September 20, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Fred Sampliner
Decision Date: August 19, 2009
Mr. Asghar was injured in a motor vehicle accident on August 2, 2006. He applied for and received statutory accident benefits from State Farm. Mr. Asghar disputed with State Farm about his entitlement to continuing payment of weekly caregiver benefits, housekeeping expenses and costs of examinations that were not resolved through mediation, so he applied for arbitration.
The issues of the hearing were to determine if Mr. Asghar was entitled to the payment of caregiver benefits from the accident to August 2, 2008 under Part IV of the Schedule; to determine if Mr. Asghar was entitled to the payment for housekeeping/home maintenance expenses from the accident until August 2, 2008 under section 22 of the Schedule; lastly, to determine if Mr. Asghar was entitled to payment for a functional abilities evaluation, for an in-home assessment, for a neurological assessment, and for an orthopaedic assessment under section 24 of the Schedule.
Mr. Asghar was a 66 year old front seat passenger of a vehicle that was rear-ended by another car on August 2, 2006. The airbags deployed and he was wearing a seat belt. Mr. Asghar was jolted back and forth by the impact of the collision and his knees struck the dashboard. He claimed that he sustained soft tissue injuries to his neck, back, knees and hands as a result of the accident. Mr. Asghar attended chiropractic, massage, physiotherapy and acupuncture treatment.
At the time of the accident, Mr. Asghar lived in a basement apartment along with his nephew, his nephew's wife and their three children, then aged nine, four, and one year. The children's father, Mr. Ashgar's nephew Babar, was a full-time taxi driver before and after the accident. The children's mother, Saima, clerked full-time at a dollar store before the accident. Babar's father owned the home, and lived separately with his family on the main and upper floor of this suburban house.
Mr. Asghar was receiving public assistance benefits before the accident, from which he paid rent to assist the household. He claimed that he was taking care of the children, was responsible for housework at the time of the accident, and could not perform his pre-accident child care and household responsibilities due to his accident injuries.
The evidence did not persuade the arbitrator, on a balance of probabilities, that Mr. Asghar was the children's primary caregiver before the accident.
The evidence of Mr. Asghar along with Saima and Babar clearly established that everyone woke together in the morning. He stated he assisted Saima with dressing the children. She picked out their clothes, prepared their breakfasts and lunches while Mr. Asghar helped put the lunches in the children's school packs. Mr. Asghar walked the two older children to the school bus stop with the youngest child after their parents left for work.
During the school day, Mr. Asghar played with and watched the baby. He gave bottled milk to the one year old, but he did not change diapers and had no responsibility for the two older children until after school when he walked them home from the bus stop mid-afternoon. The children and Mr. Asghar had snacks and watched television till Saima returned from her job around 6 o'clock p.m.
Mr. Asghar testified that Saima prepared the family dinner and both parents played with the children or helped them with homework till everyone went to bed. He cleaned up when the children ate snacks or played in the house after school and he sometimes played with them outside. On weekends when the parents were home, Mr. Asghar said he helped out as needed.
Saima's evidence that showed that it was her responsibility to help dress the children was more compelling than Mr. Asghar's because he admitted he did not participate in the children's hygiene or change diapers. Saima confirmed Mr. Asghar helped the parents put the children to bed.
Child care responsibilities should be evaluated both quantitatively and qualitatively. The evidence was that each weekday Mr. Asghar supervised the baby for about eight hours until Saima returned home around 6 p.m., and he also spent about three hours supervising the other two children. Comparatively, Saima's responsibility for all three children was comprised of one hour each morning, four evening hours from 6 p.m. to 10 p.m. bedtime, and all weekend with both parents. Her responsibility was greater than Mr. Asghar's responsibility for them.
Qualitatively, the evidence established that the two older children relied on Saima and Babar for homework assistance, all meals, most of their hygiene, dressing and main supervisory guidance as parents. Mr. Asghar's basic supervision of the children while the parents were not at home did not equal the value of Saima's meals, dressing of the children and changing diapers, their hygiene and school homework assistance. According to the facts, Saima was the primary caregiver for the children at the time of the accident, and consequently Mr. Asghar was not the children's primary caregiver.
