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

Neutral Citation: 2015 ONFSCDRS 32

FSCO A12-000883

BETWEEN:

ANNA TCHOUGUIANOVA

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 Mrs. Tchouguianova Peter Durant for Trafalgar Insurance Company of Canada

Issues:

The Applicant, Anna Tchouguianova, was injured in a motor vehicle accident on August 29, 2010. She 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 Ms. Tchouguianova 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 Ms. Tchouguianova’s husband, Ioura Rezgo, who was injured in the same accident.

The issues in this hearing are:

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

2. Is Ms. Tchouguianova entitled to attendant care benefits, from August 30, 2010 to August 29, 2012, at a rate of $837.77 per month, less amounts already paid, pursuant to section 16 of the Schedule?

3. Is Ms. Tchouguianova entitled to housekeeping benefits, from March 7, 2011 to August 29, 2012, at a rate of $100 per week, pursuant to section 22 of the Schedule?

4. Is Ms. Tchouguianova entitled to medical benefits for the following items from Metro Rehabilitation Centre, pursuant to section 14 of the Schedule?

• a treatment plan, dated December 13, 2010, in the amount of $555.05
• a disability certificate and assessment, dated January 14, 2011, in the amount of $313.72

5. Is Ms. Tchouguianova entitled to the cost of the following examinations, by Assessment Direct, pursuant to section 24 of the Schedule?

• an attendant care assessment, on August 31, 2010, in the amount of $1,050.24
• an in-home assessment, on November 18, 2010, in the amount of $999.17

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

7. Is Ms. Tchouguianova 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. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova non-earner benefits, from June 14, 2011.

2. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova attendant care benefits, from August 30, 2010 to February 9, 2011, at a rate of $600 per month, less amounts already paid.

3. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova housekeeping benefits, from March 7, 2011 to August 29, 2012, at a rate of $100 per week, less $200 and any amounts already paid.

4. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova medical benefits for a treatment plan, dated December 13, 2010, from Metro Rehabilitation Centre, in the amount of $555.05, subject to confirmation that the Insurer received the relevant invoice. Ms. Tchouguianova is not entitled to medical benefits for a disability certificate and assessment, dated January 14, 2011, from Metro Rehabilitation Centre, in the amount of $313.72.

5. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova the cost of an attendant care assessment, on August 31, 2010, by Assessment Direct, in the amount of $1,050.24, and an in-home assessment, on November 18, 2010, by Assessment Direct, in the amount of $999.17.

6. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova a special award in respect of the two assessments by Assessment Direct, in an amount to be determined.

7. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova 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 – Ms. Tchouguianova’s Accident and Injuries

Ms. Tchouguianova was involved in a motor vehicle accident on August 29, 2010, when the car she was in (and driven by her husband, Ioura Rezgo) was struck while turning into a parking lot. Ms. Tchouguianova was 61 years old at the time. She reported injuring her neck, right shoulder and low back, and as suffering from right leg numbess and pain, as well as headaches, as a result of the accident. She said that, the day after the accident, her daughter, Stella Rezgo, took her to a rehabilitation clinic (Metro Rehabilitation Centre – “Metro Rehab”) to be treated, because they spoke her native language there, namely, Russian. Ms. Tchouguianova said that she went to her family doctor, Dr. Oleg Klipitch, three days after the accident and told him about the accident. However, when directed to Dr. Klipitch’s notes of September 1, 2010, which state that Ms. Tchouguianova had “[n]o complain[t]s today”, she said that she did tell Dr. Klipitch about the accident, but that “he laughed.” Ms. Tchouguianova then said that Dr. Klipitch “didn’t laugh; he didn’t really pay attention.” Ms. Tchouguianova acknowledged that the first mention of the accident in Dr. Klipitch’s notes was on February 11, 2011, but said that she had “asked him for help” but he “didn’t help very much”, and that she did not see Dr. Klipitch very often because her treatment at Metro Rehab was “helping a lot.”

