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

Neutral Citation: 2016 ONFSCDRS 339

FSCO A13-006712

BETWEEN:

BIBI MOHAMMAD

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Arbitrator Alan G. Smith

Heard:

In person at ADR Chambers on May 9–18, 2016, and by written submissions completed on September 27, 2016

Appearances:

Ms. Bibi Mohammad participated

Mr. Naresh Misir and Ms. Suhasha Hewagama participated for Ms. Bibi Mohammad

Mr. Richard Horst and Ms. Ellen Gowland participated for Allstate Insurance Company of Canada

Issues:

The Applicant, Ms. Bibi Mohammad, was injured in a motor vehicle accident on November 20, 2010 and sought accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Mohammad, 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.

The issues in this Hearing are:

1. Is Ms. Mohammad Catastrophically Impaired pursuant to the Schedule, as a result of the accident?

2. Is Ms. Mohammad entitled to Housekeeping and Home Maintenance Benefits from November 20, 2010 to November 20, 2012?

3. Is Ms. Mohammad entitled to Attendant Care Benefits from November 20, 2010 to November 20, 2012?

4. Is Ms. Mohammad entitled to Non-Earner Benefits from May 20, 2011 to the present?

5. Is Ms. Mohammad entitled to payment of $3,100.00 for the cost of examinations?

6. Is Ms. Mohammad entitled to interest for the overdue payment of benefits?

7. Is Allstate liable to pay Ms. Mohammad’s expenses in respect of the Arbitration?

8. Is Ms. Mohammad liable to pay Allstate’s expenses in respect of the Arbitration?

Result:

1. Ms. Mohammad is Catastrophically Impaired pursuant to the Schedule, as a result of the accident.

2. Ms. Mohammad is not entitled to Housekeeping and Home Maintenance Benefits from November 20, 2010 to November 20, 2012.

3. Ms. Mohammad is not entitled to Attendant Care Benefits from November 20, 2010 to November 20, 2012.

4. Ms. Mohammad is not entitled to Non-Earner Benefits from May 20, 2011 to the present.

5. Ms. Mohammad is entitled to payment of $3,100.00 for the cost of examinations.

6. Ms. Mohammad is entitled to interest for the overdue payment of the cost of the examination. If the parties cannot come to an agreement on the matter of interest, either party may request in writing an appointment before me to determine the interest payable, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued.

7. Expenses shall be payable. If the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before me to determine expenses, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued.

EVIDENCE AND ANALYSIS:

BACKGROUND

On November 20, 2010, Ms. Mohammad was a passenger of an automobile being driven by her daughter, Alyssa. They were travelling through a strip plaza when another car reversed from a parking space into their vehicle. Following the accident, Ms. Mohammad and her daughter drove to the Collision Reporting Centre to report the accident. They then drove home.

Ms. Mohammad did not feel any symptoms until later that night when she reportedly felt pain in her back and throughout her whole body. Thus, Ms. Mohammad attended a hospital emergency department. However, she went home prior to consulting a doctor after three to four hours of waiting. On November 22, 2010, Ms. Mohammad visited her family physician, Dr. Tam. Ms. Mohammad complained of back pain, shoulder pain, knee pain and headaches. Dr. Tam prescribed Tylenol 2 and referred Ms. Mohammad for physiotherapy. A couple of days after the accident, Ms. Mohammad began a course of physiotherapy, massage and chiropractic treatment. The treatment continued for approximately six months.

At the time of the accident, Ms. Mohammad was living with her two daughters, as well as her daughter’s husband and daughter. This residence is a two-level bungalow with three bedrooms, one washroom, a kitchen, living room, and dining room on the main floor. The basement included a kitchen, washroom, bedroom, den, laundry room, and an additional sitting area.

Ms. Mohammad has a long-standing history of rheumatoid arthritis (“RA”) going back to the 1990s. As a result, she was approved for Canada Pension Plan disability benefits in 1995. The Applicant was also involved in a previous motor vehicle accident on March 30, 2009, which caused injury to her neck, lower back, and shoulder, as well as headaches.

The Applicant has had two surgeries performed by Dr. Stephen Lewis because of the RA, a C1-C2 fusion of her neck vertebrae in July 2009 and a further procedure in November 2011. The surgeries were an attempt to correct a condition described as basilar invagination, or the gradual protrusion of the bones at the base of the skull cap up into the skull. This condition was diagnosed when the Applicant was referred to Dr. Lewis in May 2009. Ms. Mohammad received physiotherapy treatment after the 2009 operation which continued until five days before the accident.

WITNESS TESTIMONY

Ms. Bibi Mohammad – Applicant

The Applicant testified that in the months leading up to the accident, her functioning significantly improved. She reported she had achieved a seventy percent recovery at the time of the accident and was beginning to be independent in her activities of daily living, including personal care tasks and housekeeping duties. Ms. Mohammad testified that she was occasionally driving short distances prior to the accident.

As a result of the accident, Ms. Mohammad stated she sustained injuries to her upper back, bilateral knees and bilateral ankles. She also asserted that the pre-existing injuries to her neck, shoulders, and lower back, as well as her headaches, were aggravated and she additionally suffers from sleep deprivation, depression, loss of motivation and hope, and feelings of frustration, anger and sadness. She further testified that “... I don’t sleep. That’s one thing. I’m always tired. I – I cannot do anything for myself. I get very depressed. I cry. I sit and cry for days.” She stated that some days she doesn’t even have the “courage to put clothes on”.

Ms. Mohammad testified that she has learned to cope with the symptoms of RA and it has had a minimal effect on her daily living and employment. She was employed as a collection agent until December 2008. Prior to the accident, she was independent in her personal care tasks and housekeeping tasks. She could drive on her own.

Ms. Mohammad testified that a typical day prior to the accident would involve the following: getting up in the morning, using the washroom, brushing her teeth, taking a shower, praying, occasionally driving her daughter to the GO station, making the beds, wiping the sink, wiping down the cupboards/counters, doing some cooking, doing light laundry, washing small dishes, sweeping, and taking small garbage downstairs to leave by the back door.

The Applicant opined that she was seventy percent recovered prior to the accident. She further testified that she had returned to completing her personal care activities independently except for washing her hair, washing her back and getting in the shower. She stated that she is a devout Muslim and attended the mosque every Friday prior to the accident. She also attended movies, sporting events, West Indian shows, and the mall. She also attended various events at the mosque with her family, which included tours of different places with other members of the mosque. Ms. Mohammad stated that prior to the accident, the activities that were most important to her were going to the mosque, cooking and taking care of her family.

The Applicant testified that there was a significant change to her life after the accident. She now gets up in the morning around 7:00 a.m., brushes her teeth, takes a warm shower, puts on clothes, and comes downstairs, all with the help of her daughter, Ms. Natasha Hall. She eats breakfast and drinks a cup of tea prepared by her daughter, takes her medication, and then goes to the couch to lie down. Ms. Mohammad testified that she is often fatigued due to lack of sleep, she feels depressed as she cannot do anything for herself, she is stressed, she is often tearful, and she does not have the energy to go out or get dressed. Ms. Mohammad testified that when she does go out, she gets tired, frustrated and just wants to go home. She no longer attends the mosque.

