Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 263 FSCO A14-001075

BETWEEN:

KEILA BAGHERIAN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Lynda Tanaka

Heard: In person at ADR Chambers on February 8-11 and April 7, 2016 and by written submissions completed on July 8, 2016

Appearances: Mr. Daniel J. Holland and Ms. Silene M. Malhoa for Mrs. Keila Bagherian Mrs. Kathleen Mertes for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mrs. Keila Bagherian, was injured in a motor vehicle accident on August 13, 2010 and sought accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

I was advised at the outset of the Hearing that the Applicant was confining her claim to housekeeping and home maintenance, caregiver and attendant care benefits and withdrawing her claim that she suffered catastrophic injuries and her claims for medical benefits and costs of examinations that were included in the Application for Arbitration. Further, the parties agreed on the amounts outstanding for the claims for the benefits the Applicant was pursuing, if she were successful. State Farm seeks repayment of the benefits paid on the basis of the material misrepresentations alleged to have been made by the Applicant or on her behalf by medical benefit and other service providers.²

The issues in this Hearing, by agreement, are:

1. Is the Applicant entitled to caregiver benefits in the amount of $250.00 per week for the period of August 13, 2010 to August 13, 2012, less amounts paid by State Farm?

2. Is the Applicant entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week for the period of August 13, 2010 to August 13, 2012, less amounts paid by State Farm?

3. Is the Applicant entitled to attendant care benefits for the period of August 13, 2010 to August 13, 2012, less amounts paid by State Farm?

4. Is the Applicant entitled to a special award because State Farm unreasonably withheld or delayed payments pursuant to s. 282(10) of the Insurance Act?

5. Is State Farm entitled to be repaid the benefits that have been paid because of a material misrepresentation by the Applicant pursuant to s. 47 of the Schedule?

6. Is the Applicant entitled to interest on overdue benefits?

7. Is either party entitled to its expenses of the Arbitration?

Result:

1. The Applicant is entitled to caregiver benefits in the amount of $18,285.71, being the balance owing for the period of August 13, 2010 to August 13, 2012.

2. The Applicant is entitled to housekeeping and home maintenance benefits in the amount of $5,971.43, being the balance owing for the period of August 13, 2010 to August 13, 2012.

3. The Applicant is entitled to attendant care benefits in the amount of $13,221.44, being the balance owing for the period of August 13, 2010 to August 13, 2012.

4. The Applicant's claim for a special award is dismissed.

5. State Farm is not entitled to be repaid the benefits that have been paid because of an alleged material misrepresentation by the Applicant pursuant to s. 47 of the Schedule.

6. The Applicant is entitled to interest on overdue benefits.

7. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code ("the Code").

EVIDENCE AND ANALYSIS:

PRELIMINARY MOTIONS

Each party requested an Order to exclude a witness of the other party from the Hearing, specifically the Applicant's husband and the Special Investigations Unit investigator, because of issues of credibility. The Orders were made.

State Farm also objected to the Applicant calling as a witness, Mr. Hassan Ramani ("Mr. Ramani"), a person who provided caregiver services for the Applicant's son, on a different basis, i.e. of non-compliance with Rule 41 of the Code.³ State Farm had first become aware of Mr. Ramani during an Examination Under Oath of the Applicant in July 2013 but it failed to include a request for his contact information in its follow up letter requesting production and information given as undertakings. At some point late in the production process after that examination, State Farm did request contact information, and the Applicant's representative was frank in admitting that the request for contact information was overlooked. On receipt of the notice that State Farm wished to cross-examine Mr. Ramani as required by the Code in advance of this Hearing, the Applicant's representative obtained his contact information and provided it to State Farm the week before the Hearing. The Applicant had not included Mr. Ramani's name on her witness list. The Applicant now intended to call Mr. Ramani as requested by State Farm, solely to corroborate the information on caregiving that the Applicant and her husband would give. State Farm had wanted the contact information in the context of its Special Investigations Unit investigation and took the position that it had been investigating this claim since the early part of 2013 but did not now have sufficient time to get a statement independently from the witness as part of that investigation and to investigate him. I ruled on the second day of the Hearing that State Farm could not now object to a witness being called that it had specifically requested be presented for cross-examination. A will-say statement had been provided to State Farm so that it would not be taken by surprise by his evidence.

DECISION

The Accident and Injuries Suffered in the Accident

The Applicant is a 36 year old Iranian Farsi-speaking immigrant who is married with a son born in 2005. She was the primary caregiver for her son, who was in kindergarten at the time of the accident. She had no limitations in her personal care, caregiving or housekeeping and home maintenance. Since she and her family lived in an apartment, there was no home maintenance for which she was responsible. She assisted her husband in his business part-time and attended English language school full-time every day. She has post-secondary education in computer engineering taken in Iran.

On August 13, 2010, she was a passenger sitting in the rear seat on the right side of the vehicle when it was hit from the right side. She hit her head on the window of the car and her right side hit the door. She testified that she went to see her family doctor (even though the clinical notes and records show no such visit). She went to Harmony Chiropractic and Wellness ("Harmony") for the treatment of her injuries at the recommendation of the driver of the vehicle. At Harmony, the staff took the details of her health card and gave her papers to sign. IPEX Legal Services Professional Corporation ("IPEX"), whom the Applicant retained to represent her, also required that she sign forms, all for the purpose of her making claims for her accident benefits.

After the accident, she had pain in her neck, lower back and her hand. She was dreaming "bad dreams" and that affected her sleep.⁴ She had the worst pain in her neck and her hand would become numb. She had pain in the right side of her body and, when she was unable to use her right hand, her left hand (her dominant hand) became painful. Her impairments interfered with her sleep to such an extent that in time, she slept on the floor in the living room with the TV on. In the two years after the accident, she always had the ache in her neck and lower back and the numbness in her hand, as well. She had headaches and would vomit.

She has had some success with the psychiatric treatment provided by Dr. Abbas Azadian from whom she had treatment for over a year and who prescribed medication for her to use. She testified that she is not fully recovered.

After the accident, her husband took over the childcare and housekeeping and home maintenance duties and assisted her with her personal care. The difficulties the Applicant had with personal care were for washing and caring for her hair and showering. The amount of time her husband spent helping her varied, but she testified that sometimes she would call him from work to help her.

