Neutral Citation: 1995 ONICDRG 139

File No. A-003827

ONTARIO INSURANCE COMMISSION

BETWEEN:

DEEP SINGH

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

File No. A-003828

SAROJNI SINGH

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION

ISSUES:

The Applicant, Deep Singh was involved in three automobile accidents, on October 21, 1992, November 17, 1992 and November 24, 1992. The latter two accidents also involved the Applicant, Sarojni Singh. Mr. and Ms. Singh are married to each other. Mr. and Ms. Singh applied for and received accident benefits from Co-operators General Insurance Company (the Co-operators), payable under Ontario Regulation 672.¹ Mr. Singh was paid weekly income benefits until September 21, 1993. Ms Singh was paid weekly income benefits until May 29, 1993.

The issues in this hearing are:

Deep Singh:

1. Is Mr. Singh entitled to weekly income benefits after September 21, 1993?

2. What is the amount of Mr. Singh's weekly income benefits?

3. Is Mr. Singh entitled to recover the cost of his brother's round-trip airfare to travel to Canada to visit Mr. Singh from September 1993 to January 1994?

4. Is Mr. Singh entitled to housekeeping expenses?

5. Is the Co-operators entitled to repayment of weekly income benefits?

Sarojni Singh:

1. Is Ms. Singh entitled to weekly income benefits after May 29, 1993?

2. What is the amount of Ms. Singh's weekly income benefits?

3. Is Ms. Singh entitled to housekeeping services?

4. Is the Co-operators entitled to repayment of weekly income benefits or housekeeping expenses?

The Applicants also claim interest on any outstanding amounts owing, and their expenses incurred in the hearing.

RESULT:

Deep Singh:

1. Mr. Singh is not entitled to weekly income benefits after September 21, 1993.

2. Mr. Singh is required to repay to the Co-operators the amount of weekly income benefits paid to him from October 28, 1992 to September 21, 1993. This comes to a total of $6,421.76. The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

3. Mr. Singh is not entitled to the cost of his brother's round trip airfare to visit him from September 1993 to January 1994.

4. Mr. Singh is not entitled to housekeeping expenses.

5. Mr. Singh is not entitled to his expenses incurred in respect of the arbitration.

Sarojni Singh

1. Ms. Singh is not entitled weekly income benefits after May 29, 1993.

2. Ms. Singh is required to repay to the Co-operators the amount of weekly income benefits paid to her from November 25, 1992 to May 29, 1993. This comes to a total of $4,936.96. The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

3. Ms. Singh is not entitled to housekeeping expenses.

4. Ms. Singh is required to repay to the Co-operators the amount of housekeeping expenses paid to her from November 25, 1992 to January 3, 1993. The total amount paid was $630. The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

5. Ms. Singh is not entitled to her expenses incurred in respect of the arbitration.

HEARING:

The proceedings in respect of Deep Singh and Sarojni Singh were consolidated on consent of counsel. The ten day hearing was held in North York, Ontario, on April 18, April 19, April 20, April 21, June 15, June 16, July 12, July 14, July 27, 1994, and September 16, 1994 before me, Susan Naylor, senior arbitrator.

Present at the Hearing:

Applicant:

Deep Singh

Applicant's Representative:

Murray Levine

Barrister and Solicitor

Applicant:

Sarojni Singh

Applicant's Representative:

Michael Brown

Barrister and Solicitor

Insurer's Representative:

Stephen Malach

Barrister and Solicitor

Insurer's Officer:

Marianne Douglas

Claims Representative

A court reporting service recorded the proceedings.

21 witnesses testified at the hearing. They are listed in Appendix A. 120 exhibits were filed, and are listed in Appendix B.

WEEKLY INCOME BENEFITS:

A. Synopsis of the Applicants' claims

The Applicant, Deep Singh, is 27 years old. When he was 20, he came to Canada as a student from Fiji, where his family still lives. Shortly afterwards, he met the Applicant, Sarojni Singh, who also comes from Fiji. They were married to each other in March 1992.

Mr. Singh has been involved in four automobile accidents, all of which occurred within a relatively short space of time, on November 16, 1991, October 21, 1992, November 17, 1992 and November 24, 1992. Sarojni Singh was involved in all of the accidents except the one on October 21, 1992. The accidents share certain similarities: in all but the last one, it is claimed that the Applicants' car was cut off at high speed by another vehicle, forcing Mr. or Ms. Singh to swerve and hit a curb or guard rail. Only the last accident involved actual contact with another vehicle. There are no witnesses to any of the accidents and the drivers of the other vehicles cannot be identified or located.

The three accidents in the fall of 1992 involve the Co-operators. The earlier accident, on November 16, 1991, involved another insurance company, Allstate Insurance, and is not the subject of these proceedings. However, this history is relevant to the Applicants' credibility and to the state of their health before the 1992 accidents.

Mr. Singh's claim

Mr. Singh's position, which is supported by his family doctor, Dr. Hartley, and a neurologist, Dr. Dhanani, is that he suffered a head injury, as well as soft tissue injuries, in the accident on October 21, 1992. The other two later accidents aggravated his injuries. He claims that he now suffers from post-concussive syndrome, which accounts for his disabling symptoms of psychological disturbance. He claims he also suffers from continued physical restrictions, although his physical symptoms have improved over time. Mr. Singh claims that he remains disabled from work. He also claims that he was forced to abandon an attempt to complete the third year of his engineering degree, because of his continuing cognitive difficulties.

According to Mr. Singh, he lost his memory as a result of the head injury and has little recollection of the accident that precipitated this or the events that have occurred since then. He could remember almost nothing about his business, the accidents, or his medical treatment and rehabilitation in the year following the October 21, 1992 accident. His recollection of events prior to this time was also sporadic.

It is the Co-operators' position that Mr. Singh's claim is fraudulent, either in whole or in part. The Co-operators does not agree that Mr. Singh suffered a head injury, or that his psychological symptoms are attributable to a post-concussive syndrome arising out of such an injury. It believes that Mr. Singh has exaggerated his physical and psychological symptoms.

Ms. Singh's claim

It is Ms. Singh's position that she suffered soft tissue injuries in the November 17, 1992 accident, which were aggravated in the November 24, 1992 accident. She alleges that these have developed into a disabling chronic pain syndrome. This is disputed by the Co-operators.

Credibility

The Applicants' credibility in this proceeding is crucial. They rely extensively on their own testimony, and in the case of their business dealings, almost exclusively so. On the medical front, the findings of Mr. and Ms. Singh's doctors rest to a significant degree on their having been given an accurate history and reliable report of symptoms.

I find that neither Mr. or Ms. Singh are credible witnesses and their testimony cannot be relied upon.

I accept, from the medical evidence, that Mr. Singh suffers from significant psychological difficulties. These difficulties may have adversely affected his presentation of his testimony at the hearing, particularly in the face of vigorous cross-examination. However, his psychological difficulties alone do not adequately explain the manifold inconsistences and discrepancies in the evidence. These inconsistencies relate to all relevant and material parts of the claim, including the Applicants' prior medical history, their business affairs, the pattern of the accidents, and their actions afterwards. Taken singularly, the deficiencies can be explained away; cumulatively, the Applicants' claims become difficult to accept.

I start with the Applicants' business.

The Business

Mr. Singh completed two years of a degree in mechanical engineering at the University of Toronto. He then took a year off and re-enrolled for his third year in the fall of 1992. At the same time, Ms. Singh started a diploma in office management at Centennial College.

In mid-September 1992, Mr. and Ms. Singh apparently purchased the equipment to operate a small foundry located on Danforth Avenue. They bought the machinery - a furnace, compressors, a moulding machine and other miscellaneous equipment - from Mr. Singh's aunt, Phul Mati Nand, paying $2,800 cash down towards the total purchase price of $15,000.² At this point, Mr. Singh withdrew from university to pursue his new line of business. Mr. Singh had had previous experience in foundry work.

Mr. and Ms. Singh both claim ongoing weekly income benefits under section 12 of the Schedule. These benefits, in essence, provide compensation for loss of income from work. To qualify, applicants must show that they suffer substantial inability to perform the essential tasks of their work. The amount of benefits is fixed by reference to an applicant's gross weekly income before the accident, subject to minimum and maximum amounts. The Applicants have each been paid benefits at the minimum amount - $185.60 a week - but claim the maximum amount payable - $600 a week.

Mr. Singh registered the business under the name Ontario Metal Casting.³ The business involved custom manufacturing of metal items - for example, grills - from moulds made out of a standard pattern provided by the customer. The customer would leave its pattern with the foundry, and place an order for a specified number of items. These would be made by pouring molten metal into moulds made of compressed sand. The metal would be cooled to the shape of the pattern, and then cut to specification.

