August 09, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Robert A. Kominar
Decision date: June 30, 2008
Parminder Rehsi was injured in a motor vehicle accident on July 12, 2004.
She applied for and received statutory accident benefits from Dominion of Canada. Dominion terminated weekly income replacement and housekeeping benefits and denied her claim for retraining costs.
Mrs. Rehsi had been involved in three motor vehicle accidents: February 6, 1998, September 6, 1999 and July 5, 2004. She acknowledged that the first two accidents were much more serious than the third which was the subject of this arbitration and that her injuries from the earlier accidents had not completely resolved by the time the third accident occurred.
Before these three accidents Mrs. Rehsi worked as a hairdresser. After the 1998 and 1999 accidents she found that she was unable to continue in this occupation. She stopped working in this capacity in 2001 and retrained to become an aesthetician. This retraining took approximately 6 months to complete and afterwards she worked as an aesthetician. After the 2004 accident Mrs. Rehsi changed occupations again, this time she retrained and qualified as a registered massage therapist. Mrs. Rehsi stated in her evidence that she was compelled to stop working as a hairdresser because the job required constant upper body movement and sustained elevation of her right arm while cutting and blow-drying hair. She is right hand dominant. Her belief was that working as an aesthetician would be easier than cutting hair given her physical limitations following the earlier accidents.
Mrs. Rehsi testified that before the 2004 accident, she was experiencing chronic pain in her right arm and right hand as well as in her back. Her evidence was that although she had experienced pain down her right leg and into her right foot after the earlier accidents this pain had completely resolved prior to the third accident. She stated that after the 2004 accident she had more frequent headaches, her neck hurt more often and more intensely than it had in the past, her right shoulder and arm hurt more when she tried to elevate them, her right hand fingers tingled and went numb easily, and she experienced constant pain in her right wrist. Also, she experienced sharp pains in her right hip and leg immediately after the accident and which was still ongoing at the time of the hearing.
As an aesthetician Mrs. Rehsi stated that she worked between thirty and thirty five hours per week. Her tasks as an aesthetician were to do electrolysis, facials, and pedicures and manicures. She testified that after the 2004 accident she no longer had the strength to scrub feet for pedicures or to file nails, as these actions both involved significant strength and endurance on her right side. She also explained that there was a significant amount of strength involved in ripping off wax especially from the legs. Her electrolysis work involved the need to have a steady hand; however with the tingling sensation she was getting this became very difficult. This task also involved bending over people to reach various areas of the body that are being treated and Mrs. Rehsi stated that she was unable to do this bending easily after the accident. Facials also involved applying substances to the face and carefully removing them, requiring the use of both her arms and hands.
Mrs. Rehsi attempted to return to work as an aesthetician for a few days but quickly concluded that she was unable to handle it. After she determined that she could no longer do the aesthetics work, she chose to retrain as a massage therapist. To this end she enrolled in a registered massage therapist training program at CDI College in January 2005. She paid the $19,675.00 tuition for this program herself and it took her approximately 19 months to complete the program. Mrs. Rehsi never submitted the claim for tuition reimbursement to Dominion until just before this arbitration. Her explanation for this was that she did not know that it might be covered. The parties, notwithstanding the late submission, agreed that it should be dealt with in this arbitration.
One of the questions Dominion raised in the arbitration was whether Mrs. Rehsi´s transition from working as an aesthetician to a massage therapist was a reasonable and necessary measure, which was the test set out for entitlement to a rehabilitation benefit in section 15 of the Schedule. Their argument was that the physical requirements associated with being a registered massage therapist were much more demanding than those of an aesthetician. Mrs. Rehsi´s evidence was that one of her most significant challenges in doing aesthetics work was bending over the client which it required. Additionally one needed right arm strength to scrub feet and file nails. In contrast to doing aesthetic work, Mrs. Rehsi testified that while doing a massage she was able to adjust the table to eliminate bending. Mrs. Rehsi also stated that she gave massages with her left arm only. The essence of Mrs. Rehsi´s evidence was that it was easier to do massage therapy work than aesthetician´s work after her 2004 accident and therefore it was a reasonable career to train for in her situation.
With regard to her claim for housekeeping benefits, Mrs. Rehsi testified that prior to the 2004 accident she did approximately 70% of the work in their 3400 square foot home and her husband and son did the rest. She testified that after the accident she was completely unable to vacuum, sweep or do laundry as she was perpetually tired. She stated that she was able to fold the laundry but not actually put it in or take it out of the washer and dryer. Eventually her sister began to attend at her home to help her with housework.
