Neutral Citation: 2018 ONFSCDRS 32

FSCO A16-000247

BETWEEN:

SHAFIQA QADERI

Applicant

and

AVIVA CANADA INC.

Insurer

DECISION

Before: Arbitrator Janette Mills

Heard: In person at ADR Chambers on November 15, 16, 17 and 27, 2017

Appearances: Ms. Qaderi participated Mr. J. Felice participated for Ms. Qaderi Mr. K. Griffiths participated for Aviva Canada Inc.

Issues:

The Applicant, Ms. Shafiqa Qaderi, was injured in a motor vehicle accident on September 17, 2014 and sought accident benefits from Aviva Canada Inc. (“Aviva”), 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.

The issues in this Hearing are:

Is the Applicant entitled to non-earner benefits?
Is the Applicant entitled to attendant care benefits?
Is the Applicant entitled to medical benefits as follows? a. $5,284.52 for massage, physiotherapy and a mattress submitted by Balance Physiotherapy, dated June 29, 2015 b. $2,200.00 for a social work assessment provided by Galit Liffshiz and Associates, dated December 8, 2014 c. $8,066.87 for rehabilitative support worker services submitted by Galit Liffshiz and Associates, dated December 8, 2014 d. $5,677.00 for occupational therapy intervention submitted by Galit Liffshiz and Associates, dated December 8, 2014 e. $4,701.30 (less amounts paid) for occupational therapy treatments submitted by Galit Liffshiz and Associates, dated December 8, 2017 f. $2,887.13 (less amounts paid) for physiotherapy and massage treatment submitted by Balance Physiotherapy, dated February 2, 2015
Is the Applicant entitled to a Special Award because Aviva unreasonable withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is either party entitled to their expenses of the Arbitration Hearing?

Result:

The Applicant is not entitled to non-earner benefits
The Applicant is not entitled to attendant care benefits
The Applicant is not entitled to medical benefits as follows: a. $5,284.52 for massage, physiotherapy and a mattress submitted by Balance Physiotherapy, dated June 29, 2015 b. $2,200.00 for a social work assessment provided by Galit Liffshiz and Associates, dated December 8, 2014 c. $8,066.87 for rehabilitative support worker services submitted by Galit Liffshiz and Associates, dated December 8, 2014 d. $5,677.00 for occupational therapy intervention submitted by Galit Liffshiz and Associates, dated December 8, 2014 e. $4,701.30 (less amounts paid) for occupational therapy treatments submitted by Galit Liffshiz and Associates, dated December 8, 2017 f. $2,887.13 (less amounts paid) for physiotherapy and massage treatment submitted by Balance Physiotherapy, dated February 2, 2015
The Applicant is not entitled to a Special Award because Aviva unreasonable withheld or delayed payments to the Applicant
The Applicant is not entitled to interests for the overdue payment of benefits
No expenses were requested with respect to this Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter within 30 days of the Order, 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.

EVIDENCE AND ANALYSIS:

Background

The Applicant is a 54 year old widow who came to Canada from Afghanistan in 1994. In 1985 her husband and eldest son died in a plane crash in Pakistan. In 1994 she moved to Montreal together with her remaining six children. In 2004 she moved to Mississauga. Since that time she has lived in an apartment with one of her sons, his wife and their two children. The Applicant married when she was 14 years old, she has no formal education and limited English language skills. The Applicant has a history of depression and at the time of the accident was in receipt of Ontario Disability Support Payments (“ODSP”). She had been diagnosed as suffering from Major Depressive Disorder, Anxiety and Post Traumatic Stress Disorder (“PTSD”).

Positions of the Parties

The Applicant submits that prior to the accident she was in good physical health. She had had no previous motor vehicle accidents, nor had she had any slips or falls. She required no assistive devices. The Applicant was independent in her personal care, she enjoyed social gatherings with family and friends, and she was a proud mother and grandmother. Her religion was important to her and she attended mosque regularly and volunteered at events. She travelled to Afghanistan, Pakistan and Montreal to visit family. However, since the accident she is no longer fully independent in her personal care. She is unable to enjoy social gatherings; cannot attend the mosque and her volunteer duties and her injuries are such that she is in constant pain, which has restricted her movements and added to her depression. As a result, she is entitled to non-earner benefits, attendant care benefits and the medical benefits which have been denied by the Insurer.