Mr. and Ms. Singh claimed they both worked in the business, he full-time and she, in between college classes. They said they had no other employees. They solicited potential customers by telephone, many of whom were former customers of Mr. Singh's uncle. Ms. Singh participated in this work, but left most of the subsequent customer contact to her husband. Both Mr. and Ms. Singh worked on the production side, which involved heavy physical labour. Mr. Singh was involved in all aspects of the manufacturing process. Ms. Singh shovelled the sand required to make the moulds and helped her husband with other physically demanding tasks.

According to Mr. and Ms. Singh, at the time of the October 21, 1992 accident, they had work in progress on orders from a number of customers, and the prospects for the business looked bright.

The basis of the Applicants' claimed earnings from the business was initially obscure. Mr. and Ms. Singh both suggested that they had money in hand from completed orders before the October 21 accident, although they were not certain how much. Subsequently, Mr. Singh clarified that his pre-accident earnings figure was based on orders taken and completed after the accident, because he had received the customer's pattern before then. Without commenting on the underlying merits of Mr. Singh's position, I find it disturbing that the premise underlying his claim was not revealed until the middle of a ten day hearing.

Mr. Singh filed copies of 12 invoices⁴ and a bank book⁵ to document his claimed earnings. The bank book and the invoices were all dated after October 21, 1992 and showed that the vast majority of products were ordered, manufactured, shipped and paid for after that time. The documentation showed a small but fairly steady amount of business transacted in November and December 1992, tailing off into 1993.

Mr. Singh claimed that his injuries from the October 21 accident prevented him from doing any work at the foundry for some time - he estimated, until some time in December 1992. In the meantime, Mr. and Ms. Singh had to ask Mr. Singh's cousin, Kumar Nand, to take over at the foundry. Ms. Singh continued to work alongside Mr. Nand, until her accident on November 17, 1992, when she too was forced to stop work abruptly. Mr. Singh claimed that his attempt to return to work was ultimately unsuccessful and the business folded in April 1993. At some point, - the chronology is not clear - Mr. Singh's aunt repossessed the equipment.

Mr. Singh's evidence about his work both before and after the October 21 accident was highly problematic. It seems that a foundry business was operating on the site, which involved Mr. Singh. Mr. and Ms. Singh may well have had an ownership interest in the foundry, but under what arrangement and in what capacity is unclear. Some production may have taken place before October 21, 1992 but, from the documents before me, I find that the bulk of the orders was taken and fulfilled after this date. It is unclear who worked in the foundry, what they did and during which time periods. The Applicants' failure to accurately describe their business operations through credible, consistent evidence compromises their entire claims.

Much of the uncertainty might have been resolved had the Applicants called evidence from the alleged players in the events: Mr. Singh's aunt who purportedly sold him the business, his uncle who previously operated the foundry and dropped in to see Mr. Singh from time to time, or his cousin who worked there after the accident. However, the Applicants chose not to call any witnesses other than themselves.

Arbitrations are intended to be a less formal forum than the courts. In arbitration hearings, the strict rules of evidence are waived to allow for more latitude and flexibility in the presentation of evidence. Often, corroborative documentation, especially from a source independent of an applicant, is sufficient proof. It may not be necessary to call witnesses to verify or supplement the testimony of the applicant.

This, however, was a highly contested case: the Applicants were well aware of the position of the Co-operators in challenging their account of events. I was provided with no adequate reason why one or more of the key witnesses was not called. I infer that their evidence would not have been helpful to Mr. and Ms. Singh.

I also found Mr. Singh's explanation for the absence of business records to be unpersuasive. Mr. Singh filed minimal documentation regarding the dealings of the business. The documents that he filed were incomplete and equivocal (the invoices) or unsupportive (his tax return).⁶ Mr. Singh suggested that his records had been mislaid when he moved in mid-1993. However, Co-operators had repeatedly requested the records before then. Moreover, Mr. Singh's explanation that he did not bother, for the most part, to keep receipts for business expenses, not caring whether he could deduct these expenses for income tax purposes, did not make much sense. Mr. Singh's counsel tried to portray him as an unsophisticated business person who could not be expected to keep good records, but Mr. Singh does not readily fit this description. He is not unsophisticated, and has had specific experience in prior employment reconciling banking records.

Assuming that Mr. and Ms. Singh bought the business and started to operate it successfully before the October 21 accident, as they allege, their actions after that time are inexplicable. According to his evidence, Mr. Singh abruptly stopped even light work for some considerable time. However, the evidence shows that his condition was not serious enough that he needed to see his doctor for almost four weeks, nor was Ms. Singh obliged to take time off school to look after him. Ms. Singh likewise stopped working at the foundry immediately after the November 17, 1992 accident, although she was able to continue at school with little interruption. The business was apparently left in the hands of a cousin. I heard no sensible explanation as to the arrangements reached between parties. Mr. Singh testified that he did not remember even hiring Mr. Nand; Ms. Singh, on the other hand, testified that she had nothing to do with the arrangements and Mr. Nand operated under direction from her husband. This entire story is unbelievable in the context of two people starting up their own business.

The Applicants' testimony is also inconsistent with the evidence of Davinder Jaswal and Wayne Macdonald, both of whom were summonsed to testify by the Co-operators. Mr. Jaswal operated a commercial coffee wagon and stopped briefly outside the building where the foundry was located, several times a day. Mr. Jaswal's testimony that he saw Mr. Singh dressed in grimy working clothes around the foundry premises frequently throughout the fall of 1992 and into the spring of 1993 was consistent with that of Mr. Macdonald, who operated a workshop in the same building. They both testified that several people, including Mr. Singh but not Ms. Singh, worked at the foundry throughout the fall of 1992. Mr. Macdonald claims he could actually see the furnace from his place of work, and he saw Mr. Singh working there. This evidence points to the conclusion that Mr. Singh continued to work at the foundry after the October 21, 1992 accident; a more sensible version of the events which is also consistent with the documentation produced.

Mr. and Ms. Singh's testimony that they alone worked at the foundry before the October 21 accident is contradicted as well by their previous statement to Norman McCully, an accountant retained by Co-operators. Mr. McCully testified that he interviewed Mr. and Ms. Singh in December 1992; Mr. Singh told him that the business employed two other employees before the accident, who did much of the production work. Mr. and Ms. Singh signed a statement containing this information.⁷

There are other significant discrepancies in the evidence. One puzzling inconsistency relates to Mr. Singh's withdrawal from university that fall. Mr. Singh testified that he withdrew to operate his new business; he flatly denied having financial difficulties. However, Barbara McCann, the Registrar of the Engineering Faculty, testified that she understood from Mr. Singh that he had to withdraw because of financial problems. Mr. Singh wrote a letter to Ms. McCann dated October 21, 1992 - the date of the accident - advising her that he was withdrawing from the faculty because he did not have the money to go to school every day, or to pay his expenses. The letter indicated that Mr. Singh would try to get a job and pay his unpaid fees before September 1993, when he planned to return to university.⁸ There is no mention about the new business.

Lack of money and financial difficulties is a constant theme in this case, and provides a possible explanation for Mr. Singh's subsequent behaviour.

MR. SINGH'S CLAIM

History prior to the accidents

Mr. Singh's prior medical history is also troubling.

After two years of studying for his engineering degree, Mr. Singh took the next academic year off, apparently to complete the work experience requirements of his degree. He worked for the T. Eaton Company as a technician, repairing air conditioning units and refrigerators, for about six months. He was then laid off in mid-December 1991.

On November 16 of the same year, Mr. and Ms. Singh were involved in an automobile accident, in circumstances very similar to the accidents at issue in this arbitration. A car cut in front of them, causing their vehicle to hit the curb at high speed three times. There was no contact between the cars. There were no witnesses and the other driver could not be located. Mr. Singh continued to work until he was laid off. Neither Mr. nor Ms. Singh sought medical attention until the spring of 1992, when they both filed for benefits from their insurer at the time, Allstate Insurance, claiming to have suffered soft tissue injuries in the accident. Their claims were ultimately settled for lump sums, equivalent to six and seven weeks' benefits, respectively, in the course of mediation proceedings held in mid-June 1992.

In his testimony, Mr. Singh downplayed the duration of his injuries and the medical treatment he received. A very different picture emerges from the documentation.

Contrary to what he told Allstate, Mr. Singh testified that he was not disabled from his job at Eaton's but felt he was entitled to benefits because he could not take advantage of a job offer of heavier construction work after his lay-off.

