Neutral Citation: 1998 ONFSCDRS 92

FSCO A96-001906

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CLARA GAJADHAR

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION

Issues:

The Applicant, Clara Gajadhar, was injured in a motor vehicle accident on August 1, 1995. She applied for and received statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ TTC terminated weekly income replacement benefits on May 21, 1996. The parties were unable to resolve their disputes through mediation, and Mrs. Gajadhar applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Gajadhar entitled to an income replacement benefit for any period beyond May 21, 1996?

2. Is Mrs. Gajadhar entitled to be reimbursed for the cost of acupuncture treatments performed by Dr. Rad after June 19, 1996?

3. Is Mrs. Gajadhar entitled to be reimbursed for the cost of psychological treatment by Dr. Safar Daei?

4. Is Mrs. Gajadhar entitled to be reimbursed for the cost of chiropractic treatment?

5. Is Mrs. Gajadhar entitled to be reimbursed for the cost of an ankle wrap?

6. Mrs. Gajadhar entitled to be reimbursed for the cost of a lumbosacral support?

7. Is Mrs. Gajadhar entitled to be reimbursed for the cost of an Alertonic Elix prescription?

8. Is Mrs. Gajadhar entitled to be reimbursed for the cost of taxi fares to and from various appointments?

9. Mrs. Gajadhar entitled to be reimbursed for the cost of housekeeping services associated with the cleaning of her bedroom?

Mrs. Gajadhar also claims interest on any amounts owing and her expenses incurred in the hearing.

Result:

1. Mrs. Gajadhar is not entitled to further income replacement benefits.

2. Mrs. Gajadhar is entitled to be reimbursed for the cost of psychological treatment by Dr. Safar Daei, massage therapy, and the lumbosacral support. The claim for reimbursement of taxi fares is allowed in part. The remainder of the claims for supplementary benefits are dismissed.

3. Mrs. Gajadhar is entitled to interest on outstanding expenses.

The list of those present at the hearing, the witnesses and exhibits are set out in the Appendix to this Decision.

Evidence and Findings:

Introduction and overview

Mrs. Gajadhar was injured in a fall on a TTC bus. The Insurer paid a weekly income replacement benefit based upon Mrs. Gajadhar's duties as a live-in housekeeper and nanny to her niece's two children. The Insurer terminated the income replacement benefit approximately nine months after the accident, based upon a multidisciplinary DAC assessment which suggested that Mrs. Gajadhar was no longer disabled. The insurer also arranged for a medical and rehabilitation DAC, and based upon the conclusions of that assessment, indicated that it would no longer fund ongoing treatment. At the time of the assessment Mrs. Gajadhar was receiving acupuncture treatments, and attending upon a psychologist. In the face of the DAC assessment the psychological treatments were concluded. The acupuncture treatments continued for a few more sessions, and Mrs. Gajadhar is seeking payment for the outstanding sessions. Mrs. Gajadhar started seeing another psychologist a few months later, in the fall of 1996, and continued seeing him through December of 1997. She is seeking payment for these sessions. Mrs. Gajadhar is also claiming a number of smaller medical rehabilitation expenses. In addition to treatment expenses, Mrs. Gajadhar claims that she was unable to clean her own room until April 1997, and that she paid the replacement nanny to clean her room at $50.00 per month. She is seeking reimbursement of this expense.

Mrs. Gajadhar claims that she remains incapable of resuming her duties as a housekeeper and nanny, and consequently also seeks an award of ongoing income replacement benefits.

With respect to the income replacement benefits, the Insurer argues that Mrs. Gajadhar has provided so many contradictory versions of events and her complaints, that I should find her evidence entirely unreliable. Counsel noted that there is little objective evidence to verify Mrs. Gajadhar's complaints, and that in the circumstances her claim cannot succeed. On the other hand, Mrs. Gajadhar's counsel argued that some inconsistency was to be expected, given the number of medical personnel she has seen. He also argued that contrary to the Insurer's assertion, there is objective evidence to substantiate Mrs. Gajadhar's complaints.

I agree with the Insurer's assertion that virtually every aspect of Mrs. Gajadhar's evidence is marked by contradiction, and consequently I find that her testimony and statements must be carefully scrutinized. At best Mrs. Gajadhar is a poor historian and prone to exaggeration. There is however objective evidence in the form of radiological reports that document severe degenerative changes in Mrs. Gajadhar's back. These changes would explain some of her complaints, and particularly those of low back pain. The role of the motor vehicle accident in causing or aggravating those complaints is very much in issue.

