Neutral Citation: 1995 ONICDRG 190

File No.: A-007356

ONTARIO INSURANCE COMMISSION

BETWEEN:

RAMESH C. SHARMA

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Ramesh C. Sharma, was injured in a motor vehicle accident on November 4, 1990. He received weekly income benefits from the Pilot Insurance Company ("Pilot"), payable under Ontario Regulation 672¹, from one week after the accident until November 4, 1993. Mr. Sharma claims that he is entitled to ongoing weekly income benefits after that date. The parties were unable to resolve this dispute through mediation and Mr. Sharma applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Sharma entitled to weekly income benefits after November 4, 1993?

Mr. Sharma also claims interest on any amounts owing, and his expenses incurred in the hearing. Mr. Sharma withdrew his claim for a special award at the close of the evidence.

Result:

1. Mr. Sharma is not entitled to weekly income benefits after November 4, 1993.

Hearing:

The hearing was held in Kitchener, Ontario, on May 15 and 16, 1995, before me, Fred Sampliner, Arbitrator.

Translation services in the Punjabi language were provided by Mohammad Ashrafi of Associated North America Translators.

Present at the Hearing:

Applicant:

Ramesh Chandar Sharma

Applicant's Representative:

Gary L. Petker Barrister and Solicitor

Insurer's Representative:

Grant E. Black, assisted by Grace Pang Barristers and Solicitors

Witnesses:

Ramesh Chander Sharma, Applicant

Dr. Eldon Tunks, psychiatrist

Amarjit Sharma, Applicant's brother

Barbara Minnick, kinesiologist

Darshana Sharma, Applicant's wife

Rex Samuel, psychologist

Exhibits: The parties filed 11 exhibits, listed in Appendix A.

Evidence and Findings:

On November 4, 1990 Mr. Sharma was driving an automobile that was rear-ended while stopped to turn left. The impact pushed his car about ten feet. Afterwards, an ambulance took him to hospital, where he complained of neck, back and right shoulder pain. Mr. Sharma was released from hospital with a recommendation to see his family doctor.

Since the November 4, 1990 accident, Mr. Sharma has not returned to either his pre-accident job as a meatcutter at Hoffman Meats in Kitchener, or to any other employment. Pilot accepted Mr. Sharma’s disability claim for three years, and paid him a weekly income benefit in accordance with section 12 of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994.

Section 12 of the Schedule provides that an insurer should pay a weekly income benefit to an insured person who sustains physical or psychological injuries in an automobile accident, which prevents his or her return to work.

After the first 156 weeks, the eligibility test becomes more stringent. The applicable provision, section 12(5)(b) of the Schedule, requires that Mr. Sharma must establish on a balance of probabilities that the injuries he sustained in the accident continuously prevent him from engaging in any occupation or employment for which he has suitable education, training or experience.

During the initial period after the accident, Mr. Sharma's disability appeared to be of a physical nature: cervical and lumbar muscle spasms, headaches and possibly some nerve pinching at the L4,5/S1 vertebrae (low back). Over the next three years Mr. Sharma was continuously treated for his physical ailments, without success.

Since Mr. Sharma's pain was not alleviated, an investigation into psychological factors was commenced. At the hearing, Mr. Sharma's lawyer submitted that his client's inability to return to the workforce after the third anniversary of the accident was primarily based upon Mr. Sharma's emotional depression or psychological condition. Pilot maintains that Mr. Sharma's emotional or psychological state does not relate to the accident or interfere with his ability to work.

Mr. Sharma's physical care and treatment have principally been managed by his family physician, Dr. Rosemary Arnold, who saw Mr. Sharma 129 times between November 4, 1990 and April 12, 1995. Mr. Sharma was treated at Dr. Arnold's physiotherapy clinic almost every weekday since the accident, for an astonishing total of 825 visits between the accident and the end of April 1995. Mr. Sharma testified that he has spent at least two hours each week day since the accident at Dr. Arnold's office or physiotherapy clinic. Remarkably, over the course of this four and a half year intensive treatment, Mr. Sharma indicated that his headaches, neck and shoulder pain have not improved. More significantly, he stated at the hearing that his low back pain is actually worse. Mr. Sharma testified that sitting, standing or performing any activity increases the pain. Thus, Dr. Arnold's prolonged treatment seems to have had deleterious effect.

Dr. Arnold's medical reports essentially recite Mr. Sharma's pain and depression symptoms, his treatment history and the uncertain prognosis for recovery. In Dr. Arnold's April 1992 report, a year and a half after the accident, she saw no reason to entertain any doubts that Mr. Sharma's symptoms were related to the accident.