Mrs. Rehsi revealed that her hairdressing career involved her being self employed in a First Choice franchise. She conducted all of the business aspects that enterprise, including answering phones, doing banking, hiring, scheduling, supervising and paying the other stylists, ordering from suppliers, as well regularly advertising the business. She stated that she holds a Master´s degree in the Punjabi language and a Bachelor´s degree in English History.
Mrs. Rehsi testified that she qualified for her registered massage therapist designation in December 2007. Since the date of qualification she had done three or four massages. She claimed that she was too achy and had too much pain to conduct an average one hour massage session. When Mrs. Rehsi was asked what she was doing at the time of the hearing, she stated that she sometimes attended at her daughter´s aesthetics salon business and answered the phone and did the banking. She also stated that she once in a while tried to give a haircut, do a shampoo and blow-dry, or apply hair colour. She did not do manicures or pedicures as they still required too much strength and effort. Mrs. Rehsi attended the business every day, but stated that she did not always stay for the whole day.
Mrs. Rehsi had not consulted with any treating medical practitioner or career consultant before venturing out to become a massage therapist. She also submitted that she had not enrolled in the training because she wanted to pursue employment as a massage therapist but rather to understand her body better.
In regards to Mrs. Rehsi´s employment as an aesthetician just before the 2004 accident, she confirmed that she was taking frequent breaks to deal with the pain and fatigue she was experiencing at the time.
Mrs. Rehsi acknowledged that on May 18, 2004 her family physician noted that she had numbness in her right hand and pain all over her body as well as that she was taking Vioxx and Paxil. Her doctor also noted that she was suffering from chronic pain and carpal tunnel syndrome. She was further noted as being unable to use her right hand with the consequence that the doctor believed that she could not work any longer as a hairdresser. The doctor´s conclusion was that she had likely suffered a permanent physical impairment as a result of her 1998 and 1999 automobile accidents and that she would likely need therapy and medication on an ongoing basis.
Mrs. Rehsi acknowledged that her OHIP records did not reveal that she was being treated for any musculoskeletal complaints between November 2004 and March 2006. Mrs. Rehsi stated that she was getting massages from the students in her program and her husband to deal with her pain. Also, Mrs. Rehsi declined to answer a number of questions put to her on cross-examination.
Mrs. Rehsi admitted that she became an aesthetician so that she could continue to work while enduring the chronic pain that she was experiencing after the 1998 and 1999 accidents, which were apparently much more serious than the 2004 accident. When she was asked about her inability to do housekeeping her evidence was that prior to the accident she was doing 70% of the work in the house, despite her chronic pain condition but could only do a fragment of that work after the accident. Specifically, when she was asked about why she could not dust her house after the accident if she could administer massages, she stated that "I am not left handed for dusting."
Mrs. Rehsi was asked about headaches and whether she hit her head during the 2004 accident. She stated that she had hit her head. When asked to explain the mechanism of the head impact she responded that she did not actually remember any details about it. When she was asked to explain why her family doctor´s clinical records did not mention head impact, she stated that she told him about it but that "maybe he forgot to write it down." Her family doctor did not testify at the hearing.
On cross examination Mrs. Rehsi´s treating chiropractor admitted that when Mrs. Rehsi came to see him after the 2004 accident he immediately began to treat her for her expressed symptoms. He did not take any specific medical history from her because he relied "100%" on her personal report that her symptoms arose from the auto accident, notwithstanding that he also acknowledged that his regulatory college required him to take a medical history during an initial examination. In the doctor´s recollection he asked Mrs. Rehsi some questions and took some notes on that occasion. He stated quite categorically in his evidence that he believed that there was no need for him to inquire into her previous medical history before treating her. If she was fine before the accident and in pain afterwards, then in the doctor´s opinion, the actual cause of the injuries was not worth a treating chiropractor´s worrying about.
The chiropractor was asked to explain the basis for his conclusion reported in September 2006 that Mrs. Rehsi had fully recovered from her 1998 and 1999 accidents. He stated that his warrant for this was that she had not returned for any more treatments with him after those accidents and so he inferred that it was reasonable to conclude that she must have recovered. Otherwise she would have kept coming back for more treatment. The chiropractor was asked various questions about his clinical notes and explained that he used an "arrow" system to record changes in a patient´s range of motion. He testified that he did not make specific notations on every visit and that he relied exclusively on her subjective reports of pain in recording the notes that he did make. He agreed that in hindsight he ought to have kept better clinical notes. He also agreed that by November 2004 he believed that Mrs. Rehsi was able to return to her work as an aesthetician.
