Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 198

Appeal P96-000004

OFFICE OF THE DIRECTOR OF ARBITRATIONS

AMRIK SINGH

Appellant

and

ROYAL INSURANCE COMPANY OF CANADA

Respondent

Before:

Susan Naylor, Director’s Delegate

Counsel:

Dennis Cook (for Mr. Singh)

Wayne Edwards (for Royal Insurance)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed and the arbitrator’s order dated October 30, 1995 and amended on November 10, 1995, is confirmed.

December 3, 1996

Susan Naylor Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Amrik Singh appeals an arbitration order dated October 30, 1995, which denied his claim for weekly income benefits for any period after November 14, 1994. Mr. Singh also takes issue with the arbitrator’s ruling that only allowed him one-third of his arbitration expenses. The arbitrator’s order also dealt with the amount of Mr. Singh’s benefits, but this part of her order has not been appealed.

Mr. Singh’s claim arose out of an automobile accident on November 29, 1992. As a result of the accident, he received weekly income benefits for approximately two years under his automobile policy with Royal Insurance Company of Canada (Royal). He was also granted a Canada Pension Plan disability pension. Royal terminated his weekly income benefits, effective November 14, 1994, stating that Mr. Singh no longer met the test for eligibility as set out in the policy.

Entitlement to weekly income benefits is governed by section 2.22 of the standard owner’s policy (O.P.F. No. 1 (Owner’s policy)), as mandated by section 12 of the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, R.R.O. 672 (“Schedule”). It states, in part,

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment....

The arbitrator held that Mr. Singh was not eligible for further benefits. Mr. Singh appealed this order. He retained new counsel for the appeal. Both parties made oral submissions, in addition to filing written material.

II. THE ARBITRATOR’S FINDINGS

The appeal focuses primarily on the arbitrator’s treatment of Mr. Singh’s claim as it relates to his psychological condition.

Before the accident, Mr. Singh worked as a plumber for a company in commercial construction. The arbitrator accepted that this sometimes involved lifting heavy loads. Mr. Singh has not returned to work since the accident.

Mr. Singh’s vehicle was rear-ended in the accident. According to the testimony before the arbitrator, Mr. Singh struck his head on the steering wheel and suffered a whiplash injury. In the months afterwards he was treated by a family doctor, Dr. Saini, for headaches, neck, low back and right leg pain. He also complained of dizziness. After a while, his neck pain improved, but the other symptoms did not. Various tests, treatments and consultations were carried out, but no physical basis for Mr. Singh’s continuing difficulties was found.

At some point, the focus shifted to Mr. Singh’s psychological condition. There is general agreement among the doctors who have examined him that his present symptoms are psychogenic in origin. All the doctors have expressed perplexity at his condition and agree that his prognosis for recovery becomes worse as his condition becomes more chronic.

Dr. Saini testified at the hearing. He diagnosed chronic pain syndrome and depression. In 1993, he referred Mr. Singh to a qualified psychiatrist, Dr. Manohar, to treat his depression and to determine if he was suffering from a psychiatric illness. Mr. Singh has been seeing Dr. Manohar regularly since then, and has been placed on anti-depressant medication.

Much of the appeal rests on the weight the arbitrator gave to Dr. Manohar’s report. Although Mr. Singh had seen Dr. Monohar for several years, only a brief consultation letter dated March 30, 1994 was filed. It states of Mr. Singh that:

He certainly appeared quite depressed as I think he is still coming to terms with possible irreparable loss to his livelihood. I think the poor prognosis with regard to the functional ability is slowly beginning to sink in and that in fact aggravates his depression.

To a large extent, Mr. Singh based his case both at arbitration and on appeal on this report. On appeal he sought to introduce a more complete report from Dr. Manohar. I deal with this issue later on.

Dr. Walsh, a psychiatrist who assessed Mr. Singh on behalf of Royal did not find a significant depressive illness or illness of a psychotic nature. He provided a differential diagnosis of malingering, somatization and conversion disorder.

Various efforts have been made to help Mr. Singh get back to work. A functional capacities evaluation in mid-1993 considered him fit to return to work. A second evaluation in 1994 recommended a work trial. Mr. Singh’s own family doctor agreed with this approach. In each case, Mr. Singh felt that he was not ready to return to work or to participate in such a work program. Dr. Harvey Koonar, who co-ordinated Mr. Singh’s rehabilitation for Royal, concluded that Mr. Singh had “predetermined the course of events in relation to his injury”.¹

The arbitrator rejected Mr. Singh’s position that he was in too much physical pain to try a return to work and that his depression was of such severity that it precluded him from doing so. She held that:

There was no objective evidence of ongoing physical injury;
Both Mr. Singh’s caregivers and the doctors retained by Royal agreed that he was capable of performing his pre-accident work before the date benefits were terminated;
There was “no reliable diagnosis of depression or chronic pain arising out of the accident by anyone qualified to evaluate mental disorder”, and no diagnosis of mental disorder related to it;
Mr. Singh’s testimony regarding his depression was not credible: The arbitrator found that he had opened a renovation business nine months after the accident and rejected his explanation that he had no part in performing the work. There was also evidence that Mr. Singh was magnifying his symptoms, not putting forward his best efforts during testing, malingering (Dr. Walsh), and refusing to co-operate in his own rehabilitation;
The fact that Mr. Singh received a CPP disability pension did not help his case because it was based on a different procedure and possibly subject to different standards.