The Applicant's husband tried to cope with the workload as well as his full-time job, but, when the Applicant's injuries did not resolve quickly, he had to get help. He approached a woman who worked in the same store as he worked to assist him in doing the housekeeping and home maintenance and enlisted another person, Mr. Ramani (who had worked for him and who was a personal friend), to assist him with childcare (and some household duties), because his work did not accommodate the amount of time he needed to spend. The Applicant's husband also testified that he gave the housekeeper lump sums of money, without keeping track of it, for the work she did. For his friend, Mr. Ramani, he gave a promise that when the accident claims were all resolved, he would pay him. The housekeeper provided assistance for the period shortly after the accident until June 2011. The Applicant's husband also changed his work about a year after the accident from manager at a supermarket and his ice cream business to owning and operating a convenience store with prepared foods. He is a chef by training, and this new business gave him the flexibility he needed to assist his wife and look after their son, since the convenience store was right beside the apartment building where they lived.

The Applicant started treatment in August 2010 at Harmony, predominantly acupuncture and the use of devices. On February 4, 2011, she switched to Medic8 Clinic ("Medic8") because she was not getting any better and was not comfortable with the treatment she was getting at Harmony. Since she had not heard from IPEX since the one visit, she also changed her representation to Local Law Associates, also in February 2011.⁵

At Medic8, she had treatment for a few sessions but the treatment was discontinued when she vomited during a massage and they told her it was not necessary to continue the treatment. Beyond that, she did not get treatment at Medic8. She then went to Poly Clinic and got some helpful treatment from them.

Relevant Legislative Provisions

Section 13 of the Schedule provides for payment of caregiver benefits where a person can establish that as a result of and within 104 weeks of an accident, a person "suffers a substantial inability to engage in the caregiving activities in which he or she was engaged at the time of the accident." Section 22 of the Schedule provides for a payment of up to $100.00 per week for a period of 104 weeks for "reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person suffers 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." Section 16 of the Schedule provides for the payment of an attendant care benefit for a person who sustains an impairment as a result of an accident, so long as the impairment is not a Grade I or II whiplash-associated disorder that comes within a Pre-approved Framework Guideline. The benefit shall pay for "all reasonable and necessary expenses incurred by the insured person as a result of the accident" for services provided by "an aide or attendant."

Section 282(10) of the Insurance Act empowers an Arbitrator to make a special award if the Arbitrator finds that an Insurer has unreasonably withheld or delayed payments of benefits to which an insured person is entitled under the Schedule.

Section 47 of the Schedule provides that a person shall repay the Insurer any benefit paid under the Regulation as a result of a wilful misrepresentation or fraud. Section 48 provides that if an insured person has wilfully misrepresented material facts in respect to an application for a benefit, the Insurer may terminate payment of the benefits.

Medical Evidence

The Applicant signed the Accident Benefits OCF-1 with a date of August 27, 2010, identifying her paid representative identified as Mustafa Haidary.⁶ She also signed an OCF-3, dated August 20, 2010, completed by Dr. Shirin Bonakdar of Harmony⁷ and an OCF-3, dated February 4, 2011, completed by Dr. Seymour Pisarek at Medic8.⁸ Dr. Bonakdar identified radiculopathy of the cervical and lumbar spine, headache, dizziness, sprains and strains of the cervical spine, shoulder, right elbow, jaw and hip, post-traumatic stress disorder, and nightmares and flashbacks of the accident. Also noted were reduced sensory reflex on the left and right sides in various locations. Dr. Pisarek identified a WAD-III neck injury with neurological signs, sprains and strains in the shoulder joint, thoracic spine and lumbar spine, and other soft tissue injuries in her jaw, knee, wrist and upper limb. He also noted tension-type headaches, non-organic sleep disorders, mixed anxiety and depressive disorder, other reactions to severe stress, and injury of nerves at the ankle and foot level.

The Applicant called Dr. G. Abbas Azadian, M.D., F.R.C.P.C., a Farsi speaking psychiatrist who has extensive experience in treatment of people suffering from trauma. His Psychiatric Evaluation, dated April 5, 2012 (Exhibit 10), sets out his assessment based on a diagnostic clinical interview and the psychometric testing data generated during the assessment. His notes were marked as Exhibit 21. He reviewed the impairments and pain the Applicant had at that time⁹ and a Beck Anxiety Inventory (also included in Exhibit 21) was completed. He testified that Farsi speaking staff would have done the detailed questioning of the Applicant prior to his seeing her. He reviewed her current physical issues that included constant pain in her neck, shoulders, back, and right leg, and headaches. He also reviewed her current psychological issues that included sleep that was frequently interrupted, her nightmares, her frequent recall of the accident image, and her anxiety and nervousness in cars as a passenger. He noted her feelings of hopelessness and frustration as a result of her physical limitations. She reported problems with memory and concentration and irritability. In the section of Exhibit 21 entitled "Clinical Symptoms HRSD", in response to question 18 which deals with thoughts concerning self-harm or suicide, it is noted that she wishes she were dead or had thoughts of possible death of herself. He concluded that the Applicant suffered from Major Depressive Disorder and Pain Disorder associated with both psychological factors and a general medical condition under the DSM-IV under Axis I, and under Axis IV he concluded "- inadequate social support - limited understanding of the impact of the need to adjust his (sic) coping system - unable to go back to work."¹⁰

Dr. Azadian recommended both medication and cognitive behavioural therapy.¹¹ He provided clinical treatment for her for about a year and a half, with the last appointment being August 2013. He testified that he did not provide psychotherapy because of his busy schedule. During his testimony, he reviewed his notes of his treatment appointments with the Applicant and the modifications to prescriptions from time to time. He testified that any medical doctor or trained psychologists can make a diagnosis of depression.¹²

State Farm arranged for assessments of the Applicant by Dr. P. Kelly, psychologist, in January 2012 and by Dr. D. Saunders, psychologist, in September 2012. Dr. Kelly, Dr. Saunders and Dr. Azadian agree that, because of the accident, the Applicant suffered from complex and serious psychological issues. Only Dr. Azadian testified, but I was provided with the reports authored by the other doctors.

Dr. Kelly conducted an assessment of the Applicant with a Farsi interpreter that included her functioning through her daily living, including caregiving and housekeeping and home maintenance and social and work environments. He was provided with documents prior to his assessment, and he refers in his report¹³ to a psychological assessment conducted on January 18, 2011 (a year prior to his assessment) and a report indicating that the Applicant had an "Adjustment Disorder with Mixed Anxiety and Depressed Mood; Specific Phobia, Situational Type (Driver/Passenger related)."¹⁴ This report of January 18, 2011 also noted sleep disturbance, anxiety, appetite change, and reported changes in memory and concentration. Psychotherapy sessions were recommended, and Dr. Kelly noted that there was no indication that, as of January 2011, the Applicant had received any psychotherapy. Dr. Kelly also reviewed a "Biopsychosocial Assessment" by a social worker based on an assessment on June 17, 2011. This social worker identified "symptoms consistent with depressive condition, hyperarousal and vigilant symptoms, avoidant behaviour and symptoms." Psychotherapy sessions were recommended.