While there is objective evidence to substantiate some of Mrs. Gajadhar's complaints, this does not automatically translate into a benefit. On the key question of whether or not Mrs. Gajadhar's limitations substantially prevent her from resuming her duties as a housekeeper and nanny, I find that Mrs. Gajadhar has not presented sufficiently reliable evidence to establish her entitlement to further income replacement benefits.

Background

Mrs. Gajadhar is 56 years old. She was born and raised in Trinidad. She is married and has an adult son who resides in Trinidad. Mrs. Gajadhar lives in an apartment in Toronto, with her niece, her niece's husband, and their two children. Mr. Gajadhar maintains a residence in Trinidad. When he comes to Canada he stays at the apartment with Mrs. Gajadhar and her niece's family. It is unclear when Mrs. Gajadhar began to reside here permanently, and what her husband's permanent residence is. Mrs. Gajadhar's evidence as to how often her husband comes to Canada, what he does when he is here, and how long he stays, was very confusing and her testimony was often contradicted by references in the medical reports. It may be that some of the vagueness about when Mrs. Gajadhar came to stay (and work) in Canada, and her husband's habits may have to do with concerns about immigration matters. Mrs. Gajadhar also appeared reluctant to admit that she and Mr Gajadhar lead quite separate lives.

While these inconsistencies do not bear directly upon the outstanding claims, they indicate to me that Mrs. Gajadhar is quite prepared to provide different versions of her circumstances to suit her own purposes.

It would appear that Mrs. Gajadhar moved into her niece's apartment at least five or six months before the accident. The apartment has three bedrooms, a kitchen, a living room, and a bathroom. Mrs. Gajadhar has her own bedroom. Mrs. Gajadhar's niece worked a regular 9 to 5 shift, her husband worked full time on an afternoon shift. The children were 3 and 6 at the time. Mrs. Gajadhar was paid to provide housekeeping and child care services for the family. She in turn paid room and board.

Precisely what Mrs. Gajadhar's duties were is a little unclear. Mrs. Gajadhar testified that she worked from 7 a.m. to 6 p.m. five days per week. She described herself as "like a housewife," stating that she was responsible for cooking, cleaning and caring for the children. In two of the medical and rehabilitation reports there is an indication that she cared for a third child. No mention of this child was made while Mrs. Gajadhar testified. In one of the reports she indicates that the older child spent half days in school. Mrs. Gajadhar did not mention this in her evidence, but her niece's husband indicated that because he did not start until the afternoon that he took his daughter back and forth to school.

The Medical and Rehabilitation DAC report contains the most comprehensive review of Mrs. Gajadhar's duties. Mrs. Gajadhar reported to the DAC examiners that she cared for three children, and that she cleaned for approximately two hours per day while the two youngest children slept. She indicated that caring for the children involved changing diapers, preparing meals, playing, taking them to the park, putting the younger two down for naps, and bathing the children twice per day. She had to lift the youngest child up two or three times per day. The housecleaning included vacuuming, cooking, washing dishes, moping, dusting, making beds, laundry, and cleaning the bathroom.

I found the husband's testimony instructive. When he was asked if in the beginning Mrs. Gajadhar did just babysitting he replied "she did lots of things, she was paid. When you live together it is hard to say." This suggests to me that while Mrs. Gajadhar was a paid housekeeper, she was considered a member of the family unit. As often noted by arbitrators, within a family unit, there is usually some flexibility in how household chores are accomplished. The same would appear to be true in this case.

The Accident

Again there was some variation in the accounts of the accident provided by Mrs. Gajadhar. More importantly, there is considerable controversy over whether Mrs. Gajadhar was knocked unconscious, and what injuries she sustained. The accident happened on the evening of August 1, 1995. In the most consistent version of events, Mrs. Gajadhar boarded a bus and was in the process of sitting down in the first row of seats, when she missed the seat and fell to the floor landing on her backside. As Mrs. Gajadhar was standing up the bus driver braked and she lost her balance, falling forward toward the front of the bus where she struck her head on the pole supporting the cash box. Mrs. Gajadhar's testimony left the impression that she struck the pole with a great deal of force. She stated that after striking the pole her next memory was of waking up in the hospital. Mrs. Gajadhar consistently reported to medical personnel that she was knocked unconscious. She testified that she had a large bump on the top of her head.