Ms. Tchouguianova testified that she generally had no back pain before the accident, and that she did not have neck or shoulder pain before the accident. Ms. Tchouguianova’s daughter, Stella Rezgo, testified that her mother was quite healthy before the accident, and had no limitations.

On February 7, 2014, Dr. D.E. Mula, a chronic pain specialist who assessed Ms. Tchouguianova at the request of her counsel, diagnosed Ms. Tchouguianova as suffering from the following, as a result of the accident:

Chronic Pain Syndrome

Chronic Cervicogenic Headaches

Vertigo Not Yet Diagnosed

Chronic Cervical Pain

Chronic Right Shoulder Pain

Chronic Right Arm Pain

Chronic Right Medial and Lateral Epicondylitis

Chronic Lower Back Pain

Chronic Right Lumbar Radiculopathy; Query Disc Herniation

Chronic Bilateral Sacroiliac Joint Pain

Chronic Right Hip Pain

Chronic Right Knee Pain, Rule Out Boney Versus Ligamentous Pathology/Meniscal Tear

Chronic Sleep Disturbances

Chronic Mood Disturbances

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

Ms. Tchouguianova testified that Dr. Mula’s list of her injuries was accurate, but that she “didn’t talk much about these things with Dr. Klipitch, because he wasn’t that interested.”

Ms. Tchouguianova’s Credibility

The Insurer submitted that Ms. Tchouguianova’s evidence was not credible. However, I do not find any discrepancies sufficient to conclude that her evidence, as a whole, is not reliable. I find that she testified in an honest and straightforward manner. There were no inconsistencies between her testimony at the hearing and the documentary evidence she submitted as to her pre- or post-accident condition. None of the medical assessors found that she presented in an unreliable fashion. The only assessors to comment directly on this matter, namely, Dr. Mula and Iryna Lypka (a registered nurse who conducted an attendant care assessment shortly after the accident), found that Ms. Tchouguianova presented in a consistent and credible way. The flaws in Ms. Tchouguianova’s evidence were relatively minor. For example, on February 11, 2011, Dr. S. Chan, a chiropractor at Metro Rehab, reported Ms. Tchouguianova as saying that she had been performing the exercises he had recommended she do, but that she was not able to demonstrate what those exercises were. While Ms. Tchouguianova may not have been fully candid with Dr. Chan about doing her home exercises, I do not find that this significantly undermines her otherwise credible evidence. I, therefore, find that Ms. Tchouguianova presented in a credible manner and that her evidence is reliable.

1) Ms. Tchouguianova’s Claim for Non-Earner Benefits

Ms. Tchouguianova claimed 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.”

Ms. Tchouguianova maintained that, as a result of the accident, she was continuously prevented from engaging in substantially all of her ordinary pre-accident activities. The Insurer submitted that neither the personal nor medical evidence Ms. Tchouguianova provided was reliable and that she 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 Ms. Tchouguianova’s entitlement to non-earner benefits.

(i) Evidence

Ms. Tchouguianova testified that, prior to the accident, she took care of her grandchildren for her daughter and son-in-law (with whom she and her husband lived in a large house). She said that, on a typical day, she would prepare breakfast for her children, mop the floor, take care of the cat, and cook meals for the family. She said she would typically spend about 3 hours preparing dinner for the family. Ms. Tchouguianova said that, every day, she would sweep and mop the floor, and put the dishes in the dishwasher. She said her husband would take the dishes out of the dishwasher when he had the time. She said that she would do a big cleaning of the house once a week, which took 4 hours. She said that she would go grocery shopping with her husband once or twice a week. She stated that she and her husband would garden in the summer months, would go for a walk together, and that she would accompany her husband on a fishing trip once a week (where she would rest and read a book, while her husband fished).