The arbitrator found that the evidence before him was that Mrs. Rehsi suffered from chronic pain before the 2004 accident and that she was experiencing ongoing psychological and physical symptoms. The arbitrator did not doubt that the 2004 accident may have exacerbated Mrs. Rehsi´s situation somewhat for a short period of time, it was more probable, based on the evidence, that she was experiencing the conditions that ultimately motivated her to leave the aesthetics career before it occurred. This was not in the arbitrator´s view the "straw that broke the camel´s back" situation that the Ontario Court of Appeal had recently discussed in Monks v. ING Insurance Company of Canada. He found that if Mrs. Rehsi was indeed not able to do aesthetics work after the 2004 accident she was also likely unable to do it prior to the accident.
The arbitrator found Mrs. Rehsi´s evidence that she was able to do massage therapy work with only her left arm to be implausible, although she did pass the course and was able to register with the College of Massage Therapists of Ontario. It was the arbitrator´s opinion that Mrs. Rehsi´s significant challenges in using her right, arm, shoulder, hand and fingers supported her evidence that the learning program was more insight-oriented than vocational and rehabilitative. The arbitrator also found no evidence that the program was required in any way to reintegrate Mrs. Rehsi into either her family or society.
Mrs. Rehsi specifically stated that she did not consult with anyone before deciding to retrain as a massage therapist. Even if massage therapy was of personal interest to Mrs. Rehsi, the arbitrator was not satisfied on a balance of probabilities that it was reasonable due to her vocational characteristics. The training as a massage therapist was not reasonable and necessary to reintegrate her into the labour market and further that there was no evidence before she started the training that would have created a reasonable expectation in her that it would become a career for her. The arbitrator found no evidence that the massage therapy program did anything to reduce the effects of an accident related disability. Also, the training must be reasonable and necessary before the insurer is required to pay for it, not simply "helpful" in some generic sense.
Mrs. Rehsi still had to satisfy the burden of proof to prove that the 2004 accident resulted in some additional impairment. In this case the reports of several of the doctors provided strong evidence in support of the view that Mrs. Rehsi was complaining of all of the impairments she said she had after the accident before it occurred, and further she was alleging in her legal actions that the 1998 and 1999 accidents caused those impairments.
On the balance of probabilities the arbitrator found that the impairments which the 2004 accident initiated in Mrs. Rehsi fell within the PAF Guideline and that she received income replacement benefits to the maximum allowed for a person who sustained that sort of impairment. From reviewing all of the evidence, it was the arbitrator´s opinion that Mrs. Rehsi was experiencing substantial difficulty just before this accident and that her condition changed very little after it, certainly nothing warranting any more than the prescribed treatment and income replacement benefits which the PAF allows. As further support for this conclusion, Mrs. Rehsi withdrew her claims for funding of further treatment with her chiropractor and that no other treatment plans were submitted to Dominion. This is consistent with her sustaining a PAF related injury.
With regard to the claim for housekeeping, Mrs. Rehsi was substantially disabled from housekeeping prior to the 2004 accident. She was unable to do any heavy work due to her serious 1998 and 1999 accidents. She was certainly unable to do anything requiring significant involvement of the right side of her body, according to the evidence given by both she and her husband. Her estimate was that she was only doing about 70% of what she did before the earlier accidents at the time of the 2004 accident. Specifically she was not doing any laundry, vacuuming, or heavy cleaning.
When she was asked why she could not dust after the accident, she said that she was not "left handed for dusting." The arbitrator found this to be implausible. Mrs. Rehsi was specifically able, according to her evidence, to get certified as a massage therapist using her left arm and hand. Her evidence was not that she was too tired after going to school to dust but rather that she was unable to wield a duster with her left hand. The arbitrator felt it was fair to take notice of the fact that general dusting does not require a large degree of strength or small motor control and that it is an activity that can be done in increments. Given that Mrs. Rehsi was not doing most of her medium to heavy housework before the 2004 accident and that she was able to develop strength and endurance on the left side of her body through massage therapy training, it was unlikely that she was unlikely to do her basic housework for a period of approximately five or six weeks after the accident.
The arbitrator concluded that Mrs. Rehsi had not satisfied her burden of proof to demonstrate on a balance of probabilities that she was entitled to further income replacement benefits, housekeeping benefits or rehabilitation benefits for retraining as a massage therapist. Therefore her claims for these benefits and interest were dismissed.