August 31, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: March 18, 2013
Heard Before: Adjudicator Fred Sampliner
The Applicants received statutory accident benefits under the Schedule as a result of a motor vehicle accident on July 30, 2009 from York Fire & Casualty Insurance Company. Their disputed claims did not resolve at mediation, and they applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act. Their cases were joined and heard together.
The Applicants’ lawyer set out the claims as follows:
- Mrs. S. B. seeks a $250 weekly caregiver benefit from the accident date to July 30, 2011, $864.73 per month for attendant care from the accident to July 30, 2011, $100 per week housekeeping expenses from the accident to July 30, 2011, $18,700 for incurred medical/rehabilitation benefits, $2,372.34 for the cost of examinations.
- Ms. S. J, seeks $275.95 per week as an income replacement benefit from August 6, 2009 to July 30, 2011, $814.16 per month attendant care from the accident date to July 30, 2011, $100 per week for housekeeping expenses from the accident to July 30, 2011, $18,997 for medical/rehabilitation benefits, $2,942.83 for examination costs.
- Ms. H. J. seeks $400 per week income replacement benefits from one week post-accident to August 1, 2010, $863.57 per month for attendant care from the accident to July 30, 2011, $100 per week housekeeping expenses from the accident to July 30, 2011, $16,313 for medical/rehabilitation benefits, $3,191.21 for examination costs.
- The Applicants’ claim interest on any overdue amounts, their expenses of the arbitration and a special award.
- Ms. S. B.’s claims are dismissed.
- Ms. S J’s claims are dismissed.
- Ms. H J’s claims are dismissed.
- The Applicants’ overdue interest claim and special award request are dismissed, and the Arbitrator dismissed the parties’ claims for their expenses of the arbitration.
EVIDENCE AND ANALYSIS:
The accident circumstances are not disputed. At approximately 10 pm on July 30, 2009, Mrs. B was driving with her two daughters, S and H, at approximately 40-50 kilometres per hour. She avoided hitting another car travelling in the opposite direction by swerving right quickly and hit a roadside metal garbage can.
No police or ambulance attended the scene. The B car was towed away later, and ultimately written off. The Applicants walked about five minutes to their family home. They did not go to hospital afterwards or see their family doctor for treatment. They all attended the Osler Rehabilitation Centre (Osler) shortly after the accident, and their treatment at this clinic continued through April 2010.
Ms. S B was 39 years old at the time of the accident. She and her spouse lived with their two daughters and two sons in a 5 bedroom, 4 bathroom home. She testified that her neck, shoulders and back pain began the first evening after the accident. S received heat, massage, exercise therapy and electrical stimulation three or four times a week at Osler. The treatment frequency was reduced and terminated in April 2010.
S testified that she split the pre-accident housework with her two daughters (65% versus 35%). She claims she could not conduct cooking and housework due to her injuries, hiring Ms. S Y 2-4 hours a day, 2-4 times per week for her personal care and to take care of the household. She testified that post-accident her husband, S, also helped her with grooming, dressing, shopping, lawn care and cooking simple meals for 7-8 months post-accident.
S stated that her son has special needs due to his arthritis, and that she could not drive him to appointments and sporting events for 7-8 months post-accident due to her accident injuries. S stated that she hired S to transport and take care of her son.
S did not produce her son's health care records, school reports or any other evidence to establish that her son suffered arthritis or a condition requiring special attention. Her son did not testify, and there is no supporting evidence that her son has special needs. S’s testimony is unsupported and she has not satisfied the Arbitrator that her son requires special services.
S filed 2 single page invoices for $1,000 each, to support her payment to S for caregiver services during August and September 2009. Although S’s name, address and hourly rate appear, there is no name for anyone in her care. The next 2 pages of invoices for February and March 2010 consist of a list of checked boxes for S’s services at $15 per hour for February and March 2010. The individual services identify a day and time, but again do not show S or another person in care. The lack of caregiver invoices for the intervening months between October 1, 2009 and January 31, 2010 together with the failure to indicate the son as the person in care undermine the veracity of S’s caregiver claim.