Ms. Tchouguianova testified that, after the accident, she could not really do anything, because of her back pain. She said that she does walk a bit with her husband, but that she experiences back pain and dizziness. She said that she and her husband do not go on fishing trips anymore, because they get too tired. She said that her daughter takes them out a bit, on driving trips.

Stella 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 her parents improved five months after the accident.

In a Disability Certificate, dated September 15, 2010, Dr. Chan reported that Ms. Tchouguianova suffered a complete inability to carry on a normal life. Dr. Chan also said that he did not personally fill out the Disability Certificate, that it was filled out by staff at Metro Rehab and that there was, in fact, nothing in his September 15, 2010 assessment that would lead the person who filled out the Disability Certificate to check off “yes” for a “complete inability to carry on a normal life.” A further Disability Certificate restating these findings was submitted under Dr. Chan’s signature on January 14, 2011, explaining that Ms. Tchouguianova was “unable to cook and clean.” Dr. Chan testified that this was based on what Ms. Tchouguianova had told him and that he did not recall Ms. Tchouguianova mentioning anything else about her inability to do her pre-accident activities.

On June 3, 2011, Dr. A. Ali, an orthopaedic surgeon who assessed Ms. Tchouguianova at the request of the Insurer, reported that Ms. Tchouguianova did “not suffer a complete inability to carry on a normal life as a result of the subject accident.” Dr. Ali testified that, in his view, a person is entitled to non-earner benefits if they cannot “work to earn a living”, although he said that the definition of non-earner benefits does not affect his medical opinion in this case. Dr. Ali testified that Ms. Tchouguianova reported pain, but that her actions and examination showed something else and that there were no objective findings preventing her from doing her normal activities at home. Dr. Ali acknowledged that he was not a chronic pain doctor and so could not comment on Dr. Mula’s finding of chronic pain.

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

…Ms. Tchouguianova reported entertaining family and friends only three or four times per month. In addition,…she stated she had not engaged in recreational walking…did not go [to] the movies, go to restaurants, or take vacations, and she did not take any day trips….she would attend her religious services only three times per year….

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

Ms. Tchouguianova testified that, despite Dr. Mula’s report of her saying that she did not go on vacations or day trips, she did go to Sweden in the summer of 2012. Dr. Mula testified that Dr. Ali’s report should be qualified by the fact that he is an orthopaedic surgeon who does “not deal in chronic pain.”

(ii) Findings

I find that Ms. Tchouguianova is entitled to the claimed non-earner benefits.

I find that, prior to the accident, Ms. Tchouguianova was engaged in a variety of personal activities (in taking care of the house, cooking for her family and socializing with her husband) and that, as a result of the injuries suffered in the accident, she was continuously prevented from engaging in substantially all of those activities.

As noted, I find Ms. Tchouguianova’s evidence to be credible and reliable. I accept that she suffered neck, back, right shoulder and leg pain as a result of the accident. I acknowledge that Ms. Tchouguianova’s family doctor, Dr. Klipitch, reported that Ms. Tchouguianova did not have any complaints when he saw her shortly after the accident, but Ms. Tchouguianova disputed this, and the Insurer did not call Dr. Klipitch to address this. I find that her evidence of disability following the accident was corroborated by her daughter, Stella, who said that, while her mother’s condition improved somewhat after the accident, her general activities were significantly curtailed as a result of the injuries she suffered.