Dr. Kelly reported that, in his assessment of the Applicant, he asked her about her treatment and showed her the reports that indicated that one Valentyna Pachenko from Medic8 had provided 15 psychotherapy treatments for her. The Applicant testified that this person had visited her home once to ask her questions and denied that she had received any psychotherapy or counselling sessions both in her testimony and in her discussion with Dr. Kelly.¹⁵ Dr. Kelly conducted testing of her, including the Test of Memory Malingering (TOMM) and the Structured Inventory of Malingered Symptomatology (SIMS), the TOMM to assess feigning of difficulties with cognitive or memory functioning and the SIMS to investigate exaggeration, overstatement or feigning of symptoms. He concluded that the test results did not indicate malingering or substantial exaggeration. He provided detailed observations in his report of her mood and conduct and physical presentation during the assessment. He concluded that her current symptoms and capabilities "can be considered credible."¹⁶

Dr. Kelly concluded that she had not received any psychotherapy and that she met the DSM-IV-TR diagnostic criteria for Post-traumatic Stress Disorder, Chronic; Specific Phobia, Situation Type (Passenger Related); Chronic Pain with Psychological Factors and a General Medical Condition; and Major Depressive Episode, Major, Chronic. He reported particular concern with respect to her current symptoms of hypervigilance and related fear response, a very strong fear of "a presence" in her home, manifesting as a fear to be on her own. He strongly recommended a Farsi speaking clinician to provide psychotherapy. His prognosis was "fair at best" with a possibility of full return to normal functioning if mental health treatment is provided. He confirmed that she had not reached pre-injury status or maximum medical improvement with respect to psychological, emotional and cognitive functioning. He reported that, without treatment, there is no reasonable prospect of any significant improvement and a strong probability of further deterioration. He reported to State Farm that as a result of the accident she had a substantial inability to engage in caregiving activities she normally performed prior to the accident and a substantial inability to engage in and complete the housekeeping and home maintenance tasks that she normally performed prior to the accident. These impairments related "to her severe anxiety symptoms and moderately severe depression symptoms."¹⁷

Dr. Saunders conducted an assessment on September 24, 2012 at the request of State Farm to determine if the Applicant exhibited a psychological impairment as a result of her accident that resulted in a complete inability to carry on a normal life. He had reviewed Dr. Kelly's report and he was informed that the Applicant was receiving psychiatric treatment once a month. He conducted a number of tests including the SIMS described above and provided a report setting out his assessment and conclusions.¹⁸ Dr. Saunders concluded that she met the criteria under Axis I for Generalized Anxiety Disorder, Major Depressive Disorder (Single Episode), Specific Phobia, Vehicle (Passenger related), Pain Disorder with Both Psychological Factors and a General Medical Condition. Under Axis V, the Global Assessment of Functioning, the Applicant scored 55-57 which is moderate to severe symptoms and significant impairment in overall functioning due to psychological factors.¹⁹ His prognosis was that the lack of any significant improvement over the previous eight months, despite the psychiatric treatment, and the severe degree of her psychological symptoms suggest only a poor to fair prognosis. He concluded that she had not reached pre-injury status, and her prognosis for achieving that is poor to fair and that, without psychological treatment, there is no reasonable prospect of a significant improvement. He also concluded that her impairment mildly interferes with her ability to perform some of the caregiving activities and housekeeping and home maintenance that she normally performed prior to the accident, but that she did not suffer a complete inability to carry on a normal life as a result of the accident.²⁰

Ms. Sharon Mills, Occupational Therapist, conducted a Functional Abilities Evaluation assessment at the request of State Farm in November 2011²¹ and again a year later in November 2012.²² Her first assessment was for the purpose of determining "the Applicant's ability to perform her pre-accident activities of normal living (personal care, caregiving and housekeeping and home maintenance) and to comment on the need for attendant care, caregiving and housekeeping benefits" and, also, to provide recommendations for assistive devices and the need for occupational therapy services.²³ Both assessments were conducted in the Applicant's apartment. Ms. Mills concluded in her 2011 report that the Applicant did not "suffer a substantial inability to engage in the caregiving activities in which she engaged in (sic) at the time of the accident", that the Applicant did not require attendant care because "she demonstrates the functional abilities required to perform all her personal care activities independently" and that the Applicant did not suffer a substantial inability to perform the housekeeping and home maintenance activities.²⁴

The Applicant objected to Ms. Mills' testimony on the basis that it was not reliable. The Applicant challenged her conclusions, relying on the Form 1 assessments of attendant care that had been provided to State Farm, as well as on the evidence referred to above. The conclusions are also challenged on the basis of the lack of an interpreter being present during the first assessment and because Ms. Mills' report included statements as to the Applicant's functions which were actions that the Applicant had not told her she could do or had not actually done in front of her. For instance, Ms. Mills concluded that the Applicant was able to carry out certain personal care functions which the Applicant denied in fact ever doing.

Ms. Mills testified that she included things that the Applicant told her by noting "the Applicant stated..." and when she actually saw the Applicant do something she used the phrase "I observed the Applicant..." She also testified that, when she wrote that the Applicant demonstrated certain actions, then the Applicant may in fact not have done those actions but rather she had demonstrated the ability to do certain actions.²⁵ Ms. Mills' conclusions, therefore, included not just observations of what the Applicant in fact did in the assessment. She also reported ability to do certain actions which had not been performed by the Applicant, based on Ms. Mills' observations of the Applicant. Therefore, to really understand Ms. Mills' conclusions that were based on what she saw the Applicant do, one has to understand the nuances of the wording of the report.

I do not accept her conclusions for the following reasons.

First, in Dr. Azadian's evidence, I have evidence of the impact of depression on a person's functioning in daily life. In Dr. Kelly's report, I have the opinion of an expert psychologist prepared within about two months of Ms. Mills' assessment and directly contrary to the conclusions reached by Ms. Mills.

Second, Ms. Mills testified that the Applicant had been tearful at the outset of the assessment in her visit to the Applicant's home for the assessment in November 2011, and the Applicant had stated that she was being watched by people in another room (even though there was no one there). She also confirmed that the Applicant vomited during the course of the assessment and, in one instance, in her presence. I note that Dr. Kelly (who assessed the Applicant in January 2012, less than two months later) expressed particular concern about the Applicant's symptoms of hypervigilance and related fear response, a very strong fear of "a presence" in her home, manifesting as a fear to be on her own.²⁶ Ms. Mills' observations confirm that the Applicant showed these symptoms of her psychological impairments at the time of the assessment and Ms. Mills' conclusions did not take any of this into account.