According to the records of his family doctor,⁹ Mr. Singh was still experiencing back and chest pain and was limited to light work, in June 1992, seven months after the accident. In mid-April of that year he also went to the emergency department of Scarborough General Hospital, complaining about chest pain after being roughed up by a driver and the police in a driving incident.¹⁰

Mr. Singh was sent for x-rays (results:normal); given anti-inflammatory medication (Mr. Singh said he did not take the prescription because he did not need to); and was referred to a specialist in physical medicine and rehabilitation, Dr. Joginder Singh. Dr. Singh administered cortisone injections and suggested a bone scan. Mr. Singh last saw Dr. Singh on June 10, 1992 still complaining about chest pain, but he did not attend a follow-up appointment.¹¹

The course of Mr. Singh's medical treatment suggests to me either that his prior injuries were more significant and prolonged than he admitted at this hearing or that he continued to see his doctors unnecessarily in order to bolster his claim for benefits against Allstate. The fact that Mr. Singh's medical treatment stopped at the same time his claim for benefits was settled leads me to prefer the latter explanation.

Mr. Singh did not go back to his earlier family doctor after this. He started attending at another medical clinic in late July 1992, complaining of gastrointestinal problems. He testified that the location of this clinic was more convenient to the apartment where he had recently moved. At the clinic he started seeing Dr. Hartley, who became his regular family doctor,

The clinic's doctors asked Mr. Singh to complete a checklist containing details of his medical history. He did not report a history of chest or back pain but mentioned that he had suffered from, among other things, frequent headaches, memory loss, dizziness, muscle weakness and mental illness - "head pain".¹²

Mr. Singh's pre-accident history of psychological problems is very significant in this case, as many of the same symptoms presented themselves after the 1992 accidents.

Mr. Singh did not tell Dr. Hartley about the November 1991 accident, or about the back and chest pain he had complained of, which had allegedly lasted for more than seven months. In my view, this omission is significant in assessing Mr. Singh's credibility.

Dr. Hartley diagnosed borderline diabetes millitus, myopia and anxiety, the latter which he characterised in his testimony as "mild to moderate". He attributed this to Mr. Singh's "recent" loss of his job, which he thought had occurred within the last few weeks. Dr. Hartley referred Mr. Singh to Dr. Enright, a psychiatrist. This assessment was scheduled to take place on October 22, 1992 - as it happened, the day after the October 21 accident.

Dr. Hartley testified that he did not regard Mr. Singh's pre-accident history of psychological problems as significant. Mr. Singh did not complain of these matters to him and, with the exception of anxiety, Dr. Hartley did not find anything of concern in the course of his examination.

It is not particularly surprising that Dr. Hartley did not identify some of Mr. Singh's reported symptoms as particular problems at the time. Mr. Singh's primary complaints were in relation to gastrointestinal problems and, naturally, these would have been the focus of Dr. Hartley's attention. As Dr. Hartley himself acknowledged, Mr. Singh was a new patient at a walk-in medical clinic where time and information about a patient's history were limited. Notwithstanding this, however, Dr. Hartley was sufficiently concerned about Mr. Singh's state of anxiety to refer him promptly to a psychiatrist. I do not think that Dr. Hartley would have taken this step unless he perceived the possibility of a clinically significant problem. I conclude from this evidence that Dr. Hartley was concerned about Mr. Singh's mental state, despite his testimony to the contrary.

History since the accidents

The October 21 accident

The first incident which is the subject of this arbitration occurred on October 21, 1992. Mr. Singh testified that he was driving westbound on the 401 highway, when a large truck cut his car off, forcing him to swerve - "I don't remember anything after that". He hit the guard rail according to the history taken from him afterwards. The truck did not stop and the other driver was not identified.

Mr. Singh somehow ended up at the Emergency Department of the Etobicoke General Hospital, apparently brought there by ambulance from a nearby hotel. How he got to the hotel is unknown.

The medical opinions in this hearing deal with whether Mr. Singh suffered a closed head injury in the course of this accident.

Mr. Singh initially did not recall any details of his injuries, but later in the course of his testimony he recalled hitting the left side of his head on the window. This account is repeated in the histories recorded in medical reports written much later on, as is a report of loss of consciousness of several minutes. In particular, Dr. Dhanani, a neurologist who saw Mr. Singh on several occasions starting in March 1993, recorded that Mr. Singh had struck his head and suffered a two minute loss of consciousness; later he recorded a five minute loss of consciousness.

The contemporary Emergency Department records and the ambulance call report do not bear out a history of either a blow to the head or any loss of consciousness.¹³ They record that Mr. Singh hit the steering wheel with his chest, sustaining soft tissue injuries to the chest wall. The records specifically indicated no loss of consciousness. The same information is also contained in the records of the first family doctor whom Mr. Singh saw some weeks afterwards.

I find that these records, which were prepared closer in time to the accident, are more accurate than histories taken by doctors much later on.

Both the ambulance staff and the hospital emergency department team found Mr. Singh to be alert and oriented. He was able to provide both with an account of the accident, indicating no loss of memory at that point.

The Applicant points to the fact that the typed intake sheet at the hospital¹⁴ recorded under "reason for visit": "MVA INJ HEAD/NECK/CHEST"; that Mr. Singh's complaints on coming in, as recorded in the nursing notes, included pain in the back of his head, and that he was given a head injury instruction sheet on discharge as a precaution. However, even allowing for the fact that mental assessments in busy emergency departments may be brief, these records provide little evidence that Mr. Singh sustained a head injury and none to suggest that he suffered a blow to the head or any loss of consciousness.

History after the October 21 accident

The very next day, Mr. Singh kept his appointment to see Dr. Enright, the psychiatrist to whom he had been earlier referred by Dr. Hartley. Mr. Singh did not mention the previous day's events to Dr. Enright. Dr. Enright diagnosed a reactive depression, which he attributed to Mr. Singh's lay-off ten months earlier, and to pressing financial difficulties.

Dr. Enright based his diagnosis on reported symptoms "including weight loss of 40 lbs, insomnia - awakening every 1/2 hour, with depression, feelings of hopelessness, difficulty concentrating".

Mr. Singh was quoted as saying: "I've lost everything - all my memory".¹⁵Dr. Enright described Mr. Singh as alert, oriented and thinking clearly, but anxious and decidedly depressed. Mr. Singh complained about having no money for school. He appeared to the doctor to be destitute and malnourished. Dr. Enright described him as "looking like a wreck - he looked like he had lost 40 lbs". Mr. Singh denied telling Dr. Enright these things.

Dr. Enright's recommendations focused on trying to address Mr. Singh's need for money. He suggested that Mr. Singh apply for student welfare and obtain a medical card so that he could afford an antidepressant prescription. He asked Mr. Singh to call his office to arrange another appointment, but Mr. Singh did not follow up on this.

Dr. Enright viewed Mr. Singh as being in some psychological distress that required medical management. Mr. Singh's letter to Ms. McMann the previous day withdrawing from university confirms that Dr. Enright's impression of pressing financial distress, and its preoccupying effect on Mr. Singh's state of mind, was accurate.

Dr. Enright was firm in his view that Mr. Singh's later psychological problems arose from his pre-existing depressive disorder and were unrelated to the October 21 accident or to the cumulative effects of the accidents.¹⁶

Dr. Enright testified that Mr. Singh's depression could not have been triggered by an accident as recent as the day before, and had to have been present for a longer period. Dr. Dhanani agreed with this testimony that, except in limited circumstances such as a bereavement, a reactive depression would not be diagnosed on the basis of events which occurred less than two weeks ago, much less 24 hours earlier.

Dr. Enright is an experienced psychiatrist who has had the benefit of seeing Mr. Singh several times since this first occasion. I accord a great deal of weight to his opinion.

Mr. Singh testified that he lost his memory as a consequence of the October 21 accident. He told Dr. Enright that he was experiencing memory loss but did not tell Dr. Enright about the accident the day before. It was suggested that these factors were indicative of post-traumatic amnesia resulting from a recent head injury. Mr. Singh also testified that, after the October 21 accident, he started to experience terrible problems with constant headaches, confusion and severe and disabling neck, back and shoulder pain.

This account does not make a great deal of sense. Mr. Singh's prior history indicated problems with loss of memory. However, in the hospital he was able to give the staff, and later Dr. Graham, a reasonable account of the accident. He also provided a detailed account in his application for accident benefits,¹⁷ which he filed on November 26, 1992, after all three accidents. He was able to keep his appointment with Dr. Enright and to report his past problems to the doctor.

Mr. Singh did not seek medical attention for any problems relating to this accident until almost four weeks afterwards, and then his complaint was confined to soft tissue injuries. Ms. Singh testified that she continued to go to college as usual during this time, so presumably Mr. Singh did not require her to take time off school to care for him. I do not find it plausible that during this period Mr. Singh was suffering from severe headaches, post-traumatic memory loss, and significant disabling physical pain and restrictions, but did not bother to go and see a doctor. Mr. Singh’s history indicates that he is not reluctant to seek medical help, and his doctor's office was only a short distance away.