With respect to her housekeeping duties, the Applicant advised that she is no longer able to complete her pre-accident housekeeping duties. She can sweep for approximately five minutes and she attempts to wipe the cupboards. Ms. Mohammad testified that on a few occasions, she had left the stove on, went to lie down and forgot to turn off the stove. There were also a few occasions where she left the tap on. She receives assistance from her daughter, Ms. Hall, and Moe’s Cleaning Services.

With respect to her personal care tasks, Ms. Mohammad is unable to complete her pre-accident personal care activities. She receives assistance from her daughter, Ms. Hall. Ms. Mohammad testified that she stopped driving after the accident as she feared for the safety of others and herself. She now relies on her children and Wheel-Trans for transportation. She no longer has the urge to leave the house.

Dr. J. Douglas Salmon – Neuropsychologist

Dr. Salmon testified on behalf of the Applicant. As part of the Multi-Disciplinary Catastrophic Rebuttal Report, the witness authored a Neuropsychological Assessment of Ms. Mohammad in January 2016. The Rebuttal Report concluded that that Ms. Mohammad was Catastrophically Impaired as a result of the accident pursuant to Section 3(2)(e) and (f) of the Schedule. That is, that she suffered an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), resulted in a class 4 impairment (marked impairment) due to mental or behavioural disorder, in all four spheres of function. The Rebuttal Report also concluded that Ms. Mohammad suffered impairment or a combination of impairments that, in accordance with the Guides, resulted in a 70% whole person impairment, 15% beyond the minimum percentage necessary for a determination of Catastrophic Impairment pursuant to the Schedule. In his report,² Dr. Salmon made the following diagnosis:

Psychometrically, Ms. Mohammad’s profile was suggestive of severe depression subjectively (moderate to extreme on an objective measure), and consistent with mild anxiety, extreme somatoform concerns, mild dysthymia scale elevations with a “plea for help” in explanation of any exaggerative overtones. It is further noted, that if anything, upon interview, Ms. Mohammad appeared to have understated her symptoms in contrast to her daughter’s account of her emotional status (depression and irritability in particular); otherwise, the accounts were highly consistent, thereby corroborating Ms. Mohammad’s presentation as being highly credible and genuine….

Dr. Salmon found the following impairments limited Ms. Mohammad’s functional ability to carry out her activities of daily living, as a result of the accident:

…appears limited predominantly by motivational impairment/functional impairments resulting from the cumulative effects of her MVA related Major Depression, Pain Disorder, sleep disorder (itself highly mediated by the other two conditions) and cognitive impairments. This motivational impairment/set of functional limitations clearly undermines Ms. Mohammad’s capacity to: stand for longer than five to 10 minutes, engage in main meal planning and preparation; participate in banking/financial management; achieve restorative sleep; work; drive; participate in household chores and maintenance activities; mobilize outdoors, arrange and keep appointments; multitask; be involved in recreational and religious activities and social interactions. Her daughter states Ms. Mohammad has difficulties with initiation and follow-through due to her pain, her memory/concentration, her moods, her mobility, and she takes less initiative…

She is also impaired from initiating and sustaining a meaningful and productive daily routine and is unable to achieve daily task integration to the extent that her impairment levels are significantly impede daily living tasks (Class 4: Marked Impairment) [sic].

Dr. Salmon testified that based on his direct interview, collateral information, the file review and his overall psycho-diagnostic and rehabilitation testing, there appears to be symptoms beyond RA that had played a significant material role in Ms. Mohammad’s condition. This was in accordance with his report, which contains the following passage:

Ms. Mohammad has clearly demonstrated multiple and substantive psychological impairments, materially related to the cumulative impacts of both MVAs, but which would likely not have occurred but for the second MVA. Although her pre-existing rheumatoid arthritis was noteworthy, her related pain and limitations appear to have stabilized over the past two years after she was prescribed a new medication.

The witness explained that per the DSM-IV or V (the Diagnostic and Statistical Manual of Psychiatry), psychologists are to consider any potential pre-existing or co-existing physical conditions before rendering, for example, a diagnosis of pain disorder. As such, if RA was the only condition affecting a person, a psychologist cannot provide a diagnosis of pain disorder.

Dr. Salmon testified that he looked at Ms. Mohammad’s overall function and his role was to link, as best as he can, the accident-related diagnoses or materially accident-related diagnoses to the definition of Catastrophic Impairment as defined in the Schedule. When queried by the Arbitrator, Dr. Salmon testified that it is not possible to fully separate causation in this case but that one can conclude that there’s evidence of a material contribution of the accident in terms of Ms. Mohammad’s overall functioning. Dr. Salmon testified that in terms of each of the four Guides spheres, the accident was a materially contributing factor.

On cross-examination, Dr. Salmon testified that he is relying on other experts for Ms. Mohammad’s physical diagnosis. He further testified that his link to Ms. Mohammad’s condition and to the accident begins with the physical aspects. Dr. Salmon added that there are other elements to Ms. Mohammad’s condition that are clearly not physical such as phobic aspects, anxiety and panicking elements. When queried by the Arbitrator, Dr. Salmon testified that the phobic aspect is not trivial.

On further cross-examination, Dr. Salmon testified that, during the assessment process, nothing raised a “red flag” around the second surgery having been a specifically traumatic event. Therefore, he ruled out the likelihood of the second surgery being of any significant psychological substance. However, Dr. Salmon acknowledged that if his analysis of the Applicant’s psychological condition, as based on physical problems related to the accident, was wrong, then his conclusion would also be wrong.

On re-examination, when questioned as to whether the effect of the accident was beyond trivial, Dr. Salmon responded “absolutely”.

Ms. Heather Pickin – Occupational Therapist

Ms. Pickin prepared the In-Home Assessment Report as part of the Rebuttal Report. The witness testified that based on the document review and her assessment, Ms. Mohammad was not fully functional as she was prior to the first accident but she was making improvements as she was able to do light cooking, light cleaning, and walk to visit her grandmother. The witness explained that it was her understanding that her task was to compare Ms. Mohammad’s degree of impairment before the accident in March of 2009 and after the accident of November 20, 2010. She was therefore unable to provide much, if any, of an opinion with regard to the Applicant’s status immediately before the accident.

Ms. Pickin testified that Ms. Mohammad could have gone on to be independent for many years and that it was possible for someone living with RA to be independent well into their 70s or 80s.

On cross-examination, Ms. Pickin testified that she found Ms. Mohammad to be credible and forthright, so she had no reason to doubt the information provided by Ms. Mohammad. She further testified that Ms. Mohammad was cooperative and receptive. She was oriented to time and place. However, Ms. Mohammad became distraught several times throughout the assessment, especially when talking about the emotional issues relating to her coming to terms with her level of disability and dependence. Ms. Pickin testified that Ms. Mohammad could communicate during the assessment but noted that Ms. Mohammad had difficulty with short-term memory.

Ms. Pickin opined that Ms. Mohammad struck her as a person who tried to avoid asking for help. She further testified that memory issues prevented Ms. Mohammad from cooking. Ms. Pickin explained that a multitude of factors are contributing to Ms. Mohammad’s functional impairments. For example, Ms. Mohammad’s memory issues affected her ability to cook, she had difficulty with going up and down the stairs, and she was fatigued.