York served a summons on S during the mid-afternoon of the first hearing day. The Arbitrator understood S's unavailability on short notice to attend the first day of the hearing, but she did not appear during the entire six hearing days or file any document with the Tribunal to answer the summons. The Arbitrator found that S was served with a summons to attend the hearing, and that she failed to attend or answer it. S’s failure to explain her invoiced services and the lack of evidence that her son has special needs greatly diminishes S’s caregiver claim for her son.
S’s husband testified that he signed invoices for his spouse’s attendant care benefits at $870 per month for August and September 2009. Those two invoices contain no specific detail of the services he provided. S’s February and March 2010 invoices for $630 each indicate times and dates he drove her, cooked food, and groomed his wife, but there are no attendant care invoices to York for the intervening four months of his claimed attendant services. He recalls caring for S before and after his job Monday to Saturday.
S testified he kept a notebook of times and dates for his services, but threw it away. The general picture of his services is weakened by his failure to retain documentary evidence of the times/dates during the first two months after the accident and the lack of invoicing for the four months between September 2009 and February 2010.
S commented on the September 2009 surveillance video that shows S fuelling her van and driving on errands. Both he and S did not explain the inconsistency between her multiple driving episodes and billing York for S to drive her son and for S to drive her on shopping errands. S’s refusal to agree that the surveillance establishes his wife could drive after the accident lead the Arbitrator to find he is not a credible witness. The Arbitrator did not rely on S’s evidence, nor did the Arbitrator accept that the September 2009 surveillance establishes S could drive and shop after the accident.
The November 2009 surveillance clearly shows S holding a shopping basket in either hand without assistance while roving the aisles at a grocery store with her daughters. In the parking lot, S wheels the loaded shopping cart to her car and she lifts cases of water bottles into her vehicle. Her insistence there is no contradiction between the surveillance and her lifting/carrying disability claim critically reduces the value of her evidence. Based on the surveillance, the Arbitrator found that S cannot provide a reasonably accurate self-portrayal, and that her evidence is not credible or reliable. The Arbitrator accepted that the November 2009 surveillance establishes Suat could lift and carry moderate weight objects.
SJ testified that she was in good health at the time of the accident, lived with her family, attended school and worked as a receptionist in a manufacturing company. SJ’s employer confirms her earnings in support of her claimed benefit rate, and her 2010 tax returns support that she did not return to employment throughout the next year.
SJ claims she chipped a tooth, hurt her back/shoulders and suffered headaches as a result of the accident. She claims she could not return to work for two years and she and her sister hired a friend, SA, to replace her housekeeping and help them with personal care for about 8 months post-accident.
SJ testified that SA works locally as a full-time service centre manager, and that her hours were flexible enough to assist them. SA’s August and September 2009 bills to the sisters for housekeeping identify her hourly rate and total $400 per month. They do not itemize or date SA’s services. SA prepared a bill of $840 for H’s August 2009 attendant care and SJ's $815 per month attendant care for August and September 2009 that similarly lack any detail of the time, date or service. SA prepared itemized service bills for November, December 2009 and January 2010 housekeeping and attendant care records. There are no records of SA’s housekeeping and attendant care services thereafter except for the sisters’ insurance claim applications.
Sara’s hourly day records for November 2009 indicate she was occupied almost full-time with housekeeping and attendant care for Silvana and Hiba. Sara did not testify to explain how she could work full-time and accomplish the claimed tasks. The unexplained obvious contradiction between Sara’s November 2009 service statement and her full-time managerial duties is further emphasized by the November 2009 surveillance of the sisters at the park. This evidence convinced the Arbitrator that Sara’s housekeeping and attendant care records are not credible or reliable, and the Arbitrator gave them no weight.
SJ’s testimony that she was in good health at the time of the accident is contradicted by her medical records. Her history reveals she complained to her family doctor and her surgeon of back/shoulder pain shortly before undergoing bilateral breast reduction surgery in September 2009, the same month she swore an affidavit of good health to York following the accident. SJ admits, and her health records equally reflect, that she did not disclose her back/shoulder complaints or breast reduction surgery to both Osler’s treating practitioners or York’s examiners.