Roger Davidson, the bus driver, testified that he recalled Mrs. Gajadhar getting on the bus, and that she looked a little unsteady. As he pulled away from the stop the light turned red, and he applied the brake. He recalled seeing Mrs. Gajadhar appear at his shoulder and then fall forward underneath a horizontal bar, striking her head on the dashboard. In contrast with Mrs. Gajadhar's evidence, he testified that she seemed to be falling in slow motion. The driver testified that after striking her head she was laying on her back, and seemed to be unconscious. The driver and a bystander tried unsuccessfully to revive her. The driver called for an ambulance which arrived shortly thereafter. What the driver said transpired next is very interesting. He stated that the ambulance attendant pinched or pricked Mrs. Gajadhar's finger and all of a sudden she was "up with her eyes open." He stated that she walked off the bus, but he could not recall if she was assisted or not.

The photocopy of the ambulance report that was introduced into evidence is very dark, and much of it is illegible. Under the heading "physical exam" it appears to state "pt conscious oriented x3 alert lying (next word indecipherable) on floor of bus." "Oriented x3" is short hand for oriented as to time, place, and person.

The emergency department report indicates that Mrs. Gajadhar was put on a head injury routine, but the physician recorded "alert no loc" a reference to no loss of consciousness. There is a note that she hit her head, but there is no mention of a bump or contusion on her head. When read as a whole the emergency department report is not consistent with the notion that Mrs. Gajadhar sustained a serious head injury, or was transported to the hospital while still unconscious.

These reports are more consistent with the driver's version of what happened and I accept his testimony over Mrs. Gajadhar's. I find that at most Mrs. Gajadhar suffered a momentary dazing or alteration of consciousness, but that for self-serving reasons she has generally reported to medical practitioners that she was unconscious for a considerable period. The fact that this pattern of deceit started at such an early stage and before there was any conflict with the Insurer severely undermines Mrs. Gajadhar's credibility.

A second serious credibility gap is created the very next day. Mrs. Gajadhar re-attended at the emergency department complaining of dizziness, numbness in the right side of her face, and numbness in the right arm and leg. In the "consultant's" box, the following is noted "full neural done. Not co-operating at first, sensation initially abnormal, suddenly fully normal after confronting pt with inconsistencies." I find the fact that Mrs. Gajadhar would seek out medical attention and then attempt to deceive the physician, very disturbing and it suggests to me that I cannot rely upon what Mrs. Gajadhar reports to medical practitioners.

Counsel for the Insurer noted that in the first emergency record there are references to an injury to the left shoulder and arm. In contrast the reference in the second emergency record is to right-sided complaints. Thereafter all of the references in the medical documentation are to right-sided complaints. Notwithstanding Mrs. Gajadhar's credibility problems I am prepared to find that the reference to left-sided complaints in the first emergency record is an error.

In the health practitioner's certificate prepared by Dr. Omarali a couple of weeks after the accident, the complaints and findings include: pain in the head and neck, neck stiffness, loss of range of motion in the neck, and swelling and tenderness in the lower back. Dr Omarali recorded his diagnosis as "soft tissue injury lower back and buttock area. Lumbar and cervical neck strain. Right shoulder movement limited. Right hand cannot touch the small of her back. Severe headaches some disorientation in time. Poor memory recall."

Early Treatment

In the months following the accident, Mrs. Gajadhar saw two family physicians; Drs. Omarali and Mughal. Neither of the doctors testified. It is not clear what each knew of the other's involvement, and Mrs. Gajadhar was not candid about her relationship with these doctors. For example she stated that she only saw Dr. Mughal a couple of times while Dr. Omarali was on holidays. In fact a review of the OHIP billing record shows that Mrs. Gajadhar saw Dr. Mughal 14 times between late August 1995 and the end of March 1996. There are various references to Mrs. Gajadhar feeling more comfortable with Dr. Mughal during this period. Mrs. Gajadhar stated that she returned to Dr. Omarali's care because Dr. Mughal was too far away, but it is worth noting that the switch occurred at the same time that Dr. Mughal was encouraging her to become more active.

Dr. Omarali referred Mrs. Gajadhar to a neurologist because of complaints of dizziness. The neurologist concluded the complaints were related to pain rather than any neurological deficit.

Shortly after the accident, Dr. Omarali also referred Mrs. Gajadhar to a physiotherapy program. It would appear that the program relied principally upon passive modalities and light exercise.