Ms. Farhana Jessa – Occupational Therapist

Ms. Jessa prepared the One-Day Situation Assessment Report as a part of the Rebuttal Report. Ms. Jessa’s purpose was to assess Ms. Mohammad’s functional ability in a work-like setting or in a productive role. Ms. Jessa testified that the accident affected Ms. Mohammad’s functional abilities.

Dr. Stephen Lewis – Treating Orthopedic Surgeon

Dr. Lewis testified in relation to the status of the mid-neck as seen on the various MRIs conducted both before and after the accident. Regarding the first MRI, dated May 28, 2009, Dr. Lewis testified that it showed minor osteochondral bars in the mid-neck, as well as some early degeneration of the disc at C5-C6. Regarding the next MRI, dated February 27, 2010, Dr. Lewis opined it revealed no changes from the previous MRI in relation to the mid-neck. Accordingly, it appears that the mid-neck was stable prior to the accident.

Dr. Lewis testified that once Ms. Mohammad’s C1-C2 neck vertebrae had been fused in the surgery of July 2009, the upper-neck was then stabilized. The witness opined that after a fusion of the C1-C2 has taken place, any force to the neck could have negative consequences to the mid cervical region.

The witness testified that the MRI of March 2011, the first MRI of the cervical spine conducted after the accident, revealed that there was now progression in the “degeneration at the C5 6 level with a slip or known as a spondylolisthesis compared to the previous MRI.” There was also an increased disc bulge at C4-5. Dr. Lewis also noted that an x-ray of the cervical spine conducted in January 2011 documented that there was “grade 1 anterolisthesis of C5 on C6”. The witness explained that anterolisthesis occurs when the “upper vertebral body slips forward on the one below.”

A further MRI was conducted in October 2011. Dr. Lewis testified there was more prominent degeneration at the C4-C5 and C5-C6 levels visible on the MRI and “with greater indentation of the ventral spinal cord ... so it is pressing on the front of the spinal cord.” The MRI also reveals mechanical discopathy in the mid-cervical region. Dr. Lewis testified that mechanical discopathy is in relation to a mechanical cause such as trauma as opposed to inflammatory discopathy which would be related to the RA. Dr. Lewis stated that he has recommended a third surgery to address the mid-neck at the C4-C5 and C5-C6 vertebrae.

Ms. Natasha Hall – Applicant’s Daughter

Ms. Hall testified that Ms. Mohammad was getting better towards the middle of 2010 and was beginning to do a little bit more on her own. She further testified that Ms. Mohammad was becoming more social, participating in events, and was doing short distance driving. Ms. Mohammad was also starting to do cooking on her own again. Ms. Hall opined that the Applicant did not need as much assistance with mobility and did not require as much personal care prior to the accident.

The witness testified that after the accident, her mother became “a lot more withdrawn. And she started to get more frustrated with the things that she couldn’t get done ... she basically went from recovery to even worse, you know, three steps back, I guess.” Ms. Hall testified that her mother had increasing issues with her forgetfulness and memory, and these issues were to such a degree that her mother was forbidden from trying to cook due to safety concerns. Her mother was a lot more withdrawn and was frustrated with the things she could no longer do. Ms. Hall further proffered that after the accident, there was a change in Ms. Mohammad’s mood, memory, concentration and sleep pattern.

Ms. Hall further testified that her mother became even more dependent on her after the accident and her mother could not continue with personal care tasks. Ms. Hall stated she performed attendant care and housekeeping services for her mother. She helped her mother brush her teeth, use the washroom, take a bath or shower, apply cream to her skin, put clothes on, make meals, provide medication, get in and out of bed and perform exercises. She would spend the day with her mother and when she left in the evening, her younger sister would care for their mother.

Ms. Hall stated that prior to the accident, she worked full-time but was not able to continue with full-time hours because of providing attendant care and housekeeping services for her mother. Ms. Hall later lived in Brampton and Whitby and would have to drive to Ms. Mohammad’s residence to assist her mother. Ms. Hall further testified that she was required to pay for additional living expenses while living for an extended period at her mother’s home to provide attendant care and housekeeping services.

On cross-examination, Ms. Hall confirmed that the amount of care she provided, which initially was $887.80 per month and later increased to $4,722.25 per month in February 2012, was based on her own calculation of the amount of time she spent providing her mother with care. However, she acknowledged that she did not keep any records of the time she spent and she filled out the expense forms submitted to the Insurer at her mother's lawyer's office, with what she described as "assistance" from someone there. The witness was also asked to explain the increase in the monthly dollar amounts. Ms. Hall testified that the change was solely because she told the law firm she was now spending more time providing services to her mother. Ms. Hall specifically denied the change would have been because of someone doing an assessment of her mother's needs. However, she was unable to provide a breakdown of the time she spent or the specific tasks she completed while providing care to her mother. In further cross-examination, Ms. Hall admitted that she provided less care to her mother while she was in the hospital following her surgery. However, she continued to submit expenses to the Insurer in the same amount during that time. The witness also concurred that the expense forms, which were submitted to Allstate for attendant care benefits, do not provide any actual breakdown or calculation of the amount of time or care provided.

Ms. Hall also conceded that she was asked at one point for something from her employer regarding her loss of employment but she never provided anything to the Insurer. Although she was not able to recall whether she was asked for tax returns specifically, the witness admitted that Allstate asked her for proof of economic loss and none was ever provided.

Mr. Mohammad Yusuff – Applicant’s Brother

Mr. Mohammad Yusuff testified on behalf of Moe’s Cleaning and stated that the company has been providing Ms. Mohammad with cleaning services since the accident. He stated the services include: vacuuming, dusting, cleaning washrooms, mopping, cleaning bedrooms, cleaning the kitchen, taking out the garbage and helping with laundry. Mr. Yusuff testified that Moe’s Cleaning came to an agreement with Ms. Mohammad to bill a reasonable flat rate of $100.00 per week for housekeeping services because he was informed that this amount was the limit for what the insurance company would provide to Ms. Mohammad. Mr. Yusuff stated the company generally provided services to Ms. Mohammad three times per week for approximately three hours each time. He explained that the amount of time spent by Moe’s Cleaning would increase depending on the amount of assistance Ms. Mohammad required. Mr. Yusuff advised that Moe’s Cleaning has a total outstanding account with his sister which now amounts to approximately $28,000.00. The witness confirmed that the claims advanced by Moe's Cleaning cover the period of November 2010 to June 2011. Although there are no additional invoices from Moe's Cleaning, Mr. Yusuff testified that the claim is ongoing.

Mr. Yusuff further stated that he has been a professional housekeeper with Moe’s Cleaning for over twenty years and the company provides cleaning services for both commercial and residential premises. Mr. Yusuff testified he regularly provides cleaning services for commercial plazas in Toronto. In cross-examination, Mr. Yusuff admitted that Moe's Cleaning is a company which provides janitorial services to businesses, not private homes. He advised that he works for the company but is not an owner. Mr. Yusuff also testified that he did not earn any less because of providing the services to his sister, since he did all his regular janitorial work as well and did not miss any work.