Dr. Arnold's opinion ignores evidence available to her that other medical conditions may play a role in the reported complaints. Dr. Arnold's clinical notes and records from before and after the accident indicate that Mr. Sharma's diabetic condition was not well controlled. Mr. Sharma did not like taking medication or adjusting his diet to control his blood sugar. Six months before the accident, Dr. Arnold received a report from a treating physician at the Kitchener-Waterloo Hospital diabetes clinic, stating that Mr. Sharma suffered insomnia and weakness in his arms and legs. After the accident, the clinic continued to assist Mr. Sharma in maintaining his sugar levels through diet, medication and exercise. However, Mr. Sharma's diabetes was still not well controlled and he refused to take insulin. Although the diabetes clinic discounted the validity of Mr. Sharma's complaints of weakness in his limbs, it is equally clear that Dr. Arnold failed to consider the connection of the diabetic condition to Mr. Sharma's post-accident condition or to adjust his treatment.

In the final analysis of Dr. Arnold's case management, I seriously question her decision to continue ineffective intensive physiotherapy treatment for four and a half years. With little improvement in the symptomology and clear indications from other professionals of a psychological overlay, Dr. Arnold's treatment apparently served no purpose but her own. Her reports provide little analysis. They essentially recite a litany of complaints and treatment, ending in a conclusion that the patient cannot return to work. Dr. Arnold's failure to correctly assess Mr. Sharma's medical needs, and her obvious financial interest, cause me to place no reliance upon her opinion.

Other health professionals have examined Mr. Sharma, with differing opinions about his physical state. In January 1991 Dr. Tallon, an orthopaedic surgeon, examined Mr. Sharma and said that he could not account for the pain symptoms based on the physical trauma of the accident. Dr. Stewart, another orthopaedic surgeon, examined Mr. Sharma twice during 1991, and essentially found normal body movement, despite Mr. Sharma's complaints of pain. Dr. Stewart commented that Mr. Sharma looked depressed and seemed to be exaggerating his symptoms. A third orthopaedic surgeon, Dr. James Houston, examined Mr. Sharma in March 1992, reviewed the patient's x-rays, and could find no organic reason to account for Mr. Sharma's symptoms.

A CT scan, ordered by Dr. John Chong in November 1992, indicates a possible organic cause for some of Mr. Sharma's lower back complaints.

Opinion: Disc space narrowing of the L5,Sl with disc protrusion and calcification posterolateraly, right more than left with a possible added element of osteophytes. This appears to cause slight foraminal narrowing on the right side at that level. Minimal annular bulge at L4-L5.²

Dr. John Adachi, a specialist in rheumatology and internal medicine, examined Mr. Sharma in May 1993. He opined that the disc problem shown on the CT scan was related to the automobile accident. In addition, Dr. Adachi thought a nerve root was being pinched as it exited the right side of one of the lower vertebrae in the spine, which he said was consistent with Mr. Sharma's reports of pain, loss of sensation, tingling and numbness in his low back, hip, right leg and right foot. Dr. Adachi recommended that Mr. Sharma consider surgery, an opinion supported by a general surgeon, Dr. Prakash Ahuja, and by a neurosurgeon, Dr. A.G. Parrent. Dr. Parrent thought there was a very good chance of improving Mr. Sharma's leg pain, and a sixty percent chance that his low back would get better. However, in 1994 nerves studies of Mr. Sharma's right leg proved normal, indicating there was no nerve impingement. Despite some evidence that Mr. Sharma may have had some degenerative changes in his low back prior to the accident, I conclude upon review of the voluminous medical evidence that the herniated disc resulted from the accident.

However, even though the herniated disc resulted from the accident, the evidence indicates that Mr. Sharma exaggerated his symptoms. Mr. Sharma testified that he did not wish to proceed with surgery. Although all other treatment avenues had proven of only partial or temporary relief, and Mr. Sharma had three opinions supporting the procedure, he was unsure. Dr. Tunks had advised Mr. Sharma to await the results of his completion of a vigorous exercise program at the Chedoke-McMaster Hospitals before considering the surgical alternative, but he appears to have neither completed the program, nor re-considered the surgical option. If Mr. Sharma was in fact experiencing the constant debilitating low back pain as he claimed, he logically should have followed the recommendations for a discetomy which was anticipated to provide relief, or he should have pursued further rehabilitation as recommended. Although Mr. Sharma was certainly not obliged to proceed with surgery in view of its inherent risks, his failure to pursue either the surgical option or further rehabilitation leads me to accept the opinion of Dr. Stewart and some of the other health practitioners, who concluded that Mr. Sharma exaggerates the degree of pain associated with the injury.