The Insurer submits that the Applicant has not met the test for non-earner benefits. She had been receiving ODSP for two years prior to the accident and was being treated by a psychiatrist, who identified restricted activities on her part. Furthermore, the Insurer’s independent examination (“I.E.”) concluded that she did not meet the test of a complete inability to carry on the activities of her everyday life. Regarding attendant care benefits, the Insurer informed the Applicant that she was entitled to up to $3,000 per month with proof of incurred expenses. The Applicant has never provided this proof. Regarding medical benefits, the Insurer submits that all denials have been supported by expert opinion and that there is no merit in the Applicant’s claim for a Special Award.

The Burden of Proof

The Applicant has the burden of establishing on a balance of probabilities that she is entitled to the requested benefits.²

1. Is the Applicant entitled to non-earner benefits?

Section 12(1) states:

The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

i. was enrolled on a full-time basis in elementary, secondary or post- secondary education at the time of the accident, or

ii. completed his or her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and before the accident, in a capacity that reflected his or her education and training. O. Reg. 34/10, s. 12 (1).

The test for non-earner benefit entitlement was articulated by the Court of Appeal in Heath v, Economical. The Court of Appeal held that a consideration of non-earner benefit entitlement requires an analysis of the activities the claimant was ordinarily engaged in prior to the accident in actuality, and not whether the individual suffers a complete inability to engage in the activities they would normally engage in.³ Therefore, it is necessary to analyze whether the claimant suffers from a complete inability to carry on a normal life by comparing his or her activities of daily living before the accident to those after the accident. The Court provided a step by step approach, as follows:

Consider the claimant’s activities of daily life for a reasonable period preceding the accident, and not just a “snap-shot” of a particular good or bad time. The duration of a reasonable period will turn on the facts.
Consider all pre-accident activities ordinarily engaged in by the claimant. Greater weight may be given to those activities which the claimant identities as being important to his or her pre-accident life to satisfy the threshold.
The claimant must establish that as a result of the accident, he or she is continuously prevented from engaging in substantially all pre-accident activities. A continuous, uninterrupted disability or incapacity must be proven by the claimant. It is insufficient if the claimant is only sometimes or occasionally prevented.
A qualitative perspective is required to determine whether the claimant is “engaging in the activity.” Isolated post-accident attempts to perform activities that the claimant was able to perform pre- accident is insufficient. It is possible for a person to be capable of performing some of an activity but not enough to make it meaningful. If there are significant restrictions when performing an activity, this will not amount to “engaging in” that activity.

Pre-accident activities

The Applicant testified that in 2011 she was diagnosed with depression and PTSD by Dr. Pajwani, her psychiatrist and as a result she was prescribed medication which she continues to take. Because of depression, she had occasional headaches and dizziness due to not eating properly. Notwithstanding, she was able to function independently. She had no back, shoulder or hip pain and together with her daughter-in-law, she was fully engaged in the household chores such as cooking, cleaning and laundry, although the degree to which she participated was sometimes dependent on her mood. She did not require assistance with her personal care. Traditionally, family functions would involve large numbers of people attending at her home and she would often cook elaborate meals for these occasions.

The Applicant testified that she would either walk or take a bus to a mosque once or twice a day. She also prayed five times a day in the usual manner which required that she bend, squat and sit on the floor. She regularly took her grandchildren out to local attractions and participated in their activities without the assistance of another adult. Furthermore, prior to the accident she had travelled to Afghanistan and Pakistan to visit family on at least four or five occasions. She also travelled frequently to Montreal to visit with her son. Prior to the accident she required no devices or assistance to walk and would take public transportation without hesitation.

Post-accident activities

The Applicant testified that for the first number of weeks after her discharge from hospital she had to use a wheelchair and other devices such as a raised toilet seat. Subsequently, she graduated to using a cane for support both in and outside of her home. Prior to the accident she slept on a mattress on the floor; after the accident this became impossible because she could no longer get on and off it. Her daughter-in-law had to help her with her personal care which included showering, washing hair, dressing and undressing and bowel care. Her son helped her get in and out of bed and get to the washroom. The Applicant testified that six months after the accident she was still not able to do anything herself. At twelve months after the accident she was improving and was trying hard to be independent but continued to have difficulty. The Applicant described her life one year after the accident as not good and said that she did not feel the same way as before the accident.

The Applicant continues to require a chair when she showers. She finds it hard to get up and down from the toilet and manages by holding on to the sink and slowly lowering and then pulling herself up. Initially she had frequent nightmares about the accident, but these have abated and now she has nightmares once or twice each month regarding her grandchildren being run over. She attends the mosque if she can get a ride there and in the past five months has started going again once or twice each month. Due to her discomfort level she was unable to participate in recent Ramadan events.

