Ioura Rezgo v. Trafalgar Insurance Company of Canada, 2015 ONFSCDRS 31

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 31

FSCO A12-000880

BETWEEN:

IOURA REZGO

Applicant

and

TRAFALGAR INSURANCE COMPANY

OF CANADA

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: March 10-13 and May 5-8 and 16, 2014, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Alexei Antonov for Mr. Rezgo

Peter Durant for Trafalgar Insurance Company of Canada

Issues:

The Applicant, Ioura Rezgo, was injured in a motor vehicle accident on August 29, 2010. He applied for and received statutory accident benefits from Trafalgar Insurance Company of Canada (“Trafalgar”), payable under the Schedule.¹ Trafalgar terminated weekly non-earner benefits on June 14, 2011. The parties were unable to resolve their disputes through mediation, and Mr. Rezgo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The hearing in this matter was held jointly with that of Mr. Rezgo’s wife, Anna Tchouguianova, who was injured in the same accident.

The issues in this hearing are:

1. Is Mr. Rezgo entitled to non-earner benefits, from June 14, 2011, pursuant to section 12 of the Schedule?

2. Is Mr. Rezgo entitled to attendant care benefits, from August 30 to September 30, 2010 and from January 1, 2011 to August 29, 2012, at a rate of $849.03 per month, less amounts already paid, pursuant to section 16 of the Schedule?

3. Is Mr. Rezgo entitled to housekeeping benefits, from December 20, 2010 to March 6, 2011, at a rate of $65 per week, and from March 7, 2011 to August 29, 2012, at a rate of $100 per week, pursuant to section 22 of the Schedule?

4. Is Mr. Rezgo entitled to medical benefits for the following items from Metro Rehab, pursuant to section 14 of the Schedule?

• an OCF-3 (a disability certificate), dated September 3, 2010, in the amount of $200

• a treatment plan, dated October 5, 2010, in the amount of $840

• a treatment plan, dated January 13, 2011, in the amount of $1,363.66

5. Is Mr. Rezgo entitled to the cost of an attendant care assessment, by Assessment Direct, on August 31, 2010, in the amount of $1,054.24, pursuant to section 24 of the Schedule?

6. Is Trafalgar Insurance Company of Canada liable to a special award because it unreasonably withheld or delayed payments to Mr. Rezgo, pursuant to section 282(10) of the Insurance Act?

7. Is Mr. Rezgo entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

8. Is either party entitled to their expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

1. Mr. Rezgo is not entitled to non-earner benefits.

2. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo attendant care benefits, from August 30 to September 30, 2010, at a rate of $24.14 per month, less amounts already paid.

3. Mr. Rezgo is not entitled to housekeeping benefits.

4. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo medical benefits for a treatment plan, dated October 5, 2010, from Metro Rehabilitation Centre, in the amount of $840. Mr. Rezgo is not entitled to medical benefits for a Disability Certificate, dated September 3, 2010, in the amount of $200, or a treatment plan, dated January 13, 2011, in the amount of $1,099.94, from Metro Rehabilitation Centre.

5. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo the cost of an attendant care assessment, by Assessment Direct, on August 31, 2010, in the amount of $1,054.24.

6. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo a special award in respect of the August 31, 2010 attendant care assessment by Assessment Direct, in an amount to be determined.

7. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo interest on the benefits ordered to be paid.

8. 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. Rezgo’s Accident and Injuries

Mr. Rezgo was involved in a motor vehicle accident on August 29, 2010, when the car he was driving (with his wife, Anna Tchouguianova, as a passenger) was struck on the side while making a left hand turn into a parking lot. Mr. Rezgo was 67 years old at the time. He reported injuring his neck, left shoulder and low back, and suffered left hip pain and numbness, as well as headaches as a result of the accident. He said that, on the advice of his daughter, Stella Rezgo, he began treatment at Metro Rehabilitation Centre (“Metro Rehab”) approximately two days after the accident, because it was close to where he lived and they spoke his native language, Russian. He said that he also saw his family doctor, Dr. Oleg Klipitch, on September 1, 2010, for an appointment that had been set up before the accident, as he had just changed family physicians a short time before the accident. Mr. Rezgo testified that he told Dr. Klipitch about his accident and injuries, but Dr. Klipitch’s clinical notes for that day state “no complains today” [sic].

Mr. Rezgo testified that, before the accident, he did not have back pain, or any pain at all.

On February 7, 2014, Dr. D.E. Mula, a chronic pain specialist who assessed Mr. Rezgo at the request of his counsel, diagnosed Mr. Rezgo as suffering from the following:

Chronic Pain Syndrome

Chronic Post-Traumatic Headaches

Chronic Cervical Pain

Chronic Left Shoulder Pain, Rule Out Rotator Cuff Tear

Chronic Left Arm Pain

Chronic Left Medial and Lateral Epicondylitis

Chronic Left Upper Back Pain

Chronic Left Mid Back Pain

Chronic Lower Back Pain with Possible Disc Herniation/Left Lower Limb Radiculopathy

Chronic Bilateral Sacroiliac Joint Pain/Dysfunction

Chronic Left Hip Pain

Chronic Left Knee Pain

Chronic Sleep Disturbances

Chronic Mood Disturbances

Dr. Mula reported that Mr. Rezgo was “suffering from a debilitating chronic pain disorder that is most likely a result of his motor vehicle accident on August 29, 2010.”