Mr. Yusuff testified that he saw Ms. Mohammad quite frequently and interacted with her both at home and at family gatherings. He described her as not being the same after the first accident in March 2009. He opined that the Applicant was perhaps a bit more reserved at family gatherings subsequent to the accident, i.e., that “sometimes she sit[s] there, you know, she look[s] like she gone – she was far somewhere, you know”. He stated that when Ms. Mohammad attends family functions, she sits by herself and speaks very little. He further testified that there was a change in her mood and that she is always sad. Prior to the accident, Ms. Mohammad was always talking and they couldn’t stop her from talking. Mr. Yusuff further testified that he noticed a change in Ms. Mohammad after the accident. However, in cross-examination he explained that, “….after the first accident she was, ah ­ tried to recover a little bit. But hasn't that much to recover.”

Dr. Joel Eisen – Psychiatrist

Dr. Eisen testified on behalf of Allstate. The witness authored a Psychiatric Assessment of Ms. Mohammad in November 2013, as part of the Insurer’s Catastrophic Impairment Determination Report (“Insurer’s Report”). In that report, Dr. Eisen believed Ms. Mohammad suffered a Class 1 (no impairment) in the domains of Activities of Daily Living and Socialization, and a Class 1 (no impairment) to Class 2 (mild impairment) in the domains of Concentration, Persistence and Pace, and Adaptation, and hence was of the opinion that, from a psychological perspective, she was not Catastrophically Impaired pursuant to the Schedule. The possibility that she had some impairment was expressed as perhaps five percent.

When cross-examined on his methodology, Dr. Eisen testified that he spent about an hour with Ms. Mohammad. He testified that he proofread his report prior to signing it. When questioned on various inconsistencies throughout his report, particularly in relation to Ms. Mohammad’s marital status, description of the accident and her neck surgeries, Dr. Eisen explained that he relied on the information provided by Ms. Mohammad. Although Dr. Eisen could not recall specifically, the witness testified that he does not think he would have compared Ms. Mohammad’s self-reporting to the document review. Dr. Eisen agreed that he would need an accurate understanding of Ms. Mohammad’s background to reach his conclusion. With respect to his examination, Dr. Eisen testified that no formal testing was conducted.

Dr. Eisen explained that his conclusion was that Ms. Mohammad does not have a diagnosable psychiatric disorder. When asked to clarify whether his diagnosis was in relation to the accident or irrespective of the accident, Dr. Eisen testified that the purpose of the assessment was to determine whether Ms. Mohammad had a psychiatric disorder related to both accidents. He opined that Ms. Mohammad did not have impairments in the behavioural or psychological domain related to the motor vehicle accidents. However, Dr. Eisen further testified that the diagnosis provided by other psychologists that assessed Ms. Mohammad, such as pain disorder and adjustment disorder, were incorrect diagnoses. He advised that he did not identify a psychiatric disorder irrespective of the accidents. Dr. Eisen testified that he tries to determine if an individual’s response to an event is appropriate under the circumstances. If the intensity is out of proportion to the stressor, then he will lean towards a diagnosis of depression. With respect to Ms. Mohammad, Dr. Eisen testified that Ms. Mohammad’s mood changes were proportionate with her limitations and losses. He found Ms. Mohammad to have some sadness during his assessment; however, Dr. Eisen testified that Ms. Mohammad appeared to have a good relationship with her family and was able to get some enjoyment through activities such as watching sports.

Dr. Eisen confirmed that his report notes Ms. Mohammad suffers from a Class 1 to Class 2 impairment because of the accident in the spheres of concentration, persistence, pace and adaptation. When queried regarding this classification, Dr. Eisen testified that there are many causes but he could not rule out the accident.

When cross-examined on Dr. Salmon’s rebuttal comments, Dr. Eisen agreed that it is a “fair comment”. He further testified that it would have been a “good idea to review” the Occupational Therapist’s report, although he had not done so, as such an assessment is very helpful in determining the severity of impairments in a wide range of areas.

When questioned about his overall approach to assessing the Applicant, Dr. Eisen testified that the unhappiness that the Applicant expressed was not a diagnosable condition because it would be commensurate with the reaction one would expect from someone with her obvious disabilities. In his testimony, the witness used a hypothetical of an individual who had lost their legs in an accident:

I mean, ah, if somebody were in a hospital after having lost their legs in an accident, they’re in ICU and they’re not sleeping, they feel sad and they think oh, I want to die, there’s no point in going on and this is awful and they’re like that for two weeks, you wouldn’t diagnose a major depressive disorder, you’d say that they are very sad, of course, look, they just lost their legs, or they’ve gone through this awful experience. You wouldn’t diagnose a major depressive disorder. And I think a major depressive disorder is often over diagnosed.

Dr. Joseph Houpt – Rheumatologist

Dr. Houpt testified on behalf of Allstate. The witness authored a Rheumatological Assessment of Ms. Mohammad as part of the Insurer’s Report. In his report, he concluded that:

At the present time it is impossible for this assessor to determine the role of the interplay of trauma, albeit minor, on activation of disease, the role of the disease process itself, postoperative oropharyngeal complications, and depression on her current day-to-day functional impairments.

When asked to clarify his conclusion on cross-examination, Dr. Houpt testified that he could not determine the role of the accident on Ms. Mohammad’s current condition. He explained that the statement “interplay of trauma, albeit minor” is a reference to the accident. Dr. Houpt explained that, based on the description of the accident, the probability is that Ms. Mohammad did not have sufficient movement of the head to cause her impairments. However, it was possible that the impact from the accident could have influenced Ms. Mohammad’s condition. He also testified that even if there was movement in the upper neck caused by the accident, it may not have shown up on the imaging conducted afterwards. However, the witness further opined that because the C1-C2 fusion had already taken place before the accident, the upper neck would have been stable and hence, there may not have been sufficient movement in the upper neck for the accident to have caused further impairment to the upper neck.

Dr. Greg Jaroszynski – Orthopedic Surgeon

Dr. Jaroszynski testified on behalf of Allstate. The witness authored an Orthopedic Assessment of Ms. Mohammad as part of the Insurer’s Report. The witness testified that he formed his opinions based on a thorough and accurate analysis of the medical records, as well as his own examination of the Applicant. Dr. Jaroszynski’s report concluded that “from an orthopedic perspective, Ms. Mohammad’s deterioration overall is due to the nature of her RA rather than the direct sequelae of the accident-related injuries”. Dr. Jaroszynski testified that his opinion was that the accident, at most, caused some soft tissue injury sprain to the cervical region.

When cross-examined on his methodology, Dr. Jaroszynski testified that he did not request the imaging for Ms. Mohammad. Dr. Jaroszynski could not recall whether he questioned Ms. Mohammad as to the nature, severity, or duration of her pain and the differences in her pain before and after the accident. When queried as to whether Dr. Jaroszynski questioned Ms. Mohammad regarding the specific mechanics of the accident and any body movements, he testified that he would have asked her as per his routine. However, this information was not included in the report. Dr. Jaroszynski testified that Ms. Mohammad did not disrobe for the physical examination and he did not inquire whether she had taken any anti-inflammatory medication prior to the examination.

