Neutral Citation: 1993 ONICDRG 74

File No. A-004294

ONTARIO INSURANCE COMMISSION

BETWEEN:

BAHADUR CHHOKAR

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues

The applicant, Bahadur Chhokar, was injured in a motor vehicle accident on January 15, 1993. He applied for accident benefits from the insurer, Allstate, payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8. Benefits were denied. Mediation was unsuccessful in resolving the dispute between the applicant and the insurer, and the applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

1. Is Mr. Chhokar entitled to weekly benefits under subsection 13(1) of the Schedule?

2. Is Mr. Chhokar entitled to childcare benefits under subsection 13(4) of the Schedule?

Mr. Chhokar also seeks interest on any benefits owing and his expenses in the arbitration.

Result

1. Mr. Chhokar is not entitled to receive weekly benefits.

2. Mr. Chhokar is not entitled to receive childcare benefits.

Mr. Chhokar is entitled to his expenses in the arbitration.

Hearing

The hearing was held in Kitchener, Ontario, on September 9, 1993, before me, Nancy Makepeace, arbitrator.

Present at the hearing were:

Applicant

Bahadur Chhokar

Applicant's Representative:

Jim Pitcher

Barrister and Solicitor

Insurer's Representative:

Grant Black

Barrister and Solicitor

Michael Tolan

Mr. Chhokar was the only witness. He was assisted throughout the hearing by Mr. Pritham Singh, an interpreter in the Punjabi language.

Exhibits introduced into evidence and other documents on the record are listed in an Appendix to this decision.

Mr. Black referred me to the arbitration decision, Chor Ting Lui and Wellington Insurance Company, File No. A-001894, dated April 28, 1993.

Evidence and Findings

1. WEEKLY BENEFITS

The test for entitlement to weekly benefits is set out in subsection 13(1) of the Schedule, as follows:

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

At the time of the motor vehicle accident on January 15, 1993, Mr. Chhokar had been unemployed for about three years. He had previously worked as a tire assembler at Uniroyal-Goodrich in Kitchener. Mr. Chhokar's wife works full-time. They have two daughters, aged 5 and 92. Mr. Chhokar claims that as a result of the accident he is substantially unable to perform the essential tasks in which he would normally engage. The insurer contends that any disability from which the applicant suffers results from his previous workplace injury and not from the motor vehicle accident.

Pre-accident condition and activities

Mr. Chhokar's pre-accident condition was described in his oral evidence and in the July 3, 1991 report of Dr. Don Ranney, orthopaedic surgeon, as follows. On March 3, 1989, Mr. Chhokar developed left wrist pain at work. He was off work for about three weeks, and received workers' compensation benefits. He then returned to light work, but his wrist problems recurred after six or seven weeks, when he developed a ganglion. He was off work because of his wrist problem during June and July of 1989, and again received workers' compensation benefits. He returned to work in August. Dr. A. Fattah excised the ganglion on September 6, 1989. Following his surgery, Mr. Chhokar was off work on workers' compensation benefits for about six weeks. He returned to a job involving pulling a truck, which aggravated his left wrist pain. On November 17, 1989, he started to have left shoulder and left elbow pain. By December, he developed pain in his left neck. He has not worked since December 17, 1989. The Workers' Compensation Board denied further benefits. Mr. Chhokar lost his first appeal, and a further appeal is pending. His job was terminated in October, 1990.

When Mr. Chhokar saw Dr. Ranney on July 3, 1991, he complained of pain in the left neck, left shoulder, left elbow, and left wrist and hand. He also reported numbness and tingling in the left wrist and hand. Symptoms had begun about two years before. Dr. Ranney reported that:

Because of the above problems, he is unable to drive a car more than 5 miles (this causes neck pain). He is only able to use his right hand to drive (because of left wrist pain). He is unable to help with heavy housework or work in the garden because of left wrist and neck pain.

Dr. Ranney diagnosed left wrist tendinitis and pain, left rotator cuff tendinitis with impingement, and spasm of neck muscles with bilateral facet joint syndrome. It was Dr. Ranney's opinion that Mr. Chhokar was "certainly unable to be gainfully employed". He recommended chiropractic treatment, neck stretching exercises, cortisone injections as needed, possible shoulder surgery, and pain management therapy. Dr. Ranney's opinion was that the degree of pain reported "far exceeds what one would expect on physical assessment. His disability is apt to be prolonged indefinitely if pain management therapy is not instituted."