Mr. Rezgo’s Credibility

The Insurer submitted that Mr. Rezgo’s evidence was not credible. I agree. I find a number of significant problems with Mr. Rezgo’s testimony, in terms of both its consistency and his general responsiveness to the questions put to him.

Mr. Rezgo gave several responses to Dr. Klipitch’s September 1, 2010 notation three days after the accident that he had no complaints that day, and to the fact that there were no other notes of the accident except for January 28, 2011, where it says “MVA August 29/2010” and “Feels well, compliant with medications.” At first, Mr. Rezgo said he told Dr. Klipitch about the accident, but that Dr. Klipitch was not interested in it. Then, upon being asked about Metro Rehab’s Disability Certificate on January 28, 2011 (noting a “complete inability to carry on a normal life”), he testified that “maybe Klipitch is confused.” Mr. Rezgo said that Dr. Klipitch “was never interested in the MVA” and that is “why [he] never mentioned it to him”, but then said that Dr. Klipitch had told him “[the accident] is my problem and to deal with them [Metro Rehab].” Mr. Rezgo also said that he told Dr. Klipitch about the accident, but then said “I don’t know” and that Dr. Klipitch did not ask or care about it.

Dr. G. Kumar, a cardiologist, who saw Mr. Rezgo on May 3 and July 19, 2012, listed

Mr. Rezgo’s past medical history as the following:

1. 2000 – Pneumonia

2. 2004 – Arthritis, which is now limited to his hands

3. 2007 – Type 2 diabetes mellitus

4. 2007 – Hypertension

5. 2007 – Dyslipidemia

When asked about why there was no mention of the accident, Mr. Rezgo said that he did not tell Dr. Kumar about the accident, because he was a cardiologist, but then said that he did tell Dr. Kumar about his accident-related pain. Mr. Rezgo had also testified that, before the accident, he had no pain and there was “nothing bothering [him].” Dr. Kumar reported Mr. Rezgo as saying the following:

His arthritis has limited his activity over the years, but now only his hands are affected and he has been going for walks when the weather is good. In the basement, he does some exercises a few days a week. With this level of activity, he denies any chest pains, palpitations, or shortness of breath.

Despite these visits being almost two years after the accident, and despite his testimony that he had not told Dr. Kumar about the accident, Mr. Rezgo testified that the reference to exercises in his basement was in relation to the period before the accident. Mr. Rezgo acknowledged

Dr. Kumar’s July 19, 2012 report that “[h]e did much better today on a stress test”, but Mr. Rezgo said he “couldn’t have been on a treadmill.” However, Mr. Rezgo also said that he “remember[s] doing it once”, but that he “couldn’t walk”, and “couldn’t complete it.” Mr. Rezgo also denied Dr. Kumar’s November 15, 2012 report that “[t]he patient is doing well.” Mr. Rezgo did not call Dr. Kumar to address these matters.

On February 14, 2011, Dr. G.F.J. Ruhr, a chiropractor who examined Mr. Rezgo at the request of the Insurer (and whose testimony I found very succinct and helpful) reported that Mr. Rezgo “scored positively on all 5 of Waddell’s tests of symptom magnification and non-organic pain (over-reaction, superficial tenderness, simulation, distraction and regional disturbances).” While Dr. Mula testified that there was nothing to indicate that Mr. Rezgo was malingering and that Mr. Rezgo was being completely candid, he also stated that he had only heard about Waddell’s tests for validity, and, in any event, did not think it was necessary to administer them. Dr. Ruhr testified that more than half of the various conditions Dr. Mula listed “aren’t even medical diagnoses” (for example, “chronic left arm pain” and “chronic left mid back pain”), and that a number of the enumerated “conditions” “weren’t even mentioned by the claimant when I examined him.”

Finally, despite very straightforward questions from Insurer’s counsel, Mr. Rezgo got angry when asked if he remembered certain things, stated that counsel was trying to “confuse” him, that he was “not a child” and that counsel could “not deceive [him]”. When counsel read Mr. Rezgo’s testimony back to him regarding his statement that, after the accident he was “like an invalid” (which Mr. Rezgo did, in fact, say), Mr. Rezgo said that counsel only “wrote it down this way”, but that he, himself, “didn’t say it this way.”

I find that these problems significantly undermine Mr. Rezgo’s credibility and that, as discussed more below in relation to his specific claims, his evidence is unreliable.

1. Mr. Rezgo’s Claim for Non-Earner Benefits

Mr. Rezgo claimed entitlement to non-earner benefits, from June 14, 2011. Pursuant to section 12(1)3 of the Schedule, an insurer is required to pay an insured person non-earner benefits if the person suffers a “complete inability to carry on a normal life” as a result of and within 104 weeks of the accident. Under section 2(4) of the Schedule, a person is considered to have suffered a complete inability to carry on a normal life if they have sustained an accident-related impairment that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

Mr. Rezgo maintained that, as a result of the accident, he was continuously prevented from engaging in substantially all of his ordinary pre-accident activities. The Insurer submitted that neither the personal nor medical evidence Mr. Rezgo provided was reliable and that he had not established the requisite degree of disability under the Schedule.