The medical evidence on both sides of this issue is problematic. On the one hand, the Disability Certificates issued under Dr. Chan’s signatures indicating that Ms. Tchouguianova suffered a complete inability to carry on a normal life were not supported by evidence establishing this degree of disability. Further, Dr. Mula’s evidence is compromised by what appears to be a predisposition to finding chronic pain syndrome in the patients he sees, since he testified that, in fact, all of the patients he sees suffer from chronic pain. On the other hand, Dr. Ali, who found that Ms. Tchouguianova did not suffer a complete inability to carry on a normal life was under the impression that a person was only entitled to non-earner benefits if they were incapable of working to earn a living. While Ms. Tchouguianova may not have suffered injuries to the extent suggested by Dr. Mula and by the Disability Certificates submitted under Dr. Chan’s signatures, I am satisfied, based on Ms. Tchouguianova’s own credible evidence, and as corroborated by her daughter, that she suffered soft-tissue injuries to the extent of preventing her from doing substantially all of her pre-accident family, household and social activities. And while, contrary to Dr. Mula’s report that Ms. Tchouguianova did not go on vacations, Ms. Tchouguianova testified that she went to Sweden in the summer of 2012, I do not find that this isolated event (happening two years after the accident, and a year and a half prior to Dr. Mula’s report) alters the conclusion that Ms. Tchouguianova was unable to engage in substantially all of her normal pre-accident activities (within the meaning of the Schedule, and as interpreted in Heath).

2) Ms. Tchouguianova’s Claim for Attendant Care Benefits

Ms. Tchouguianova claims attendant care benefits, from August 30, 2010 to August 29, 2012, at a rate of $837.77 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).

Ms. Tchouguianova maintained that, as a result of injuries suffered in the accident, she was rendered incapable of taking care of her basic personal care needs, and required the assistance of an attendant, which role was assumed primarily by her daughter. The Insurer submitted that Ms. Tchouguianova 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

Ms. Tchouguianova testified that, after the accident, her daughter helped her taking a shower, dressing and cutting her nails. Ms. Tchouguianova said that her daughter prepared meals, did the shopping, cleaning, cooking, laundry and gardening, and that her grandchildren helped her daughter. Ms. Tchouguianova said that her daughter works during the day, leaving at 7 a.m., returning at 5 p.m., and then does these tasks after work. Ms. Tchouguianova said that, when her daughter was away, her grandchildren helped. Ms. Tchouguianova said that her grandson was 24 and her granddaughter 23 at the time of the accident. She said that her daughter would cook meals in advance of going away, and that her granddaughter would heat things up. Ms. Rezgo testified that she would call home during the day to make sure things were alright, and that her children also assisted her mother, but always under her supervision.

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 had very good time-management skills, and that 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.

Ms. Tchouguianova said that she and her husband went to Moscow in September 2013, and that she went to Sweden for two weeks in the summer of 2012 to visit a sick sister. Ms. Rezgo testified that she would sometimes fill out and submit a batch of expense forms for the assistance she had provided, and that, as an oversight, she may have claimed expenses for the time her mother was away in Sweden.

Ms. Tchouguianova testified that she can now prepare sandwiches, and do some dusting, but it is too difficult to do any cooking. She said that she gets headaches very often. 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 toward such things as the family budget and groceries.

In an attendant care assessment, dated August 31, 2010, Ms. Lypka reported that Ms. Tchouguianova 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 $837.77 per month, as confirmed in an Assessment of Attendant Care Needs (Form 1). Ms. Lypka testified that she did not test Ms. Tchouguianova’s actual abilities for each task, but estimated the amount of attendant care assistance required based on what Ms. Tchouguianova was telling her.

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

In an in-home assessment on November 18, 2010, by Dr. L. Ramsackal, a chiropractor at Assessment Direct, Ms. Tchouguianova is reported as saying that she had occasionally received assistance with her personal care since the accident. Dr. Ramsackal testified that Ms. Tchouguianova told her that she was independent in personal care with respect to hygiene, eating and dressing.

On December 9, 2010, Sheri-Lynn Ash, an occupational therapist who conducted an in-home assessment of Ms. Tchouguianova 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 her essential pre-accident attendant care tasks independently at this time.

Ms. Ash prepared an Assessment of Attendant Care Needs (Form 1) confirming that Ms. Tchouguianova 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 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 Ms. Tchouguianova did not require any attendant care assistance.