At about the same time, Dr. Mughal referred Mrs. Gajadhar to the Sports and Injury Rehab Clinic for a psychological assessment. The clinic started weekly counselling sessions in October 1995.

Mrs. Gajadhar reported to the rehabilitation counsellor appointed by the Insurer, that she generally got up late in the morning and bathed and washed herself, made herself a small breakfast and then cleaned the kitchen. For most of the rest of the day, she would lie around reading or watching either the TV or the children.

In early December 1995, Dr. Omarali referred Mrs. Gajadhar to Dr. Kachooie, a physiatrist. Dr. Kachooie diagnosed low back pain with possible discogenic origins, right rotator cuff tendonitis, post-traumatic stress disorder, and insomnia. He prescribed a course of active physiotherapy at a rehabilitation centre he is associated with. Before Mrs. Gajadhar started this program the rehabilitation counsellor met with Mrs. Gajadhar and Dr. Omarali. The counsellor suggested that Mrs. Gajadhar should attend at a Canadian Back Institute (CBI) program instead. Dr. Omarali made the referral to the CBI program.

Mrs. Gajadhar testified that she was coerced into attending the CBI program. The TTC's counsel argued that in light of the fact that Dr. Omarali made the referral, it was not possible to argue that there was any coercion. Coerced may be too strong a word, but I am satisfied that the TTC wished to divert Mrs. Gajadhar away from Dr. Kachooie's facility, and that the consultant persuaded Dr. Omarali to make the alternate referral.³

The Insurer wrote to Dr. Kachooie to advise that it would not fund his clinic's program. Dr. Kachooie was not happy with the Insurer's decision to refuse funding, and later wrote to the TTC advising that Mrs. Gajadhar had been forced to attend a CBI program that he did not think was appropriate, and that he anticipated an aggravation in her symptoms that would result in compliance problems, which would in turn delay her recovery. I do not know what, if any, discussions Dr. Kachooie and Mrs. Gajadhar had about the referral to the CBI program. Shortly after starting the program, Mrs. Gajadhar complained to the rehabilitation counsellor that she had been forced to attend CBI against her own wishes, and that she expected to get worse. Mrs. Gajadhar attended approximately 10 sessions leading up to a case conference at CBI on January 4, 1996. During a session on that date Mrs. Gajadhar lay down on a exercise table and began to cry hysterically. Mrs. Gajadhar left the Institute and went to Dr. Omarali's office. She testified that he took her blood pressure, found it to be low and put her on a week's bed rest. Mrs. Gajadhar testified that at the Institute they made her do heavy exercise that made her dizzy. Mrs. Gajadhar did not return to the CBI program.

When Dr. Kachooie testified he stated that typically the CBI program is appropriate for people who are athletically inclined, and frequently not appropriate for the general public. He also indicated that the CBI programs are not tailored to the individual's particular needs. Dr. Kachooie made these comments without having seen the particulars of Mrs. Gajadhar's program. When he was shown it during cross-examination, he conceded that there was nothing in the program that should have been beyond Mrs. Gajadhar's capabilities.

In mid-February 1996, approximately two months after Mrs. Gajadhar had left the CBI program, Dr. Mughal referred Mrs. Gajadhar to the Scarborough Sports and Injury Clinic, for physiotherapy. The clinic reported that on formal testing Mrs. Gajadhar exhibited severe limitations in the range of motion in her back, but that these restrictions were not evident upon observation of Mrs. Gajadhar's casual movement. Clinical testing also revealed a significant restriction in the range of motion in Mrs. Gajadhar's shoulder. A form of functional capacity evaluation indicated that Mrs. Gajadhar was unable to perform the essential tasks of her employment. However the evaluators indicated that screening suggested Mrs. Gajadhar was not exhibiting maximum effort during the testing. Mrs. Gajadhar was enrolled in a six-week program. Her attendance was very poor. Out of 22 scheduled sessions Mrs. Gajadhar attended only 7. Mrs. Gajadhar had gone to hospital on one of those dates complaining of very severe symptoms, but that hardly explains the extent of her non-compliance. I note that while testifying, Mrs. Gajadhar excused her non-attendance on the grounds that Dr. Kachooie told her that she did not have to attend if it hurt.

Throughout this winter period Mrs. Gajadhar was getting periodic injections in the lower back from Dr. Mughal.