In the case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, [2009] 95 O.R. (3d) 785, the Court of Appeal set out the criteria for establishing entitlement to non-earner benefits, in part, as follows:

• Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

• Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

• In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

• It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life….The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”

• The phrase “engaging in” should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity.

I accept these as the guiding principles in determining Mr. Rezgo’s entitlement to non-earner benefits.

(i) Evidence

Mr. Rezgo testified that, on a typical day before the accident, he would go for walks for approximately an hour, go for picnics, take driving trips and go fishing. He said that he also did renovations around the house and used to work out in his basement gym. Mr. Rezgo testified that, after the accident, he could not go for a walk, go fishing or work out in his gym. He said that he stopped doing renovations. He said that he was sometimes taken out for picnics, and that he began driving again a couple of years after the accident.

Ms. Rezgo testified that her mother and father became inactive after the accident, not doing any hobbies, and just watching television or reading a book for a short time. She said that her father had done renovations around the house before the accident, most of which had been completed prior to the accident, but that his work on the main staircase had not yet been finished. Ms. Rezgo said her parents’ condition improved five months after the accident.

In a Disability Certificate dated September 3, 2010, Dr. S. Chan, a chiropractor at Metro Rehabilitation Centre, reported that Mr. Rezgo suffered a complete inability to carry on a normal life. However, Dr. Chan testified that he had not previously seen this Disability Certificate, and that there was nothing recorded in his assessment that would support a finding of a “complete inability to carry on a normal life.” Dr. M. Train, another chiropractor at Metro Rehab, restated this finding in a further Disability Certificate on January 28, 2011. Dr. Train testified that, in his view, if someone could not brush their teeth, this would amount to a complete inability to carry on a normal life. Further, in an internal Metro Rehabilitation Centre disability reassessment “questionnaire” form prepared the same day as Dr. Train’s Disability Certificate, Dr. Train noted that Mr. Rezgo did not suffer a complete inability to carry on a normal life. Dr. Train testified that staff at Metro Rehab were given this questionnaire to fill out the disability certificates. Dr. Train said that he did not see the Disability Certificate submitted and that his signature was electronically placed on the Certificate. Dr. Train also testified that the questionnaire was just based on questions asked of the patient, not on a physical examination.

On June 8, 2011, Dr. C. Osinga, an orthopaedic surgeon, reported as follows:

Mr. Rezgo does not have a complete inability to carry on a normal life. He is still able to perform his personal grooming and care. He is still ambulatory. However, based on today’s examination findings in the left shoulder, Mr. Rezgo should avoid performing heavy activities with the left shoulder…as well as overhead activities until the results of the MRI are known.

Dr. Osinga reported that even if Mr. Rezgo had a rotator cuff tear, it would be a small and minor impairment.

On February 7, 2014, Dr. Mula reported as follows:

…Mr. Rezgo reported entertaining family and friends only three or four times per month. In addition,…he stated he had not been back to the gym, nor had he engaged in recreational walking…did not go [to] the movies, go to restaurants, or take vacations, and he did not take any day trips….has not been fishing whatsoever since the motor vehicle accident, and…would attend his religious services only three times per year.

Based on the subjective and objective evidence before me, I am of the considered medical opinion that Mr. Rezgo did suffer from an impairment that resulted in a complete inability to carry on a normal life as a result of the motor vehicle accident…in light of his initial myofascial strain type injuries that had since evolved into a chronic pain condition….

Dr. Mula testified that Dr. Osinga’s findings should be qualified by the fact that he is an orthopaedic surgeon who does “not deal in chronic pain.”

(ii) Findings

I find that Mr. Rezgo is not entitled to non-earner benefits.

I do not accept that the injuries suffered by Mr. Rezgo in the accident continuously prevented him from engaging in substantially all of the activities in which he normally engaged before the accident.

While Mr. Rezgo’s daughter testified that her father became inactive after the accident, and contrary to Dr. Mula’s report, I accept Dr. Kumar’s report that Mr. Rezgo continued to work out in his basement gym after the accident. Mr. Rezgo had also told Dr. Mula that he entertained family and friends three or four times per month. Contrary to Dr. Mula’s report that Mr. Rezgo had not done any recreational walking or day trips after the accident, Mr. Rezgo testified that he had gone on some picnics after the accident. Contrary to Dr. Mula’s report that Mr. Rezgo had not gone on any vacations after the accident, Mr. Rezgo testified that he had gone to Niagara Falls “maybe once” after the accident, that he had travelled to Cuba at some point after the accident, but did not recall when, and that he had gone to Moscow in the fall of 2013. I, therefore, find that, while Mr. Rezgo’s activities may have become more limited after the accident, he certainly did not become inactive and, in fact, continued to do a variety of his pre-accident activities.