Mr. Chhokar testified about his activities and condition at the time of the accident. There were several discrepancies between his testimony and prior statements he made - to Rose Jung, an adjuster with Allstate, during a telephone conversation on January 19, 1993; and to Oona Burkhardt-Schmidt, a physiotherapist with the Canadian Back Institute, during his rehabilitation assessment on January 20, 1993.

Mr. Chhokar testified that before the accident he had problems with his left shoulder, left arm, elbow and wrist, and left knee. He also had left neck pain which he described as "not so severe" and "very minor". He described his pre-accident activities as follows:

• cooking: His wife did "the major cooking", including Indian-style vegetables, chapatis and rotis. He could make toast, a sandwich or an omelette, or warm up food that his wife had left for him.

• cleaning: He did some of the lighter housework: vacuuming, dusting the T.V. and furniture, cleaning, and making the beds.

• laundry: He did "a little" laundry, cleaning the children's clothes, if his wife had no time.

• gardening: He would sometimes water the vegetables or cut the grass. His wife did most of the gardening.

• taking out the garbage: His wife would put the garbage in small bags. He would put it in larger bags and take it outside.

• looking after the children: He looked after the children, when his wife was busy or at work. Sometimes he took them to sports activities.

• reading

• driving

At Allstate's request, Mr. Chhokar went to the Canadian Back Institute on January 20, 1993 for a rehabilitation assessment. The report includes the following comments about Mr. Chhokar's pre-accident activities and condition:

Medical Management and Investigation:

At this time Mr. Chhokar reports taking plain Tylenol, Norflex, and another form of medication which he was unsure of the name, but he thought it was muscle relaxants. All these medications are for long standing left arm and left knee pain.

Past History and General Health:

.... Mr. Chhokar reported chronic pain in the left side of his neck, left shoulder and in the left wrist and forearm as well as the hand for the past three years....

Work History:

.... Mr. Chhokar indicated that he is not looking for work at present and has not for some time. He reported he is not looking for work secondary to the chronic left upper extremity pain. He did not feel he was capable of employment of any kind due to that pain.

Activities of Daily Living:

Mr. Chhokar reported he is largely sedentary. He reports he walks around for brief periods, supervises his five year old daughter when his wife is not home and watches T.V. He reports that he normally does not do any housework or cooking. He reports that he has no hobbies. When questioned specifically, he reported the activity that he is unable to do at this time post motor vehicle accident is driving. He reports that it significantly increases his neck and low back pain.

On behalf of Allstate, Mr. Black introduced into evidence an audiotape and transcript of a conversation between Mr. Chhokar and Rose Jung, claims adjuster, on January 19, 1993. Included in the conversation are the following questions and answers [question numbers have been added]:

1. Q.Mr. Chhokar do I have your permission to record this statement?

A. Yes.

15. Q. Okay, now what did you do around your home before the accident for activities?

A. I just not do much, I just watching T.V. and my wife is cook so I just, she left work, so I eat myself that's all I do.

16. Q. So she prepares the meals and you just, you just eat it yourself, you don't have to do any preparing the meals?

A. No, she just cook, left, and leave it then, warm up.

17. Q. You just warm it up?

A. Yeah.

18. Q. And do you help with any of the cleaning or the laundry or anything like that?

A. No.

35. Q. Were you actively looking for work?

A. Before no.

36. Q. No, you weren't, you are just staying home then, watching T.V. and walking around the house?

A. Yes.

Mr. Chhokar's testimony at the hearing was inconsistent with the statements reported by Ms. Jung and Ms. Burkhardt-Schmidt on several points.

• Mr. Chhokar testified during the hearing that his symptoms before the accident were minor, and that he took medication only when his symptoms were severe. However, in January, 1993, he told Ms. Burkhardt-Schmidt that he had chronic left neck, left shoulder, left arm, wrist and hand pain, and was taking medication "for long standing left arm and left knee pain". In cross-examination, Mr. Chhokar admitted telling Ms. Burkhardt-Schmidt that he was taking medication twice a day before the accident, and could only stand or walk 15-20 minutes without a rest.