Dr. Jaroszynski testified that the statement “increased pain throughout the body” used in his report is a factual statement made by Ms. Mohammad. He further testified that he believed Ms. Mohammad’s statement that she was now experiencing more pain than prior to the accident.

When Dr. Jaroszynski was cross-examined on how he reached his conclusions while Dr. Houpt found it impossible to determine the effect of the trauma on her RA, he testified that rheumatologists deal with the condition of RA, what causes it, what exacerbates it, what treatments exist, how people respond, what the side effects are, etc. He further testified that he did not know about RA to the same degree as a rheumatologist. He only knew it from a surgical perspective. He could not determine whether something affected the RA condition itself. It was outside his expertise to determine what causes RA, what exacerbates it or how people respond to it.

The witness opined that there was a change in Ms. Mohammad and his opinion was that it was due to the natural causes of the condition. If there was a deterioration of the RA condition, he was not able to determine what caused the flare-up. He agreed with Dr. Houpt that RA is degenerative, meaning that it would have continued to decline regardless of the accident.

Ms. Ranya Ghatas – Occupational Therapist

Ms. Ghatas testified on behalf of Allstate. The witness authored an Occupational Therapist’s Assessment of Ms. Mohammad as part of the Insurer’s Report. The assessment concluded:

…the claimant’s reported ongoing pain, presenting physical limitations and associated psycho-emotional duress, superimposed on her pre-MVA medical history, namely, rheumatoid arthritis, would be expected to negatively impact Ms. Mohammad’s ability to function and participate in her activities of daily living…

Ms. Ghatas testified that her role was to compare Ms. Mohammad’s condition prior to the March 30, 2009 accident to her current status. In other words, she agreed that her baseline was prior to the first accident in 2009 and not the accident in 2010. The witness further agreed that she did not address the issue of Non-Earner Benefits in her report.

THE ISSUES

CATASTROPHIC IMPAIRMENT

Is the Applicant Catastrophically Impaired?

Submissions

In her written submissions, the Applicant argues that:

…in determining whether Ms. Mohammad is catastrophically impaired, the holistic approach taken by Arbitrator Alan G. Smith in Ghabn and Dominion Canada General Insurance Company³ is the correct approach to follow, in light of Ms. Mohammad’s complicated medical history. Following the holistic approach, the Arbitrator must first consider Ms. Mohammad’s overall condition, irrespective of the cause, and determine whether she is catastrophically impaired. Once the Arbitrator makes the determination that Ms. Mohammad is catastrophically impaired, it should then be determined whether the Subject Accident materially contributed to her catastrophic condition.

The Insurer made no submissions regarding the “holistic approach” as I described in Ghabn and Dominion of Canada General Insurance Company.

Analysis

The Applicant argues that she meets the definition for Catastrophic Impairment pursuant, inter alia, to Schedule s. 3(2)(f) as described above in the discussion of Dr. Salmon’s report. Allstate appears not to argue that Ms. Mohammad meets the Schedule definition of Catastrophic Impairment (using the approach in Ghabn) but rather that the appropriate causation standard is not established. As the Applicant points out, during the Hearing, Insurer’s counsel admitted that: “we’re not going to be denying that there’s – there’s a real extensive depression here.” Therefore, using the “holistic approach” described in Ghabn, I have no difficulty in finding that Ms. Mohammad meets the definition of Catastrophic Impairment pursuant to Schedule s. 3(2)(f), as explained in Dr. Salmon’s report.

Submissions Regarding Causation

The Insurer has stated that the fundamental issue to be determined in this Arbitration is that of causation. I agree.

In her written submissions, the Applicant argues that:

In the context of the Schedule and disputes stemming from it, the “material contributing factor” test has been repeatedly endorsed as the correct test to apply in relation to determining causation. This includes disputes in which the applicant has had a significant pre-existing health history, as is the case with Ms. Mohammad in Monks v. ING¸⁴ the Court of Appeal confirmed that a material contributing factor is any causal factor outside the “de minimis” range. Arbitrator Smith in Sabadash v. State Farm,⁵ in citing Black’s Law Dictionary, defined de minimis as “a trifling consequence and a matter that is so small that the court does not wish to even consider it.”

Allstate argues in its written submissions that:

While the Insurer acknowledges that until recently the test which has been applied to accident benefit claims is material contribution, it is submitted that recent cases, including the notable Ontario Court of Appeal case in Blake v. Dominion Insurance Company⁶ of Canada, indicate that the test, even in accident benefits cases, is changing. This change is described in a number of cases, including Agyapong and Jevco Insurance Company,⁷ an October 2015 decision of Arbitrator Wilson at the Financial Services Commission of Ontario, as well as some cases of the present Arbitrator. The reliance on the material contribution test appears to originally follow what was understood to be the reasoning of the Supreme Court of Canada in Athey v. Leonati⁸ and adopted by the Ontario Court of Appeal in Monks v. ING.⁹ However, the continual erosion of that test as originally expressed by the Supreme Court of Canada has put additional pressure on it as a test even for accident benefits. Arbitrator Wilson in the Agyapong decision, following the history of this test, suggested its days as the automatic test in accident benefits were numbered.

The Insurer submits that the decision in Blake supports this view. If the material contribution test were the only appropriate test in accident benefits cases, then one would have expected the Court of Appeal to express that. The Insurer submits that if the Court of Appeal was insistent on following its earlier decision in Monks and finding that material contribution was the proper test in accident benefits, then it presumably would have done so here. It was given the opportunity to do so when the insured in that case alleged that the judge had applied the wrong test, i.e. but for rather than material contribution. Instead, the Court refused to find that material contribution was the proper test and upheld the decision at the trial level. It appears that plaintiff s [sic] counsel did not expressly state which test should apply at the trial level. The judge applied the "but for" test which is usually applied in tort matters.

Moreover, rather than suggesting this was some kind of unique situation, the Court went out of its way to cast doubt on the appropriateness of the material contribution test. It stated that in Monks it was the insurer who, at trial, had said the material contribution test was the appropriate one, and that, having made that request of the trial judge, it would have been wrong to permit it to succeed, at the Appeal level, in getting the Court to apply a different standard than the one originally sought. This was a procedural argument, built on the circumstances of an individual case, in asserting that the material contribution test was appropriate. It is certainly not a defence of the application of material contribution as the appropriate standard in accident benefit cases.

In light of the continuing assault on the appropriateness of the material contribution test as a legal test, as demonstrated by the Supreme Court of Canada in cases like Clements v. Clement,¹⁰ [sic] which was released after the Monks decision, the Insurer submits that the "but for" test ought to be the test applied in at least most accident benefits cases…

The Insurer submits that how to decide what degree of importance a fact may have in order to reach the level of "material contribution" is not an easy task. In the past, courts have used the phrase "something more than de minimus", the task of actually categorising the facts is not a simple calculation. Although in the Ghabn and Dominion of Canada General Insurance Company¹¹ decision the present arbitrator discussed the term "trivial" as a definition, the In Agyapong,¹² [sic] Arbitrator Wilson referred to the dictionary definition of "material" to suggest it may be "significant" or "influential". For material contribution as a legal test, it may be that more than de minimus and "significant" or "influential" are two sides of the same coin. The Insurer submits that material in this context should at least mean something that makes a difference. In legal terms, a material fact is one which has the potential to change the outcome of a case. In this case, it should be something which contributes in a more than trivial, or to put it differently, in a significant way, to an Applicant's condition.