The medical evidence confirms Mr. Rezgo’s continuing abilities after the accident. While a Disability Certificate was submitted under Dr. Chan’s signature indicating that Mr. Rezgo suffered a complete inability to carry on a normal life, Dr. Chan testified that he had not seen the Disability Certificate before and that nothing in his assessment of Mr. Rezgo would support what was stated there. Dr. Train’s Disability Certificate presented the same problems, including the fact that it was only based on a questionnaire given to Mr. Rezgo and not a physical examination. Even if the questionnaire could be relied on (which it cannot, given Mr. Rezgo’s lack of credibility), I do not accept it as sufficient to establish a complete inability to carry on a normal life.

While Dr. Osinga’s understanding of a complete inability to carry on a normal life may have been overly restricted, I find that his examination of Mr. Rezgo supports the finding that he may have been limited in some of his activities, but (as discussed above) he was more than capable of engaging in many of his usual pre-accident activities.

As noted, I do not accept that Dr. Mula’s assessment establishes that Mr. Rezgo suffered a complete inability to carry on a normal life. I find that Mr. Rezgo’s reporting to Dr. Mula was significantly undermined by his own testimony at the hearing. And, while Dr. Mula may have found that Mr. Rezgo continued to experience pain (or “myofascial pain” as Dr. Mula described it), I do not accept Dr. Mula’s conclusion that Mr. Rezgo suffered from a debilitating chronic pain syndrome. I accept, as Dr. Mula pointed out, that, as an orthopaedic surgeon, Dr. Osinga may not have “dealt in” chronic pain, but Dr. Osinga’s examination was consistent with Mr. Rezgo’s own evidence of the nature and extent of his disability. And, as Dr. Ruhr correctly pointed out, the lengthy list of “chronic pain” symptoms identified by Dr. Mula was questionable in itself, and not consistent either with what Mr. Rezgo had reported to Dr. Ruhr or with

Mr. Rezgo’s own testimony. In this latter regard, I find significant that, while Dr. Mula recorded a whole series of problems, at the hearing Mr. Rezgo stated that he had gotten “much better” after approximately a year of treatment at Metro Rehab (which would coincide roughly with

Dr. Osinga’s assessment finding that Mr. Rezgo did not suffer from a complete inability to carry on a normal life). Mr. Rezgo’s daughter also testified that her father had improved approximately 5 months after the accident. Finally, I do not accept Mr. Rezgo’s denial of Dr. Kumar’s assessments of him in the summer and fall of 2012.

In all of the circumstances, therefore, I find that Mr. Rezgo had significantly more ability than he reported, that he, in fact, did a variety of his ordinary pre-accident activities, and that any disability he had did not amount to a complete inability to carry on a normal life, within the meaning of sections 12(1)3 and 2(4) of the Schedule.

2. Mr. Rezgo’s Claim for Attendant Care Benefits

Mr. Rezgo claims attendant care benefits, from August 30, 2010 to September 30, 2010 and from January 1, 2011 to August 29, 2012, at a rate of $849.03 per month, less amounts already paid by the Insurer. 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 an Assessment of Attendant Care Needs (Form 1).

Mr. Rezgo maintained that, as a result of injuries suffered in the accident, he was rendered incapable of taking care of his basic personal care needs, and required the assistance of an attendant, which role was assumed primarily by his daughter. The Insurer submitted that Mr. Rezgo was not legitimately disabled by the accident, did not require attendant care assistance, and in any event, submitted unreliable records of the expenses incurred in respect of attendant care provided.

(i) Evidence

Mr. Rezgo testified that, after the accident, he could not bend over, put on his socks or cut his nails. He said that his daughter did these things for him, and that, for the first year after the accident, she would stand outside the bathroom door while he was taking a shower to make sure he was safe. He said that he was like an invalid, and that it was very upsetting. Mr. Rezgo said that his daughter bought groceries and prepared dinner for him. He said that he wanted to give any money he receives from the insurance company to his daughter, and that he did do this with any money he received from them.

Mr. Rezgo testified that his daughter took care of him every day, but that when she was away, his granddaughter helped him. Ms. Rezgo testified that she would call home during the day to make sure things were alright, and that her children also assisted her father, but always under her supervision. She said that she did not often help her father dress in the mornings, but that her daughter helped out a bit since she was on shift work.

Ms. Rezgo testified that she did expect to be paid for her assistance, that her parents were aware of this expectation, and that she would take any money they received and put it towards such things as the family budget and groceries. Ms. Rezgo stated that, based on the expense sheets submitted, she did approximately 13 hours per week of attendant care for each of her parents, and approximately 10 hours per week of housekeeping for each of her parents, for a total of approximately 46 hours per week of assistance. Ms. Rezgo said that, even though this is quite a lot of work in addition to her full-time job, she has very good time-management skills, and she woke up early and went to bed late each day. She said her children and husband helped her quite a bit, but that she did everything or supervised them.

In an attendant care assessment dated August 31, 2010, Iryna Lipka, a registered nurse, reported that Mr. Rezgo required attendant care assistance for dressing and undressing, some grooming, meal preparation, bathing, exercising, cleaning the bathroom and making the bed, at a rate of $849.03 per month, as confirmed in an Assessment of Attendant Care Needs (Form 1). Ms. Lypka testified that she did not test Mr. Rezgo’s actual abilities for each task, but estimated the amount of attendant care assistance required, based on what Mr. Rezgo was telling her.