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

According to Ms. Tchouguianova herself, and specifically with respect to upper and lower body dressing and undressing, she reported requiring help with these activities throughout the two-year period following the accident. Additionally, throughout the two-year period following the accident, she noted that she needed help with showering and cutting her toenails.

…Ms. Tchouguianova did suffer from an impairment that resulted in her 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.

(ii) Findings

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

I accept that, as a result of the injuries she suffered in the accident, Ms. Tchouguianova required assistance with certain personal care activities. However, I am not satisfied that she required assistance with all of the activities identified in Ms. Lypka’s Form 1 or that she required attendant care assistance for the full two years following the accident.

As noted, Ms. Lypka’s Form 1 listed various activities with which Ms. Tchouguianova required assistance. However, while Ms. Lypka testified that she prepared her Form 1 based on what Ms. Tchouguianova had told her, Ms. Tchouguianova herself did not state that she required all of the assistance enumerated by Ms. Lypka. Most notably, Ms. Tchouguianova did not say that she either required assistance, or that her daughter in fact assisted her, with performing exercises at home, something for which Ms. Lypka estimated approximately an hour per week in attendant care. While Ms. Tchouguianova testified that she received assistance with showering, she did not, as reported by Ms. Lypka, state that she required grooming for more than nail cutting, the broader form of grooming being something for which Ms. Lypka recommended more than an hour per week in attendant care. Ms. Lypka also separately recommended 40 minutes per week and an hour and forty-five minutes per week in assistance with shampooing/drying and bathing/ drying, respectively, which is clearly duplicative. 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 Ms. Tchouguianova in respect of housekeeping benefits (and which, in my view, are more appropriately addressed in that context). I note, as well, that Ms. Tchouguianova’s daughter submitted expense forms for approximately 13 hours per week in attendant care, as opposed to the approximately 16 hours per week recommended by Ms. Lypka. I, therefore, estimate that, of the $837.77 per month in attendant care recommended by Ms. Lypka, Ms. Tchouguianova is entitled to $600 per month in attendant care benefits.

Before I leave Ms. Lypka’s Form 1, I am aware of Ms. Lypka’s testimony to the effect that she was professionally obligated to believe a client’s report of pain. While peculiar, I do not find that this alters Ms. Tchouguianova’s evidence, as supported by her daughter, that she required a certain degree of attendant care assistance as a result of the accident.

Similarly, while there are certain questions regarding the expense forms submitted by Ms. Tchouguianova’s daughter, I find that they do not significantly undermine Ms. Tchouguianova’s claim for attendant care benefits. In particular, Ms. Rezgo’s signature seems to be identical from one expense form to the next, suggesting that they may not have been done individually and in relation to each specific claim. However, Ms. Rezgo testified that she would often sign a batch of expense forms at a single sitting, and in the absence of any expert evidence on the nature of Ms. Rezgo’s signatures, I am not prepared to find that they reflect an improper statement of the assistance actually provided. Further, Ms. Rezgo acknowledged that she may have accidentally submitted claims for the brief period that her mother was away in Sweden (for two weeks in the summer of 2012), but, as discussed more below, I do not find that Ms. Tchouguianova is entitled to attendant care benefits at that time, and, in any event, I do not find that this undermines the general reliability of the expense forms as reflecting the type and extent of assistance Ms. Tchouguianova received from her daughter. Finally, while Ms. Rezgo claimed she assisted her mother during some brief absences, I accept her evidence, and that of Ms. Tchouguianova, that she did significant work in preparation for those absences and supervised the assistance of her husband and children during those times.