The thrust of the overall evidence suggests that Mr. Singh was preoccupied with other problems, in particular financial difficulties, when he saw Dr. Enright. The evidence also indicates that Mr. Singh’s condition in the month after the October 21 accident was probably not significantly different than it was before this time, or else he would have sought medical help.

The November 17, 1992 accident

The next accident occurred on November 17, 1992. Ms. Singh was driving the car, with her husband as a passenger. A car apparently cut in front of their vehicle, causing their vehicle to hit the curb at high speed. The car did not stop and the driver was not identified.

Mr. Singh did not remember much about the accident. He testified that it aggravated his earlier injuries, but that within a few hours the pain had subsided to its previous level. Mr. Singh did not lose consciousness or strike his head, although Dr. Dhanani understood that Mr. Singh had received a blow to the head.

The following day, Mr. Singh saw Dr. Graham who was substituting for Dr. Hartley. Mr. Singh did not remember anything about the visit. Dr.Graham's notes do not indicate any mention of an accident the day before. Mr. Singh reported that he was still having chest, neck and arm pain from the accident of October 1992. Mr. Singh returned to see Dr. Graham on November 25, 1992 with the same complaints, after having been in a third accident the day before. In both visits, Dr. Graham diagnosed muscle strain and prescribed anti-inflammatory medication.

The November 24, 1992 accident

In the next accident on November 24, 1992, Mr. Singh was driving; Ms. Singh was a passenger in the front seat. Their vehicle was struck by a pick-up truck turning left. The truck did not stop and its driver was not identified. Mr. Singh did not require immediate medical attention but testified that this accident aggravated his earlier injuries.

In all three accidents, the Applicants were driving the same vehicle. Their evidence about the damage to the car was puzzling and adds to the accumulation of discrepancies. I was told that the vehicle was damaged in all of the accidents, the most serious being the accident of November 24, 1992, in which $3,000 of damage was sustained. The nature of the damage sustained was not clarified. I was told that, notwithstanding the damage, the car was still drivable, but was not safe. Finally, I was told that the Applicants' did not have the money to purchase insurance. Yet, the Applicants continued to drive the vehicle throughout the period in question. They also claimed, and received payment for mileage expenses arising out of use of the car for medical and rehabilitation appointments, over a significant period of time.

On November 27, 1992, Mr. Singh saw Dr. Hartley, with the same complaints as before. Dr. Hartley found mild loss of range of motion in the cervical and lumbar spine and mild tenderness of the left ribs. He referred Mr. Singh to physiotherapy, and anticipated a return to work in two to four weeks.¹⁸

Dr. Hartley had not seen Mr. Singh since mid-September and found that he was anxious and wasted, having lost eight lbs. He prescribed Prozac. Mr. Singh returned to the clinic on December 28, 1992, when he reported that he was feeling better with the medication, but still had the same physical complaints. When Dr. Hartley next saw Mr. Singh on January 13, 1993 and again on January 15, 1993, he found Mr. Singh was depressed. He discontinued the physiotherapy, at Mr. Singh's request, and referred him to the North York Rehabilitation Clinic, under Dr. Rocco Guerriero, a chiropractor and the director of the Clinic.

The evidence is that in the three month period after the October accident, Mr. Singh saw three different doctors in relation to the accidents, yet they did not mention headaches, loss of memory or other cognitive deficits. It was not until the end of January 1993, when Mr. Singh was assessed at the North York Rehabilitation Clinic, that headaches were recorded as a problem; it was even later, towards the end of February 1993, when Dr. Hartley recorded problems with memory loss and other cognitive problems, and sent Mr. Singh to see a neurologist.

The only conceivable earlier reference to such problems is found in the note Dr. Graham's receptionist made on November 18, 1992, who recorded that "head, neck and chest pain continues".¹⁹ Mr. Singh also made three applications for accident benefits, each dated November 26, 1992,²⁰ in which he referred to "back, neck, head and chest pains". It is not clear what he meant by "head pain", although he previously referred to the term on his intake form at the clinic under the description "mental health". His application in respect to the November 24 accident also mentioned problems concentrating and dizziness, but the other two did not.

I find it very unlikely that Mr. Singh would have omitted to tell his doctors about serious symptoms such as severe headaches, memory loss, dizziness and concentration problems, had they started, or become significantly worse, after the 1992 accidents. I also doubt that each of the three doctors would have neglected to record such complaints. Dr. Hartley noted that he prescribed Prozac for Mr. Singh in November 1992, in all likelihood for depression, and questioned whether the doctors, including himself, had missed signs of psychological difficulties. However, even if Dr. Hartley detected that Mr. Singh was depressed, there is nothing to suggest that Mr. Singh experienced a significant worsening of his pre-existing symptoms of depression and anxiety. Dr. Hartley did not feel it necessary to refer Mr. Singh back to Dr. Enright, and was essentially following through on Dr. Enright's previous recommendations.

This finding is significant because Dr. Dhanani premised his opinion that Mr. Singh had suffered a head injury on October 21, 1992 accounting for his subsequent psychological difficulties, on the assumption that Mr. Singh's cognitive and psychological problems had either started shortly after the October 21 accident and/or had gradually worsened after that time. I do not find that this was the case.

The findings of the doctors during the months immediately following the accidents also indicate that Mr. Singh's physical problems were relatively mild and were expected to resolve quickly. This did not happen, and in fact, Mr. Singh seemed to get worse. On his initial assessment, Dr. Guerriero found marked restrictions of motion in the lumber spine in all areas, as well as loss of motion in the shoulder and cervical spine. During the first part of the rehabilitation program, Dr. Guerriero started to have concerns that Mr. Singh was exaggerating his symptoms. Midway through the second part, after testing had showed that Mr. Singh's range of motion was within normal limits, Dr. Guerriero terminated Mr. Singh's participation in the program on the basis that he was not putting forward his best efforts. Dr. Guerriero felt that Mr. Singh was not being honest in reporting his symptoms and was consciously trying to alter the test scores to exaggerate his physical complaints. He concluded that Mr. Singh was malingering but was also clinically depressed.²¹

During the program, Mr. Singh had latterly complained about increased headaches and loss of memory, as well as about concentration problems and feelings of disorientation. However, Dr. Guerriero felt that a diagnosis of post-concussive syndrome was inconsistent with his objective findings. He was not told of any bizarre behaviour on Mr. Singh's part, and Mr. Singh was able to attend the frequent sessions on his own.

Dr. Guerriero suggested psychological counselling to determine if Mr. Singh's pain behaviour was related to the accident or was "a total fabrication". However, there was some delay in arranging funding for this and it appears that Mr. Singh did not follow up on the appointment that was made.

Dr. Guerriero has had the opportunity to observe Mr. Singh on numerous occasions during the course of the rehabilitation program. I am satisfied that he would not lightly reach a diagnosis of malingering. Mr. Singh was sent to the program by his family doctor; the program was not chosen by Co-operators, so Mr. Singh cannot dispute the weight to be attributed to Dr. Guerriero's evidence on that score. I attach considerable weight to Dr. Guerriero's findings in regards to Mr. Singh's physical condition and motivation.

During the same period, Mr. Singh was sent to Dr. Dhanani for a neurological opinion. Dr. Dhanani first saw Mr. Singh on March 31, 1993.²² Dr. Dhanani learnt from Ms. Singh that her husband was showing "bizarre" symptoms of psychological distress - Mr. Singh would not remember what he was saying, would laugh and cry spontaneously, would get out of bed and roll around on the floor at night, would go outside without putting his shoes on, would have bowel movements in inappropriate places, and was eating poorly, with some weight loss. She also reported that Mr. Singh would forget how to drive and was missing rehabilitation appointments.

Dr. Dhanani found that Mr. Singh's neurological examination was normal but that his mental state was quite abnormal and concluded that Mr. Singh most likely suffered from a post-concussive head injury syndrome, and also depression.

When Dr. Hartley saw Mr. Singh again the next day, he reported an extreme regression in Mr. Singh's mental state. He arranged with Dr. Dhanani to have Mr. Singh admitted to the Queensway General Hospital for investigation on an urgent basis. Mr. Singh was admitted on April 3, 1993 but discharged himself before all the tests or a psychiatric assessment could be done. The CT scan, and a later EEG performed elsewhere, showed no abnormalities. During the course of Mr. Singh's stay, he was reported as being tearful and mute.²³

After this hospitalisation, Mr. Singh seemed to improve somewhat, but he was still confused and depressed.²⁴ Dr. Hartley arranged for another psychiatric consultation with Dr. Enright, which was scheduled for May 4, 1993. At this next appointment, Mr. Singh was catatonic - not responsive, verbally. He appeared to be totally dependent on his wife to communicate for him, but was alert. Dr. Enright's diagnosis was of acute catatonia, with underlying depression. He attributed the catatonia to Mr. Singh's pre-existing depressive disorder, which, he testified, is a common cause of catatonic episodes. Dr. Enright suggested that Mr. Singh be admitted to hospital for psychiatric evaluation, but Mr. and Ms. Singh were opposed to this suggestion.²⁵

Mr. Singh was catatonic when he next saw Dr. Dhanani on July 9, 1993²⁶ and also when he saw Dr. Ameis, a specialist in physical medicine and rehabilitation, three days later on July 12, 1993.²⁷ The latter appointment was at the request of the Co-operators.