SJ explained in her evidence that her back pain complaint to her family doctor was to obtain OHIP funding of the breast reduction procedure. She was reluctant to disclose the complaint or the operation to others out of embarrassment. The Arbitrator did not accept that her embarrassment excuses her obligation to make truthful disclosure on a sworn statement or otherwise provide reasonably accurate health information to her own treatment providers because the interviews were with confidential health professionals.
There is extensive surveillance of SJ in September, October and November 2009, which shows her driving her car on errands, grocery shopping, walking and playing with children in a public park. SJ viewed the November 2010 surveillance, in which she picks up a young child from standing position to place him on top of a slide at shoulder level, pushes a child on a swing and holds a child above her head to steady him while he holds onto a bar. Her park activity consumes about one half hour, and one hour total time walking to and from the park from home.
SJ characterizes the surveillance as “good days”. In the Arbitrator’s view, her able and healthy appearances over three months, driving, shopping and playing with children, contradicts SJ's characterization these were isolated incidents. Her failure to disclose her back complaint/surgery, her insistence on being disabled in the face of contradictory surveillance cause me to find SJ is not capable of providing accurate or reliable evidence about her health, and the Arbitrator rejected her testimony.
H testified that she was shocked and numb after the accident, experiencing tense legs, back pain, headaches and diffuse pain. She could not focus on her pre-accident job as a pre-school assistant due to her accident injuries. She was off work for one year.
H submits that her job duties are in accord with a food attendant/kitchen helper, relying on the opinion of Dr. JM, a chiropractor. The Applicants scheduled Dr. JM to testify, but he did not appear to explain his reasons for H’s job categorization.
Dr. JB, York’s chiropractor, testified that the specific classification for early childhood education assistants more appropriately represents her job title and specific duties than a food handler. H’s testimony that snacks and lunch are one part of other duties mentioned in the child education assistant description supports Dr. JB’s evidence. For this reason and Dr. JM’s failure to defend his opinion the Arbitrator accepted Dr. JB’s view that H’s job is an early child education assistant.
H’s 2009 tax return shows her with $861 total gross T4 earnings from her job. The reported amount is at variance with her employer’s statement that she earned a total of $1,805 in the four weeks pre-accident, and the employer’s computer record of her last week’s earnings in July 2009. None of these records would equate to a $400 per week income replacement benefit under the Schedule. The Arbitrator accepted Hiba’s T4 report as most reliable because it is a reliable government record. Since the parties did not address this discrepancy, the Arbitrator was not prepared to speculate on the correct amount of her income replacement benefit.
H’s 2010 tax return discloses she earned $9,688 and $18,898 for 2011. Based on these return amounts, the Arbitrator accepted H’s evidence she resumed work approximately one year after the accident.
H testified she attended treatment at Osler until her benefits were terminated. She told her Osler’s treating professionals and York’s examiners she was fine before the accident. H identified her signature on the sworn declaration of good health before the accident. Like her sister, H had bilateral breast reduction surgery in 2006 and did not disclose this fact. Her failure might be attributable to inadvertence because it was three years before the accident, but a 2011 consult note from H’s surgeon indicates she had been in constant back pain due to the re-growth of her breasts and wanted a second riskier reduction surgery. H’s non-disclosure of the re-current back pain during the claim period is an important consideration to her credibility.
H is seen in the same 2009/2010 surveillance videos with her sister shopping, running errands in the car and supervising two children at a local park near their home. While shopping at a grocery store with her mother and sister, she picks items holding a basket in both arms. H’s child management skills in November 2009 are displayed impressively when she and SJ walk with their two young cousins to a local park to play for a half hour. She walks quickly to catch one of the children, picks him up to place him on a swing, pushes the child on the swing, picks up the child to head/shoulder height for him to hold on to rings.