As noted, I do not find that Ms. Tchouguianova is entitled to the full two years of attendant care benefits. I find significant that, on November 18, 2010, she reported to Dr. Ramsackal that she was independent in personal care with respect to hygiene, eating and dressing. This was consistent with Ms. Ash’s finding in December 2010 and February 2011 that Ms. Tchouguianova did not require any attendant care assistance, and Ms. Rezgo’s evidence that her mother’s condition improved approximately 5 months after the accident. While Dr. Mula reported Ms. Tchouguianova as saying that she required attendant care assistance throughout the two years after the accident, this was well after the two year period had passed (and three years from the date of Ms. Ash’s second in-home assessment), and was only said to be in relation to dressing and undressing, showering and toenails, activities significantly narrower than those set out in Ms. Lypka’s Form 1 and Ms. Rezgo’s expense form claims. In all of the circumstances, then, I find that Ms. Tchouguianova is only entitled to attendant care benefits, from August 30, 2010 to February 9, 2011.

Finally, I accept Ms. Rezgo’s evidence that she expected to be paid for the attendant care assistance she provided to her mother, and that her mother was aware of this expectation. I, therefore, find that Ms. Tchouguianova “incurred” these expenses, within the meaning of section 16 of the Schedule.

3) Ms. Tchouguianova’s Claim for Housekeeping Benefits

Ms. Tchouguianova claims housekeeping and home maintenance benefits, 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.

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

(i) Evidence

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

Stella Rezgo testified that her mother did all of the cooking, grocery shopping and dishwashing before the accident. Ms. Rezgo said that her mother and father did a lot of cleaning around the house, mopping the floors, cleaning the windows, vacuuming and taking out the garbage. Ms. Rezgo also said that her mother used to garden. Ms. Rezgo testified that, after the accident, her mother was in pain and could not do things as she had before. Ms. Rezgo said she did “pretty much everything they did before”, and that she and her husband had to do the cooking and grocery shopping after the accident. Ms. Rezgo stated that she would get up earlier than she used to in order to prepare breakfast and lunch, that she would shop for groceries, do laundry and cook dinner. She said that she and her husband would clean the house thoroughly. Ms. Rezgo testified that her children also assisted her parents, but always under her supervision, and that, if she had to be away (which only happened a few times, and for brief periods), she would arrange everything ahead of time.

In a Disability Certificate, dated September 15, 2010, Dr. Chan reported that Ms. Tchouguianova suffered a substantial inability to perform her normal pre-accident housekeeping tasks. Dr. Chan restated this finding on January 14, 2011.

In an in-home assessment on November 18, 2010, by Dr. Ramsackal, Ms. Tchouguianova is reported as saying that she had resumed her pre-accident housekeeping duties, but with assistance. Dr. Ramsackal recommended that Ms. Tchouguianova receive 9 hours of housekeeping assistance a week. Dr. Ramsackal testified that Ms. Tchouguianova reported that she was responsible for all of the housekeeping before the accident. Dr. Ramsackal had reported that, in addition to the 9 hours of housekeeping Ms. Tchouguianova required, she should receive 32.5 hours in child care assistance, but Dr. Ramsackal testified that she did not know why she put this in her report.

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

…given the client’s reduced functional tolerances, her 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 her pre-accident housekeeping/ home maintenance tasks at this time.

Ms. Ash recommended 10 hours of housekeeping assistance per week for heavy meal preparation, grocery shopping, laundry, and light and heavy cleaning.

Ms. Ash conducted a further in-home assessment on February 9, 2011, and, this time, found that Ms. Tchouguianova was no longer substantially unable to perform her pre-accident housekeeping tasks. Ms. Ash testified that Ms. Tchouguianova’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 Ms. Tchouguianova’s pain levels had only improved slightly since the first assessment.

Dr. Mula reported that Ms. Tchouguianova suffered a “significant impairment of her activities of daily living as a result of the motor vehicle accident” and was “significantly limited with respect to her pre-accident housekeeping responsibilities….” Dr. Mula stated as follows:

…prior to the MVA in question, Ms. Tchouguianova participated in grocery shopping, cooking food and preparing meals, cleaning, vacuuming, garbage removal, gardening, and raking leaves….Ms. Tchouguianova [has] an inability to resume any pre-accident housekeeping and home maintenance activities with the exception of some cooking and meal preparation activities, on the basis of her pain, while her daughter and other family members perform most of the other housekeeping and home maintenance activities she handled prior to the accident.