Dr. Dhanani found that Mr. Singh was still suffering from marked psychomotor retardation, and had marked spasm and tenderness over the cervical and lumber spine. He concluded that Mr. Singh was "markedly disabled by his symptoms at the present time", and recommended a neuro-rehabilitation program.

Dr. Ameis wrote:

Rarely have I encountered such extreme difficulty in establishing an accurate narrative data base from a patient, and even with the wife's help, the data base proved limited and potentially inadequate.²⁸

Dr. Ameis concluded that Mr. Singh was not suffering from any significant physical restrictions but felt that the results of the tests he performed to determine motor retardation were "quite inconsistent". He agreed that Mr. Singh was profoundly depressed, anxious and dysfunctional, but thought that more information was needed before a firm opinion as to diagnosis, etiology and the level of disability could be reached. Nonetheless, he had serious concerns that Mr. Singh was not being truthful about his symptoms. Dr. Ameis recommended psychiatric and neuropsychological testing and raised the possibility of a diagnosis of either malingering or factitious disorder. He testified that further investigation was required of a possible physiological basis for the symptoms, relating to diabetes or pancreatis.

There are troubling discrepancies between Mr. Singh's presentation to the doctors and third party observations of him elsewhere.

Dr. Guerriero testified that he was not told about any unusual behavioural problems, and, although Mr. Singh was not compliant in his attendance, when he came to the rehabilitation clinic he did not demonstrate any untoward behaviour.

On April 1, 1993, the day after Mr. Singh saw Dr. Dhanani and the same day that Dr. Hartley made arrangements to have him hospitalised on an urgent basis because of the extreme regression in his mental state, Mr. Singh attended a mediation proceeding at the Ontario Insurance Commission. According to the testimony of Philip Thorpe, a claims supervisor with the Co-operators who attended the mediation, Mr. Singh conducted negotiations on behalf of himself and his wife and showed no apparent difficulty presenting his case.

On April 28, 1993, the first day that surveillance was instituted by the Co-operators, Mr. Singh was filmed driving a car, initially with his wife as a passenger, then unaccompanied. This was four days before his visit to Dr. Enright, who found that Mr. Singh was catatonic. Dr. Hartley, who had found weakness in Mr. Singh's left leg, was surprised by this evidence. He thought that Mr. Singh's car had been demolished in the accidents, given their apparent severity, and said it was "hard to imagine" that Mr. Singh could still be driving. He testified that he would have reported Mr. Singh to the Ministry of Transportation had he known of this, although neither Dr. Dhanani or Dr. Ameis would go this far. The evidence suggests that Mr. Singh has been driving continuously since the 1992 accidents.

Mr. Singh was also videotaped on June 16, 1993, when moving house because he had been evicted. At that time, the videotape showed him carrying lightweight household items, jogging, and assisting two movers to manoeuvre a large mattress into the moving van. He did not appear to be in discomfort or restricted in movement. This is in contrast to his presentation to Dr. Dhanani and Dr. Ameis.

Dr. Enright testified that catatonia can be episodic - present one day, but not the next. This could explain, in part, the dramatic fluctuations in Mr. Singh's presentation from day to day. However, it is difficult to explain these fluctuations in their entirety. Mr. Singh was not merely functioning during the periods in between catatonic episodes, but was captured functioning at a relatively high level. The contrast between the semi-automaton who presented himself to the doctors and the functioning individual in other contexts is too great.

Dr. Ridgley, who was retained by the Co-operators to perform a neuropsychological assessment of Mr. Singh, concluded that Mr. Singh was consciously exaggerating his physical and his psychological symptoms. Dr. Ridgley obtained her PhD in 1982 and completed an accredited internship as a post-doctoral fellow in clinical neuropsychology the following year, both in the United States. She has been registered as a psychologist in Ontario since 1983.²⁹ Dr. Ridgley described her profession as evaluating brain function and quantifying cognitive functioning to determine brain damage.

The assessment was intended to take place over two days: first, a clinical interview with the patient and family members, secondly neuropsychological testing conducted by a psychometrist.

The clinical interview took place on March 30, 1994. Dr. Ridgley also interviewed Ms. Singh at that time. Afterwards, Mr. Singh was asked to complete a form (the Minnesota Multiphasic Personality Inventory -2) at home and to bring it in next time, which he did.

The neuropsychological testing was scheduled for April 1, 1994. Shortly into the testing, which was being conducted by Lesley Rattan, a psychometrist, Dr. Ridgley went to the interview room to greet Mr. Singh and to encourage him to put his best efforts forward. Mr. Singh took offence at this and refused to continue with the testing, despite Dr. Ridgley's encouragement. Dr. Ridgley's version of events was confirmed by Ms. Rattan and I prefer their testimony to the evidence of Mr. and Ms. Singh. Dr. Ridgley reported on the aborted assessment, including her review of the records, interview and partial testing results.³⁰

Dr. Ridgley concluded that Mr. Singh was in significant psychiatric distress but was consciously exaggerating both his physical and his psychological symptoms:

...possible secondary gain in the form of financial difficulties are too tangible and obvious to Mr. Singh to be judged as "unintentional".

She concluded that the appropriate psychiatric diagnosis was one of "malingering", rather than factitious disorder. The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), referred to by Dr. Ridgley, defines malingering as:

the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as...obtaining financial compensation. (P. 683, V65.2)

Factitious disorder, in contrast, is defined as:

characterised by physical or psychological symptoms that are intentionally produced or feigned in order to assume the sick role....the motivation is the psychological need to assume the sick role, as evidenced by an absence of external incentives for the behaviour (471)

The distinguishing features between the two diagnoses is the absence of external incentives for the behaviour in a diagnosis of factitious disorder.

Dr. Ridgley emphasised that the diagnosis of malingering did not rule out additional diagnosis such as major depression, and may itself require medical management. She stated:

Despite the unfortunate exaggeration behaviours, Mr. Singh has demonstrated genuine symptoms of depression and anxiety which require attention.

She concluded that these psychological problems predated the 1992 accidents. In Dr. Ridgley's view, Mr. Singh's history cumulatively showed poor problem solving capabilities, which had contributed to his psychological difficulties.

Neither Dr. Ameis nor Dr. Ridgley were of the view that Mr. Singh had suffered a head injury in the October 21 accident. They felt that if he had, it would have been very minor, with symptoms resolving quickly. In their view, Mr. Singh's subsequent presentation was not compatible with the nature of the head injury alleged.

Dr. Hartley and Dr. Dhanani remain of the view that Mr. Singh suffered a head injury in the October 21 accident which was exacerbated by the other two accidents, and is responsible for Mr. Singh's subsequent mental deterioration. Although Mr. Singh may have suffered from some pre-existing psychological problems, in their view, these were exacerbated by the accidents. Dr. Dhanani testified that a closed head injury could be caused by acceleration-deceleration forces, without contact or loss of consciousness.

Dr. Dhanani is a fellow of the American Board of Psychiatry and Neurology and is on staff at the Department of Neurology at Queensway General Hospital in Metropolitan Toronto. He is eminently qualified, indeed, the most qualified, to provide an expert opinion on a head injury in this case.³¹ I have given his evidence very careful consideration.

Dr. Hartley is a family practitioner of more than 30 years experience, who is convinced of the validity of his client's case. He impressed me as a dedicated professional who cares deeply about his patients. However, in my view, the opinions of both Dr. Dhanani and Dr. Hartley, in regards to the etiology and severity of Mr. Singh's mental condition were based on material misapprehensions: misapprehensions about Mr. Singh's prior history, the severity of the accidents, their effect on Mr. Singh's level of functioning and the timing of the onset of psychiatric symptoms.

When asked about these assumptions in testimony, neither doctor changed his opinion. However, in my view, the package of assumptions on which the doctors proceeded is critical to the validity of their opinions and to the weight that can be attributed to them.

Summary of Findings

Benefits were initially paid to Mr. Singh on the basis of his physical condition. According to the medical evidence, his physical injuries had essentially resolved by the spring of 1993. Dr. Guerriero concluded that Mr. Singh was ready to return to work by March 31, 1993, and in his testimony, Dr. Hartley agreed with this assessment. Dr. Ameis likewise felt that Mr. Singh had no substantial residual physical injuries. There is no basis for continuing benefits on the grounds of any physical disabilities past this time, when Mr. Singh's psychological problems start to take precedence.

