November 03, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Denise Ashby
Decision Date: October 8, 2008
Ezmin Merani was injured in a motor vehicle accident on June 28, 2005. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance. Wawanesa denied her claims for income replacement benefits, certain medical benefits, attendant care benefits and housekeeping benefits.
Ms. Merani was involved in a motor vehicle accident on June 28, 2005. She was taken to hospital by ambulance and was discharged to her home that evening. At the time of the accident, Ms. Merani lived alone and was employed as a customs officer at Pearson International Airport, Terminal 3.
Income Replacement Benefits:
Ms. Merani and a chiropractor testified on Ms. Merani´s behalf. A second chiropractor and an employee of Sun Life Financial also testified. Ms. Merani was a forthright witness. Ms. Merani had to establish her claims on a balance of probability in order for her to be successful in the arbitration.
As a result of the accident Ms. Merani suffered a black eye. As well, her left thumb, wrist and knee were bruised. She experienced neck, left shoulder and lower back pain. Ms. Merani testified that upon returning to work on June 30, 2005, she requested and was given modified duties. Her injuries prevented her from conducting fingerprinting to the standards required by CSIS, and she had not returned to this employment task. She also was unable to wear the bulletproof vest and steel-toed shoes required by her employment. As a consequence, she continued to have restricted duties at the time of the arbitration.
She testified that her doctor advised her to take time off work in order to heal. Ms. Merani´s doctor noted that Ms. Merani reported that she was continuing to suffer from pain in her left shoulder arm and hand. The doctor concluded: "so unfit to work."
The arbitrator accepted that having tried for 6 weeks to perform the essential duties of her modified work she could not continue to work and had no further short-term disability available to her. The arbitrator found that for the period from August 15 to August 25, 2005, Ms. Merani was substantially disabled from performing the essential duties of any employment available to her for the period and was entitled to an income replacement benefit.
Ms. Merani disputed the denial of five Treatment Plans issued by Prime Health Recovery Centre. Ms. Merani had to prove that the treatment was reasonable and necessary to treat an accident-related impairment. Ms. Merani testified that she found the treatments, particularly the acupuncture, initially reduced the pain and were of assistance. Ms. Merani testified that she believed she stopped going for treatment at Prime Health in May 2006 because she was 60 to 70% better and could continue on her own at home. As well, she had returned to her gym where she had retained the services of a personal trainer. She testified that her gym program continued to help her maintain the improvement achieved at Prime Health.
A chiropractor testified that she conducted two DAC assessments. The chiropractor found the treatment plans to be unreasonable because Ms. Merani reported that she had improved by 70%. In the chiropractor´s opinion, Ms. Merani had reached "maximal therapeutic benefit." The chiropractor concurred with another DAC assessor´s opinion that the Treatment Plan of August 26, 2005 was only two thirds reasonable and necessary because Ms. Merani´s injuries fell within the PAF Guideline.
On July 20, 2006, another chiropractor assessed Ms. Merani. In his report dated August 9, 2006, he concluded that the Treatment Plan dated June 5, 2006 was not reasonable and necessary. He reported that Ms. Merani described herself as having returned to "approximately 75% of her pre-collision activities." This chiropractor noted that Ms. Merani had joined a gym with a personal trainer which she found helpful. As well, a left thumb injury was noted.
Ms. Merani´s pre-accident medical history, while unremarkable in respect of the substantial impairment test, did indicate a pre-accident history of muscle pain in the legs and back.
Ms. Merani saw her family physician 13 times between the first post-accident appointment, on June 29, 2005 and June 20, 2006. On May 5 and 16, 2006, her doctor noted that Ms. Merani continued to complain of wrist and hand pain. As well, there was right knee pain and swelling in the right ankle. Her doctor´s medical records indicated that she recommended that Ms. Merani continue physiotherapy for the hand and referred her to a neurologist, to assess the left hand. As well, x-rays of the left hand and right knee were ordered. Ms. Merani´s doctor also recommended continuation of physiotherapy.
The second chiropractor´s report dated June 15, 2006 noted that she clearly did have a C6 or C7 root complaint previously but that seemed to have been getting better. She went on to recommend a referral to the Hand Clinic.
On August 7, 2006, a neurologist conducted a paper review on behalf of Wawanesa. He determined that a referral to a neurologist was neither reasonable nor necessary. In the alternative, Ms. Merani´s family physician could have arranged a referral through OHIP.
Entitlement to Medical Benefits:
The arbitrator accepted Ms. Merani´s evidence that the treatment provided by Prime Health permitted her to continue working, resume most of her activities of normal living and ameliorate pain.
The arbitrator accepted Ms. Merani´s testimony that she found her self-directed home program and attendance at the gym an effective maintenance regime. This was supported by the second chiropractor´s report that Ms. Merani began attending the gym in April and had the assistance of a personal trainer.
The arbitrator accepted the family doctor´s opinion and Ms. Merani´s testimony that her hand and wrist injuries were a persistent source of pain. It was also accepted that Ms. Merani´s evidence that the injuries continued to prevent her from conducting fingerprinting to the standards required by CSIS.
The arbitrator also accepted the neurologist´s opinion that Ms. Merani sustained a C6 or C7 root complaint in her wrist which was resolving in June 2006.
The arbitrator found that the injuries to Ms. Merani´s left hand, wrist and knee took her out of the PAF which is confined to whiplash associated disorder grade II with or without complaints of back symptoms. As a consequence, little weight was placed on the opinions of the DAC assessors insofar as they failed to consider the implications of the additional injuries in respect of the PAF and the appropriate treatment of Ms. Merani´s injuries.