The surveillance evidence of H managing her cousins’ activities in the park is similar to many of her childcare duties. The Arbitrator cannot accept H’s explanation these activities represented an occasional “good day” based on the many other days of surveillance where she appears active and without apparent physical problems. The Arbitrator found that H cannot provide reliable or accurate evidence, and do not rely on her.
Three reports of Dr. LK, a chiropractor associated with Osler, provide opinions about the attendant care needs of the three women after he examined them on July 31, 2009. All three evaluations state the claimants required help dressing and undressing for 40 minutes per day, an hour daily for meal preparation and feeding, 40 minutes for bathroom/bedroom assistance and an hour weekly to coordinate each of their personal care. In their evidence, each claimant generally agreed with Dr. LK’s recommendations, but H denies needing help with meals, hanging her clothes and coordinating her care.
Over the Applicant’s objections, the Arbitrator considered the disciplinary decision of the Ontario Chiropractic College to determine the weight of Dr. LK’s opinions. The claimants maintain that the College’s decision concerns an individual who has no relationship to them or direct relevance to their claims.
While the College’s decision does not directly bear on the facts, it does have relevance to Dr. LK’s professional practice standards. The agreed factual statement in the May 2012 decision lays out the scenario of an individual who informally met Dr. LK at Osler in 2010, but she did not request or agree to permit his attendant care assessment. The complainant did not feel her brief meeting with Dr. LK was detailed enough to assess her physical condition. Dr. LK submitted an attendant care claim to her insurance company even though she had not requested the benefit.
In the College’s decision, Dr. LK agreed with the committee’s finding that he violated professional practice standards, and he consented to his licence suspension for three months. There is no evidence that Dr. LK completed the licence reinstatement requirements of the decision.
Dr. LK did not testify in this proceeding to discuss his examinations of the claimants. They committed to calling him, but retracted that undertaking at the hearing. They submit they received a telephone message that Dr. LK could not attend just before the hearing commenced. York complained about being deprived of the opportunity to examine Dr. LK, arguing it would have summonsed him if informed beforehand.
There is no documentation supporting the premise Dr. LK was unavailable, and the Arbitrator refused to accept the report of a telephone call as a reasonable basis to excuse the claimants’ undertaking to have Dr. LK testify. Dr. LK’s failure to testify and the lack of clinical notes and records devalue the weight of his reports and opinions. His examinations of S, SJ and H stand in close time proximity to the College’s scenario, and the Arbitrator reasonably inferred that Dr. LK conducted similar cursory examinations of these claimants. His opinions are valueless.
Dr. MS, chiropractor, initially assessed Suat’s housekeeping needs and reported she required 10 hours housekeeping per week and 15 hours weekly childcare assistance. Dr. MS’s report does not identify the child/children, ages and their individual needs or the specific recommended services. His finding that S’s endurance and strength were insufficient to carry groceries and that her back pain prevented her pushing and pulling a cart is squarely contradicted by the surveillance of her performing these same functions during that period. Dr. MS did not testify to explain the apparent inconsistency and missing information in his report. These factors give me little confidence in Dr. MS, the Arbitrator placed no weight on his opinions.
A February 2010 functional ability evaluation of Hiba by Dr. LG, a chiropractor her representative retained, states she would have difficulty working due to limited strength, lifting, carrying and repetitive movement limits. Dr. LG releases Hiba to resume modified work and he does not address the “substantial inability” test for entitlement to income replacement benefits. Dr. LG’s report does not support her claim for disability benefits.
Dr. JS is a chiropractor who examined all three women in April 2012. He agreed in his evidence he did not have any information on the accident severity. He also admits he destroyed his clinical notes and records after writing his report, and did not bring his entire file to the hearing. While these individual factors do not critically detract from Dr. JS’s opinion, they are relevant to its final weight.
Dr. JS’s evidence that he reviewed over one thousand pages of health care records before examining these three individuals is contradicted by the reports themselves that show he had very few documents. Dr. JS’s admission that he shredded his clinical notes and records of the examinations shortly after drafting the reports and his lack of knowledge of SJ’s and H’s history of back complaints reduce the value of his findings.
