 2009, the Applicant and his wife had a third child and, according to the Applicant, he effectively discontinued his studies in order to help care for the two older children (then aged 2 and 4) and to assist more with housekeeping chores so that his wife could devote her full attention to their newborn child. This was still the situation when the Applicant was involved in a motor vehicle accident on the evening of April 16, 2010.

The Applicant was a rear-seat, seat-belted passenger in a car that was rear-ended. According to the Applicant, the collision was of medium severity. He testified that he did not strike any part of his body on the inside of the vehicle. He testified that, at the time, he did not feel anything. He took a taxi home and went to sleep. According to the Applicant, the next morning he began to feel pain in his head, neck, left shoulder, lower back, left hip and feet. He did not go to see his family physician about these complaints. Within a week, however, he had begun treatment at a rehabilitation clinic, had retained a legal representative and had filed a claim with State Farm for accident benefits.

The facilities attended by the Applicant (Kia Wellness Centre Inc. and EZ Healthcheck Inc.) immediately began submitting proposals to State Farm for all sorts of assessments² and extensive treatment³. In addition, within a month of the accident, it was recommended by these facilities that the Applicant receive assistance with housekeeping ($100.00 per week) and caregiving tasks ($350.00 per week) and the Applicant's assessors also stated that he required some attendant care (i.e., he required some assistance with his own personal care) at the rate of $504.73 per month.

In good faith, for the first 10 months or so after the accident, the Insurer agreed to pay for most of the requested assessments and approved most of the treatment plans that were submitted to it. In total, the Insurer has paid over $30,000 for treatment (which does not include the cost of assessments). According to the Applicant, none of the treatment he has received has done much to improve his condition. For almost a year after the accident (i.e., until March 2011), the Insurer also paid to the Applicant the housekeeping and home maintenance benefits, caregiver benefits and attendant care benefits he claimed.

Although there are a few treatment plans from Kia Wellness that are in dispute, during this hearing, the focus of the parties was on whether the Applicant is entitled to housekeeping and home maintenance, caregiver and attendant care benefits for any period after those benefits were terminated by the Insurer.

At the hearing, I heard testimony from the Applicant. He called no other witnesses and adduced no documents (he was content to rely upon the documents filed by the Insurer). The Insurer called the Applicant's (former) family doctor (Dr. Vali Satei) as its only witness. I have reviewed all of the documents that were filed and marked as exhibits during this hearing.

Credibility and Sufficiency of the Applicant’s Evidence

The preponderance of the evidence suggests that, at most, the Applicant suffered only soft-tissue injuries in the accident. He claims that these injuries resulted in chronic pain and psychological impairment. His complaints, however, are entirely subjective. No objective evidence of injury or impairment has been adduced. In the absence of objective evidence, the credibility of the Applicant is crucial and it is due to a lack of credible evidence that the Applicant's claims fail.

Failure of Applicant to Disclose Pre-accident History

The Applicant failed to disclose to any of his treating or assessing medical professionals his significant history of pre-accident chronic pain in his low back, left hip, scrotum and heels (including complaints as little as seventeen days prior to the accident). Consequently, these professionals assumed that all of the Applicant's complaints were attributable to the accident. Each of their reports indicate that the Applicant's medical history is “unremarkable”. It was not until the Insurer obtained the clinical notes and records of the Applicant's former family physician (Dr. Vali Satei) that this pre-accident history came to light. It raises serious questions both about the cause of the Applicant's alleged symptoms and about his credibility and reliability as a historian. It also means that little, if any, weight can be given to the opinions of medical professionals who clearly were not provided by the Applicant with an accurate, relevant medical history.

Failure of Applicant to Advise Family Doctor about April 2010 Accident

Despite several visits to Dr. Satei following the April 2010 accident (including a visit in July 2010 to complain about left hip pain and testicular pain), the Applicant did not advise Dr. Satei until July 2011 that he was involved in a motor vehicle accident in April 2010. It is the Applicant's contention that he sustained impairments that necessitated extensive treatment,⁴ prevented him from engaging in his pre-accident housekeeping, caregiving and personal care activities and required him to hire a service provider to be in his home over 50 hours each week; I therefore find it to be highly suspicious that the Applicant would not bother mentioning any of this to his family physician for over a year. When the Applicant did see Dr. Satei following the accident, most of his complaints were the same as they had been before the accident: chronic pain in his low back, left hip, testicle(s) and heels.