…Ms. Tchouguianova suffer[s] from an impairment that resulted in a substantial inability to perform her 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 until August 29, 2012.

(ii) Findings

I find that Ms. Tchouguianova is entitled to the claimed housekeeping benefits.

I find that, prior to the accident, Ms. Tchouguianova performed most, if not all, of the housekeeping tasks at her family’s home. I find that, as a result of the injuries she sustained in the accident, she was substantially disabled from performing her normal pre-accident housekeeping responsibilities, and these tasks were performed primarily by her daughter (with some assistance from the other members of the family), with the expectation of payment for those services.

As with her claim for non-earner benefits, while Ms. Tchouguianova may not have suffered injuries to the extent suggested by Dr. Mula and the Disability Certificates submitted under Dr. Chan’s signatures, I am satisfied, based on Ms. Tchouguianova’s own credible evidence, as corroborated by her daughter, that she suffered soft-tissue injuries that substantially prevented her from doing her normal pre-accident household duties. I find significant that, in late 2010, Dr. Ramsackal and Ms. Ash concluded that Ms. Tchouguianova required roughly the same amount of housekeeping assistance (9-10 hours per week). While, as discussed earlier, there are some difficulties in Ms. Lypka’s evidence, I agree with her that Ms. Ash’s conclusion only two months after her initial in-home assessment is undermined by the fact that Ms. Tchouguianova’s condition did not improve significantly in that short period of time. I find that, aside from some modest meal preparation, Ms. Tchouguianova continued to be substantially disabled from performing the heavier housekeeping tasks, such as cleaning, laundry, grocery shopping and large meal preparation. While, as discussed above, Dr. Mula’s report is, in itself, problematic, I find that his conclusions are consistent with the nature and extent of Ms. Tchouguianova’s limitations, as indicated by Ms. Tchouguianova herself, her daughter, Dr. Ramsackal and Ms. Lypka.

The Insurer suggested that it was unlikely Ms. Rezgo provided the amount of assistance she claimed for both of her parents (approximately 46 hours per week) in addition to her full-time job. However, I accept Ms. Rezgo’s evidence that, through excellent time-management skills, hard-work and devotion to her parents, as well as some assistance from her husband and children, she was able to assist her parents to the extent claimed.

Finally, I am prepared to reduce Ms. Tchouguianova’s entitlement to housekeeping benefits by the two weeks she was away in Sweden in the summer of 2012. I, therefore, find Ms. Tchouguianova is entitled to housekeeping benefits, from March 7, 2011 to August 29, 2012, at a rate of $100 per week, less $200.

4) Ms. Tchouguianova’s Claim for Medical Benefits

Ms. Tchouguianova claims medical benefits for two items from Metro Rehabilitation Centre (“Metro Rehab”): (1) a treatment plan, dated December 13, 2010, in the amount of $555.05, and (2) a disability certificate and assessment, dated January 14, 2011, in the amount of $313.72. 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.

Ms. Tchouguianova submitted a treatment plan, dated December 13, 2010 from Metro Rehab, for massage therapy and education. By letter dated December 23, 2010, the independent adjusting firm, Cunningham Lindsey, approved the treatment plan. Ms. Tchouguianova maintained that, if the treatment plan had been approved, then the Insurer was required to pay it.

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. Ms. Brown stated that Metro Rehab did not receive payments for the treatment plan because neither they nor Ms. Tchouguianova verified that the treatment had been received. However, Debby Labreche, an adjuster with Cunningham Lindsey, testified that if the treatment plan had been approved, then it should have been paid.