In an Activities of Normal Life form (an OCF-12), dated September 7, 2010, Mr. Rezgo reported that he was fully independent in his personal care activities before the accident, but that afterwards, he required assistance with bathing, grooming and dressing.

On December 9, 2010, Sheri-Lynn Ash, an occupational therapist who conducted an in-home assessment of Mr. Rezgo at the request of the Insurer, reported as follows:

Given the objective test results (i.e., range of motion, manual muscle testing and grip strength testing), demonstrated functional tolerances, observations of task demonstrations and the medical evidence available to date as well as the time that has elapsed since the accident (i.e., approximately 3 months) and the organic nature of the client’s sustained accident-related injuries (i.e., uncomplicated myofascial soft-tissue injuries have been diagnosed), it is this Occupational Therapist’s clinical opinion that the client is not substantially unable to perform his essential pre-accident attendant care tasks independently at this time.

Ms. Ash prepared an Assessment of Attendant Care Needs (Form 1) confirming that Mr. Rezgo did not require any attendant care assistance. Ms. Lypka testified that she found Ms. Ash’s conclusions confusing since her recommendations for significant housekeeping assistance (discussed more below) would also tend to suggest a need for at least some attendant care assistance.

Ms. Ash conducted a further in-home assessment on February 9, 2011, and again found that Mr. Rezgo did not require any attendant care assistance.

On February 14, 2011, Dr. Ruhr reported Mr. Rezgo as saying that he has “not had any difficulty in performing activities of a personal care nature.”

On February 7, 2014, Dr. Mula reported as follows, with respect to Mr. Rezgo’s need for attendant care assistance:

According to Mr. Rezgo himself, and specifically with respect to upper and lower body dressing and undressing, he reported completing these activities slowly and with pain, throughout the two-year period following the accident. Additionally, throughout the two-year period following the accident, he noted that he needed help with shaving, hair care, fingernail and toenail care, and meal preparation. He noted that, secondary to his pain, he could not complete a home-based exercise regimen. Mr. Rezgo disclosed that he also required help with bathing activities throughout the two years following the accident….

…Mr. Rezgo did suffer from an impairment that resulted in his inability to carry out certain personal care activities, as specified in accordance with the Form 1 of August 31, 2010, as a result of the injuries sustained in the subject motor vehicle accident, after the accident of August 29, 2010…up to the two-year mark post-accident, i.e. August 29, 2012. Based on my examination, these certain activities include upper and lower body dressing and undressing, shaving, hair care, fingernail and toenail care, meal preparation, hygiene, exercise, and bathing.

(ii) Findings

I find that Mr. Rezgo is entitled to attendant care benefits, but not to the extent claimed.

For the following reasons, I accept that, as a result of the accident, Mr. Rezgo required assistance with certain personal care activities, but only a small number of the activities identified in Ms. Lypka’s Form 1 and not for the full two years following the accident.

In her Form 1, Ms. Lypka indicated that, based on Mr. Rezgo’s reporting, he required assistance with dressing and undressing, shaving, bathing, shampooing and drying his hair, nail care and exercising. Ms. Lypka recommended more than 2 hours per week in “hygiene” activities, which included cleaning the bathroom, changing the bed and setting out clothes to be worn and laundered, activities that were in large measure separately claimed by Mr. Rezgo in respect of housekeeping benefits (and which, in my view, are more appropriately addressed in that context). In terms of actual personal care assistance, Mr. Rezgo testified that, as a result of his back pain and his inability to bend over, he only received assistance with putting on his socks and cutting his nails. He also claimed that he was “like an invalid” and that his daughter stood outside the bathroom door while he was taking a shower to make sure he was safe. However, as discussed above, I do not accept Mr. Rezgo’s evidence that he was fully incapacitated, and there is no evidence that he, in fact, had any difficulty bathing or showering on his own. There is also no evidence that Mr. Rezgo either needed or received assistance with shaving, drying his hair or exercising. Finally, while Ms. Lypka testified that Mr. Rezgo did not appear to be exaggerating during the assessment, she also said that she was taught not to do any validity testing and that, as a matter of “professional duty”, she was “obligated” to believe any reports of pain. Given the credibility problems with Mr. Rezgo’s evidence, I do not accept Ms. Lypka’s conclusion that

Mr. Rezgo required various forms of attendant care assistance. I am, however, prepared to allow a small portion of Ms. Lypka’s recommendations for dressing (putting on socks) and nail care (cutting toe nails), estimated to be 30 minutes per week, or $24.14 per month in attendant care benefits, for the first part of Mr. Rezgo’s claim, namely, August 30 to September 30, 2010.