• Mr. Chhokar testified that his pre-accident activities included housework, childcare, and driving. However, he told Ms. Burkhardt-Schmidt in January, 1993 that he was "largely sedentary" and "normally" did no housework before the accident, and that driving was "the activity" he could not do as a result of the accident. In January, 1993, Mr. Chhokar told Ms. Jung that before the accident he watched T.V., warmed up food his wife had left him, and walked around the house.

• Mr. Chhokar contradicted himself in his testimony about whether he was looking for work before the accident. Initially, he testified that he had been looking for work and was capable of working "a little bit". He later testified that he was not looking for work while awaiting the outcome of his workers' compensation appeal. However, in January, 1993, Mr. Chhokar told Ms. Burkhardt-Schmidt of the CBI that he was not looking for work because of chronic left arm pain. In cross-examination, he explained this discrepancy by stating that he had told the CBI that he had not looked for work after the accident and suggesting that he had been misunderstood. In their January, 1993 telephone conversation, Ms. Jung asked "Were you actively looking for work?"; Mr. Chhokar answered, "Before no".

Mr. Chhokar's explanation for the discrepancies between his testimony at the hearing and his statements to Ms. Burkhardt-Schmidt was that he had taken pain medication and had been drinking before the CBI assessment. He later altered this testimony and stated that he was not sure he had been drinking, but he had taken medication.

Mr. Chhokar testified that he remembered the telephone conversation with Ms. Jung, but did not know it was being taped. His explanation for the discrepancies between his testimony at the hearing and the statements he made to Ms. Jung was that he had taken a drink and pain medication. As the conversation went on, he became puzzled. In addition, because of language difficulties, he did not understand much of what the adjuster was saying. He was just "babbling on the phone".

I do not accept Mr. Chhokar's explanations for the inconsistencies between his testimony at the hearing and statements made during his January 19, 1993 conversation with Ms. Jung and his January 20, 1993 CBI assessment. I heard no evidence to corroborate his claim that medication or alcohol prevented him from understanding or responding to the questions asked on either occasion, and I do not accept this explanation.

With regard to the January 19, 1993 conversation with Ms. Jung, Mr. Chhokar agreed that the answers transcribed are correct, except for the answers to the questions about pre-accident activities. The other questions solicited information about his address and phone number, the circumstances of the accident, the treatment he had received after the accident, his current condition, his prior work-related injury, his wife's earnings, his welfare benefits, and his insurance coverage. I find it unlikely that any difficulties Mr. Chhokar may have had because of language, medication or alcohol would have affected only his answers about his pre-accident activities. Mr. Chhokar explained that he had prepared notes the day before recording some of the information. He was unable to remember exactly which information he had recorded in his notes, and did not bring the notes with him to the hearing.

I find that Mr. Chhokar answered Ms. Jung's questions appropriately and without hesitation or any other indication that he failed to understand or had to consult notes. At no point did he ask to have a question repeated or clarified. Although several of Mr. Chhokar's answers are unclear because of language difficulties, I find that he understood the substance of the questions and his answers.

I find that the statements Mr. Chhokar made to Ms. Jung and Ms. Burkhardt-Schmidt within days of the accident are more reliable than his statements at the hearing some eight months after the accident. I accept the earlier statements as accurate accounts of his pre-accident activities and condition.

Not every activity is an "essential task" in which the insured person "would normally engage". The test for entitlement to weekly benefits was discussed in the arbitration decision, Chor Ting Lui and Wellington Insurance Company, File No. A-001894, dated April 28, 1993, on which Mr. Black relied. In that decision, arbitrator Janice Mackintosh made the following comments, with which I concur:

I interpret the words "essential tasks" in subsection 13(1) to refer to those activities connected to the ongoing business of living. I include the routine tasks a person performs to maintain themselves, their dependants, and their home. The words "essential tasks" also import an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants.

In the arbitration decision, Lily Steele and Zurich Insurance Company, File No. A-001024, dated December 3, 1992, arbitrator K. Julaine Palmer held that the phrase "in which he or she would normally engage" "suggests a usual or regular pattern of activity". I concur with these comments.