Mr. Sharma's exaggeration of his injury must be considered along with other factors in evaluating his credibility. Mr. Sharma testified during his examination in chief that he had owned and operated his own plumbing supply store for the three years immediately prior to his arrival in Canada. However, on cross-examination, Mr. Sharma was shown his 1989 employment application for work at Hoffman Meats, in which he stated that he had been a skilled butcher in India for the three years prior to his immigration. When questioned further about his previous butchering experience, Mr. Sharma explained that he helped a friend at a meat shop, but had never cut meat, nor was he paid. He denied lying on the employment form, but offered no other explanation for the obvious discrepancy in his work experience. While I can understand the reason why a newcomer to Canada is likely to embellish the truth to obtain employment, Mr. Sharma’s failure to admit the inconsistency or offer some plausible explanation for it affects my judgment of his credibility.

Additionally, Mr. Sharma's testimony demonstrated that he was unable to accurately recall events. Medical evidence showed that Mr. Sharma was a diagnosed diabetic before the accident, and that he experienced weight changes as a result of this condition. At the hearing, Mr. Sharma denied having lost weight before the accident. He maintained that any weight loss occurred after the accident, and was due to his injuries. In my view, Mr. Sharma's denial of an important diabetic symptom which pre-existed the accident, along with his attribution of the symptom to the accident, is another factor demonstrating, at the very least, a poor memory.

Mr. Sharma also denied that he was depressed before the accident. Mr. Sharma's father had died in India about one month before the auto injury, and Dr. Arnold's reports, filed almost immediately after the accident, confirm that he was suffering from depression. Though Mr. Sharma denied he was disturbed by his father's death at the time of the accident, two psychiatric experts indicated otherwise. Dr. Eldon Tunks, a consulting psychiatrist from the Chedoke-McMaster Hospital, testified that the death of Mr. Sharma's father should certainly be considered in dealing with his current depression. In addition, Dr. Margulies, a psychiatrist who examined Mr. Sharma for Pilot, reported that depression usually occurs only after a prolonged illness has demoralized a patient. I accept the evidence of both of these experts on this point. I find that it is more likely than not that Mr. Sharma was depressed about the death of his father at the time of the accident, and that his automobile injury did not immediately cause him to become depressed. I find that Mr. Sharma's denial that he was depressed about his father's death is not credible.

Mr. Sharma's testimony about these matters suggests that his evidence is neither reliable or credible. In fact, Mr. Sharma himself admitted at the hearing that he has a poor memory. As a consequence, I doubt the extent and nature of his complaints.

Furthermore, many of the examining specialists opined that Mr. Sharma's depressed condition is the result of a variety of complex psycho-social factors, unrelated to the accident. After his father died Mr. Sharma's mother came to live with her son in Canada. Several psychological reports also indicate that growing defiance by Mr. Sharma's sixteen year old daughter had been causing marital and family discord. Mr. Sharma's brother came to live with the family too. Dr. Tunks testified that the presence of additional relatives and teenage rebelliousness in this traditional Indian household were significant stressors affecting Mr. Sharma's emotional or psychological condition. As well, Mr. Sharma's pre-accident job was unavailable.

Mr. Sharma's lack of understanding of his own situation is another stressor. As a specialist in pain disorders, Dr. Tunks acknowledged that he could not pinpoint the exact psychological cause of Mr. Sharma's symptoms. Neither could Dr. Tunks determine whether Mr. Sharma was consciously or unconsciously feigning his ailments. But he did explain that immigrants, such as Mr. Sharma, who have poor language skills, few family or cultural supports, and limited job options may have a propensity to overreact and become depressed after accidents. Dr. Tunks also felt that the lengthy treatment Mr. Sharma underwent, without any apparent result, could reinforce his depressed condition. The complex interaction of psycho-social factors was echoed in the report of another psychiatrist, Dr. Emanuel Tadross. Based upon this evidence, I find on balance that Mr. Sharma has failed to prove that his emotional or psychological condition results from the accident.

Even if the accident did cause the psychological condition, I find that Mr. Sharma is still capable of some meaningful work. After graduating from high school in India, Mr. Sharma testified that he received a year of training in refrigeration technology, but he did not go into this line of work. Instead, he began a small coal transport business, which he operated between 1974 to 1976. When the business slowed, Mr. Sharma went to work in Saudi Arabia, where from 1976 to 1978 he was a construction labourer. From 1979 to 1981 Mr. Sharma said that he worked at the company's on-site tool storage facility. In 1982 Mr. Sharma returned to India, where he testified that he opened a plumbing supply store. According to Mr. Sharma, he operated this business until his 1988 emigration with his wife to Canada.

Upon his arrival in this country, Mr. Sharma testified that he was briefly unemployed. His first job in Canada was part-time factory work in the fall of 1988, folding and boxing gloves. He also worked for two or three weeks on an assembly line, spray painting auto parts. In the fall of 1988 he began full-time employment as a meat cutter at a chicken processing plant, which continued until the plant closed in September 1989. Shortly thereafter, Mr. Sharma was hired as meat cutter by Hoffman Meats, his employer up to the accident.