I do not accept that Mr. Rezgo required attendant care assistance for the second part of his claim, namely, from January 1, 2010 to the two-year mark. I accept Ms. Ash’s attendant care assessments of December 2010 and February 2011 that Mr. Rezgo did not require attendant care assistance. These reports are consistent with Mr. Rezgo’s daughter’s evidence that her father improved approximately five months after the accident, Mr. Rezgo’s own evidence that he got much better with his treatment at Metro Rehab, and Mr. Rezgo’s report to Dr. Ruhr in February 2011 that he had not had any difficulty in performing personal care activities. For these reasons (as well as those discussed above in connection with Mr. Rezgo’s claim for non-earner benefits), I also do not accept Dr. Mula’s opinion that Mr. Rezgo required attendant care assistance in accordance with the recommendations set out in Ms. Lypka’s Form 1.

3. Mr. Rezgo’s Claim for Housekeeping Benefits

Mr. Rezgo claims housekeeping and home maintenance benefits, from December 20, 2010 to March 6, 2011, at a rate of $65 per week, and from March 7, 2011 to August 29, 2012, at the 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 insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

The substantive test of entitlement for housekeeping benefits is set out in Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006):

…the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.

Mr. Rezgo maintained that, as a result of injuries suffered in the accident, he was rendered incapable of performing a number of his pre-accident housekeeping tasks, and that his daughter did these tasks for him after the accident. As with his claim for attendant care benefits, the Insurer maintained that Mr. Rezgo was not legitimately disabled by the accident, did not require housekeeping assistance, and that he submitted unreliable records of the expenses incurred in respect of the housekeeping assistance provided.

(i) Evidence

Mr. Rezgo testified that, at the time of the accident, he lived with his wife, his daughter and son-in-law and their two children, in a large, 4 bedroom, 3 bathroom house. He said that he did various repairs in the house, for example, installing new kitchen cabinets, changing the flooring and renovating the bathrooms. He said not all of the renovations were complete at the time of the accident. He said that, on a typical day, he did “basically everything” around house, including filling up the dishwasher and taking the dishes out, taking out the garbage, gardening and helping his wife with cleaning and vacuuming. Mr. Rezgo also said he “did everything around the house”, that “no one else did anything” because “they were all employed.” Then Mr. Rezgo said that “he and [his] wife did the housekeeping” because “all the rest were working.”

Ms. Rezgo testified that her father would vacuum, shovel snow, and move the furniture each week for cleaning.

Mr. Rezgo testified that, after the accident, he did not do any renovations on his home, because he could not bend over. He said that he could not do any housework, and that his daughter did all of the cleaning on the weekends.

In a Disability Certificate, dated September 3, 2010, Dr. Chan reported that Mr. Rezgo suffered a substantial inability to perform his normal pre-accident housekeeping tasks. Dr. Train restated this finding in a further Disability Certificate on January 28, 2011. Dr. Train testified that he did not ask Mr. Rezgo specific questions about his housekeeping tasks, or physically examine him at that time.

In an Activities of Normal Life form (an OCF-12), dated September 7, 2010, Mr. Rezgo reported that he was fully independent in all housekeeping activities before the accident, but that afterwards, he was unable to do any of them.

On December 9, 2010, Ms. Ash reported as follows:

…given the client’s reduced functional tolerances, his reported accident-related symptomatology and the short amount of time that has elapsed since the motor vehicle accident (i.e., approximately 3 months), it is this Occupational Therapist’s clinical opinion that the client is currently substantially unable to perform his pre-accident housekeeping/home maintenance tasks at this time.

Ms. Ash recommended 3.75 hours per week of housekeeping (for loading and unloading the dishwasher, vacuuming, garbage removal and changing the bed sheets), as well as snow shovelling assistance as needed, depending on weather conditions.

Ms. Ash conducted a further in-home assessment on February 9, 2011, and, this time, found that Mr. Rezgo was no longer substantially unable to perform his pre-accident housekeeping tasks. Ms. Ash testified that Mr. Rezgo’s condition had improved since the earlier assessment. Ms. Lypka testified that it was unusual for Ms. Ash to first recommend housekeeping assistance, and then nothing, in light of the fact that Mr. Rezgo’s pain levels had only improved slightly since the first assessment.

On February 7, 2014, Dr. Mula reported that Mr. Rezgo suffered a “significant impairment of his activities of daily living, as a result of the motor vehicle accident” and was “significantly limited with respect to his pre-accident housekeeping responsibilities….” Dr. Mula stated as follows:

…prior to the MVA in question, [Mr. Rezgo] participated in grocery shopping, cleaning, vacuuming, garbage removal, gardening, raking, lawn mowing, snow removal, and home renovations….[Mr. Rezgo has] an inability to resume any pre-accident housekeeping and home maintenance activities on the basis of his pain.

…Mr. Rezgo suffer[s] from an impairment that resulted in a substantial inability to perform his pre-accident housekeeping and home maintenance activities, as a result of the injuries sustained in the subject motor vehicle accident after the accident of August 29, 2010 up till August 29, 2012.

(ii) Findings

I find that Mr. Rezgo is not entitled to housekeeping benefits.