Shortly after the accident Mrs. Gajadhar began to experience problems with incontinence. Initially her family doctors thought it might be related to stress. Mrs. Gajadhar testified that the problem did not arise until after the accident, and she maintains that the accident is the cause of the problem. Mrs. Gajadhar was referred by her family doctor to a specialist who has opined that the incontinence is caused by a prolapsed uterus, and is unrelated to the accident. I accept this expert opinion over the views expressed by Mrs. Gajadhar.

The Insurer's examinations

The TTC arranged for Dr. Gregory Soon-Shing to conduct an orthopaedic examination in February 1996. At that time her main complaint was in the upper, rather than the lower back. I note that on a review of the various medical reports Mrs. Gajadhar’s complaints are not always consistent. On some occasions the main complaint is the lower back, on others it is in the upper back and shoulder. While some variation is to be expected, arbitrators have frequently looked at consistency of complaints or the lack thereof as indicative of reliability. I also note that notwithstanding the focus on the upper back, Dr. Soon-Shing found limitation in the range of motion in the lower back, but not in the upper back. Dr. Soon-Shing concluded that Mrs. Gajadhar’s subjective complaints were out of keeping with her physical findings, but I note that he did not order or have access to her x-rays.

The TTC also arranged for a psychiatric examination by Dr. Rosenbluth in March 1996. He concluded that Mrs. Gajadhar had suffered from an adjustment disorder, but that she had responded to a short course of antidepressants. Dr. Rosenbluth opined that there was no psychiatric disability, but that Mrs. Gajadhar would benefit from a further four to eight sessions with the psychologist to deal with her phobia riding TTC buses.

It is difficult to discern what the extent of Mrs. Gajadhar’s depression was at this juncture. Dr. Rosenbluth records that Mrs. Gajadhar indicated to him that she had not felt depressed in the last few months. But he also records that financial stress and the constant attendance at doctors offices were contributing to her depression, and that she had recently been prescribed an antidepressant to be taken at night time.

As noted above, on the strength of these two reports, the TTC advised that it was terminating the weekly benefit and would not fund any more treatment, other than a few sessions to deal with the bus phobia. Mrs. Gajadhar requested both a disability and medical-rehabilitation DAC assessment.

The DAC Assessments

A. Disability DAC

The disability assessment was conducted at the AIM clinic in Scarborough during May and June 1996. It was a multidisciplinary assessment comprising a psychological assessment, an orthopaedic examination, and a functional abilities assessment by an occupational therapist and a medical doctor.

Mrs. Gajadhar told the psychologist, Dr. Schwartz, that she was not depressed, but also indicated that she was taking amitriptyline to help her sleep. This apparent contradiction may be explained in part by the assessor’s finding that Mrs. Gajadhar tended to want to portray herself as "normal" and "moral." He also noted a tendency to somatic complaints. I find that in contrast to Mrs. Gajadhar’s general tendency to exaggerate her physical complaints, she would appear to be inclined to understate her psychological difficulties.

Mrs. Gajadhar complained to the psychologist that she was having trouble concentrating, but formal testing showed "no indications...of substantial difficulties in cognitive, communicative and emotional spheres of functioning."

Dr. Schwartz concluded that she was not disabled.

The orthopaedic exam was conducted by Dr. Bushuk, who testified at the hearing. Mrs. Gajadhar again identified pain in her upper back as her most significant complaint.

Dr. Bushuk’s report is the first to deal with the degenerative changes in Mrs. Gajadhar’s low back. Dr. Bushuk testified that the CT scan revealed severe degenerative changes, and he stated that he would have expected Mrs. Gajadhar to have been symptomatic for some time. Mrs. Gajadhar told Dr. Bushuk that she had no prior symptoms. She also testified that she had no back trouble before the accident. However Mrs. Gajadhar told the assessors at the medical and rehabilitation DAC that in the past she had mild back pain that was controlled by medication. Notwithstanding Mrs. Gajadhar's present denial, I find that the degenerative changes in her back were symptomatic prior to the accident. It is impossible to ascertain how extensive the problem was before the accident. Mrs. Gajadhar had not been in Canada long, and a review of the brief pre-accident OHIP summary does not indicate any attendances for this type of problem.

Dr. Bushuk made two findings that are significant in relation to the extent of the back problem. One, there was no trouble with her gait, and two, there was no indication of any nerve root compression. However he did note that there was pain on forward flexion.

