October 31, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Eban Bayefsky,
Date of Decision: February 23, 2015
Anna Tchouguianova was injured in a car accident on August 29, 2010, when the car she was a passenger in driven by her husband was struck while turning into a parking lot. Her husband applied for statutory accident benefits from Trafalgar. The parties were unable to resolve their disputes and Ms. Tchouguianova applied for arbitration at the FSCO.
Ms. Tchouguianova, 61, reported injuring her neck, right shoulder and low back, right leg numbness and pain, and headaches as a result of the accident. She said that, the day after the accident took her to Metro Rehab to be treated since they spoke Russian. Ms. Tchouguianova said that she went to her family doctor, Dr. OK and reported the accident three days after the accident. Dr. OK ’s notes of September 1, 2010 state that Ms. Tchouguianova had “[n]o complain[t]s today”. Ms. Tchouguianova she said that she did tell Dr. OK about the accident, but that “he laughed.” and didn’t really pay attention.”
Ms. Tchouguianova then acknowledged that the first mention of the accident in Dr. OK ’s notes was on February 11, 2011, but said that she had “asked him for help” but he “didn’t help very much”, and that she did not see Dr. OK very often because her treatment at Metro Rehab was “helping a lot.”
The hearing in this matter was held jointly with that of Ms. Tchouguianova’s husband, Ioura Rezgo, who was injured in the same accident.
The issues in this hearing are:
Is Ms. Tchouguianova entitled to NEBs, from June 14, 2011?
Is Ms. Tchouguianova entitled to attendant care benefits, from August 30, 2010 to August 29, 2012, at a rate of $837.77 per month, less amounts already paid?
Is Ms. Tchouguianova entitled to housekeeping benefits, from March 7, 2011 to August 29, 2012, at a rate of $100 per week?
Is Ms. Tchouguianova entitled to medical benefits for the following items from Metro Rehabilitation Centre?
a treatment plan, dated December 13, 2010, in the amount of $555.05
a disability certificate and assessment, dated January 14, 2011, in the amount of $313.72
Is Ms. Tchouguianova entitled to the cost of the following examinations, by Assessment Direct?
an attendant care assessment, on August 31, 2010, in the amount of $1,050.24
an in-home assessment, on November 18, 2010, in the amount of $999.17
Is Trafalgar Insurance Company of Canada liable to a special award because it unreasonably withheld or delayed payments to Ms. Tchouguianova?
Is Ms. Tchouguianova entitled to interest for the overdue payment of?
Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova NEBs, from June 14, 2011.
Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova attendant care benefits, from August 30, 2010 to February 9, 2011, at a rate of $600 per month, less amounts already paid.
Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova housekeeping benefits, from March 7, 2011 to August 29, 2012, at a rate of $100 per week, less $200 and any amounts already paid.
Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova medical benefits for a treatment plan, dated December 13, 2010, from Metro Rehabilitation Centre, in the amount of $555.05, subject to confirmation that Trafalgar received the relevant invoice. Ms. Tchouguianova is not entitled to medical benefits for a disability certificate and assessment, dated January 14, 2011, from Metro Rehabilitation Centre, in the amount of $313.72.
Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova the cost of an attendant care assessment, on August 31, 2010, by Assessment Direct, in the amount of $1,050.24, and an in-home assessment, on November 18, 2010, by Assessment Direct, in the amount of $999.17.
Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova a special award in respect of the two assessments by Assessment Direct, in an amount to be determined.
Trafalgar Insurance Company of Canada shall pay to Ms. Tchouguianova interest on the benefits ordered to be paid.
EVIDENCE AND ANALYSIS:
Ms. Tchouguianova testified that she generally had no back, neck or shoulder pain before the accident. Following the accident a chronic pain specialist assessed her and diagnosed a variety of conditions including Chronic Pain Syndrome, and chronic head, cervical, shoulder, hip, knee, back, and arm pain; and mood and sleep disturbances, along with several other issues. He reported that Ms. Tchouguianova was “suffering from a debilitating chronic pain disorder that is most likely a result of her motor vehicle accident on August 29, 2010.” She maintains that she “didn’t talk much about these things with Dr. OK , because he wasn’t that interested.”
Ms. Tchouguianova’s Credibility
Trafalgar submitted that Ms. Tchouguianova’s evidence was not credible. However, the Arbitrator did not find any discrepancies sufficient to conclude that her evidence, as a whole, is not reliable. Her testimony was honest and straightforward with no inconsistencies. Medical assessors found her reliable. She had relatively minor flaws in her testimony which did not significantly undermine her credible evidence.