Third, the second report is provided to assess post-104 disability which carries a different test for the benefits than the test in the first 104 weeks after the accident. The copy of the report provided both to the Applicant and filed as an Exhibit was missing at least one page.²⁷ The report is of marginal relevance but it is, however, instructive of Ms. Mills' perspective which would have informed her approach to the issues in the assessment. I note that she did not have the Kelly or Saunders reports when she prepared her first assessment but she would have had them when she performed her second in November 2012.

Finally, and most importantly, Ms. Mills presented herself as having expertise outside her field and she avoided answering questions when she should have conceded valid points. Specifically, her first assessment in November 2011 was done within a short period of time of the assessment by Dr. Kelly who is a psychologist. Even though she would not have had the report, she was or should have been aware of the OCF-18s recommending mental health counselling and psychotherapy because she had the OCF-18s issued within the previous 6 months requesting that medical benefit and a progress report by a social worker identifying depressive symptoms, hyperarousal and vigilant symptoms as well as avoidance behaviour and symptoms.²⁸ There was no explanation of why she did not defer on the issues of psychological impairment to those with that specific expertise. The exchange set out below illustrates the extent to which she was prepared to become an advocate by refusing to defer to the experts with the specific expertise in psychology and her unwillingness to concede valid points:

Q. ...I will put it to you, ma'am, that because of the comments of Dr. Kelly, who is a psychologist, who comments on the level of caregiving impairment, from his perspective, and housekeeping, that really your report, that you did before his assessment, is really of no value?

A. That is not true.

Q. So you disagree with Dr. Kelly?

A. I disagree with your comment that my report was of no value. I assessed her functional level.

Q. You didn't assess her from a psychological or emotional standpoint; did you?

A. I assessed her from a holistic approach. If she was acting, behaving or demonstrating inappropriate behaviours, inability to, say, get off of the couch because she is so depressed that she couldn't move, that she couldn't follow any of my instructions, I would be able to understand that there is a large emotional, psychological component, that I would have to made a different determination..."²⁹

She admitted that she did not have any training to be able to make a diagnosis of depression or of anxiety but, when asked to defer to an expert like Dr. Kelly, she escaped answering the question directly by replying "Well, Dr. Kelly wasn't on the file..." and stated that "I am qualified to assess a functional...people's functional abilities, and that entails their psychological functioning."³⁰

Dr. Azadian was asked to provide his opinion with respect to the impact of depression on a person's functioning, and portions of Ms. Mills' conclusions as to the Applicant's ability to function were read to him. He testified that depression would impact on the Applicant's functioning:

I may have the functional ability to stand up and go and make my bed. So, very likely that is what the occupational therapy (sic) meant, that she has the functional ability. I mean, she's not using a cane, she's not using a walker, she can walk, she can bend. So, what's the problem here? In depression we see that often. As we mentioned, and that was raised and it is in my report, psycho-motor retardation is one of the symptoms of depression.³¹

He was asked whether or not a lay person could walk into a convenience store and pick out who in the room suffers from depression. He stated that if it's very severe depression, even a lay person can do it but one would not expect someone with severe depression to be in a store. It was unlikely that a lay person could pick out someone suffering from mild to moderate depression.³²

I see nothing in Ms. Mills' curriculum vitae (Exhibit 24) which would lead me to accept her as an expert in whether or not a person is substantially unable to perform activities because of a psychological or psychiatric impairment.

In my view, I can give little weight to the conclusions Ms. Mills reached as a result of the assessment in the circumstances where the Applicant was exhibiting the symptoms and was emotionally upset in a way consistent with the psychological impairments identified in Dr. Kelly's report. As Ms. Mills noted in her evidence quoted above, there were extreme circumstances when she would have drawn a conclusion as to psychological issues but her evidence does not exhibit any signs of expertise or appreciation of the relevance of what she did see or read in the information available at the time of the assessment. Her characterization of the circumstances when she would be "able to understand that there is a large emotional, psychological component" is consistent with Dr. Azadian's assessment of a lay person's ability to identify a person only with severe depression. Ms. Mills was unwilling to acknowledge the limitation of her expertise.

Also, Ms. Mills' first assessment was conducted without the aid of an interpreter and the difficulty with proceeding in face of language difficulties is that one may not know or will not know what the other person does not understand. Both parties proceed on assumptions and guesses. Therefore, I am not satisfied that Ms. Mills should have proceeded to conduct an assessment, especially one now relied on to allege fraud as in this case. Dr. Kelly was clear in his recommendation that psychotherapy treatment be provided by a Farsi speaking practitioner. Ms. Mills went back for the second assessment a year later and the interpreter was present, but there was no evidence that, on that second assessment, she went over with the Applicant any of the basic information that had been provided by the Applicant at the first assessment. If she had done so, she would have been able to confirm (or not) that in fact she had correctly understood and been understood in the first assessment.

Other Evidence

I was provided with the Assessments of Attendant Care Form 1 prepared by Harmony and by Medic8 and supporting reports as well as a Functional Abilities Evaluation, all of which will be discussed in the context of the attendant care benefit section of this decision.

In addition to the Applicant, three other witnesses testified: her husband, the friend who provided caregiver services (Mr. Ramani), and an investigator who conducted surveillance of the Applicant.

The Applicant's husband confirmed the evidence of the Applicant that he had provided attendant care to her as needed after the accident. He also confirmed that Mr. Ramani had assisted the family with care of their young son and that another person with whom he was acquainted at his work provided housekeeping and home maintenance assistance as described by the Applicant. He testified that he tried to get the Applicant out of the apartment and active in their store, at least when friends and acquaintances came in to buy something. He cleared out a storage room and put in a bed that she could rest on if she needed it, consistent with the recommendations from the Medic8 assessors to take breaks to ease the impact of prolonged standing on her impairments.

Mr. Ramani testified as to the arrangement he had with the Applicant's husband to provide caregiver services and to be paid for his caregiver services. He picked up the Applicant's son from school, played games with him, took him for outings and to sports programs, etc. He also helped out by delivering food for the family's meals to their apartment which had been made at the store. When asked if he did any housekeeping and home maintenance, he denied that he did, other than to move something that needed to be moved in the course of his other work. He was not paid by the store business for the time he spent with the child.

The investigators hired by State Farm prepared a report summarizing the investigation which was conducted to document the Applicant's movements, level of mobility and the possibility of employment related activities and one testified.³³ Surveillance started on Thursday January 10, 2013 when the investigators watched the residence and her workplace for almost 12 hours. In that period, they observed her in her workplace, accompanied by her young son for about 3 hours. They returned the next day and saw her in the store for several hours. On February 18, they watched the store and her residence but she was not seen that day over the 10+ hours they watched. They watched her residence and workplace on February 19 as well, but only for four hours. On April 8, they were instructed to conduct surveillance because she was supposed to go to an assessment at noon that day. She did not go to the appointment and they were informed that she had cancelled her appointment because "she had a medical emergency and was in the hospital."³⁴ They went to the workplace at 1:13 p.m. and observed her behind the counter and apparently showing no visible distress. She left the store at 2:28 p.m. and apparently they did not see her again. In the report, the investigator described her movements as free flowing and unrestricted with no outward signs of discomfort and no visible medical aids.