However, I am not convinced that Mr. Singh has met the qualifications for benefits on the basis of his physical injuries for any period of time since the October 21, 1992 accident. To be entitled to such benefits, Mr. Singh must show that his physical injuries substantially disabled him from the essential tasks of his work. I am not persuaded that he stopped the work that he was doing in the months following the October 21 accident, or restricted his activities to light work. Mr. Singh’s physical injuries were relatively minor and were expected to clear up quickly. Moreover, the findings of the doctors who treated him were based largely on Mr. Singh's subjective complaints. In light of my findings about Mr. Singh's credibility and his exaggeration of his symptoms, it is difficult to attach a great deal of credence to these complaints of physical injury.

With respect to Mr. Singh's psychological condition, I accept that Mr. Singh is desperate and in significant psychological distress. However, I find that his psychological problems pre-existed the 1992 automobile incidents and are entirely unrelated to them. In this regard, I rely particularly on the opinion of Dr. Enright, the opinion of Dr. Ridgley, the evidence relating to Mr. Singh's medical history, the Etobicoke Hospital records and the facts as I have found them in the months immediately following the accidents. I also find that, whereas Mr. Singh experiences genuine symptoms of depression and anxiety, the extent of his physical and psychological symptoms have been significantly and deliberately exaggerated. I base my findings on the medical records before me, the opinions of Drs. Guerriero, Ameis and Ridgley, the discrepancies in Mr. Singh's presentation to the doctors and his level of functioning in other contexts, his pattern of non-cooperation with medical assessments, and his presentation at this hearing.

I find that Mr. Singh is not entitled to weekly income benefits as a result of any physical injuries because he has not established that he has suffered substantial inability to perform his essential tasks for any period of time after the October 21, 1992 accident. I also find that Mr. Singh is not entitled to weekly income benefits for his psychological problems, as these do not result from the 1992 automobile accidents.

It is not necessary for me to reconstruct what actually happened in this case. It is the Applicant's onus to prove his case; I find that he has failed to do so.

REPAYMENT

Under section 27 of the Schedule, Mr. Singh is required to repay weekly income benefits paid "through error or fraud", together with interest. Mr. Singh was not forthright about his business dealings and has significantly exaggerated his physical and psychological symptoms. He must therefore repay the weekly income benefits that he has received from Co-operators since the accidents, together with interest pursuant to section 27(4) of the Schedule. From the documents before me, I calculate that Co-operators has paid a total of $6,421.76 in weekly benefits to Mr. Singh, which must be reimbursed.

VISITING EXPENSES

Mr. Singh claimed the cost of his brother's return airfare from Fiji to Canada under section 6(2) or section 6(1)(f) of the Schedule. The total fare was $2,034 in Fiji dollars,³² described by Mr. Singh as approximately on par with Canadian dollars.

Mr. Singh's brother, Seet Kumar Singh, came to Canada on September 17, 1993, and stayed until the beginning of the following year apparently in order to provide Mr. Singh with emotional support.³³ In support of his claim, Mr. Singh furnished a note from Dr. Hartley written on February 26, 1993, recommending that a family member come to Canada for this purpose.³⁴

I find that the expense claimed is not a reasonable expense resulting from, or required because of, the accident on the following grounds:

1. Mr. Singh's requirement for support related to his psychological difficulties; I have found that these are not related to the accidents;

2. By September 1993, Mr. Singh had re-enrolled in his university course and was attending university on a full-time basis. His brother's support was not required at this time.

3. In any event, Ms. Singh, Mr. Singh's wife, was able to provide emotional support.

4. Dr. Hartley testified that, by September 1993, Mr. Singh's condition did not require Mr. Kumar Singh's presence to provide support.

HOUSEKEEPING EXPENSES

Mr. Singh claimed expenses for five days a week housekeeping services from February 1, 1993 onwards, and filed a note from Dr. Hartley in support of his claim. He testified that a friend, Surju Patti Lal, came to live with him and his wife to help care for them. They initially paid Ms. Lal $35 a day but they could not afford to continue payment, and so Ms. Lal worked without payment. It is not clear when this arrangement ceased.

The Applicants relied solely on their own testimony in regards to the housekeeping services they received. No receipts were filed or witnesses called. In light of my findings about the Applicants' credibility, I do not accept their unsupported testimony as to the services provided by Ms. Lal. My findings do not suggest that Mr. Singh required the services of a housekeeper at any time, as a result of his physical injuries. If Mr. Singh required such help because of psychological difficulties, it is not as a result of the 1992 accidents.

Accordingly, Mr. Singh's claim for housekeeping expenses is denied.

MS. SINGH'S CLAIM

WEEKLY INCOME BENEFITS

Ms. Singh claimed weekly income benefits of $600 as a result of the injuries she sustained in the November 17, 1992 and November 24, 1992 accidents. She received these benefits until May 29, 1993. It was Ms. Singh's position that the cumulative effects of these accidents disabled her from her physically demanding functions at the foundry, affected her college work and limited her future employment opportunities.

As I indicated previously, I did not find Ms. Singh to be a credible witness. Ms. Singh was involved in the earlier accident in November 1991, and received treatment for chest and shoulder injuries well into May 1992. The circumstances of the accident and her injuries were similar to those she suffered in November 1992. However Ms. Singh did not tell Dr. Chan, who treated her following the 1992 accidents, about her previous history, although she was specifically questioned about it. Moreover, Ms. Singh's application for benefits from Allstate contained a material misrepresentation. She claimed $3,500 in caregiver benefits, asserting that her husband had had to stay away from work to take care of her and had eventually lost his job, falsely suggesting a relationship between the two events.³⁵

Ms. Singh's testimony in regards to her involvement in the business was implausible. Starting in September 1992, Ms. Singh was taking a two year diploma course in business administration, which she successfully completed in 1994. Ms. Singh estimated that, before her accidents in November 1992, she spent two to five hours a day in classes. She drove herself to school or was driven there by her husband; alternatively, she took public transit.

Ms. Singh testified that she also worked five to eight hours a day in the foundry, working on the production side, as well as calling customers and answering the telephone. However, Ms. Singh appeared to have little knowledge about the business that she allegedly co-owned and worked in. There is no corroborating evidence as to her participation in the business, beyond that of her husband. Neither Mr. Jaswal nor Mr. Macdonald testified to seeing her working at the foundry.

Ms. Singh's testimony in regards to the hours she worked - between five to eight hours a day-while attending college - seems implausible, particularly in view of the relatively narrow tasks she said she performed and the number of orders in production. In contrast, her husband's testimony was that Ms. Singh's attendance at the foundry was "very random".

According to the evidence, Mr. and Ms. Singh hired Mr. Singh's cousin, Kumar Nand, to work at the foundry after Mr. Singh was injured. Ms. Singh had no knowledge of the details of the arrangements that were made, and testified that Mr. Nand's instructions all came from Mr. Singh. Given her diploma subject, it seems odd that her work was largely confined to physical labour and that she was not more involved in the administrative side of things, particularly when Mr. Singh was allegedly no longer able to work.

Ms. Singh testified that she was thrown forward and hit her head on the door of the car in the accident on November 17, 1992. She said that she hurt her chest, neck and back. These injuries were aggravated in the following accident on November 24, 1992, in which Ms. Singh hit her knee and head. She was taken to Centenary Health Centre by ambulance, and discharged the same day with a short-term neck brace and analgesics.³⁶

Ms. Singh first saw a doctor on November 25, 1992, when she saw Dr. L. Wong. She subsequently saw Dr. Chan two days later, who she has continued to see on a regular basis, with the same physical complaints. Ms. Singh was given muscle relaxants and anti-inflammatory medication and referred to physiotherapy, but these measures did not seem to help. She continued to receive physiotherapy until August 1993.³⁷ Dr. Chan concluded that Ms. Singh had developed chronic pain syndrome.

Sometime after the accidents, Ms. Singh started to complain about her right hand and underwent neurological investigation. She saw Dr. Consky, a specialist in neurology and movement disorders, on a number of occasions in 1993 and 1994.³⁸ She started to report problems of a psychological nature around the beginning of 1994 - depression, crying, and forgetfulness. In March 1994, Dr. Consky described her symptoms as "minimal" and concluded that there was no organic basis for them. He suggested a reassessment in two months' time if Ms. Singh's problems persisted, but Ms. Singh did not contact him again.

Ms. Singh's testimony about her activities following the accidents makes no sense whatever. She testified that she stopped work altogether after the November 17, 1992 accident, because of her injuries. At some point - it is not clear when exactly - she tried to go back to work at the foundry once "for three to five minutes" but gave up because of the pain she was in. When asked why she could not have resumed light work, such as answering the telephone or soliciting customers, Ms. Singh replied that she did not know the office procedures.