In essence, Allstate argues that the reasons in Blake v. Dominion of Canada General Insurance Company¹³ should be construed to mean the Court of Appeal has decided that all Schedule disputes must henceforth be determined on a “but for” test. The relevant portion of the Blake decision is as follows:

70Ms. Blake submits that the trial judge erred in failing to apply the material contribution test to the issue of the causation of her post-accident symptoms. I do not accept her submission.

71The primary reason for not accepting Ms. Blake’s submission is that she is raising the issue for the first time on this appeal. At trial, she did not make submissions on which causation test should be applied. That distinguishes this case from the circumstances in Monks v. ING Insurance Company of Canada, in which this court held that having advocated at trial for the adoption of the material contribution test in a statutory accident benefits case, the insurer could not fault the trial judge for applying the test.

72Here, Ms. Blake did not ask the trial judge to depart from the general “but for” test of causation as described by the Supreme Court of Canada in Clements v. Clements, at para. 46.14. Under those circumstances, I see no error in the trial judge’s having applied the “but for” causation test to the facts of this case….

77In sum, I do not accept Ms. Blake’s submission that the trial judge erred in applying the “but for” causation test in the circumstances of this case.

Analysis

I cannot accept Allstate’s submission that the “but for” test endorsed by the Courts in accident negligence cases is to be applied to the determination of causation in the statutory accident benefit context. I find that the correct causation test in determining Schedule benefits is whether the accident is a “material contributing factor” in the causation of the Applicant’s catastrophic impairment.

Regarding the effect to be given to the decision in Blake,¹⁴ I see no clear direction from the Court in that decision that the material contribution test is no longer applicable to statutory accident benefits disputes. As I noted in agreement with the Applicant in Sabadash and State Farm Mutual Automobile Insurance Company,¹⁵ a decision which was discussed during the present Hearing:

If the Court of Appeal intended in Blake to reverse itself and depart from the law it set out in Monks v. ING, just seven years before Blake, it would have stated so with unequivocal certainty. All the Court of Appeal did was confirm that it was reasonable for the trial judge in the Blake case to have applied the but for test, primarily (their words) because the Plaintiff did not raise any objection to it at trial. This is distinguishable from the present case where the Applicant is asking this tribunal to adopt the “material contribution” test...

I also agree with Ms. Mohammad that the “material contribution” test has been consistently endorsed as a correct legal test for causation. This culminated in the Ontario Court of Appeal’s

decision in Monks v. ING Insurance Company of Canada.¹⁶ In my view, it is clear that, notwithstanding the Blake decision, it is still open to a trier of law to apply either the “but for” or “material contribution” test depending on the facts of a statutory accident benefits dispute.

I also maintain my position taken in Sabadash¹⁷ that the “material contributing factor”, as explained by the Ontario Court of Appeal in Monks,¹⁸ should be defined as any causal factor outside the de minimis range. With the greatest respect to Arbitrator Wilson, I do not accept that his obiter remarks in Agyapong and Jevco Insurance Company¹⁹ have changed the definition as clearly stated by the Court in Monks.

Was the Accident a Material Contributing Factor to the Catastrophic Impairment?

Allstate submits that the accident had “no impact whatsoever” on Ms. Mohammad’s degree of impairment. However, I find that a review of the evidence leads to the conclusion, on a balance of probabilities, that the accident was a material contributing factor.

The Applicant herself testified that there was a significant change to her life after the accident. This assertion was at least partially supported by the testimony of her daughter and brother.

When questioned as to whether the effect of the accident was beyond trivial, Dr. Salmon responded “absolutely”. He noted in his report that the multiple impairments he identified would not have occurred without the accident.

Dr. Lewis testified that MRIs done before the accident revealed Ms. Mohammad's mid­cervical region was stable. He also testified that because Ms. Mohammad's upper neck was fused prior to the accident, any force from a trauma would dissipate to the mid-cervical region. The medical imaging conducted on Ms. Mohammad's cervical spine after the accident revealed a slip of the discs at the C5-6 level, a 3rd degree ligament tear and instability at the C4-5 level, an increased disc bulge also at the C4-5 level, and mechanical discopathy in the mid-cervical region. Importantly, Dr. Lewis also testified that mechanical discopathy was in his opinion in relation to a mechanical cause such as a trauma. Dr. Lewis also testified that Ms. Mohammad did not have inflammatory discopathy, which would have been in relation to RA. I therefore agree with the Applicant that Allstate’s contention that the impairments to Ms. Mohammad's neck caused by RA cannot be supported.

Dr. Eisen testified that he could not rule out the accident as the cause for his finding of a Class 1 -Class 2 impairment.

Dr. Houpt agreed that it was possible the impact of the accident could have caused the impairments to the Applicant’s neck, although he was unable to reach a conclusion.

Dr. Jaroszynski testified that he believed Ms. Mohammad’s statement that she was now experiencing more pain than she felt before the accident. He could not determine whether something affected the RA condition itself. It was outside his area of expertise to determine what causes RA, what exacerbates it, or how people respond to it.

Both occupational therapists, Ms. Ghatas and Ms. Pickin, mistakenly used the 2009 accident as their baselines, and hence their reports and testimony are of little use in determining causation.

In my view, the evidence, on a balance of probabilities, supports the finding that the accident was a “material contributing factor” in Ms. Mohammad’s Catastrophic Impairment.

Conclusion

The Applicant is Catastrophically Impaired pursuant to the Schedule.

HOUSEKEEPING AND HOME MAINTENANCE

In my view, the issue of whether the claimed expenses were “incurred” pursuant to the Schedule is determinative of the claim for Housekeeping and Home Maintenance Benefits.

The Schedule Provisions

The applicable sections of the Schedule are as follows:

3. (7) (e) Subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person;

Housekeeping and Home Maintenance

23. The insurer shall pay up to $100 per week for reasonable and necessary additional 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 sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

Duty of applicant to provide information

33. (1) An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

34. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

35. A statutory declaration as to the circumstances that gave rise to the application for a benefit…

Submissions

The Applicant argues that her service provider, Ms. Hall, suffered various forms of economic loss because of providing attendant care and housekeeping services that were a result of the accident. In her written submissions, Ms. Mohammad states:

Since the Subject Accident and continuing until now Ms. Hall suffered an economic loss by not being able to return to her employment on a full-time basis as she was required to provide attendant care and housekeeping services for her mother. Additionally, when Ms. Hall resided away from Ms. Mohammad, she was required to drive to her mother’s residence in order to provide attendant care and housekeeping services. Furthermore, Ms. Hall was required to pay for additional living expenses while living for an extended period of time…in Scarborough in order to provide attendant care and housekeeping services….

The applicant also submits that I should accept the testimony of Mr. Yusuff, without any documentary collaboration, as adequate to substantiate that Moe’s Cleaning provided housekeeping services to Ms. Mohammad.