Applicant’s Unreliable Records

The forms submitted by the Applicant to the Insurer concerning the housekeeping and caregiver services purportedly provided by his service provider, Faisal Baba Satar, are unreliable and can be given no weight. The Applicant admitted before me that the forms do not accurately reflect the nature of the services provided or the number of hours of those services.⁵ Accurate records were supposedly kept by both the Applicant and Mr. Satar but those records were not produced at this hearing and the Applicant testified that he could not recall details about the services provided by Mr. Satar, the hours he worked or the compensation agreed upon. Presumably, Mr. Satar or the Applicant's wife could have assisted by testifying concerning these issues but neither was called as a witness by the Applicant.

Applicant’s Exaggerated Claim for Caregiver Benefits

The Applicant testified that, prior to the accident, his wife was the primary caregiver for their youngest child (Maryam). Since, by his own admission, he was the primary caregiver for two of his three children, the most that he ought to have claimed for caregiver benefits was $300.00 per week. He claimed and was paid $350.00 per week (until this benefit was terminated in March 2011). The Applicant's failure to disclose these facts until the hearing also impacts upon my assessment of his credibility.

Problems with Report of Dr. Steve Blitzer

For medical support of his claims, the Applicant relies almost entirely upon the opinion of Dr. Steve Blitzer. In fact, the only opinion evidence relevant to this issue obtained by the Applicant after March 2011 appears to be contained in the report of Steve Blitzer, dated January 21, 2014.

Dr. Blitzer, however, relies almost entirely upon and merely repeats the subjective complaints of the Applicant; as such, his opinion is only as reliable as the information provided by the Applicant. As previously indicated by me in these reasons, the Applicant was not a reliable historian or a credible witness. It appears that neither the Applicant nor his legal representatives advised Dr. Blitzer of the Applicant’s relevant pre-accident history of chronic pain and that the clinical notes and records of Dr. Satei were not provided to Dr. Blitzer. The Applicant has failed to adduce any medical evidence to address the causation issue that arose by the relatively late disclosure of the Applicant's pre-accident medical history.

For all of these reasons, I give little weight to the opinion of Dr. Blitzer.

Caregiver Benefits

An insured person can claim caregiver benefits if, at the time of the accident, they are residing with and are the primary caregiver for a person in need of care and, as a result of the accident, they suffer a substantial inability to engage in the caregiving activities in which they engaged at the time of the accident. The benefit is determined by the reasonable and necessary expenses incurred as a result of the accident in caring for the person in need of care and is calculated as up to $250.00 per week for the first person in need of care and up to an additional $50.00 per week for each additional person in need of care.

In this case, the Applicant claimed caregiver benefits at the maximum rate for three children ($350.00 per week) and was paid this amount by the Insurer from April 17, 2010 through March 23, 2011 (a total of $15,700.00).

These benefits were terminated by the Insurer as of March 23, 2011 on the basis of opinions from an orthopaedic surgeon, occupational therapist and psychologist who conducted examinations of the Applicant in February and March 2011. None of these assessors could find any objective or reliable evidence of impairment. They concluded that the Applicant did not suffer a substantial inability to engage in the caregiving activities in which he engaged at the time of the accident. It was on this basis (and without yet discovering the Applicant's pre-accident medical history) that this benefit was terminated. Of course, lack of objective evidence is not determinative and the Applicant could have succeeded if his own testimony was both detailed and credible.

After termination of these benefits, the Applicant submitted additional claims at $350.00 per week from March 23, 2011 through December 1, 2011. These were all denied by the Insurer. The Applicant is seeking an order for payment of caregiver benefits at the rate of $350.00 per week from March 23, 2011 to April 16, 2012⁶ (104 weeks post-accident) for the services allegedly provided by Faisal Baba Satar. By his own testimony, however, the Applicant's claim was, at best, for two children, not three; thus, the most that the Applicant can legitimately claim is $300.00 per week from March 23, 2011 to April 16, 2012.