I accept that the "essential tasks" in which Mr. Chhokar "would normally engage" before the accident included sleeping, reading, watching television, and preparing light meals for himself. I do not accept that driving, housework, or childcare were "essential tasks" in which he "would normally engage".

Post-accident condition and activities

Mr. Chhokar was involved in a motor vehicle accident on January 15, 1993. He was a passenger sitting in the front seat of a car which was rear-ended; he wore a seat-belt. According to the Canadian Back Institute report of January 20, Mr. Chhokar reported that he did not lose consciousness or strike the inside of the vehicle.

Mr. Chhokar testified that he did not go to the hospital right away, but felt sore when he got home. The accident occurred on a Friday evening, but Mr. Chhokar was not able to see Dr. Fattah, his family doctor, until the following Monday.

Mr. Chhokar testified that as a result of the accident he injured his lower back and re-injured his neck. He described his back pain as "very bad". He testified that he also has pain on both sides and the back of his neck. He claims that his pain is constant and requires him to take pain medication all the time. He testified that there have been a lot of changes to his activities as a result of the accident: he is confined to the house, and cannot look after the children or do any housework. He stated that his wife and sometimes his mother-in-law do the work. He testified that he cannot drive because turning his head hurts his neck. On cross-examination, he admitted that he could make toast or a sandwich.

In his report of May 5, 1993, Dr. Fattah stated that Mr. Chhokar saw him on January 18, 1993 complaining of pain in the lower back and neck. Dr. Fattah found paracervical and paravertebral muscle tenderness with limitation of movement. Dr. Fattah prescribed rest and analgesics. Mr. Chhokar was seen again on January 26, February 2, March 10, April 7 and April 26. By April, he was "found to be improving somewhat". Dr. Fattah prescribed Voltaren twice a day. Mr. Chhokar testified that other treatment included physiotherapy for his neck and therapy given at the CBI for his back.

In its initial report of January 20, 1993, the CBI recommended a functional capacity evaluation, which was done on March 8 and 9. In its functional capacity evaluation report, the CBI stated that Mr. Chhokar displayed inconsistencies in performance, poor effort and symptom magnification. It was the opinion of the CBI that Mr. Chhokar has "a behavioural overlay with a very strong pain focus". The CBI recommended that Mr. Chhokar return to his regular activities of daily living, and opined that no treatment was required. Resolution of the soft tissue injuries was expected within six to eight weeks.

Mr. Chhokar was examined by Dr. Ranney on February 1, 1993 in connection with his workers' compensation claim arising out of the November 17, 1989 injury to his left shoulder. Mr. Chhokar is reported to have stated that his neck pain had been aggravated by the motor vehicle accident, but his shoulder pain was not affected. Dr. Ranney gave the following opinion:

... my assessment of the left shoulder today gave essentially the same findings as when I assessed him July 3, 1991. Examination of the neck indicates more extensive tenderness, but a reasonably similar range of motion. In view of his recent motor vehicle accident in which he states that his neck pain was increased, it is probable that the increase in neck tenderness is a result of that injury.

In a report dated April 2, 1993, Dr. Ranney stated that while there is "some organic basis" for Mr. Chhokar's pain, psychological factors are also contributing to his disability and may render him permanently unemployable. He recommended pain management therapy.

Dr. J.B. Tallon, orthopaedic surgeon, saw Mr. Chhokar on July 15, 1993 in connection with Canada Pension Plan disability benefits. In his July 19 report, Dr. Tallon opined that "most, if not all, of [Mr. Chhokar's] physical complaints, were due to psychogenic factors. There were no physical findings that would account for the type of diffuse symptoms that were described." Dr. Tallon noted numerous inconsistencies in the physical findings. He found Mr. Chhokar to be unemployable.

Conclusion

I find that Mr. Chhokar has not established that he is substantially unable to perform the essential tasks in which he would normally engage - sleeping, reading, watching television, and preparing light meals for himself.