Notwithstanding this, Ms. Singh was able to resume her schooling after, at most, a few days interruption and continued on with her diploma. Ms. Singh testified that she was forced to reduce her school hours from two to five hours a day to one to three hours a day for the rest of the program, and missed approximately half of her classes. However, this is difficult to believe. One would expect Ms. Singh to have told the appropriate college authorities if she was labouring under such difficulties, but she could not recall if she had told anybody.

I find the thrust of this evidence very difficult to believe, especially in the context of two people aspiring to start their own business together.

The medical evidence is not helpful to Ms. Singh. The reports of her doctors are based largely upon her subjective complaints and the information that she provided to them. In the course of his testimony, Dr. Chan retracted his initial opinion as to Ms. Singh's disability on learning that Ms. Singh had been able to continue with her schooling, throughout. Ms. Singh's reported physical and psychological symptoms, in his mind, were incompatible with this level of activity. Dr. Chan was also surprised to learn that Ms. Singh had a previous accident in November 1991, involving similar injuries. He testified that he specifically asked her about any such prior accidents and considered this information important. He felt that, in light of this new information, he could not opine as to Ms. Singh's disability.

I am not satisfied as to the nature of Ms. Singh's involvement in the foundry business or as to her essential tasks before the accidents. I am not satisfied as to the level of her disability afterwards. Ms. Singh has not met the onus of establishing that she suffered substantial inability to perform her essential work tasks for any period after November 17, 1992.

I do not find that Ms. Singh has been forthright in her testimony before me, to her doctor, or to the Co-operators.

Pursuant to section 27 of the Schedule, she must repay all the weekly income benefits that she has received from the Co-operators. I calculate this amount to be $4,936. 96, together with interest at the bank rate as set out in section 27(4) of the Schedule.

HOUSEKEEPING SERVICES

Ms. Singh claimed that her injuries have prevented her from doing the housework since the accident. She also claimed that she could not look after her husband as his condition required. The Co-operators paid a total of $630 for two days a week housekeeping services for the period from November 25, 1992 to the beginning of January 1993.³⁹

The Applicants provided no evidence verifying the expenses they allegedly incurred or the services that were performed. I do not accept their unsupported testimony. I do not find that Ms. Singh's physical condition necessitated housekeeping services. To the extent that Ms. Singh required help to care for Mr. Singh, these services are not compensable under the Schedule because Mr. Singh's psychological problems do not result from the automobile accidents.

Co-operators paid Ms. Singh housekeeping services in good faith, based on information provided by her. Given the evidence in this proceeding and the absence of any evidence verifying the expenses, I find that Ms. Singh is required to repay the money to the Co-operators under section 27(1) of the Schedule. The Co-operators is entitled to interest on this sum pursuant to section 27(4) of the Schedule.

EXPENSES

Under section 282(11) of the Insurance Act, an arbitrator may award an applicant his or her expenses incurred in respect of an arbitration. In view of my findings, I decline to do so in the case of either Mr. or Ms. Singh. The Co-operators has been put to a great deal of trouble and expense in defending these claims, each of which were, in my view, unmeritorious.

Section 282(11.2) of the Insurance Act, as amended, confers power on an arbitrator to award an insurance company an amount in the event an application is found to be frivolous, vexatious or an abuse of process. I have not considered the exercise of this power in this instance, as proceedings were instituted before the enactment of the applicable provision,⁴⁰ and the parties were conducting themselves on the basis of the laws that existed at that time.

ORDER

Deep Singh

1. Mr. Singh is not entitled to weekly income benefits after September 21, 1993.

2. Mr. Singh is required to repay to the Co-operators the amount of weekly income benefits paid to him from October 28, 1992 to September 21, 1993. These come to a total of $6,421.76. The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

3. Mr. Singh is not entitled to the cost of his brother's round trip airfare to visit him from September 1993 to January 1994.

4. Mr. Singh is not entitled to housekeeping expenses.

5. Mr. Singh is not entitled to his expenses incurred in respect of the arbitration.

Sarojni Singh

1. Ms. Singh is not entitled weekly income benefits after May 29, 1993.

2. Ms. Singh is required to re-pay to the Co-operators the amount of weekly income benefits paid to her from November 25, 1992 to May 29, 1992. This comes to a total of $4,936.96.

The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

3. Ms. Singh is not entitled to housekeeping expenses.

4. Ms. Singh is required to repay to the Co-operators the amount of housekeeping expenses paid to her from November 25, 1992 to January 3, 1993. The total amount paid was $630. The Co-operators is entitled to interest on this sum at the bank rate, pursuant to section 27(4) of the Schedule.

5. Ms. Singh is not entitled to her expenses incurred in respect of the arbitration.

September 29, 1995

Susan Naylor Senior Arbitrator

Date

Appendix A

Witnesses

Deep Singh

Sarojni Singh

Dr. Bruce Hartley, family practitioner

Dr. Al-Noor Dhanani, neurologist

Rhonda McLaughlin, Scarborough General Hospital

Dr. Rocco Guerriero, chiropractor

Michael Chart, private investigator

Dr. Arthur Ameis, physiatrist

Dr. Jeanne Ridgley, psychiatrist

Lesley Rattan, psychometrist

Dr. William Chan, family practitioner

Davinder Jaswal, business man

Darlene Allison, University Health Service

Barbara McCann, Registrar's office, Department of Engineering

Philip Thorpe, claims supervisor, the Co-operators

Rita Williams, senior field claims representative, Allstate

Wayne Macdonald, business man

Dr. T. Enright, psychiatrist

Laura Pereverzoff, supervisor, social services

Maria Cahill, purchasing agent

Norman McCully, accountant

APPENDIX B

Exhibit 1

Certification of Distinction from the 1983 Australian Mathematics Competition, 1983

Exhibit 2

Letter from Doreen Boal, Admissions Supervisor, Simon Fraser University, to Mr. Singh, dated February 14, 1989

Exhibit 3

Letter from Jim LeSarge, Sales Representative, Tacel Ltd., dated September 22, 1989

Exhibit 4

Statement of Results, University of Toronto, dated December 1989

Exhibit 5

Statement of Results, University of Toronto, dated May 1990

Exhibit 6

Statement of Results, University of Toronto, dated December 1990

Exhibit 7

Statement of Results, University of Toronto, dated December 1992

Exhibit 8

Petition for Special Consideration, dated December 3, 1993

Exhibit 9

Letter from Margaret Tompsett, Undergraduate Counsellor, Univeristy of Toronto, dated January 24, 1994

Exhibit 10

Etobicoke General Hospital Records, dated October 21, 1992

Exhibit 11

Document of Sale for Foundry machinery, dated September 16, 1992

Exhibit 12

Ministry of Consumer and Commercial Relations Registration under the Business Names Act, dated October 19, 1992

Exhibit 13

Ontario Metal Casting Invoice, dated November 3, 1992

Exhibit 14

Ontario Metal Casting Invoice, dated November 5, 1992

Exhibit 15

Ontario Metal Casting Invoice, dated December 21, 1992

Exhibit 16

Ontario Metal Casting Invoice, dated January 21, 1993

Exhibit 17

Ontario Metal Casting Invoice, dated November 12, 1992

Exhibit 18

Ontario Metal Casting Invoice, dated November 30, 1992

Exhibit 19

Ontario Metal Casting Invoice, dated November 1992

Exhibit 20

Ontario Metal Casting Invoice, dated November 15, 1992

Exhibit 21

Ontario Metal Casting Invoice, dated November 16, 1992

Exhibit 22

Ontario Metal Casting Invoice, dated December 9, 1992

Exhibit 23

Ontario Metal Casting Invoice, dated December 1, 1992

Exhibit 24

Ontario Metal Casting Invoice, undated; cheque stub, dated October 23, 1992

Exhibit 25

Letter from Maharaj Chandra & Associates, dated September 13, 1993

Exhibit 26

Letter from Mohammed Hanif, Secretary for Tailevu Club, dated July 27, 1993

Exhibit 27

Canadian Airlines Ticket Stub, from Nadi to Vancouver; and from Toronto to Vancouver to Nadi, dated September 13, 1993

Exhibit 28

Clinical notes, Dr. Jogindra Singh, April 29, 1992 to June 17, 1992

Exhibit 29

Clinical notes and records, Dr. Kashyap, March 6 and 10, 1992

Exhibit 30

OHIP Records (10 pages), dated August 12, 1993

Exhibit 31

Clinical notes of Dr. Enright, dated October 24, 1992 and May 4, 1993

Exhibit 32

Clinical notes of Dr. Hartley, from July 1992 to July 1993

Exhibit 33

Form 4, dated November 27, 1992

Exhibit 34

Curriculum Vitae of Dr. Dhanani

Exhibit 35

Reports of Dr. Dhanani, from March 31, 1993, July 9, 1993, and January 26, 1994

Exhibit 36

Ontario Automobile Insurance Application for Accident Benefits, dated November 26, 1992