As indicated, in order to determine Mr. Rezgo’s entitlement to housekeeping benefits, his pre- and post-accident housekeeping activities must be compared. However, I find that Mr. Rezgo has not reliably established what sort of housekeeping activities he did prior to the accident. He said a variety of things in this regard, first that he did “basically everything”, then that he did “everything”, and then that “he and [his] wife did the housekeeping.” He also said that he would fill up the dishwasher with dishes and take them out, take out the garbage, garden and clean and vacuum. He also stated in the September 7, 2010 Activities of Normal Life form that he did all possible housekeeping activities, including meal preparation, sweeping, dusting, bedmaking, cleaning bathrooms and laundry. In addition, Mr. Rezgo’s daughter testified that the only housekeeping Mr. Rezgo did was vacuuming, shovelling snow and moving the furniture for cleaning. I am unable to determine if Mr. Rezgo was substantially disabled from performing his pre-accident housekeeping activities because I am unable to determine what Mr. Rezgo’s pre-accident housekeeping activities were.

For reasons discussed earlier, I do not accept the Disability Certificates submitted under Dr. Chan’s and Dr. Train’s signatures, which indicate that Mr. Rezgo suffered a substantial inability to perform his usual pre-accident housekeeping activities.

I note Ms. Ash’s December 9, 2010 assessment, in which she finds that Mr. Rezgo was entitled to 3.75 hours of housekeeping assistance per week. However, this was based on Mr. Rezgo’s reports of loading and unloading the dishwasher, vacuuming, changing bed sheets, garbage removal and snow shovelling, which, based on his other reports and that of his daughter, are simply not reliable. Therefore, even if Mr. Rezgo’s accident-related pain restricted his ability to do some of his previous housekeeping activities, I do not accept Ms. Ash’s conclusions regarding the particular housekeeping assistance she recommended. In any event, two months later, and consistent with other medical evidence at the time, Ms. Ash concluded that Mr. Rezgo was not in need of any housekeeping assistance.

Finally, I do not accept Dr. Mula’s report some three years later that Mr. Rezgo had been severely disabled in the two years after accident, and required significant housekeeping assistance. Dr. Mula’s report also contains new information about Mr. Rezgo’s pre-accident housekeeping activities, namely, that he participated in grocery shopping, cleaning and lawn mowing and raking. For these reasons, as well as those discussed above in relation to non-earner and attendant care benefits, I do not accept Dr. Mula’s opinion that Mr. Rezgo was disabled to the point of requiring any significant housekeeping assistance, as compared to whatever housekeeping activities he may have done prior to the accident.

4. Mr. Rezgo’s Claim for Medical Benefits

Mr. Rezgo claims medical benefits for three items from Metro Rehab: (1) a Disability Certificate, dated September 3, 2010, in the amount of $200, (2) a treatment plan, dated October 5, 2010, in the amount of $840, and (3) a treatment plan, dated January 13, 2011, in the amount of $1,099.94. Pursuant to section 14 of the Schedule in force just prior to the accident, and section 15 of the current Schedule, an insurer is required to pay a medical benefit for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident. Pursuant to section 38(15) of the current Schedule, an insurer shall pay for approved services within 30 days of receiving an invoice for them.

As discussed earlier, I have significant concerns with the manner in which the Disability Certificates of both Dr. Chan and Dr. Train were prepared. I find that the Disability Certificate of September 3, 2010 sent out under Dr. Chan’s signature was neither an accurate reflection of

Dr. Chan’s opinion nor consistent with the findings of his assessment. I do not find that it was a reasonable and necessary medical expense.

Mr. Rezgo submitted a treatment plan, dated October 5, 2010, from Metro Rehab, under

Dr. Chan’s signature, for acupuncture treatment, in the amount of $840. An Insurer Fax Back form for the treatment plan, dated November 15, 2010, was signed by Debby Labreche of the independent adjusting firm of Cunningham Lindsey, but none of the available boxes on the form as to whether the Insurer approved, partially approved or denied the treatment plan was checked off. Ms. Labreche testified that there should have been a covering letter saying whether this treatment plan was approved, and one of the noted boxes on the Fax Back form should have been checked off. Ms. Labreche testified that, if there was no letter saying that an insurer examination was being set up in relation to the treatment plan, then she would consider it approved. However, Sheila Brown, one of the Insurer’s Unit Managers, testified that if something is deemed approved, payment to the insured is not automatic, because it must first be confirmed that the treatment was incurred (particularly in light of the broader concerns with Metro Rehab’s practices). Ms. Brown stated that Metro Rehab did not receive payments for the treatment plan because neither they nor Mr. Rezgo verified that the treatment had been received. However, on January 14, 2011, Metro Rehab sent on Auto Insurance Standard Invoice form (an OCF-21) to the Insurer for the services provided.

While I have significant concerns with Metro Rehab’s practices, I find that the treatment plan in question was submitted, deemed approved and invoiced, and, therefore, should be paid.

Mr. Rezgo submitted a treatment plan, dated January 13, 2011, from Metro Rehab, under Dr. Chan’s signature, in the amount of $1,099.94.

Dr. Chan testified that he is not involved in the actual generation of the treatment plans from Metro Rehab, that he does not know who decides what treatment is actually needed, and that he presumes it is other staff at the clinic.

Dr. Ruhr, who examined Mr. Rezgo at the request of the Insurer, reported on February 14, 2011, as follows:

It is my opinion that the Treatment and Assessment Plan (OCF-18) dated January 1[3], 2011, submitted by Dr. Simon Chan, Chiropractor at Metro Rehabilitation Centre is NOT considered reasonable and necessary.