Allstate argues in its written submissions that the Applicant has failed to demonstrate that her care providers suffered an economic loss:

At the time the expense forms for attendant care were submitted to the Insurer, an Explanation of Benefits form was provided which indicated that those benefits were not payable unless an economic loss of the service provider could be shown….By Explanation of Benefits dated May 9, 2012 and June 1, 2012, the Insurer requested that the Applicant submit evidence in support of the fact that the service provider, here Ms. Hall, suffered economic loss…. No response was ever received by the Insurer and no documentary evidence has ever been provided to the Insurer in support of the economic loss component of this claim….

During her testimony at the Hearing, Ms. Hall acknowledged that she was asked at one point for something from her employer but she never provided anything to the Insurer. Although she was not able to recall whether she was asked for tax returns specifically, there is no dispute that the Insurer asked the Applicant for evidence of economic loss and none was ever provided. For the first time, at the Hearing of this matter, Ms. Hall set out what she claimed was evidence of her economic loss. She described that she had to give up her job and she had incurred some driving expenses. The Insurer submits that this evidence should not be accepted in support of the economic loss claim. The Insurer requested this evidence in the spring of 2012 and received no response. The Hearing occurred four years later and that was the first time anything approaching evidence in support of this claim was provided…

… when that evidence was finally submitted, no genuine cross­ examination was possible. No attempt could be made to verify any of the information provided. No documents in support of the claim have ever been provided. Therefore, the Insurer requests that an adverse inference be drawn against the Applicant. The evidence requested by the Insurer should easily have been provided. Proof of economic loss, in these circumstances, is a requirement before the benefit can be paid. If it is sufficient to fail to provide any evidence in support of economic loss until the Hearing occurs, when it is effectively immune from cross-examination or an examination of any kind by the Insurer, who would ever provide it in a timely manner so that it may be challenged? For that reason alone, the claim for attendant care benefits should be dismissed.

The Applicant responds in her written submissions by arguing:

The Insurer has suggested that if the service provider's evidence is accepted at the hearing, then no one would submit documentation prior to the hearing. However, in the case of Evelyn Aidoo and Security National Insurance²⁰ and Rita Boateng and State Farm,²¹ the service provider's oral testimony at the hearing was sufficient to meet the evidentiary requirements for establishing an economic loss. The Respondent has not cited any authority noting a contrary position. Ms. Hall also testified that she was not fully aware of the requests by the Insurer regarding documentation pertaining to economic loss. Furthermore, Ms. Hall testified that while she was asked by her counsel to obtain a letter from her employer, Minacs, she was unable to do so due to her abrupt departure.

Both Ms. Mohammad and Ms. Hall testified in a direct, clear and unambiguous manner. Their testimony should be accepted as credible and unrefuted and a finding should be made that the Applicant has met her burden of proof with regard to the attendant care services provided during the period of November 2010 to date.

Analysis

The Insurer in Aidoo and Security National Insurance Co./Monnex Insurance Mgmt. Inc. ²² pointed to the lack of documentation substantiating the service provider’s claim that she forewent employment to act as a service provider for the Applicant. The Insurer submitted that the lack of documentation was fatal to the economic loss claim. Because of the unique circumstances in Aidoo, I found that the service provider’s testimony was sufficient evidence of economic loss without documentary collaboration. A similar situation existed in the Boateng and State Farm Mutual Automobile Insurance Company decision. However, I am now faced with a new argument, one of procedural fairness, which was not advanced by the Insurer in either Aidoo or Boateng.

In my view, the Insurer is correct that I should draw an adverse inference against the Applicant because of the lack of documentary collaboration of economic loss. I also find that an adverse inference can also be drawn against the credibility of Mr. Yusuff regarding whether Moe’s Cleaning provided services to the Applicant. I agree with the Insurer that its procedural rights to fairness were breached in the Hearing by being “ambushed” by the testimony of Ms. Hall and Mr. Yusuff. As further support for rejecting the testimony, I note that Section 33(1) 1. & 2. of the Schedule has been breached by the Applicant’s inaction in not responding to Allstate’s request for supporting documentation.

In sum, I find that the Applicant, on a balance of probabilities, has failed to demonstrate that regarding Ms. Hall, the provisions of Section 3(7)(e) of the Schedule have not been satisfied. I am also not satisfied, given the lack of substantiating evidence, that Moe’s Cleaning provided housekeeping and home maintenance services to the Applicant. The claim for Housekeeping and Home Maintenance Benefits must therefore be dismissed.

ATTENDANT CARE

Given that the provisions of Section 3(7)(e) of the Schedule are also applicable to a claim for Attendant Care Benefits, the claim for Attendant Care Benefits is dismissed for the same reasons provided above for the denial of Housekeeping and Home Maintenance Benefits.

NON-EARNER BENEFIT (“NEB”)

The requirement to qualify for a NEB is set out at Section 12(1) of the Schedule and is further clarified in Section 3(7). To qualify for a NEB, a person must suffer from a "complete inability to carry on a normal life as a result of and within 104 weeks after the accident and ...not qualify for an income replacement benefit". Section 3(7) further defines a complete inability to carry on a normal life as meaning, "as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person normally engaged before the accident".

In Heath v. Economical Mutual Insurance Company,²³ Simmons JA. discussed the test for NEBs and adopted the following general principles as being the proper approach:

… 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. This follows from the language of the section as well as a review of the predecessor provisions….

Consideration of a claimant's activities and life circumstances prior to the accident requires more than taking a snap-shot 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.

Submissions

Allstate argues in its written submissions that:

…the starting point is that any limitations which are considered must be as a result of this accident. There is no doubt that the Applicant has significant limitations. However, those are related to her severe rheumatoid arthritis and, the Insurer submits, are not as a result of this accident. A review of the CPP file provides a succinct chronology of the impact of this disease over the course of the last twenty years. As has already been mentioned, the most recent of the CPP documents was prepared shortly after this accident. In that document, the Applicant describes herself as severely limited in what tasks she is able to complete, without any reference whatsoever to this accident. The Insurer submits that this is a credible description of the Applicant's ability level as it was represented to an independent third party. Further, the motor vehicle accident which is the subject matter of this proceeding occurred approximately a year and a half after the March 2009 accident. Therefore, the Insurer submits that the beginning point for comparison purposes is prior to the November 20, 2010 accident.

The Applicant counters that:

The Insurer has submitted that Ms. Mohammad has not met her onus to establish on a balance of probabilities that, as a result of the Subject Accident, she has suffered a complete inability to carry on a normal life. The Insurer also submitted that there was virtually no evidence presented on this issue at the Hearing. The testimony of Ms. Mohammad, Natasha Hall and numerous assessment reports support that Ms. Mohammad suffered impairments as a result of the Subject Accident that continuously prevents her from engaging in substantially all of the activities in which she normally engaged before the accident.

Analysis

In my view, Allstate is correct that there was almost no evidence presented at the Hearing regarding the claim for NEB. It is particularly unfortunate that both occupational therapists, who provided evidence mistakenly, used the 2009 accident as their baselines, and hence their reports and testimony are of little use in determining causation.