The Applicant continues to experience pain in her left hip, which is worse when the weather is cold. She has headaches three to four times each week, she finds noise and crowds difficult to tolerate. She can no longer participate to the same extent in family events and activities that she did pre-accident; she suffers with memory difficulties. As a result, her son must keep track of her medical appointments and medications, and either he or his wife must drive her to appointments. She testified that she is still unable to clean the bathroom easily and needs support when she is doing so, as she cannot bend. She has started doing some grocery shopping but cannot lift or carry bags. She still has difficulty with balance and can only take short walks independently.

The Applicant testified that she tries to participate in her pre-accident activities and be independent but still requires assistance, although she now walks unassisted. Currently her housekeeping abilities are restricted to light activities such as dusting and cooking light meals. She continues to suffer with back pain, left-leg pain and left-hand pain, she gets tired very quickly and can’t stand or sit for very long. Her sleep is disturbed. Unlike before the accident, she can no longer tolerate her grandchildren all visiting at the same time. She no longer takes her grandchildren out alone and hasn’t attended the mall by herself. She describes herself as quick to become upset

I accept the Applicant’s testimony and find that she suffered significant injuries because of the accident and that immediately after the accident she required a great deal of care and was completely unable to engage in the activities of her normal life. After a few months her condition started to improve and in January 2015, the Applicant reported to the Insurer’s assessor that she felt thirty percent better and that she was able to deal with most of her personal care independently.⁴ She could not trim her fingernails and her daughter-in-law helped her with that. As of February 2015, she reported that her balance and mobility had improved.⁵ In April 2015, she reported being able to complete most of her personal care tasks independently but with difficulty. She still required her bed linens changed and help with toenail cutting and bathtub cleaning. By May 2016, the Applicant had returned to most of her pre-accident activities, but they were significantly reduced due to ongoing pain.⁶ Her daughter in law assisted her the most throughout 2016.

I accept the Applicant’s testimony that she is not fully recovered. I accept that she still suffers from accident related pain and that she continues to require assistance with some of her personal care needs and appointments. However, I note that she can participate in most of her pre-accident activities to some extent and that she does so continuously.

I accept that religion is an extremely important part of the Applicant’s life and I accept that her ability to pray in the usual and accepted manner has had a negative impact on her. However, the Applicant is beginning to attend mosque again and while she cannot pray in the same manner as previously she is able to observe her faith and has begun to do so consistently.

I also accept that her relationship with her grandchildren is an extremely important part of her life and that she takes pride in caring for them and her family. Indeed, she has spent her whole life as a caregiver and it is reasonable to assume that the loss of her abilities in this regard would significantly impact her. I note that her grandchildren attend the home on a modified basis and she is participating in some meal preparation and housekeeping activities. She has started to grocery shop and while she cannot carry heavy bags this is just one aspect of that activity and there is no evidence before me to suggest that she was carrying heavy bags before the accident. In addition, she is now attending some activities with her grandchildren together with other adults, and while she is yet to be able to prepare the elaborate meals that she did before the accident she is able to undertake some light meal preparation.

I acknowledge that to date she has not travelled or attended the mall on her own. However, there is no evidence before me to suggest that she was engaged in either of these activities on a consistent and regular basis. I note that she has been in Canada since 1994 and has travelled to Afghanistan and/or Pakistan four to five times since then and not at all in the two years prior to the accident. I also note that her pre-existing depression does not appear to have impacted her ability to any great extent. She has not experienced an increase in her antidepressant medication as a result of the accident or the frequency with which she sees her psychiatrist.

In sum, I find that while the Applicant continues to suffer from some accident related injuries, the weight of the evidence does not support a finding of a complete inability to engage in the normal activities of her daily life and she has not met the test for entitlement to non-earner benefits.

2. Is the Applicant entitled to attendant care benefits?

The Schedule states:

Section 19(1)

Attendant care benefits shall pay for all reasonable and necessary expenses, (a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Long-Term Care Homes Act, 2007 or a chronic care hospital;

Section 3(7) For the purposes of this Regulation

(c) an aide or attendant for a person includes a family member or friend who acts as the person's aide or attendant, even if the family member or friend does not possess any special qualifications;

(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;

Tabaruk Qaderi testified that he is the Applicant’s son. At the time of the accident he had been laid off from work and was actively seeking employment. The witness testified that the Applicant’s condition meant that he had to be present for 24 hours around the clock for the first 6 months after her accident and that this significantly impacted his ability to look for and obtain work. He didn’t work for at least a year after the accident so that he could care for the Applicant. He described the Applicant as having a complete inability to care for herself. She could not walk for the first three months. His wife helped the Applicant with the personal aspects of her care, like toileting, but she was pregnant, and he had to assume the bulk of the household chores.