The Applicant has failed to adduce sufficient, credible evidence to meet his onus of proof. He has failed to produce sufficient medical evidence to rebut the opinions of the Insurer's assessors. The only opinion evidence relevant to this issue obtained by the Applicant after March 2011 appears to be contained in the report of Dr. Steve Blitzer, dated January 21, 2014. I have previously explained why I give little weight to the opinion of Dr. Blitzer in this case.

The Applicant has also failed to adduce sufficient, credible evidence concerning: what caregiver services, if any, were needed; what caregiver services, if any, were provided by Mr. Satar; and what reasonable and necessary expenses, if any, were incurred in this regard. The Applicant's testimony was uncorroborated by any other witnesses or by any reliable documentary evidence.

For these reasons, the Applicant's claim for caregiver benefits is dismissed.

Attendant Care Benefits

An insured person can claim attendant care benefits for all reasonable and necessary expenses incurred (as a result of impairments caused by an accident) for services provided by an aide or attendant in an amount determined in accordance with Form 1.

In this case, the Applicant claimed caregiver benefits at the rate of $504.73 per month in accordance with a Form 1 dated April 30, 2010. He was paid this amount by the Insurer from May 26, 2010 (the date the Insurer received this Form 1) through January 30, 2011. Then, in accordance with a new Form 1 dated January 22, 2011, the Insurer paid attendant care benefits of $448.39 per month from February 1, 2011 through March 7, 2011. In total, the Insurer paid $4,766.58 in attendant care benefits.

These benefits were terminated by the Insurer as of March 7, 2011 on the basis of opinions from an orthopaedic surgeon and an occupational therapist who conducted examinations of the Applicant in February 2011. Neither of these assessors could find any objective or reliable evidence of impairment. It was on this basis (and without yet discovering the Applicant's pre-accident medical history) that this benefit was terminated. As previously indicated, lack of objective evidence is not determinative and the Applicant could have succeeded if his own testimony were detailed and credible.

After termination of these benefits, the Applicant submitted additional claims at the rate of $504.73 per month from February 24, 2011 through November 30, 2011. These were all denied by the Insurer. The Applicant is seeking attendant care benefits at the rate of $504.73⁷ per month from March 7, 2011 through April 16, 2012⁸ (104 weeks post-accident) for the services allegedly provided by Faisal Baba Satar.

According to both Form 1's, $154.63 per month was related to assistance with stretching and home exercise. The balance of the recommended assistance was related to personal care. The Applicant testified, however, that he only required assistance with personal care for about one to two months after the accident. In February 2011, he reported to his own assessor, Dr. Majl (neurologist), that he was independent in personal care activities. Therefore, according to the Applicant, except for the first couple of months immediately following the accident, the only attendant care assistance he required was with respect to stretching and home exercise. Based upon this admission, the most that the Applicant can reasonably claim beyond March 7, 2011 is $154.63 per month.

He actually required assistance with stretching or required any other attendant care;
Mr. Satar actually provided attendant care beyond March 7, 2011; and
Even if the Applicant did require some attendant care beyond March 7, 2011, that this need was related to impairments caused or exacerbated by the April 2010 accident.

For these reasons, the Applicant's claim for attendant care benefits is dismissed.

Housekeeping and Home Maintenance Benefits

An insured person can claim housekeeping and home maintenance benefits (up to a maximum of $100 per week) for reasonable and necessary additional expenses incurred if, as a result of an accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

In this case, the Applicant claimed housekeeping and home maintenance benefits at the maximum rate ($100.00 per week) and was paid this amount by the Insurer from April 17, 2010 through March 23, 2011 (a total of $4,766.58).