I can give little weight to the investigator's report or evidence. The qualifications of the investigator were set out in Exhibit 22, and none of those qualifications indicate any expertise that would provide a reliable basis for an assessment of her mobility or the possibility of employment. Since there is also no evidence of his having any psychological expertise in diagnosing depression or other psychological impairments, and in light of the other evidence, I reject his evidence and conclusions as to her physical movements (which he described as free-flowing and unrestricted) and drawn from her presence in the store. I also note that the surveillance post-dates the period for which benefits are claimed and there is a fundamental issue of relevance not satisfactorily answered by State Farm. I have the evidence of the Applicant's husband and the Applicant, as well as that of Mr. Ramani who worked in the store, as to why she was in the store and the limited extent of her participation, all of which rebuts the implicit assumption that State Farm wants me to draw, that she was in the store working at the same time as she claimed to have substantial inability to do other daily living activities.

Issue One – Caregiver Benefit

State Farm has conceded that it does not dispute the Applicant's entitlement to the caregiver benefit to the 104 week mark.³⁵ It also agrees that the remaining caregiver benefit at issue (or before me), if the Applicant is successful, is $18,285.71.³⁶ Mr. Ramani testified as to his childcare duties, as did the Applicant's husband and the Applicant. OCF-6s (Expense Claims forms) were filed as Exhibit 1 together with a document signed by the Applicant's husband attesting to his childcare services for the period of October 1, 2011 to March 31, 2012. In the OCF-6s, childcare is claimed by the person who also provided housekeeping and home maintenance services in the periods from mid-February 2011 to mid-June 2011.

The Applicant has proven on the balance of probabilities on the evidence that she was substantially unable to provide caregiving for her child as she had before the accident. The evidence also establishes on the balance of probabilities that the Applicant's husband, Mr. Ramani and the housekeeper (when needed) provided the caregiving that the Applicant had provided before the accident and required by the Applicant's son for the period of the 104 weeks after the accident.

Issue Two – Housekeeping and Home Maintenance Benefit

In its Closing Submissions, State Farm argued that because the Applicant did not meet Dr. Bonakdar who signed the OCF-3, the claim is fraudulent and cannot succeed for the period up to January 4, 2012 when a new OCF-3 was submitted on behalf of the Applicant. In its opening statement, State Farm conceded that it did not dispute the Applicant's entitlement to the housekeeping and home maintenance benefit to the 104 week mark.³⁷ It agreed that the remaining housekeeping and home maintenance benefit, if the Applicant is successful in this Arbitration, is $5,971.43.³⁸ I am satisfied on the evidence as a whole that the Applicant has satisfied the onus of proof of the incurring of the costs and the proof includes the period from the time of the accident in August 2010 forward to March 31, 2012, and thereafter to the two year mark. The medical evidence establishes that she was substantially unable to perform the housekeeping and home maintenance duties that she had performed prior to the accident because of the impairments suffered in the accident.

State Farm also notes that the OCF-3s relied on were prepared by IPEX and not the Applicant who provided only the name of the housekeeper to them. I am satisfied on the evidence as a whole that the deficiencies in the forms identified by State Farm are answered and particularly by the congruity between the impairments identified by the Applicant in her evidence (and that of her husband) and the needs identified in the OCF-3s and supporting reports. I find the Applicant has proven on the balance of probabilities that her physical and subsequent psychological impairments were such that she was substantially unable to perform the housekeeping and home maintenance benefits she has claimed and the quantum.

Issue Three – Attendant Care

In its Closing Submissions, the only dispute raised by State Farm was that the Form 1 was invalid and fraudulent because it was prepared by Dr. Bonakdar, based on the Applicant's testimony that she never met Dr. Bonakdar who completed the first Form 1. State Farm does not concede entitlement to the attendant care benefit to the two year mark, specifically for the period of December 26, 2011 to August 13, 2012, but says that the benefit was stopped as per a section 44 independent examination (Ms. Mills' assessment). It agrees that if the Applicant is successful, the remaining benefits to the 2 year mark for attendant care is $13,221.44.³⁹

As I have noted, I can give little weight to Ms. Mills' report and conclusions when they are specifically contradicted by psychologists, including those retained by State Farm, and find that the benefits should not have been denied by State Farm based on that report when it had the report of Dr. Kelly.

The evidence in support of the Applicant's claim for attendant care is her own testimony, that of her husband, and the OCF-3s and assessments set out above, one completed by Harmony and two by Medic8. In addition, I have evidence of significant psychological impairments identified by State Farm's own psychologists in the period in question.

Dr. Azadian's evidence with respect to the impact of psycho-motor retardation in people suffering from depression offers insight into the impact of the psychological impairments on the ability of the Applicant to care for herself. In the quote of his testimony previously referred to, Dr. Azadian referred specifically to one of the items of personal care (making her bed) that was identified in an OCF-3 for the Applicant close to the date of the accident. That OCF-3 was based on her range of motion and pain within the six to eight months after the accident. Dr. Azadian's evidence is that even after the strains and sprains have healed, psychological issues may continue to interfere with the basic functions the Schedule describes as attendant care. He also gave evidence in that same series of questions as to how depression can prevent a person from being able to take care of themselves and their homes to the extent that a dangerous situation may be created.

The Applicant testified that only her husband helped her with her personal care. Three Form 1s were filed in evidence as Exhibits 12, 20 and 25, the last of which was completed by Ms. Sharon Mills for State Farm. Ms. Mills concluded on November 14, 2011 that the Applicant needed no attendant care assistance. Exhibit 12 was completed by Dr. Shirin Bonakdar on August 19, 2010, 9 days after the accident. Dr. Bonakdar concluded that the Applicant needed some assistance dressing and undressing for both the upper and lower body, some assistance with personal grooming, preparation of meals, some mobility assistance which was not specified in the form, assistance with cleaning the bathroom and changing bedding and making the bed, and hanging clothes, and assistance with exercise. The total attendant care was assessed at $826.34 per month.