Dr. JS concedes that SJ’s and H’s back pain before and after their surgeries and his lack of pre-accident health records limit his ability to provide an accurate opinion about the accident’s contribution to their condition. On cross-examination, he frankly admitted that SJ and H would not met the “complete inability” test in order to qualify for income replacement benefits at the time he saw them in 2012, and that he could not venture an opinion about the accident’s overlay on their pre-accident complaints or their entitlement to other claimed benefits prior to his 2012 examinations. These factors render Dr. JS’s opinion valueless in respect of SJ’s and H’s claims.
Dr. JS states in his report that although S appears fit to return to some duties there is no guarantee she will not re-injure herself in the future. In his report, he postulates she is likely disabled from repetitive or heavy housework. However, when shown the November 2009 video surveillance of S shopping and loading large grocery items he said it was unlikely she needed attendant care at that time. Dr. JS did not explain further why S cannot complete her housework if he concedes she does not require attendant care. The Arbitrator accorded little weight to Dr. JS’s opinion about S’s condition and disability level.
The three Applicants introduced numerous treatment plans and disability certificates of Osler’s chiropractor, Dr. AG. These documents contain no explanations or detailed analysis which would lend weight to the stated diagnosis and opinions.
Dr. AG testified that he did not ask Osler to provide him with his clinical notes to enable him to explain the documents and admits he has no independent recollection of S, SJ or H. Dr. AG identified some of his signatures as electronically produced by Osler staff. Dr. AG reasoned he did not view or approve the documents submitted to York with his electronic signature on noting that he definitely would not have coded some of the listed diagnosis categories. Dr. AG was quite clear that Osler staff had changed his disability opinions.
The Doctor’s evidence about Osler’s records is not refuted or attacked, and the Arbitrator accepted his statement that staff altered his diagnoses and opinions. The alterations of Dr. AG’s reports represent serious breaches of professional standards, which cause me to place no trust in Osler’s documents and the findings, recommendations, and opinions expressed therein. Dr. AG has no independent recall and without reference to trustworthy records the Arbitrator gave his evidence little weight.
The November 2009 psychological tests results and interview conducted at Assessment Direct by Dr. IK, psychotherapist, and Mr. IG, indicated severe anxiety/depression with moderate impairment of mental flexibility. The diagnosis of adjustment disorder with anxiety, depressed mood and situational phobia resulted in his opinion that S suffered moderate impairment in activities.
Suat reported to Dr. IK she avoids car travel, driving, social and physical activities. However, the contradictory November 2009 surveillance evidence of S driving, holding a shopping basket, wheeling the loaded cart through the parking lot and lifting the case of water where she’s receiving little assistance from her accompanying two daughters jeopardizes Dr. IK’s assumption.
The contradiction between S’s reported activity level and her actual function is supported by York’s February 2010 psychological tests. Dr. Peter Marton indicates she did not validly report her symptoms. Dr. Marton’s test results combined with the surveillance caused the Arbitrator to reduce the value of Dr. IK’s opinion, and give it little weight.
The September 2009 functional testing of H and SJ by York’s occupational therapist, Ms. CM , demonstrated both had near normal movement and normal muscle strength. Although they declined kneeling and weighted stair climb due to her reported back pain, each performed the elements necessary for meal preparation/cleanup, laundry, floor/bath cleaning and grocery shopping. Ms. CM did not recommend housekeeping assistance for either, and cross-examination did not challenge her testing and opinion.
S’s functional testing in September 2009 by Ms. CM showed decreased strength and flexibility due to her pain reports and reduced stamina. S declined or limited some household tasks during the tests on reporting increased discomfort and fear of hurting herself. Ms. Meles’ opinion is that S’s anticipated pain reduced her abilities.
Under cross-examination, Ms. CM agreed it is possible S’s neck and trunk limitation may be accident-related and she might not be able to perform vacuuming. She would not concede S needed her husband’s assistance to shave her legs and put on her shoes because she saw her in similar posture when she casually sat and flexed her leg over her knee. Ms. CM characterized S’s demonstrated ability to reach overhead and hold objects as enabling her to brush and colour her own hair without assistance.