Exhibit 37

Ontario Automobile Insurance Application for Accident Benefits, dated November 26, 1992

Exhibit 38

Ontario Automobile Insurance Application for Accident Benefits

Exhibit 39

Ontario Metal Casting Invoice, dated January 21, 1993

Exhibit 40

Idealite Purchase Order, dated October 29, 1992

Exhibit 41

Ontario Metal Casting Invoice to Idealite, dated March 25, 1993

Exhibit 42

Jag Invoice, dated April 15, 1993

Exhibit 43

Jag Invoice, dated October 21, 1992

Exhibit 44

Ontario Metal Casting Invoice, dated February 28, 1993

Exhibit 45

Scarborough Hospital records for April 15, 1992 (5 pages)

Exhibit 46

Curriculum Vitae of Dr. Rocco C. Guerriero

Exhibit 47

Reports of Dr. Rocco C. Guerriero dated January 27, 1993 to May 3, 1993

Exhibit 48

Letter of Dr. B. Hartley, dated February 26, 1993

Exhibit 49

Report of Dr. Arthur Ameis, dated August 27, 1993

Exhibit 50

Report of Dr. Arthur Ameis, dated April 1, 1994

Exhibit 51

Report of Dr. Bruce M. Hartley, dated January 27, 1994 Exhibit 52 - Report of Dr. Jeanne Ridgley, dated April 6, 1994

Exhibit 53

Videotape (#1) April 28, 1993

Exhibit 54

Videotape (#2) June 16, 1993

Exhibit 55

Videotape (#3) August 3, 1993

Exhibit 56

Videotape (#4) October 4, 1993

Exhibit 57

Photographs (#33)

Exhibit 58

Photographs (#34)

Exhibit 59

Videotape (#5)

Exhibit 60

Centenary Health Centre records dated November 24, 1992 reprinted from microfilm

Exhibit 61

Toronto-Dominion Bank records for Ontario Metal Casting from November 1992 to March 1993

Exhibit 62

Assessment of Claim form, dated May 7, 1993 and receipt

Exhibit 63

Assessment of Claim form, dated May 26, 1993 and receipt

Exhibit 64

Assessment of Claim form dated June 2. 1993, and receipt

Exhibit 65

Receipt of prescription from Dr. Patrick Wong

Exhibit 66

Curriculum vitae of Dr. Ridgley

Exhibit 67

Clinical notes of Dr. William Chan, November 25, 1992 - May 20, 1993

Exhibit 68

Clinical notes of Dr. William Chan, May 13, 1993-July 11, 1994

Exhibit 69

Clinical Notes of Dr. Earl Consky, December 14, 1992-March 7, 1994

Exhibit 70

List of OHIP services for Sarojni Singh, dated August 12, 1993

Exhibit 71

Clinical notes and records of Dr. Patrick Wong; November 27, 1991-October 24, 1992

Exhibit 72

Assessment of Claim by Insurer, dated December 22, 1992, and cheque, receipts

Exhibit 73

Letter dated October 29, 1993, from Stephen Malach to Dr. William Chan

Exhibit 74

Medical brief containing Form 4 reports, dated November 29, 1992 and September 1, 1993

Exhibit 75

Transcript of U of T engineering school marks for Deep Singh

Exhibit 76

Withdrawal from University form, dated December 31, 1993

Exhibit 77

Letter dated October 21, 1992 from Deep Singh to Ms. B. McCann

Exhibit 78

Clinical notes of the University of Toronto Health Service

Exhibit 79

Assessment of Claim form, dated November 26, 1992, and cheque

Exhibit 80

Assessment of Claim form, dated December 21, 1992, and cheque

Exhibit 81

Assessment of Claim form, dated December 22, 1992, and cheque

Exhibit 82

Assessment of Claim form, dated January 12, 1993, and cheque

Exhibit 83

Assessment of Claim form, dated January 18, 1993, and cheque

Exhibit 84

Assessment of Claim form, dated January 27, 1993, and cheque

Exhibit 85

Assessment of Claim form, dated March 4, 1993, and cheque

Exhibit 86

Photocopy of cheques cashed (9 pages)

Exhibit 87

Note from Dr. Chan, dated December 23, 1992

Exhibit 88

Application for Accident Benefits (Allstate), dated March 13, 1992

Exhibit 89

Medical report of Dr. Patrick Wong, dated February 21, 1992

Exhibit 90

Application for Additional Accident Benefits (Allstate), dated February 19, 1992

Exhibit 91

Scarborough General Hospital Emergency Record, dated December 4, 1991

Exhibit 92

Application for Accident Benefits (Allstate), undated

Exhibit 93

Medical report of Dr. Kashyap, dated March 31, 1992

Exhibit 94

Medical report of Dr. Kashyap, dated June 5, 1992

Exhibit 95

Application for Additional Accident Benefits, dated March 16, 1992

Exhibit 96

Centennial College transcript of marks for Sarojni Singh, dated July 14, 1994

Exhibit 97

Assessment of Claim form and cheque, dated November 26, 1992

Exhibit 98

Assessment of Claim form, cheque and prescription receipts, dated December 21, 1992

Exhibit 99

Assessment of Claim form and cheque, dated January 27, 1993

Exhibit 100

Assessment of Claim form and cheque, dated February 17, 1993

Exhibit 101

Handwritten note and cheque, dated February 19, 1993

Exhibit 102

Assessment of Claim form and cheque dated March 4, 1993

Exhibit 103

Assessment of Claim form, cheque and miscellaneous documents, dated April 30, 1993

Exhibit 104

Assessment of Claim form and cheque, dated May 7, 1993, and miscellaneous documents

Exhibit 105

Assessment of Claim form and cheque, dated May 18, 1993

Exhibit 106

Assessment of Claim form and cheque, dated May 26, 1993

Exhibit 107

Assessment of Claim form and cheque, dated June 2, 1993

Exhibit 108

Assessment of Claim form and cheque, dated June 15, 1993

Exhibit 109

Assessment of Claim form and cheque, dated August 24, 1993

Exhibit 110

Copy of cancelled cheques, (13 pages)

Exhibit 111

Letter dated March 7, 1994, from Dr. T. Enright to Murray Levine

Exhibit 112

Letters from Laura Pereverzoff, supervisor, social assistance, dated May 4, 1994 and June 23, 1994.

Exhibit 113

Emergency records of Scarborough General Hospital

Exhibit 114

Records of Queensway General Hospital

Exhibit 115

Letter dated July 11, 1994, from S. Malach

Exhibit 116

1992 Revenue Canada Income Tax return for Deep Singh

Exhibit 117

Report, dated January 21, 1993, from Norm McCully, Claims Consultant

Exhibit 118

Report, dated April 11, 1994, from Norm McCully, Claims Consultant

Exhibit 119

Report, dated July 25, 1994, from Norm McCully, Claims Consultant

Exhibit 120

Curriculum vitae of Norm McCully, Claims Consultant

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule -Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 11
3. 3Exhibit 12
4. 4Exhibits 13 to 25
5. 5Exhibit 61
6. 6Exhibit 116
7. 7Exhibit 117
8. 8Exhibit 77
9. 9Exhibit 29
10. 10Exhibit 45
11. 11Exhibit 28
12. 12Exhibit 32
13. 13Exhibit 10
14. 14Exhibit 10
15. 15Exhibit 31
16. 16Exhibit 111; testimony of Dr. Enright
17. 17Exhibit 36
18. 18Exhibit 33
19. 19Exhibit 32
20. 20Exhibits 36 to 38
21. 21Exhibit 47
22. 22Exhibit 35
23. 23Exhibit 114
24. 24Exhibit 32, Dr. Hartley's note, April 16, 22, 26 May 5
25. 25Exhibit 111, letter dated March 7, 1994
26. 26Exhibit 35
27. 27Exhibit 49
28. 28Exhibit 49, page 1
29. 29Exhibit 66
30. 30Exhibit 52
31. 31Exhibit 34
32. 32Exhibit 27
33. 33Exhibit 48, 25, 26, letters dated September 13 and July 27, 1993; Exhibit 27, plane ticket
34. 34Exhibit 26
35. 35Exhibit 90; testimony of Rita Williams, Allstate Insurance
36. 36Exhibit 60
37. 37Exhibit 67 and 68
38. 38Exhibit 693
39. 39Exhibit 82
40. 40Insurance Act as amended by s. 33 of the Insurance Statute Law Amendment Act, 1993, S.O. 1993 c. 10