In February 2011, a further Form 1 (Exhibit 20) was prepared by Mr. D. A. Ahmadi, BScN., RN, at Medic8. The attendant care needs are assessed at $879.85. At that time, the Applicant no longer needed assistance dressing and the only grooming assistance she required was for her hair and toenails. She still needed assistance with preparing and serving meals and with housekeeping for the bathroom and bedroom, as well as for showering. The Form 1 is supported by a report, dated February 23, 2011 (Exhibit 28), which describes her injuries as neck pain, middle and lower back pain, right hand pain, bilateral shoulder pain and right foot pain, headaches and sleep disturbances. Mr. Ahmadi set out his observations on the Applicant's range of motion of joints and her activities of normal life, including those limited by pain.

Mr. Ahmadi provided a further report (Exhibit 29) titled "In Home Follow-up Assessment Report", dated March 4, 2011. It is clear in the charts in this report that the Applicant was assuming more duties but that many are not completed pain free or effortlessly. Mr. Ahmadi recommended that she be educated in energy conserving strategies and proper body mechanics to reduce pain levels and aid in rehabilitation, and that she be provided with assistive devices such as a laundry basket on wheels, orthopedic mattress, light weight vacuum, etc. She still needed assistance with the heavier aspects of housekeeping and home maintenance and he recommended 10.75 hours per week of assistance.

Mr. Ahmadi recommended a Functional Abilities Evaluation and that was ultimately conducted by Medic8 and summarized in a report, dated May 26, 2011, by Dr. J. Csumrik, a chiropractor.⁴⁰ Dr. Csumrik concluded that she demonstrated a sedentary physical level of functional ability without exhibiting pain focused behaviours. She could not walk without apparent gait abnormality or aggravation of symptoms. He recommended rehabilitation through an exercise program and kit. She still required assistance with heavy lifting and repetitive bending and stooping, and frequent rest periods were recommended when she was performing activities requiring prolonged standing. He also recommended caregiving assistance so she could focus on her physical rehabilitation and recovery from her injuries. He indicated that modified employment could be resumed but only after a job specific work hardening program with a work-site assessment. He also recommended an MRI and neurological assessment as she continued to experience symptoms beyond that which is expected from the accident. He also recommended a referral to a psychologist.

State Farm relied on the Form 1 prepared by Ms. Mills in cutting off the attendant care benefits it was paying.

Neither Mr. Ahmadi nor Dr. Csumrik were called to testify or to be cross-examined.

As was the case for the housekeeping and home maintenance benefits, I am satisfied that State Farm has not overpaid any benefits. The alleged deficiencies in the forms are rebutted by the evidence and the congruity between the impairments identified by the Applicant in her evidence and that of her husband and the needs identified in the OCF-3s and supporting reports by Mr. Ahmadi and Dr. Csumrik. In addition, I am satisfied that the medical evidence as to the psychological impairments suffered by the Applicant support her entitlement to the attendant care benefits she has claimed. The Applicant has satisfied her onus of proof on the balance of probabilities.

Issue Four – Is the Applicant entitled to a special award because State Farm unreasonably withheld or delayed payments?

The Applicant did not claim a special award as part of her Application for Arbitration but relies on the Arbitrator's inherent jurisdiction to consider the award⁴¹ and the parties agreed to include it in the list of issues, reserving State Farm's defences. The grounds for the claim for the claim are:

a) The use of OCF-6s to support an allegation of material misrepresentation despite the fact that the OCF-6s were submitted by a representative at a time when the representative was no longer authorized to act and the failure at the earliest opportunity (the Examination Under Oath in July 2013) to offer the Applicant an opportunity to examine those forms and give an explanation for the discrepancies between what was claimed and by whom.

b) The Insurer ignored credible evidence from its own assessors with expertise in psychiatry and psychology, whose opinions were consistent with the evidence of the treating psychiatrist, to deny benefits, relying on deficient reports by another expert.

c) The Insurer insisted that the threshold for proof of claims applicable to accidents after September 1, 2010 be applied to this accident which occurred in August 2010 under the old legislation.

State Farm complains of the lack of notice of the claim and lack of particulars. The grounds on which the Applicant relies did not arise in the course of this Hearing but rather were within the knowledge of the Applicant's representatives. Notice could have been given by the Applicant at a much earlier point and that was not done. To try to assess how the Insurer might have conducted its case differently would be speculative, but it is reasonable to conclude that it might well have done things differently. On the facts before me, procedural fairness requires that this claim not proceed. For these reasons, I dismiss the claim.

Issue Five – Is State Farm entitled to be repaid the benefits that have been paid because of a material misrepresentation by the Applicant pursuant to s. 48 of the Schedule?

I have noted the concessions on entitlement made by State Farm under the issues above. State Farm requests an Order that the Applicant has made material misrepresentations and on the basis of those is obliged to repay all the benefits that she has received. State Farm says the misrepresentations were revealed first in the course of the Examination Under Oath in July 2013.

State Farm claims that it is entitled to repayment of $18,753.58 in benefits paid plus interest because of misrepresentations of numerous facts which are alleged to be material to her application for benefits. To prove a material misrepresentation, the Insurer must prove that the Applicant made a misrepresentation, that the misrepresentation was wilful and that the facts which were misrepresented were material to the application for benefits.⁴² A misrepresentation is "material" if it undermines the very basis of the claim or if the Insurer relied on it to its detriment by overpaying benefits.⁴³ The legislative objective of having both s. 47 and s. 48 of the Schedule, described by Director's Delegate Makepeace in Szabo and CAA Insurance Company,⁴⁴ was providing an additional remedy, over and above simply stopping the benefit.

State Farm submits that agents acting on behalf of the Applicant submitted fraudulent claims on her behalf and therefore the misrepresentations were wilful. It relies on the common law of the obligations of a principal for the action of his agent and their application in the Arbitration decision Jimcaale and TTC Insurance Company.⁴⁵ In that decision, the agent did not disclose that the Applicant was covered under her spouse's insurance policy.

State Farm's submissions separate the allegations concerning material misrepresentation under 10 different headings as follows:

1. Her retainer with IPEX,
2. The OCF-6 and Expense Forms submitted on her behalf,
3. The OCF-3 Disability Certificate completed by Dr. Shirin Bonakdar of Harmony, dated August 20, 2010,
4. The OCF-1 Application for Accident Benefits,
5. The Form-1 completed by Dr. Bonakdar,
6. The physical therapy treatment and attendance records provided by Harmony,
7. The psychological treatment provided by Dr. Azadian,
8. Her post-accident attendance at her family physician,
9. Her attendance and transcripts from Emery Adult Learning Centre post-accident, and
10. Her pre-and post-accident employment situation.

Items 1 to 6 deal with documents on which State Farm relied to make benefits payments. Items 7 to 10 are, however, simply allegations of dishonesty by the Applicant in her dealings with others.