The arbitrator concluded that Mr. Singh’s failure to resume employment was not the result of depression or some other accident-related psychological problem but arose out of “an unreasonable and wilful refusal to work, rather than genuine disability”. (Decision, page 19). In denying him expenses related to his claim for entitlement, the arbitrator characterised this part of his claim as “highly exaggerated and with virtually no merit”.

Mr. Singh takes issue with the arbitrator’s findings about his psychological condition. On appeal, he focused on the arbitrator’s finding that there was no reliable diagnosis of chronic pain syndrome or depression. He argued that the arbitrator looked only to his physical injuries, ignoring the fact that psychological injuries are compensable under section 12 of the Schedule.

Having reviewed the decision, I am satisfied that the arbitrator did not misdirect herself in this way. She appropriately directed her mind to whether Mr. Singh suffered from an accident-related psychological injury which persisted beyond the termination date for benefits. The decision does not suggest that depression and chronic pain syndrome cannot give rise to a compensable claim. However, the arbitrator concluded that the requisite elements for such a claim to be made were not present in this case.

In so finding, the arbitrator took into account Mr. Singh’s testimony, Dr. Saini’s acknowledgement that he was not an expert in chronic pain, the limited nature of Dr. Manohar’s report and Dr Walsh’s conclusion that Mr. Singh did not suffer from a significant depressive illness or other mental disorder.

Although Mr. Singh made submissions on a number of issues, his appeal comes down to his disagreement with the weight the arbitrator gave to his evidence and, particularly, Dr. Manohar’s report. This is essentially a matter for the arbitrator’s judgment, to be exercised having regard to the totality of evidence before her. Prior appeal decisions² have established that it is not my role on appeal to re-evaluate the evidence before the arbitrator and substitute my own view of the weight to be attributed to it. The arbitrator has the benefit of observing and hearing the witnesses in person, assessing the credibility of their testimony, and viewing the medical reports in the context of the evidence as a whole. Because of this advantage, the arbitrator’s findings of fact and assessment of the evidence should not be interfered with unless he or she has ignored material evidence or arrived at unsupported conclusions. The arbitrator’s vantage point is particularly important in a case like this, where the claim is based largely on the applicant’s subjective complaints, and other evidence questions whether the claimant is putting forward his best efforts in rehabilitation.

Mr. Singh’s main complaint is that the arbitrator failed to give due weight to Dr. Manohar’s report. Even though Mr. Singh’s claim was principally based on his psychological condition and he was seeing his psychiatrist regularly, the only evidence from Dr. Manohar was a brief consultation note. The report stated only that Mr. Singh “appeared quite depressed” and was taking anti-depressant medication. It does not attribute Mr. Singh’s depression to a particular event nor does it evaluate the degree of depression in clinical terms, or relate it to a psychiatric disorder defined, for example, under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Dr. Manohar made no reference to Mr. Singh suffering from a somatoform disorder (in the nature of chronic pain syndrome) although this is within his area of expertise as a psychiatrist. In contrast, Dr. Walsh’s report was more complete and in depth. Given this evidence, it is not surprising that the arbitrator questioned the nature and extent of Mr. Singh’s psychological difficulties.

The main problem with Mr. Singh’s appeal however is the assumption that because he suffers from depression and chronic pain, he is entitled to weekly income benefits. It has been repeatedly stated that pain, per se, is not compensable under section 12 of the Schedule, which focuses on disability. It is only where the experience of pain causes an insured to be substantially disabled from performing his or her essential work tasks that weekly income benefits are payable.

The central question is whether Mr. Singh’s psychological condition, however it is labelled, rendered him substantially unable to perform his essential tasks for the period in issue. There was little evidence before the arbitrator that Mr. Singh’s psychological difficulties were so serious that they stopped him from returning to work. Mr. Singh’s case rested largely on his own fixed view of his limitations, combined with the doctors’ increasing pessimism from a practical perspective about his prognosis as his condition became more chronic.

Mr. Singh’s view of his own limitations was at substantial variance with that of his health professionals. Even his own family doctor thought that from a physical perspective, he could and should return to work, but that it was not likely that he would. This is similar to the situation in Bertsouklis and Liberty Mutual Fire Insurance Company, (May 28, 1996, OIC P-006499), in which the Director’s Delegate stated:

I agree with the arbitrator that there is no particular magic to the diagnosis of chronic pain syndrome for the determination of entitlement to weekly income benefits. The diagnosis may have some predictive value, but the question for the arbitrator was not whether Mr. Bertsouklis was likely to return to work, but whether his injuries rendered him unable to perform the essential tasks of his occupation. His own views about his limitations, no matter how sincerely held, are not determinative.