These benefits were terminated by the Insurer as of March 23, 2011 on the basis of opinions from an orthopaedic surgeon, occupational therapist and psychologist who conducted examinations of the Applicant in February and March 2011. None of these assessors could find any objective or reliable evidence of impairment. They concluded that the Applicant did not suffer a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident. It was on this basis (and without yet discovering the Applicant's pre-accident medical history) that this benefit was terminated.

After termination of these benefits, the Applicant then submitted additional claims at $100.00 per week from March 23, 2011 through December 1, 2011. These were all denied by the Insurer. The Applicant is seeking an order for payment of housekeeping and home maintenance benefits at the rate of $100.00 per week from March 23, 2011 to April 16, 2012⁹ (104 weeks post-accident) for the services allegedly provided by Faisal Baba Satar.

The Applicant has failed to adduce sufficient, credible evidence to meet his onus of proof. He has failed to produce sufficient medical evidence to rebut the opinions of the Insurer's assessors, especially that of Tony Jung, an occupational therapist, who had the opportunity to observe the Applicant in his home, performing housekeeping activities. The only opinion evidence relevant to this issue obtained by the Applicant after March 2011 appears to be contained in the report of Dr. Steve Blitzer, dated January 21, 2014.¹⁰ I have previously explained why I give little weight to the opinion of Dr. Blitzer in this case.

The Applicant has failed to adduce any medical evidence to address the causation issue that arose by the relatively late disclosure of the Applicant's pre-accident medical history. The Applicant has also failed to adduce sufficient, credible evidence concerning: what housekeeping and home maintenance services, if any, were needed; what housekeeping and home maintenance services, if any, were provided by Mr. Satar; and what reasonable and necessary expenses, if any, were incurred in this regard. The Applicant's testimony was uncorroborated by any other witnesses or by any reliable documentary evidence.

For these reasons, the Applicant's claim for housekeeping and home maintenance benefits is dismissed.

Medical and Rehabilitation Benefits

An insurer is obliged to pay for all reasonable and necessary medical expenses incurred as a result of an accident (provided they are of a type specified in the regulations and in an amount that does not exceed the maximum permitted by the regulations).

The Applicant claims entitlement to payment for the following (in relation to Kia Wellness Centre Inc.):

a. $263.72 for completion of a disability certificate dated Dec. 11, 2010;

b. $285.00 for a progress report pursuant to a plan dated March 21, 2011;

c. $2,219.97 for treatment recommended on Nov. 26, 2010 (re rehabilitation and massage);

d. $1,232.75 for treatment recommended in a plan dated Feb. 18, 2011 (re exercise); and

e. $742.32 for treatment recommended in a plan dated March 24, 2011 (re acupuncture).

No witnesses from Kia Wellness appeared before me to testify about these expenses. The Applicant's only testimony even remotely related to these claims concerns the last item. He testified that, in general, he found acupuncture to be the mode of treatment that provided the most benefit to him, providing pain relief that would typically last 5 to 6 hours and, sometimes, up to one day.

There was no other explanation provided for any of these plans as to why the expense in question was reasonable and necessary at the time it was proposed. The Applicant's legal representative did not address these claims in his closing submissions.

In the absence of any evidence (other than the plans themselves) or arguments in support of these plans, I find that the Applicant has failed to meet his onus of proof. The Applicant has failed to adduce sufficient evidence to establish that these expenses were reasonable and necessary at the time they were proposed as a result of the April 2010 accident. Thus, these claims must also be dismissed.

Conclusion

Although the Applicant may have suffered soft tissue injuries in the accident of April 16, 2010 and experienced pain thereafter, based upon the evidence presented, I am satisfied that he received more than enough treatment for his accident-related complaints and, by the Applicant's own testimony, may have received more attendant care and caregiver benefits than he ought to have received. Due largely to a lack of credible evidence, the Applicant has failed to establish on a balance of probabilities that he is entitled to additional attendant care, caregiver or housekeeping and home maintenance benefits or any of the medical expenses he has claimed. For all of the foregoing reasons, the Applicant's claims shall be dismissed.

EXPENSES:

With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

May 9, 2014

Richard Feldman Arbitrator

ARBITRATION ORDER

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

The Applicant's claims are dismissed.
With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.