In items 1 to 4, the Applicant either could not remember if the forms were completed before she signed them or remembered they were not completed. She testified that she was aware that the forms would be sent to the insurance company to support her claim for benefits. State Farm is not saying that there was no accident; nor are they saying that she was not injured. Its own psychologist assessors confirm that she has ongoing impairments which are not insignificant as a result of the accident. The Applicant minimized the extent to which she provided information to those who completed the forms. One cannot, however, read the OCF-1 without concluding that either IPEX had the accident report or it secured the information from someone else as to the accident. The Applicant did testify that the driver of the car also went to Harmony and IPEX so it is not outside the realm of probability that the information was simply repeated on her form from the one for the driver.

There was extensive evidence and cross-examination on the information on the OCF-6s. The Applicant provided the name of the service provider including her address and telephone number but testified that she did not provide the other information, including the identification of the services rendered. I recognize that this service provider is no longer in Canada and is difficult to contact, but it is possible that IPEX contacted her for the information as to services in completing the form, and, before I conclude that these forms are fraudulent in nature, I would need clear evidence that the information is an absolute fabrication without any possible foundation in fact. There is, in fact, a congruity between the work identified as being done in housekeeping and the assistance that the Applicant needed, given her injuries.

The one clear area where there is no evidentiary support is the claim for attendant care services being provided by the housekeeper, when the Applicant and her husband are clear that he is the only person who provided that service. The attendant care claim by the housekeeper is limited to the period of August 20, 2010 to mid-May 2011. State Farm now, however, has the evidence of the Applicant and the Applicant's husband that he provided the attendant care his wife needed, so the issue is now focused on the identification of the person providing the service on the form. I note that making a bed is part of the attendant care form but that others, not wholly briefed on the characterization of the work under the Schedule, might properly consider it housekeeping and home maintenance. State Farm also complains that no Hoyer lift was provided for the Applicant for her difficulties getting in and out of bed, and it is asking for a conclusion that she did not in fact have such difficulties. The evidence supports the position of the Applicant. A Hoyer lift is only one way for assistance to be provided. Here there was a chair provided to assist her in moving to and from bed. She did need assistive devices. Also, while her attendant care needs changed according to the reports by Mr. Ahmadi, she still needed help and the needs have been quantified. Mr. Ahmadi was not called to testify or to be cross-examined.

With respect to the caregiver claim on the same forms, there are only a few of the forms in which the claim is made that the housekeeper looked after the child and the period is confined to mid-February to mid-June 2011. On each sheet the duties are not consistently ticked off but rather vary from sheet to sheet. I have the evidence that the family needed caregiver services from Mr. Ramani consistently and the claim by the Applicant's husband does not start until October 2011. Therefore the claims do not overlap and I am satisfied that the Applicant has proven that State Farm had to pay for these services.

The issue then is whether or not the misidentification of the person on the form is a material misrepresentation when the evidence establishes that the Applicant was otherwise entitled to the benefits and that another person or others than those named did in fact provide the service. The Schedule provides that the care must be provided by an aide or attendant and the law that developed under the Schedule prior to September 1, 2010 allowed latitude in the awarding of the benefit such that amendments to the Schedule were made effective September 1, 2010 which thereafter required proof of economic loss if a family member provided the care. The evidence is that the forms were not filled out by the Applicant but rather by the service provider. Given the statutory change in September 2010, I am not prepared to find a material misrepresentation in circumstances where the need for services has been clearly supported in the evidence and the person who provided the service has now been identified and tested under cross-examination. The Insurer had the contact information of the person identified on the forms which were submitted and the Insurer could have addressed whatever prejudice it faced by contacting the provider named at the time. I recognize that the lack of correct information has caused delay and expense in this case but that can be addressed in an expense claim.

With respect to Dr. Bonakdar, State Farm attacks each document signed by this doctor. The Applicant testified that she has never met her. On the evidence as a whole, the description of injuries included in the forms Dr. Bonakdar completed are consistent with those identified by Mr. Ahmadi at Medic8, as well as with the complaints made consistently by the Applicant to other assessors. For its claim for repayment of the attendant care benefits, State Farm relies on the Applicant not remembering Dr. Bonakdar or anyone from the clinic coming to her home. That cannot be the only basis on which such a form could be completed. The form could have been completed based on observations of the range of motion and strength of an individual made in a clinical (and not home) setting. This option is consistent with Ms. Mills' approach of concluding that someone is functionally able to do something even when they do not demonstrate the actual function. In this case, there are other explanations than fraud for the Applicant not recalling Dr. Bonakdar interviewing her and assessing her, including but not limited to a staff person at the clinic conducting such an assessment and Dr. Bonakdar relying on that information to complete the form. This case differs from the Jimcaale case referred to by State Farm in that the failure to disclose the spouse's insurance policy meant that benefits were paid that would have been paid by another Insurer. Here, the only potential outcome is that the information on the forms was incorrect in identifying what impairments the Applicant suffered but the evidence overall does not satisfy me that the information on the forms is wrong. All the descriptions of the Applicant's injuries reported to State Farm's own assessors is consistent with the OCF-3 completed by Dr. Bonakdar, and the evidence of the Applicant and her husband is consistent with the need for the attendant care services described by Dr. Bonakdar.

With respect to all the forms signed by the Applicant, State Farm has not satisfied me that there was wilful misrepresentation. I am particularly concerned with the reliance on forms by the Insurer to establish wilful misrepresentations in the circumstances, given that the forms are only available in English or French. I have no evidence of any effort by this Insurer to make explanatory materials available in any other languages. I note also that the forms are set out in very small font and this creates an accessibility barrier whether or not one is English-speaking or not. In essence, the Applicant overcame her disadvantage by following a reasonable course of conduct and relying on those fluent in her first language and who present themselves as being knowledgeable about a complex system. The Schedule is fundamentally about consumer protection where the balance of information and knowledge about a complex system resides in the Insurer, not with the Insured. In my view, it is not consistent with that fundamental principle to punish an Applicant for relying on the wrong people or not understanding the forms the system requires, particularly where the totality of the evidence supports her claim. If the Insurer believes that Dr. Bonakdar or any other service provider has provided fraudulent materials on behalf of an Applicant, the Insurer can go to the regulators of those health care practitioners and others to take steps to ensure that other Applicants are not similarly misled. The Schedule has provided an additional remedy to stopping the benefits in providing that an Insurer can recover benefits paid, but it does not necessarily follow that, if that remedy is denied to them, the Insurer is without other remedies to protect itself from fraud by service providers.