There was little evidence supporting Mr. Asghar’s disability claim during the first three months after the accident. Mr. Asghar did not go to his family physician or treatment during this period and he testified that his symptoms developed slowly. He did not file his claim for accident benefits until early November 2006.
In late October 2006 Mr. Asghar filled out an activities form that stated he needed assistance with or was unable to perform almost all daily activities.
A chiropractor conducted the first post-accident health care examination of Mr. Asghar in late October 2006.
Dr. C reported that Mr. Asghar had mild pain and restriction of his cervical spine, more elevated in the lumbar region, along with bilateral knee pain. There were no diagnostic tests showing a structural abnormality attributable to the accident, and the arbitrator accepted that Mr. Asghar suffered modest soft tissue injuries from this accident.
Dr. C's treatment of Mr. Asghar commenced with a disability certificate in October 2006, simply stating that Mr. Asghar had impaired normal activities and recommended an in-home assessment. He did not mention that Mr. Asghar took care of the children before the accident, identify the specific activities he was unable to perform or address the eligibility tests for the benefits at issue in the arbitration. Dr. C's initial report had little weight in respect of the caregiver benefit.
Dr. C noted Mr. Asghar's headaches, stress, anxiety and sleep loss complaints. However, he was not qualified to evaluate psychological problems. The arbitrator relied on the opinion of Dr. P, a psychologist. Mr. Asghar's treating clinic referred him for assessment in January 2006. After an interview and psychological tests, Dr. P found no significant psychological or emotional problems, and there was no qualified psychological opinion otherwise. The arbitrator found that Mr. Asghar sustained no psychological or emotional problems as a result of the accident.
Dr. S's opinion was that Mr. Asghar suffered cervical/lumbar restrictions due to pain, decreased tolerances and impairment of his pre-accident activities. He recommended eleven hours a week child care assistance as well as approximately twelve and a half hours a week for Mr. Asghar's attendant care needs.
Dr. S recommended that Mr. Asghar receive personal assistance to wash his hair, dress, bathe and eat. The arbitrator did not hear any evidence from the lay witnesses to support Dr. S's opinion, and no other health care opinion supported that Mr. Asghar required this level of personal care. Dr. S's exaggeration of Mr. Asghar's condition led the arbitrator to place little weight on his opinion.
Dr. C's second disability certificate in January 2007 likewise indicated Mr. Asghar was the children's primary caregiver before the accident and he suffered difficulty caring for the children post-accident. The document did not specify the child care duties Mr. Asghar was unable to perform or give any reasoning to support the disability claim. Again, Dr. C's second disability certificate carried little weight.
In his evidence at the hearing, Dr. C did not give details about Mr. Asghar's child care duties or discuss the accident-related impairments affecting his duties. Dr. C did not address the caregiver disability test. His opinion provided little support for Mr. Asghar's caregiver benefits claim.
Dr. D indicated that Mr. Asghar required help to mop, dust, vacuum, clean the bathroom and kitchen, take out garbage, do laundry and ironing, shop and tidy the household. However, Mr. Asghar gave no explicit evidence supporting that he did these types of housework before the accident. He picked up after the children, sometimes took out garbage, and while his evidence was unclear, the arbitrator understood that he used his hand or a brush to clear dirt from furniture.
The significant conflict between the household tasks Mr. Asghar described and those listed by Dr. D undermined the value of his opinion because Dr. D had no basis to put this in his report. More important, Dr. D did not address Mr. Asghar's disability respecting caregiver tasks. The arbitrator gave his evidence no weight.
Dr. B's functional abilities report indicated that Mr. Asghar measured with low grip strength and significant cervical/lumbar spine impairments. The arbitrator accepted the results of Mr. Asghar's performance on dynamic testing because no other expert evidence diminished its value and it was generally consistent with Mr. Asghar's complaints.
However, Dr. B did not address the eligibility test for caregiver benefits by relating his findings to Mr. Asghar's caregiver tasks. Instead, his opinion was that Mr. Asghar could not perform his pre-accident housekeeping duties. This rendered Dr. B's opinion of little value on the caregiver benefits issue.
On the one hand, none of Mr. Asghar's experts provided a cogent opinion addressing the requisite caregiver disability test. They generally noted his pain, stated he was impaired or ticked off a box indicating he was eligible for caregiver benefits. None of his health care experts indicated they knew his specific pre-accident caregiver tasks and therefore did not analyze his ability to meet those specific physical requirements.