The arbitrator found that in January 2006, Ms. Merani was significantly improved. She testified she stopped treatment in May 2006 because her own efforts ameliorated the pain better than the treatment she was receiving at the clinic. Her recollection that she stopped treatment in May 2006 was the general period when she determined her self-directed program was more efficacious than the treatment provided by Prime Health.
Given Ms. Merani´s testimony that she continued to have impairments and was not fully recovered the arbitrator found that the treatment was necessary to her obtaining 70% to 75% recovery.
The arbitrator found that from June 6, 2006 Ms. Merani was substantially self-treating any residual impairment to her neck, back and left leg.
The Treatment Plans dated August 26 and October 20, 2005 and March 8, 2006 were both reasonable and necessary.
The Treatment Plan dated June 5, 2006 noted the left thumb strain as an injury. It did not set out the treatment which was recommended for this injury. The arbitrator found that physiotherapy of the left thumb and wrist would have been necessary based on the family doctor´s recommendation in May 2006. The failure to describe what treatment was being recommended for Ms. Merani´s thumb and wrist rendered the Treatment Plan of June 5, 2006 unreasonable.
Attendant Care Benefit:
Ms. Merani claimed that an attendant care benefit for services received from June 30 to August 21, 2005. She testified that due to her injuries she was unable to take care of her personal care including dressing herself. She described her inability to do up her buttons on her blouses as a consequence of the injury to her thumb and wrist.
On August 26, 2005, an OCF-12, Activities of Normal Life form, was completed. It noted that following the accident she was able to toilet herself. However, all other activities are noted as able to do partially with help. The family doctor completed a Disability Certificate on August 25, 2005. It included a statement by Ms. Merani in which she described severe swelling of her wrist and thumb.
An Assessment of Attendant Care Needs (Form 1) was completed by a chiropractor who determined that Ms. Merani required 31.68 hours of attendant care monthly at a cost of $406.14. Ms. Merani submitted invoices for the attendant care provided by a named attendant from June 30 to August 21, 2005 in the amount of $1,060.00.
The injuries which might have reasonably taken Ms. Merani´s impairment outside of the PAF Guideline were clearly noted in the family doctor´s Disability Certificate and Ms. Merani´s Application for Accident Benefits.
The arbitrator found that the injuries to Ms. Merani´s wrist and thumb and left knee set her impairments outside the PAF. The arbitrator also found that the notice of denial failed to meet the standards set out in Smith v. Co-operators General Insurance Co. A reference to a subsection in the Schedule did not fulfill the insurer´s obligation to provide it´s insured with reasons which are understandable by an unsophisticated person.
The arbitrator found that the injury to her thumb and wrist made it reasonably necessary for her to receive the assistance of an attendant for the activities described in the Activities of Normal Life, for the period that she claimed at the arbitration hearing.
Ms. Merani claimed a housekeeping benefit for housekeeping services received from June 30, 2005 to August 18, 2005 in the sum of $600.00.
Wawanesa´s Consultant declined to pay the benefit until Ms. Merani provided the name, address and telephone number of the service provider. Wawanesa submitted that Ms. Merani failed to comply with the provisions of section 33 of the Schedule by not providing that information and therefore was not entitled to a housekeeping benefit.
In order to be entitled to a housekeeping benefit, Ms. Merani had to establish that she incurred housekeeping expenses as a result of an accident-related impairment that substantially disabled her from performing her pre-accident housekeeping tasks.
The Consultant made a determination that providing the personal information of the housekeeper was a condition precedent to Ms. Merani´s entitlement to a housekeeping benefit. In this he erred.
The Consultant had the family doctor´s medical opinion that Ms. Merani was substantially disabled from performing her pre-accident housekeeping tasks. He had the Application for Expenses setting out the tasks which were undertaken by the housekeeper. The Consultant asked for the private information of the housekeeper without providing an explanation of how the information might be relevant to Ms. Merani´s claim. He did not express concern that the housekeeping services received are inconsistent with the injuries described in the Disability Certificate. The Consultant did not request further particulars of the services provided on the basis that the description given in the Application for Expenses was too vague. He did not explain what he intended to do with the information once given.
The request for the personal information of the housekeeper suggested that the Consultant doubted Ms. Merani´s bone fides. Consequently, he intended to contact the housekeeper to obtain information that would establish the expenses had been incurred. However, he failed to communicate this to Ms. Merani. Wawanesa had an obligation to deal with its insured in good faith. Unless there were inconsistencies which might have reasonably lead to further investigation Wawanesa should have accepted Ms. Merani´s statement that the expenses were incurred.
At a minimum, Wawanesa had to provide a rationale for its request for the personal information of a housekeeper which was sufficient so that Ms. Merani would understand that a failure to provide the information would be unreasonable and would compromise payment of the housekeeping benefit.
Further, Section 33 provides an insurer with a procedure by which it can obtain information that it determines is required for fairly adjusting an insured´s entitlement to a benefit. By not requesting an examination under oath an insurer may leave itself vulnerable to an inference that the information is not required.
The Disability Certificate and the Application for Expenses provided sufficient information to determine Ms. Merani´s entitlement to a housekeeping benefit. The arbitrator concluded that as a result of an accident-related impairment Ms. Merani was substantially disabled from engaging in her pre-accident housekeeping tasks. It was further concluded that the description of the tasks performed by the housekeeper as set out in the Application for Expenses were consistent with the impairments described in the Disability Certificate and by Ms. Merani in her testimony.
In contrast to the arbitration decision in West and RBC, this case shows that where the medical evidence, and the testimony from the insured, clearly outlines the treatment received and the impact on the insured, then there is a greater likelihood of success at arbitration.