The only substantial evidence proffered by the Applicant in support of the NEB claim was the testimony of the Applicant herself along with her statements contained in some assessment reports. I find that the Applicant’s perceptions are not of sufficient evidential weight to meet her onus of proof. Ms. Hall did testify that after the accident there was a change in Ms. Mohammad’s mood, memory, concentration and sleep pattern, but failed to adequately explain how this deterioration affected her mother’s ability to engage in substantially all the activities in which she normally engaged before the accident. Mr. Yusuff further testified that he noticed a change in Ms. Mohammad after the accident. However, in cross-examination, he explained that, “… after the first accident she was, ah ­ tried to recover a little bit. But hasn't that much to recover.”

Overall, although I do find that the accident was a material contributing factor in Ms. Mohamad’s Catastrophic Impairment, it is unclear to me, pursuant to the test in Heath, to what extent the activities which the Applicant identifies as being important to her pre- accident life, were affected by the accident. Simply put, I was not provided with adequate evidence of the Applicant’s activities and circumstances over a reasonable period prior to the accident and post-accident. The claim for NEBs is therefore dismissed.

COST OF EXAMINATIONS

The Applicant is seeking entitlement to funding for two assessments: an Attendant Care Assessment in the amount of $1,428.24, dated December 17, 2010, and an In-Home Assessment in the amount of $1,582.00, also dated December 17, 2010. Both assessments were completed by Vocan Health Assessors. There is an additional claim for $200.00 for Spinal Ligament Assessment.

Submissions

The Insurer argues in its written submissions that:

These claims were not dealt with at all in the evidence which was provided at the Hearing. With respect to the documentary evidence, the Insurer submits that it is not particularly clear…. The other assessment claimed is for $200.00 for a spinal assessment. Given the vast amount of orthopaedic evidence available for other medical files, and the minor nature of this accident, the Insurer submits there was no need for such an assessment.

The Applicant responds in her written submissions that:

The Insurer stated that evidence related to the cost of examinations was not addressed at the hearing. In particular, the Insurer stated that there is nothing in the evidence to indicate what assessments were approved or carried out. However, it is clear from the evidence entered in the Joint Book of Documents that Ms. Mohammad participated in an Activities of Daily Living In-Home Functional Assessment that was completed by Mr. Saeid Gholeizadeh in a report dated April 26, 2011 and an Assessment of Attendant Care Needs that was completed by Ms. Purification Nacua in a report dated January 25, 2011. Both of these assessments were submitted by VOCAN Health Assessors. These assessments were denied on the basis that they were duplicate assessments which had already been requested and denied by Success Rehab. However, the Success Rehab assessments appear to have both been denied on the basis that they involved in-home assessments that were not covered as Ms. Mohammad was not considered to be outside of the minor injury guideline. Therefore, it is the Applicant's position that the subsequent VOCAN assessments were denied on the flawed basis that they were duplicate assessments of underlying assessments that were unreasonably denied in the first place. The Applicant submits that these assessments were reasonable and necessary in the circumstances and should have been assessed on their own merit….

The Insurer submitted that a spinal assessment claimed for $200.00 was not necessary. However, this assessment was critical as it showed that Ms. Mohammad's injuries were not simply soft tissue injuries as the Insurer claimed.

Analysis

The assessment reports do appear in the Joint Document Brief provided at the Hearing, and hence the cost of these assessments was incurred by the Applicant.

Having found that Ms. Mohammad is Catastrophically Impaired and hence that the Schedule’s Minor Injury Guideline is clearly inapplicable in the present case, I agree with the Applicant that it appears the two Vocan Health Assessors’ Assessments were denied on the flawed basis that they were duplicate assessments of earlier OCF-18s that were unreasonably denied in the first place. Given Ms. Mohammad’s claims for Non-Earner, Attendant Care and Housekeeping and Home Maintenance Benefits, I find the Vocan Health Assessors’ Assessments to be reasonable and necessary. The Spinal Assessment also seems reasonable given my finding of Catastrophic Impairment, which obviously involves more than soft tissue injuries. Ms. Mohammad is therefore entitled to the cost of the assessments in the amount of $3,100.00.

INTEREST

Interest on the cost of the assessments should be calculated in the prescribed manner based on when the benefit would have been payable by the Insurer after the submission of the OCF-18. Due to the complexities of calculating the applicable interest, i.e., compounding amounts, I leave to the parties to determine the appropriate quantum. Pursuant to the Arbitration Order accompanying this decision, I remain seized regarding the quantum of the interest payable.

EXPENSES:

Expenses shall be payable. If the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before me to determine expenses, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued. Pursuant to the Arbitration Order accompanying this decision, I remain seized regarding the quantum of the expenses payable.

December 19, 2016

Alan G. Smith Arbitrator

Date

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

Neutral Citation: 2016 ONFSCDRS 339

FSCO A13-006712

BETWEEN:

BIBI MOHAMMAD

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

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. Ms. Mohammad is Catastrophically Impaired pursuant to the Schedule, as a result of the accident.

2. Ms. Mohammad is not entitled to Housekeeping and Home Maintenance Benefits from November 20, 2010 to November 20, 2012.

3. Ms. Mohammad is not entitled to Attendant Care Benefits from November 20, 2010 to November 20, 2012.

4. Ms. Mohammad is not entitled to Non-Earner Benefits from May 20, 2011 to the present.

5. Ms. Mohammad is entitled to payment of $3,100.00 for the cost of examinations.

6. Ms. Mohammad is entitled to interest for the overdue payment of the cost of the examinations. If the parties cannot come to an agreement on the matter of interest, either party may request in writing an appointment before me to determine the interest payable, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued. In that regard, I remain seized regarding the quantum of the interest payable.

7. Expenses shall be payable. If the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before me to determine expenses, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued. In that regard, I remain seized regarding the quantum of the expenses payable.

December 19, 2016

Alan G. Smith Arbitrator

Date

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.
2. 2Contained in Exhibit One of the Arbitration Hearing, the “Joint Document Brief” of the parties, as are all documents quoted in this decision unless otherwise noted.
3. 3FSCO A12-002238, December 4, 2014.
4. 42008 ONCA 269, see also M.T. and RBC General Insurance Company, FSCO A11-001877 and Sangaralingam and TD General Insurance Company, FSCO A11-002571.
5. 5FSCO A14-001839, under Appeal, see also M.T. and RBC General, FSCO A11-001877.
6. 62015 ONCA 165.
7. 7FSCO A11-003445, January 25, 2016.
8. 81996 CanLII 183 (SCC), [1996] 3 S.C.R. 458.
9. 9Supra, Footnote 4.
10. 102012 SCC 32.
11. 11Supra, Footnote 3.
12. 12FSCO A11-003445, January 25, 2016.
13. 13Supra, Footnote 6.
14. 14Supra, Footnote 3.
15. 15Supra, Footnote 5, at page 35.
16. 16Supra, Footnote 4.
17. 17Supra, Footnote 5.
18. 18Supra, Footnote 4.
19. 19Supra, Footnote 12.
20. 20FSCO A13-001238, September 26, 2014, Arbitrator: Alan G. Smith.
21. 21FSCO A13-001169, December 2, 2014, Arbitrator: Alan G. Smith.
22. 22Supra, Footnote 20.
23. 232009 ONCA 391, 95 O.R. (3d) 785 (Ont. C.A.).