Mr. Sharma testified about other skills he acquired in his earlier employment. As a coal merchant, Mr. Sharma stated that he verified credit information, conducted rate negotiations, kept the company books and managed the paperwork. As a construction worker, he cut and laid pipe, performed simple carpentry, poured and finished concrete and block. Later on, when he was transferred to the company's tool storage facility, he learned about the use and maintenance of the construction equipment and tools, and the paperwork for inventory control. Afterwards, when Mr. Sharma set up and ran his own hardware store, he bought and sold supplies, hired and managed the employees and handled most of the company book-keeping and paperwork. His company also did plumbing work, such as installing commodes, sinks and the hookup drains and pipes. Mr. Sharma estimated and oversaw these installations.

Mr. Sharma's testimony demonstrates that he has suitable skills for a variety of jobs. Although I received no submissions from counsel about suitable work categories, I find that Mr. Sharma has sufficient experience and knowledge to be a mason or mason's assistant, an assistant carpenter or assistant plumber or to work as a clerk at a construction supply or home improvement store. I also find that Mr. Sharma's knowledge of tools, the construction trades, and his experience on an assembly line qualifies him for general factory work.

Mr. Sharma also demonstrates sufficient English fluency to deal with the public. Although at the outset of the hearing Mr. Sharma testified and listened to the evidence or discussions between counsel primarily through the interpreter, during cross-examination Mr. Sharma sometimes replied quite ably in English. By the conclusion of the hearing, Mr. Sharma was listening to testimony and submissions without much assistance from the interpreter. Moreover, Dr. James Israel's 1994 report of his examination of Mr. Sharma, states that Mr. Sharma was completely fluent in English. In addition to verbal fluency, Mr. Sharma also testified that he reads the newspaper every day with his afternoon tea, and he admitted that he completed the employment application for Hoffman Meats, in English. Consequently, I find that Mr. Sharma has sufficient proficiency in English to effectively communicate in a retail job, in a factory or in the construction trades.

Mr. Sharma's current activities must also be considered in the final analysis of his ability to work. Mr. Sharma testified that he typically dresses and grooms himself in the morning, makes breakfast, exercises, takes a short walk, rests and keeps himself busy until lunch. Afternoons he takes his daughter to school, shops, has tea and reads the newspaper, goes to his health care appointment and helps with the children at home. Although Mr. Sharma's testimony about his daily activities does not differ significantly from the descriptions he gave to his caseworkers, this description of his behaviour since the accident does not, in my view, substantiate his claim of extreme disability. Rather, I find that because Dr. Arnold continued to schedule treatments for him several hours each weekday, Mr. Sharma's daily activities have been structured around these appointments to a great extent. I find that Mr. Sharma's pattern of activities reflects Dr. Arnold's prolonged treatment and advice, rather than the result of his injury. Moreover, Mr. Sharma's admission that he travels to his appointments, spends two hours a day at physiotherapy, takes his daughter to school every day, cooks, goes shopping, exercises and takes daily walks conflicts with his presentation as a severely disabled person.

I find that Mr. Sharma's daily activities show that he is capable of performing the duties of a retail clerk. I further find that Mr. Sharma's behaviour shows that the mild depression he may suffer does not interfere with his normal daily activities, which are not more strenuous than the duties of a retail clerk. Therefore, I find on a balance of probabilities, Mr. Sharma has failed to establish that he suffers an injury that qualifies him to weekly income benefits under section 12(5)b of the Schedule.

Expenses:

Though unsuccessful, I find that Mr. Sharma has brought this claim to hearing with sufficient evidence and honest belief to warrant granting him his expenses of the arbitration. I grant Mr. Sharma his arbitration expenses, consistent with OIC precedent and policy. If there is a disagreement about the amount, an assessment may be arranged by contacting the Registrar's Office at the OIC.

Order:

1. Pilot shall pay Mr. Sharma his expenses of the arbitration.

December 18, 1995

Fred Sampliner Arbitrator

Date

APPENDIX A

1. Mr. Sharma's Medical Brief

2. Pilot's Medical Brief

3. Photograph of Mr. Sharma

4. Highland Road Medical Centre office visits summary

5. Hoffman Meats Inc. employment application

6. Kitchener Waterloo Hospital diabetes centre education program note

7. Dr. Rosemary Arnold's clinical notes and records

8. Job description by Rehabilitation Services of Canada

9. Oswestry Profile

10. Pilot's letter to Dr. Rex Samuel

11. Report of Dr. Israel

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 1 - Tab 1:08, Radiology Report of November 17, 1992