The witness testified that he could not go to work and that he expected to be paid for his efforts. He did not recall whether he had discussed compensation with the Applicant nor was he sure how the amount was arrived at on the Attendant Care Invoice submitted to the Insurer.

The Insurer did not dispute that the Applicant required attendant care services. Aya Ortal testified that she is an Occupational Therapist, who assessed the Applicant for attendant care benefits on December 4, 2014. At that time the Applicant was having difficulty with most of her self-care and all her housekeeping tasks. She was using a cane for stability in and outside the home. Her range of motion was severely restricted, she was experiencing recurrent headaches, and she was not leaving home due to a fear of falling. Her daughter in law and son were assisting her with her personal care.

She assessed that the Applicant needed attendant care in the amount of $7,872.82. She arrived at this amount after calculating the number of minutes that it took to complete each component of her self-care and including basic supervision. She noted that the OCF-3 submitted on October 24, 2014 indicated that the Applicant was suffering from a complete inability to perform the tasks of her everyday life. Subsequently, at the request of the Insurer, on February 12, 2015 the witness reassessed the Applicant. The Applicant’s condition had improved to a degree however she still required attendant care in the amount of $7,838.58.

In the interim, on January 19, 2015, the Applicant was assessed at the request of the Insurer by John Duong, Occupational Therapist, regarding two treatment plans both dated December 8, 2014, which are in dispute. The Applicant reported to John Duong that she was able to complete most of her personal care tasks independently but with difficulty. However, she was unable to complete grooming such as fingernail cutting and that her daughter-in-law helped her in this regard. Further, she had not resumed any housekeeping tasks and these were taken care of by her sister-in-law and son.⁷ Similarly, in April 2015, she reported the same to Dr. Karabatsos, Orthopedic Surgeon, whom she also saw at the request of the Insurer, that she is independent in her personal care activities and that she had a decreased capacity for cooking, cleaning, laundry and shopping activities.⁸

I accept that the Applicant had need of attendant care services at least until April 21, 2015. I also accept the witness’s testimony of both the Applicant and her son that the role of attendant care service provider largely fell to him during the first few months of the Applicant’s accident. The Applicant’s daughter-in-law was pregnant and unable to perform some of the tasks routinely associated with either herself or the Applicant. In addition, it is reasonable to assume that she would not have been able to lift the Applicant or to have ensured her physical stability. In my view, the weight of the evidence supports a finding that the Applicant required assistance with her self-care from the date of the accident up until mid April 2015, a period of seven months. Thereafter, she was able to take assume most of her personal care and some limited housekeeping functions.

I further find that the Applicant’s son assisted her in this capacity from the accident date to April 2015. I accept his evidence that his care of his mother may have curtailed his ability to find full-time employment and that he suffered an economic loss as a result for each of these months. However, there was no evidence upon which I can rely to find that the Applicant and her son had discussed payment for the services he provided. The Applicant’s son testified that he could not remember a discussion, that he was uncertain whether a discussion took place but nonetheless anticipated being paid. In his view, the Applicant now owes him money.

This was not the Applicant’s position. She testified that they did not have such a discussion, she never paid him and she agreed with the suggestion that her son took care of her because they are family. Based on the evidence before me, it is reasonable to assume that the assistance provided by the Applicant’s son was done so by him as a caring member of her family and is the type of assistance that family members would ordinarily provide to other members with whom they live. Indeed, the Applicant’s testimony that no discussion of payment ever took place and that he took care of her because they are family confirms this. As such, the evidence before me does not support a finding that the expenses were incurred, within the meaning of s. 19(1) and s. 3(7) (c) and (e) (ii)of the Schedule and I find that the Applicant is not entitled to payment for attendant care services.