It is my opinion that prior to the submission of this Treatment and Assessment Plan (OCF-18), Mr. Ioura Rezgo had achieved maximum therapeutic benefit and maximum medical improvement from the various treatments administered up until that point in time. There remains no indication for any further formal (facility-based) forms of passive or active therapy, as it relates to the injuries sustained from the subject motor vehicle accident. No evidence is present to support ongoing accident-related musculoskeletal, neurological or orthopaedic impairments, functional limitations or disabilities.

(emphasis in original)

Dr. Ruhr noted in his report that Mr. Rezgo had “scored positively on all 5 of Waddell’s tests of symptom magnification and non-organic pain (over-reaction, superficial tenderness, simulation, distraction and regional disturbances).” Dr. Ruhr testified that some of the impairments noted in Dr. Chan’s Treatment Plan, namely, “contusion of knee”, “sprain and strain of wrist” and “lumbago with sciatica” were not expressed to him during his examination of Mr. Rezgo.

Dr. Ruhr also said that the medical term, “lumbago”, has not been used for 20 years.

Three years later, Dr. Mula reported that, since Mr. Rezgo had ongoing, chronic pain, the treatment plan was reasonable and necessary.

I find that Mr. Rezgo is not entitled to medical benefits for this treatment plan. Mr. Rezgo did not submit any evidence that the treatment plan in question was submitted to the Insurer and/or that Insurer received and reviewed it. While Mr. Rezgo submitted an invoice from Metro Rehab for the services set out in the treatment plan, he did not provide any evidence that the invoice was sent to and/or received by the Insurer. Further, based on the concerns I have about the manner in which Metro Rehab prepared its treatment plans, as well as my preference of Dr. Ruhr’s findings over those of Dr. Mula’s, I find that the treatment plan was not a reasonable and necessary expense.

5. Mr. Rezgo’s Claim for the Cost of Examinations

Mr. Rezgo claims the cost of an attendant care assessment, by Assessment Direct, on August 31, 2010, in the amount of $1,054.24. Pursuant to section 38.2(12) of the previous Schedule and section 38(15) of the current Schedule, an insurer is required to pay for approved services within 30 days of receiving an invoice for them.

Mr. Rezgo submitted a letter from Assessment Direct, dated January 24, 2014, addressed to Mr. Rezgo’s law firm, which notes the invoice number for the assessment and attaches a form from the Health Claims for Auto Insurance (“HCAI”) system approving funding for the assessment. Based on this evidence, I find that Mr. Rezgo is entitled to the cost of the attendant care assessment.

6. Special Award

Pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, where an insurer has unreasonably withheld or delayed payments, an Arbitrator can, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Mr. Rezgo claims a special award on the basis that the Insurer did not pay for treatment and assessments submitted, approved and invoiced. Given the very small amount of the benefits ordered in respect of treatment at Metro Rehab, as well as my general concerns with the practices of that clinic, I am not prepared to order a special award for that item. While counsel for the Insurer alluded to proceedings being taken against Assessment Direct, no evidence was introduced as to impropriety in respect of the assessment in question or Assessment Direct’s general practices. I heard no other evidence as to why the cost of the assessment should not have been paid. In this particular case, therefore, I find that a special award is in order. I am prepared to hear from the parties as to the amount that ought to be awarded here. However, given the very small amount involved, any special award will be very modest, and I encourage the parties to attempt to resolve the matter.

7. Interest

Finally, pursuant to section 46(2) of the Schedule, an insurer is required to pay interest on any amounts found to be overdue for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly. Mr. Rezgo sought interest on the amounts ordered to be paid. The Insurer did not dispute this. I find that Mr. Rezgo is entitled to interest on the benefits to which I have found him entitled.

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.

February 23, 2015

Eban Bayefsky

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 31

FSCO A12-000880

BETWEEN:

IOURA REZGO

Applicant

and

TRAFALGAR INSURANCE COMPANY

OF CANADA

Insurer

ARBITRATION ORDER

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

1. Mr. Rezgo is not entitled to non-earner benefits.

2. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo attendant care benefits, from August 30 to September 30, 2010, at a rate of $24.14 per month, less amounts already paid.

3. Mr. Rezgo is not entitled to housekeeping benefits.

4. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo medical benefits for a treatment plan, dated October 5, 2010, from Metro Rehabilitation Centre, in the amount of $840. Mr. Rezgo is not entitled to medical benefits for a Disability Certificate, dated September 3, 2010, in the amount of $200, and a treatment plan, dated January 13, 2011, in the amount of $1,099.94, from Metro Rehabilitation Centre.

5. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo the cost of an attendant care assessment, by Assessment Direct, on August 31, 2010, in the amount of $1,054.24.

6. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo a special award in respect of the August 31, 2010 attendant care assessment by Assessment Direct, in an amount to be determined.

7. Trafalgar Insurance Company of Canada shall pay to Mr. Rezgo interest on the benefits ordered to be paid.

8. 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.

February 23, 2015

Eban Bayefsky

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.