While, as will be discussed shortly, I have significant concerns with Metro Rehab’s practices, I find that the treatment plan in question was submitted and approved and ought to have been paid. Section 38(15) of the current Schedule states that an insurer shall pay for approved services within 30 days of receiving an invoice for them. Ms. Tchouguianova submitted an invoice from Metro Rehab, dated February 8, 2011, for the services provided under the treatment plan, but, unlike a similar invoice for Ms. Tchouguianova’s husband, she did not provide confirmation that the invoice was, in fact, sent to the Insurer. I am, therefore, prepared to find that Ms. Tchouguianova is entitled to medical benefits for this treatment plan, subject to confirmation that the Insurer received the relevant invoice.

Ms. Tchouguianova claimed $313.72 for a Disability Certificate and assessment, dated January 14, 2011, by Dr. Chan. As noted earlier, 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. K. McLaughlin, another chiropractor who assessed Ms. Tchouguianova at Metro Rehab, testified that he simply prepared the assessment reports, not the treatment plans themselves, that the clinic had his electronic signature, and that, in any event, he would not have devised the type of treatment plan the clinic submitted for Ms. Tchouguianova. In light of this evidence, for the Insurer to be liable for the payment of the Disability Certificate, Ms. Tchouguianova must have established that the Certificate was reviewed and signed by the health care practitioner who assessed her. I heard no evidence that such a process was followed in this case, and, in any event, I am not satisfied that there is a sufficient connection between the assessment and the Certificate. I, therefore, find that Ms. Tchouguianova is not entitled to payment for this item.

5) Ms. Tchouguianova’s Claim for the Cost of Examinations

Ms. Tchouguianova claims the cost of two examinations, by Assessment Direct: (1) an attendant care assessment, on August 31, 2010, in the amount of $1,050.24, and (2) an in-home assessment, on November 18, 2010, in the amount of $999.17. 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.

By letter dated January 8, 2013, Sandra Sun, the accounts receivable officer of Assessment Direct, advised Irene Ng, the Insurer’s claims representative and accident benefits adjuster, of outstanding balances for the two assessments submitted and approved through the Health Claims for Auto Insurance (“HCAI”) system. Ms. Sun’s letter also notes the dates the assessments were conducted and the relevant invoice numbers and dates. Ms. Ng testified that, based on the Insurer’s log notes for November 8, 2010 (which states “Letter to claimant – approval for in home assessment”) and an HCAI form dated November 4, 2010 (which approves an amount of $999.17), the requested in-home assessment was approved. Ms. Ing also testified that, based on the HCAI form of November 5, 2010 (which approves an amount of $1,050.24), the requested attendant care assessment was approved. I find that these assessments were conducted, submitted, invoiced and approved, and should, therefore, be paid.

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.

Ms. Tchouguianova 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 either the two assessments in question or Assessment Direct’s general practices. I heard no other evidence as to why the cost of the two assessments 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 amounts 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. Ms. Tchouguianova sought interest on the amounts ordered to be paid. The Insurer did not dispute this. I see no basis for not awarding interest in this case. I find that Ms. Tchouguianova is entitled to interest on the benefits to which I have found her 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 32

FSCO A12-000883

BETWEEN:

ANNA TCHOUGUIANOVA

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. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova non-earner benefits, from June 14, 2011.

2. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova attendant care benefits, from August 30, 2010 to February 9, 2011, at a rate of $600 per month, less amounts already paid.

3. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova housekeeping benefits, from March 7, 2011 to August 29, 2012, at a rate of $100 per week, less $200 and any amounts already paid.

4. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova medical benefits for a treatment plan, dated December 13, 2010, from Metro Rehabilitation Centre, in the amount of $555.05, subject to confirmation that the Insurer received the relevant invoice.

5. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova the cost of an attendant care assessment, on August 31, 2010, by Assessment Direct, in the amount of $1,050.24, and an in-home assessment, on November 18, 2010, by Assessment Direct, in the amount of $999.17.

6. Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova a special award in respect of the two assessments by Assessment Direct, in an amount to be determined.

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

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.