3. Is the Applicant entitled to medical benefits as follows?

a. $5,284.52 for massage, physiotherapy and a mattress submitted by balance Physio, dated June 29, 2015

b. $2,200.00 for a social work assessment provided by Galit Liffshiz and Associates, dated December 8, 2014

c. $8,066.87 for rehabilitative support worker services submitted by Galit Liffshiz and Associates, dated December 8, 2014

d. $5,677.00 for occupational therapy intervention submitted by Galit Liffshiz and Associates, dated December 8, 2014

e. $4,701.30 (less amounts paid) for occupational therapy treatments submitted by Galit Liffshiz and Associates, dated December 8, 2017

f. $2,887.13 (less amounts paid) for physiotherapy and massage treatment submitted by Balance Physio, dated February 2, 2015

The Schedule states as follows:

Medical benefits

(1) Subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(d) prescription eyewear;

(e) dentures and other dental devices;

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant;

(h) other goods and services of a medical nature that the insured person requires, other than goods or services for which a benefit is otherwise provided in this Regulation. O. Reg. 34/10,

Claims for medical and rehabilitation benefits and for approval of assessments, etc.

(1) This section applies to,

(a) medical and rehabilitation benefits other than benefits payable in accordance with the Minor Injury Guideline; and

(b) all applications for approval of assessments or examinations. O. Reg. 34/10, s. 38 (1).

(3) A treatment and assessment plan must,

(a) be signed by the insured person unless the insurer waives that requirement;

(b) be completed and signed by a regulated health professional; and

(c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person's treatment or rehabilitation and,

(i) stating, if the treatment and assessment plan is in respect of an accident that occurred on or after September 1, 2010,

(A) that the insured person's impairment is not predominantly a minor injury, or

(B) that the insured person's impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline, or

(ii) stating, if the treatment and assessment plan is in respect of an accident that occurred before September 1, 2010,

(A) that the expenses contemplated by the treatment and assessment plan are reasonable and necessary for the insured person's treatment or rehabilitation, and

(B) that the impairment sustained by the insured person does not come within a Pre-approved Framework Guideline referred to in the Old Regulation. O. Reg. 34/10, s. 38 (3); O. Reg. 347/13, s. 4.

Section 15 of the Schedule makes it clear that the treatment plan must be incurred. None of treatment plans submitted by the Applicant were incurred. On this basis the application for medical benefits must fail.⁹ Further, section 38 (3) of the Schedule requires that the treatment plan must be signed by the insured person unless waived by the Insurer and be completed and signed by a regulated health professional. Neither was done in this case. Nor was there a waiver of this obligation. As such, the claim for medical benefits must also fail on this ground.

I note that the Insurer chose to pay $4190.10 of the $4,701.30 treatment plan submitted for occupational therapy treatments provided by Galit Liffshiz and Associates, dated December 8, 2017. The Insurer also paid $2587.88 of the $2,887.13 treatment plan submitted for physiotherapy and massage treatment from Balance Physio, dated February 2, 2015. The outstanding amounts were either subsumed under other costs in the treatment plan or were not permitted under the Schedule¹⁰ and, in my view, the amounts paid by the Insurer accurately reflected their obligation.

It is unclear why the Insurer chose to pay for two of the treatment plans despite their non-compliance with the Schedule

4. Is the Applicant entitled to a Special Award because Aviva unreasonable withheld or delayed payments to the Applicant?

Since all the Applicant’s claims are dismissed the issue of a Special Award is moot.

5. Is the Applicant entitled to interest for the overdue payment of benefits?

Since all the Applicant’s claims are dismissed the issue of interest on overdue payment is moot.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter within 30 days of the Order, 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.

February 7, 2018

Janette Mills Arbitrator

Date

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:

The Applicant is not entitled to non-earner benefits
The Applicant is not entitled to attendant care benefits
The Applicant is not entitled to medical benefits as follows: a. $5,284.52 for massage, physiotherapy and a mattress submitted by balance Physio, dated June 29, 2015 b. $2,200.00 for a social work assessment provided by Galit Liffshiz and Associates, dated December 8, 2014 c. $8,066.87 for rehabilitative support worker services submitted by Galit Liffshiz and Associates, dated December 8, 2014 d. $5,677.00 for occupational therapy intervention submitted by Galit Liffshiz and Associates, dated December 8, 2014 e. $4,701.30 (less amounts paid) for occupational therapy treatments submitted by Galit Liffshiz and Associates, dated December 8, 2017 f. $2,887.13 (less amounts paid) for physiotherapy and massage treatment submitted by Balance Physio, dated February 2, 2015
The Applicant is not entitled to a Special Award because Aviva unreasonable withheld or delayed payments to the Applicant
The Applicant is not entitled to interests for the overdue payment of benefits
No expenses were requested with respect to this Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter within 30 days of the Order, 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.