The medical reports introduced into evidence indicate that Mr. Chhokar's condition following the accident was substantially the same as his pre-accident condition. On February 1, 1993, Dr. Ranney examined Mr. Chhokar with respect to the neck and left shoulder problems. He compared the examination with his findings of July 3, 1991. He found a "reasonably similar range of motion" in the neck, and "essentially the same findings" in the left shoulder. On July 3, 1991, he had found that Mr. Chhokar was "certainly unable to be gainfully employed"; post-accident, he opined that Mr. Chhokar "may well be rendered permanently unemployable". Furthermore, the post-accident reports of Dr. Ranney, Dr. Tallon and the Canadian Back Institute identify psychogenic factors as the main source of Mr. Chhokar's disability. In his report of July 3, 1991, Dr. Ranney had opined that the degree of pain reported "far exceeds what one would expect on physical assessment" and that pain management therapy would be required to prevent Mr. Chhokar's disability from being "prolonged indefinitely".

I do not accept Mr. Chhokar's evidence that his activities have changed substantially as a result of the evidence. For the reasons given earlier, I do not accept his evidence that driving, childcare and household chores were essential tasks in which he would normally engage before the accident. Mr. Chhokar admitted on cross-examination that he is able to prepare light meals for himself, and I heard no evidence to suggest that he cannot sleep, read, or watch television as a result of the accident.

Weekly benefits are payable to a person who is substantially unable to perform the essential tasks in which he would normally engage "as a result of an accident". I accept Mr. Pitcher's submission that weekly benefits may be payable for psychogenic disability. However, the applicant's credibility becomes important where the symptoms reported are not explained by the objective findings. Because of the discrepancies in Mr. Chhokar's evidence about his pre-accident activities, I find that I am unable to rely on his evidence about his activities and condition following the accident. I did not find him to be a credible witness. The reports of Dr. Ranney, Dr. Tallon and the Canadian Back Institute note numerous inconsistencies in the physical and functional findings. While some degree of conscious or unconscious exaggeration of symptoms may not preclude entitlement, the onus is on the applicant to establish on a balance of probabilities that the accident contributed significantly to the disability. I find that Mr. Chhokar has not satisfied that onus.

2. CHILDCARE BENEFITS

Childcare benefits are payable under subsection 13(4) of the Schedule, the relevant part of which is as follows:

The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1), a benefit of $50 per week if Optional Benefit 3 has not been purchased, for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.

Since Mr. Chhokar is not entitled to weekly benefits under subsection 13(1), he is not entitled to childcare benefits. Moreover, I heard no evidence that Mr. Chhokar is the primary caregiver.

3. EXPENSES

Mr. Chhokar claims his expenses in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and maximum amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses.

In the arbitration decision, Ralph McCormick v. Economical Mutual Insurance Company, File No. A-000139, dated October 2, 1991, Senior Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Calogero v. The Co-Operators General Insurance Company, File No. P-000251, dated February 13, 1992.

I found Mr. Chhokar to be less than candid in his testimony about his pre-accident activities. However, I accept that he experienced some pain as a result of the accident. Moreover, the reports of Dr. Ranney and the Canadian Back Institute suggest there is a psychogenic component in Mr. Chhokar's condition. In the circumstances, I find this an appropriate case in which to exercise my discretion to award the applicant his expenses in the arbitration.

Order

1. Mr. Chhokar is not entitled to weekly benefits.

2. Mr. Chhokar is not entitled to childcare benefits.

Mr. Chhokar is entitled to his expenses in the arbitration. I remain seized with regard to the amount of expenses payable.

December 2, 1993

Nancy Makepeace

Arbitrator

Date

APPENDIX - THE RECORD

The following exhibits were introduced into evidence:

Exhibit 1

Insurer's medical brief

Tab 1

Report of Dr. Don Ranney, dated July 3, 1991

Tab 2

Rehabilitation assessment report of Canadian Back Institute, dated January 20, 1993

Tab 3

Report of Dr. Ranney, dated February 1, 1993

Tab 4

Functional capacity evaluation, dated March 8 and 9, 1993

Tab 5

Report of Dr. Ranney, dated April 2, 1993

Tab 6

Report of Dr. A. Fattah, dated May 5, 1993

Exhibit 2

Transcript of telephone conversation between Mr. Chhokar and Rose Jung, adjuster, January 19, 1993

Exhibit 3

Audiotape of telephone conversation between Mr. Chhokar and Ms. Jung

Exhibit 4

Report of Dr. J.B. Tallon, orthopaedic surgeon, July 19, 1993