In my view, the allegations in items 7 to 10 concerning the Applicant's dealings with Dr. Azadian, the ESL school, her family doctor and her pre- and post-accident employment are answered in the evidence and do not amount to a material misrepresentation or establish that the Applicant is not a credible person. For instance, the Applicant had to attend in person at the ESL language school to fulfill the requirements of the course. Her disability caused by the accident made that requirement very difficult for her. I am not prepared to find a dishonest act here in the arrangement made with the teacher and other student. The Applicant, as a disabled person, was entitled in law to accommodation by the school for her partial temporary disability and home study is recognized as an acceptable alternative for most education situations. Absent accommodation, disabled persons develop their own way of coping and that is what has happened. In the end, it is the Applicant who is hampered by her lack of skills in English and her isolation from her fellow students.

With respect to her seeing her family doctor after the accident, I am satisfied that that she suffered injuries in the accident on the basis of all the evidence before me. The Applicant sought relief from her accident injuries at Harmony where a health care practitioner signed an OCF-3 for her and where she obtained acupuncture and other treatment. In my view, her attending or not at her family doctor for her injuries does not undermine the credibility of her evidence as to her injuries or ongoing impairments.

State Farm alleges that she misrepresented her work after the accident in her statements that she was not working there even though she was observed at the cash register and she admitted that at times she would serve people. In my view, there is a substantial difference between attendance at the family business where she could try to overcome her psychological issues, and her participating as an employee in the store. State Farm has not established that her actions are only consistent with her being sufficiently recovered from her accident injuries and psychological impairments such that she is working in a commercial sense. I am satisfied that the Applicant and her husband have tried to actively address her psychological impairments, including the accommodation in the arrangement of a rest area in the store. The evidence establishes that she spends limited hours there, and with her young son with her, including being documented in the investigator's report. State Farm is attempting to construct something nefarious from superficial elements that are rebutted by the evidence. With respect to any inconsistency concerning her pre-accident employment, she has opted, as is her right, for caregiver benefits and not income replacement or non-earner benefits. Her pre-accident activities of school, part-time work, and care for a child are not unusual for her demographic, in my view. I do not find any material misstatement that could or should impact on her benefits entitlement.

I find nothing in the allegations concerning her relationship with Dr. Azadian to base a finding that the Applicant is a dishonest person or has made a material misrepresentation. Dr. Azadian testified that, if he knew she was not compliant with his medication recommendations, it would affect the long term prognosis, not his diagnosis.

I find that State Farm has failed to establish material misrepresentation as required under the Schedule.

Issue Six – Is the Applicant entitled to interest on overdue benefits?

The Applicant is entitled to interest on overdue benefits.

EXPENSES:

I dismissed the Applicant's special award claim because of the requirements of procedural fairness. Otherwise she has been successful in all matters in dispute for which the Hearing occurred. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Code.

October 3, 2016

Lynda Tanaka Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant is entitled to caregiver benefits in the amount of $18,285.71, being the balance owing for the period August 13, 2010 to August 13, 2012.

2. The Applicant is entitled to housekeeping and home maintenance benefits in the amount of $5,971.43, being the balance owing for the period August 13, 2010 to August 13, 2012.

3. The Applicant is entitled to attendant care benefits in the amount of $13,221.44, being the balance owing for the period August 13, 2010 to August 13, 2012.

4. The Applicant's claim for a special award is dismissed.

5. State Farm is not entitled to be repaid the benefits that have been paid because of a material misrepresentation by the Applicant pursuant to s. 47 of the Schedule.

6. The Applicant is entitled to interest on overdue benefits.

7. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 3, 2016

Lynda Tanaka Arbitrator

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "new SABS") came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the "old SABS") shall be paid under the new SABS, but in amounts determined under the old SABS. I will refer to "the Schedule" where reference is required to either the new SABS or old SABS.
2. 2Respondent's Closing Submissions, p. 1.
3. 3Rule 41 requires a party to provide the names of witnesses that the party intends to call at least 30 days before the first day of the Hearing.
4. 4Transcript, February 10, 2016, pp. 76-77.
5. 5Exhibit 4, letter headed "Local Law Associates."
6. 6Exhibit 16.
7. 7Exhibit 17.
8. 8Exhibit 27.
9. 9Exhibit 21, Brief Pain Inventory taken February 24, 2012.
10. 10Exhibit 10, pp. 10-11.
11. 11Ibid., p. 12.
12. 12Transcript, February 10, 2016, p. 44, line 20 to p. 45, line 2.
13. 13Exhibit 5, Insurer's Examination Psychological Assessment, January 19, 2012.
14. 14Exhibit 5, p. 14.
15. 15Transcript, February 8, 2016, Evidence of the Applicant, pp. 72-75.
16. 16Exhibit 5, pp. 27-28.
17. 17Exhibit 5, pp. 30 to 32.
18. 18Exhibit 6, Insurer's Examination Post-104 Disability Psychological Assessment.
19. 19Exhibit 6, p. 18.
20. 20Ibid., pp. 19-20.
21. 21Exhibit 13, "Insurer's Examination Occupational Therapy Assessment, November 28, 2011."
22. 22Exhibit 26, "Insurer's [sic] Examination Post-104 Disability Occupational Therapy Assessment."
23. 23Exhibit 13, p. 1.
24. 24Ibid., pp. 6 and 7.
25. 25Transcript, April 7, 2016, pp. 118 to 125, Evidence of Sharon Mills.
26. 26Exhibit 5, p. 29.
27. 27Transcript, April 7, 2016, p. 61.
28. 28Exhibit 13, p. 4.
29. 29Transcript, April 7, 2016, p. 100, line 11 to p. 101, line 8.
30. 30Transcript, April 7, 2016, p. 101, line 9 to 18 and p. 102, line 5-7.
31. 31Transcript, February 10, 2016, pp. 86-87.
32. 32Transcript, February 10, 2016, pp. 91-92.
33. 33Exhibit 23, Delta Investigative Services Letter Report, dated May 6, 2013.
34. 34Exhibit 23, pp. 3-4.
35. 35Transcript, February 8, 2016, Opening Statement of Mr. Mertes, p. 29, line 22-25.
36. 36Transcript, February 8, 2016, Opening Statement of Mr. Holland, p. 29, line 1-2 and Opening Statement of Ms. Mertes, p. 32, line 22 to p. 33, line 1.
37. 37Transcript, Opening Statement of Ms. Mertes, p. 29, line 2-25.
38. 38Ibid.
39. 39Transcript, February 8, 2016, Opening Statement of Mr. Holland, p. 28, line l-25 to p. 29, line 1 and Opening Statement of Ms. Mertes, p. 32l, line 24-25.
40. 40Exhibit 30.
41. 41Anizor and Royal Insurance Company of Canada, OIC A-003702, p. 14.
42. 42Michalowski and St. Paul Fire & Marine Insurance Company (FSCO A98-001492).
43. 43Fisk and ING Insurance Company of Canada (P03-00028), Director's Delegate Makepeace.
44. 44P03-00015.
45. 45A00-001311.