On the other hand, Mr. Asghar's health care evidence was all there was. State Farm did not retain a health care expert to examine him. The chiropractor, neurologist and orthopaedic specialist were retained to evaluate on paper the reasonableness of Mr. Asghar's applications for further health care examinations, but did not examine the caregiver disability issue and the arbitrator accorded them little or no value to this benefit. Thus, there was no opposing health care opinion from the Insurer on the caregiver benefits issue.
The unopposed evidence of Dr. C together with Dr. B's findings that Mr. Asghar suffered significant neck/back impairments were generally supported by Saima's and Mr. Asghar's testimony that he suffered symptoms and problems with child care beginning with the colder weather in 2006. Relying on the circumstantial time link, coupled with the health care evidence that Mr. Asghar suffered impairments as a result of the accident, there was sufficient evidence to meet his burden of proof.
If Mr. Asghar was the primary caregiver for the children, the arbitrator would have found on balance that he suffered a substantial inability, and was eligible to receive caregiver benefits from the November 7, 2006 date when State Farm received his application for accident benefits until the second anniversary of the accident, subject to proof of the amount.
The conflicting amounts billed and signatures on the invoices from people who did not perform services rendered this evidence unreliable. Saima did not either confirm the times and duties through her testimony or provide another plausible basis upon which to make a reasonable determination of the amount. Therefore, even if Mr. Asghar was the primary caregiver for the children, the arbitrator would have declined to order State Farm to pay him anything because he had not established the amount of the caregiver benefits.
Housekeeping/Home Maintenance Expenses
Mr. Asghar was eligible to receive reasonable and necessary housekeeping expenses for pre-accident duties he could not perform as a result of his accident injuries. The evidence was quite clear that Mr. Asghar's housekeeping responsibilities were minor before the accident.
At the hearing Mr. Asghar made a general statement that he cleaned the apartment between two and four hours each day before the accident. This statement conflicted with his evidence that he looked after the children throughout the day, and was likewise inconsistent with Dr. S's in-home assessment report indicating he did no housekeeping whatsoever.
Saima's detailed explanation was more plausible than Mr. Asghar's general statements that were inconsistent with what he told Dr. S. Relying on Saima's evidence, the arbitrator found that Mr. Asghar's pre-accident housekeeping consisted of tidying the children's things and cleaning snack and dirt debris when they made a mess, occasionally taking out the garbage and sometimes helping to clean the bathroom.
Saima's name appeared on the invoices as the housekeeping service provider, but the evidence was that she did not sign all of the bills her sister-in-law wrote. It was most important that Saima admitted in her evidence that she did not keep track of her housekeeping time, and her failure to verify or supplement the times and dates noted on the invoices through her testimony. This left the arbitrator with little confidence in any of the evidence about the valuation of the housekeeping expenses.
The invoices and Saima's evidence did not provide sufficient reliable information upon which to base housekeeping expenses. Mr. Asghar had not established on a balance of probabilities the amount of his housekeeping expenses, and the arbitrator found that he was not entitled to the payment of housekeeping expenses.
Mr. Asghar claimed he was entitled to funding for a neurological examination and an orthopaedic evaluation under section 24 of the Schedule. There was no evidence he sustained any neurological injury or that his complaints had a neurologic origin. The health care evidence that Mr. Asghar had an uncomplicated modest soft tissue injury did not support the reasonableness of an orthopaedic evaluation either. The arbitrtator rejected Mr. Asghar's request for funding on both of these claims.
Dr. S significantly exaggerated Mr. Asghar's condition by recommending personal assistance that was clearly not supported by other lay or expert evidence. While the arbitrator found that it was reasonable in his December 2006 in-home assessment to evaluate Mr. Asghar's abilities at the outset of his claim, the value of Dr. S's report was significantly reduced, and the arbitrator found it appropriate to award $500 for the in-home assessment.
The arbitrator found that it was reasonable for Mr. Asghar to undergo a functional abilities evaluation in July 2007, and that the opinion was based on physical testing for which the cost is reasonable. Therefore, Mr. Asghar was entitled to payment for Dr. B's July 2007 functional abilities evaluation under section 24 of the Schedule.