The crux of Mr. Singh’s case is largely Dr. Manohar’s statement that Mr. Singh was “coming to terms with possible irreparable loss to his livelihood”. There is no indication in the report of the basis for this statement and whether it represented anything more than what Mr. Singh told his doctor. In the circumstances, the arbitrator was justified attributing no more weight to this statement than to Mr. Singh’s own testimony.

The arbitrator clearly felt that Mr. Singh was capable of doing more than he professed. She found that he had started another renovation business after the accident and, contrary to his explanation, did some of the work himself. Mr. Singh suggested that the arbitrator attributed too much significance to this, as the business’s earnings were less than $1,000 and only light work was involved. This misses the point. Mr. Singh was claiming to be unable to participate in rehabilitation efforts to help him return to work. The arbitrator was entitled to evaluate his claim in light of her finding that he was in fact working.

In my view, there was sufficient evidence on which the arbitrator could conclude that Mr. Singh’s psychological condition did not render him substantially unable to perform his essential employment tasks.

Mr. Singh alleges that the arbitrator was racially biased. The basis for this allegation is the arbitrator’s statement that “Mr Singh converses with Drs. Saini and Manohar in Punjabi, which is his native tongue” (Decision, page 7). Mr. Singh argues that the arbitrator had no reason to make such a statement. He also claims that the arbitrator’s failure to give weight to the opinions of his treating physicians also demonstrated the arbitrator’s bias.

I see no foundation for Mr. Singh’s complaint of bias. The arbitrator must assess the reliability of the evidence. This requires a determination whether information exchanged between doctor and patient is accurate and understood. The ability of doctor and patient to communicate is relevant to this inquiry. In my view, the arbitrator’s remark was simply directed at that issue.

With respect to Mr. Singh’s other allegations, the record shows that the arbitrator had sufficient evidence upon which to base her findings, and good reason to limit the weight she attributed to Mr. Singh’s doctors’ reports. Mr. Singh’s real complaint is that the arbitrator came to a conclusion he did not agree with, not that the arbitrator conducted an improper hearing, ignored important evidence or arrived at an unsupported conclusion. Therefore, the appeal is denied.

III. NEW EVIDENCE

Mr. Singh sought to introduce a further report from Dr. Manohar, dated November 27, 1995, addressed “to whom it may concern”. In the report, Dr. Manohar confirmed that Mr. Singh had been referred to him for depression and stated that Mr. Singh’s depressive features were “persistent and pronounced”. Dr. Manohar stated that “what was most striking was his functional deterioration. He was unemployed, was unable to pursue his original occupation and in fact was unable to get any job”. He noted that Mr. Singh functioned well before the accident. He concluded that the long term prognosis was rather poor and that rehabilitation was necessary from a psychological and vocational point of view.

There is a broad discretion to entertain new evidence on appeal. However, in both the courts and the Commission’s dispute resolution system, the admission of new evidence has been circumscribed in order to bring some closure to the adjudication process. For the most part, evidence that was not before the arbitrator will not be allowed on appeal unless the following conditions are met:³

(i) the party could not have obtained the evidence by due diligence before the hearing;

(ii) the evidence must be reasonably capable of belief;

(iii) the evidence must relate to a potentially decisive issue, and if believed, when taken with the other evidence adduced at the hearing, be reasonably expected to have affected the result or be an important influence upon it.

In this case, Dr. Manohar’s report does not meet the criteria for the admission of new evidence. Such a report could have been easily obtained prior to the arbitration hearing. Moreover, while Dr. Manohar’s report confirms a diagnosis of depression, his comments on the effect of the depression on Mr. Singh’s ability to work appear to rest entirely on Mr. Singh’s own account. To that extent, I am not persuaded that the report, taken with the other evidence, would reasonably have affected the result or have been an important influence on it.

IV. EXPENSES

Mr. Singh appealed the arbitrator’s order awarding him only one-third of his arbitration expenses. The arbitrator concluded that the issue of disability took up most of the hearing time, and Mr. Singh’s claims were “highly exaggerated and with virtually no merit”. Mr. Singh unsuccessfully disputed the order on the basis that the arbitrator erred in respect of the merits of his case.

As I noted in Allison and Markel Insurance Company of Canada, (August 21, 1996, OIC P-001231), an award of expenses is in the discretion of the arbitrator. Generally, the arbitrator’s judgement should not be disturbed unless the party appealing the order can point to a serious error in the exercise of the discretion: for example, the arbitrator adopted a wrong approach, based the decision on irrelevant considerations or inadequate evidence, or failed to look at the merits of the individual case by inappropriately fettering his or her discretion.

I am not persuaded that the arbitrator committed any error or exercised her discretion unreasonably in denying Mr. Singh a portion of his expenses. The appeal of this part of the arbitration order fails.

Mr. Singh asks for his appeal expenses. Although appeal expenses do not strictly follow the result, they are not generally awarded to an unsuccessful appellant unless the appeal raises a significant issue.⁴ This case involved an appeal of the arbitrator’s assessment of the evidence and findings of fact. While Mr. Singh provided comprehensive written and oral submissions that were helpful, in essence his objection was to the weight the arbitrator attributed to the evidence. In the circumstances, no expenses will be ordered.