1) Ms. Tchouguianova’s Claim for Non-Earner Benefits (NEBs)
An insurer is required to pay NEBs if the person suffers a “complete inability to carry on a normal life” as a result of and within 104 weeks of the accident. This this is defined as an accident-related impairment that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
Upon reviewing the law and the evidence in the case the Arbitrator determined that prior to the accident Ms. Tchouguianova lived a full life maintaining her household, caring for her grandchildren who lived with her, doing groceries, and that she and her husband enjoyed time together as well, walking and fishing and grocery shopping. She stated that after the accident, she could not really do anything, because of her back pain other than walk a bit with her husband. Her daughter testifies that both parents became inactive for about five months following the car accident.
A Disability Certificate completed by staff at Metro Rehab, dated September 15, 2010, reported that Ms. Tchouguianova suffered a complete inability to carry on a normal life. There was nothing in the doctor’s assessment to corroborate this in his notes. A further Disability Certificate from 2011 restated the findings of complete inability to carry on a normal life. An orthopedic report completed at the request of Trafalgar found Ms. Tchouguianova did “not suffer a complete inability to carry on a normal life as a result of the subject accident.” Examination showed no objective findings preventing her from doing her normal activities at home. The surgeon acknowledged that he was not a chronic pain doctor and so could not comment on the Chronic Pain Specialist’s finding of chronic pain.
On the basis of the evidence and testimony the Arbitrator found that Ms. Tchouguianova entitled to the claimed non-earner benefits.
2) Ms. Tchouguianova’s Claim for Attendant Care Benefits
Ms. Tchouguianova claims attendant care benefits, from August 30, 2010 to August 29, 2012, at a rate of $837.77 per month, less amounts already paid by the Insurer. Ms. Tchouguianova maintained that, as a result of injuries suffered in the accident, she was rendered incapable of taking care of her basic personal care needs, and required the assistance of an attendant, which role was assumed primarily by her daughter. Trafalgar submitted that Ms. Tchouguianova was not legitimately disabled by the accident, did not require attendant care assistance, and in any event, submitted unreliable records of the expenses incurred in respect of attendant care provided.
The Arbitrator reviewed the evidence and determined that Ms. Tchouguianova’s daughter was in fact providing about 13 hours a week of care for each of her parents along with 10 hours a week of housekeeping. Ms. Tchouguianova can now do some light housework and preparing of meals.
In an attendant care assessment, dated August 31, 2010, reported that Ms. Tchouguianova required attendant care assistance for dressing and undressing, some grooming, meal preparation, bathing, exercising, cleaning the bathroom and making the bed, at a rate of $837.77 per month, as confirmed in an Assessment of Attendant Care Needs. In an Activities of Normal Life form, dated September 7, 2010, Ms. Tchouguianova reported that she was fully independent in her personal care activities before the accident, but that afterwards, she required assistance with bathing, grooming, dressing and toileting. An in home assessment prepared at the request of the Insurer three months post-accident reported “it is this Occupational Therapist’s clinical opinion that the client is not substantially unable to perform her essential pre-accident attendant care tasks independently at this time.”
After considering the evidence the Arbitrator concluded that Ms. Tchouguianova is entitled to attendant care benefits, but not to the extent claimed.
3) Ms. Tchouguianova’s Claim for Housekeeping Benefits
Ms. Tchouguianova claims housekeeping and home maintenance benefits, from March 7, 2011 to August 29, 2012, at the rate of $100 per week. The Arbitrator reviewed the evidence and the law and determined that Ms. Tchouguianova is entitled to the claimed housekeeping benefits.
4) Ms. Tchouguianova’s Claim for Medical Benefits
Ms. Tchouguianova claims medical benefits for two items from Metro Rehab. She submitted treatment plans which were approved by an independent adjustment firm. Ms. Tchouguianova maintained that, if the treatment plan had been approved, then Trafalgar was required to pay it. Trafalgar maintains that approval does not mean payment is automatic. They said Metro Rehab did not receive payments for the treatment plan because neither they nor Ms. Tchouguianova verified that the treatment had been received. However, the adjuster with the firm testified that if the treatment plan had been approved, then it should have been paid.
Notwithstanding significant concerns that the Arbitrator had with Metro Rehab’s practices, he found the treatment plan in question was submitted and approved and ought to have been paid, and therefore found that Ms. Tchouguianova is entitled to medical benefits for this treatment plan, subject to confirmation that Trafalgar received the relevant invoice.
5) Ms. Tchouguianova’s Claim for the Cost of Examinations
Ms. Tchouguianova claims the cost of two examinations, by Assessment Direct. Pursuant Schedule an insurer is required to pay for approved services within 30 days of receiving an invoice for them. The Arbitrator found that these assessments were conducted, submitted, invoiced and approved, and should, therefore, be paid.
6) Special Award
Ms. Tchouguianova claims a special award on the basis that Trafalgar did not pay for treatment and assessments submitted, approved and invoiced. Given the very small amount of the benefits ordered in respect of treatment at Metro Rehab, as well as his general concerns with the practices of that clinic, the Arbitrator was not prepared to order a special award for that item.
The Arbitrator found Ms. Tchouguianova is entitled to interest on the benefits to which I have found her entitled.