Ms. CM’x fair concession about S’s vacuuming ability and reasoned explanation of hair care and shaving give the Arbitrator confidence that she has a balanced opinion about housekeeping and attendant care.
Ms. CM interviewed and tested SJ’s and H’s needs for attendant care in October 2009 at their home. During this process Ms. CM describes in her reports how she had them conduct closely simulated or the actual personal care tasks. Ms. CM found that SJ and H could conduct their own dressing, bathing, toileting, grooming and hygiene. The tasks Ms. CM reports H and SJ were able to do in October 2009 is supported by the fall 2009 surveillance of the sisters shopping, on errands and playing in the park with their young cousins.
York asked Dr. JB, a chiropractor, to evaluate the claimants’ treatment needs in September 2009. Dr. JB characterized the claimants’ injuries as uncomplicated moderate soft tissue injuries that had mostly resolved, although he noted their pain complaints in some physical tests. He found no evidence of orthopaedic, neurological or functional impairments, recording inconsistencies between their tested abilities and his casual observation of their movements. Specific to H, Dr. JB testified that her neck movement was 50% of normal, but he reasoned that her ability to take off and put on her track jacket in his office without apparent difficulty demonstrated that her shoulder movement was normal. He did not approve of further treatment.
Dr. JB re-examined the three claimants in October 2009, Hiba a second time in November 2009 and all three claimants in February 2010. His re-examinations did not change his conclusions that all three required no further treatment or care.
York provided a post-hearing benefits payment statement that the claimants do not dispute. It did not pay any of them attendant care benefits. Each claimant received $100 for housekeeping expenses; $1,897 was paid to S for her son’s caregiver benefits to December 8, 2009; $4,139 to SJ and $4,072 to H for their income replacement benefits to November 18, 2009; on average $1,500 for each of their treatment and on average $10,000 for each of their costs of examinations.
S, S, SJ and H are not credible witnesses. The claimants’ health care evidence and opinions from Dr. LK, Dr. MS, Dr. JS, Dr. IK and Dr. AG are limited and/or without value. The records from Osler Rehabilitation are altered and cannot be relied on either. S’s and S’s housekeeping and attendant care provider records are not reliable or credible and they did not appear to answer the discrepancies. The Arbitrator found that S, SJ and H are not entitled to attendant care benefits.
S did not provide credible evidence that her son required her caregiver services at the time of the accident. She has no reliable health care opinion that she suffered a substantial inability from caregiving for Sidal or establish that she retained another caregiver for her son or that she paid another caregiver to provide replacement caregiver services for a fee. The Arbitrator found that S is not entitled to further caregiver benefits.
H and SJ have not provided reliable and trustworthy health care opinions that they suffered a substantial inability to perform the essential tasks of their respective jobs as a child care assistant and sales clerk/receptionist. The Arbitrator found they are not entitled to further income replacement benefits.
The considerable surveillance of SJ, H and S demonstrating everyday physical activities at an early stage in the adjusting process stands in sharp contrast with their claimed disabilities and performance during examinations. No reliable health care evidence or opinions explains or refutes the contradictions. Based on Ms. Meles’, Dr. JB and the surveillance, the Arbitrator found that S, SJ and H did not suffer a substantial inability to perform their essential housekeeping tasks, and they are not entitled to further housekeeping expenses.
Osler’s account activity report of charges and credits for each of the claimant’s treatment bills contains handwritten notes and handwritten totals that are not verified or explained by any oral or written evidence. The Arbitrator cannot accept the handwritten sums stated in bills as verifiably accurate without testimony from a credible witness, based on the previous unreliability of Osler’s records. Further, the Arbitrator relied on the opinions of Dr. JB and Ms. CM in finding that the treatment claims of S, SJ and H are not reasonable or necessary. The Arbitrator denied their claimed entitlement to the costs of examinations from Assessment Direct.