Dr. Bushuk rejected Dr. Kachooie's diagnosis of sacroiliac joint syndrome on the basis of her normal gait, a negative Trendelenberg test and a normal physical exam of the joint. However he did note that the sacroiliac joint is frequently the site for referred pain from discogenic sources, and suggested this could be the reason for the misdiagnosis.

Dr. Bushuk also rejected Dr. Kachooie's diagnosis of rotator cuff tendonitis or impingement syndrome. In that regard he relied upon his finding of normal range of motion in the shoulder, and a lack of point tenderness in the joint. Again Dr. Bushuk noted that the area is a common site for referred pain from the type of soft-tissue injury associated with a whiplash type injury.

While testifying, Dr. Bushuk made a point of reiterating his finding that Mrs. Gajadhar's complaints were completely out of keeping with the clinical findings. He also noted that there were a number of positive non-organic signs. He agreed that she might be prone to a chronic pain syndrome, but noted that her ability to get up and down from the exam table and to walk around without trouble suggested that it was not a true chronic pain syndrome. Otherwise he would have expected these activities to have caused her pain. He did admit that there appeared to be a psychological element to her condition.

Dr. Bushuk concluded that from a musculoskeletal perspective, Mrs. Gajadhar was not disabled.

The purpose of the functional abilities exam was to evaluate Mrs. Gajadhar’s ability to conduct usual household and child care duties. The assessors were able to ascertain that she was capable of performing some of the tasks such as limited cooking, cleaning the fridge, ironing, and cleaning the tub. They were unable to assess other functions such as cleaning the oven or stove, or laundry, because Mrs. Gajadhar complained that she could not complete the tasks due to pain, or dizziness and fatigue. I am unable to ascertain any significant difference in the set of tasks she was able to complete, as compared to those she could not, that would satisfactorily explain the divergence.

The assessors conducted a number of tests designed to determine if Mrs. Gajadhar was exhibiting maximum voluntary effort. They concluded on the basis of these tests that Mrs. Gajadhar was not participating fully.

The certificate signed July 10, 1996 by the complete assessment team stated; "it is our interdisciplined [sic] consensus opinion that Mrs. Gajadhar is not substantially disabled from the essential tasks as an employed individual." The type of employment is not identified in the certificate, but on a review of the individual reports, I am satisfied that the assessors were considering the tasks of a child caregiver and housekeeper.

B. Medical and Rehabilitation DAC

The Medical and Rehabilitation DAC assessment was conducted at North York Rehabilitation Centre Inc. in June 1996. It too was a multidisciplinary assessment, involving examinations by a chiropractor, neurologist, physiotherapist, occupational therapist, kinesiologist, psychologist, and medical doctor.

A review of the complaints to the various assessors reveals some marked differences. To one assessor she indicated that she was 50 percent recovered. Yet to another she made mention of new complaints such as difficulty toileting.

The functional testing was marked by inconsistent effort, non-organic findings, pain-focused behaviour, pain-magnification, and self-limiting due to reported pain. Mrs. Gajadhar demonstrated the ability to do only some of the tasks required to fulfill her duties as a housekeeper and nanny, but the assessors did not believe that the test results truly reflected her abilities. The general consensus was that she did not require any further physical treatment other than a home exercise program.

The neurologist made note of depression and somatization. He suggested that she be reassessed by a psychiatrist, and that her antidepressant medication be modified. The psychologist also noted symptoms of depression and post-traumatic anxiety. However the authors of the report felt that Mrs. Gajadhar had received sufficient psychological intervention other than possibly a few more sessions related to anxiety linked to riding on the bus. Mrs. Gajadhar reported that she was riding the bus but needed to take medication both before and after the trip.

Surveillance

The Insurer arranged for surveillance to be conducted. For the most part the tapes depict Mrs. Gajadhar getting in and out of cars, entering and leaving buildings and walking around. The evidence is only of limited value. Mrs. Gajadhar can be seen using her right arm in circumstances where she could easily use her left, which tends to undermine her claim that she cannot use her right arm. On the other hand when she is walking, she seems stiff to me, which is consistent with her low back complaints.

Ongoing treatment and assessment by the Applicant's treatment providers

In the spring of 1996, Dr. Kachooie referred Mrs. Gajadhar to Dr. Rad for acupuncture treatments. Mrs. Gajadhar had 24 sessions between April 12 and July 3. The TTC paid for the visits to June 19, but payment for the last five visits has been denied. Dr. Rad did not testify, nor were any reports authored by him filed into evidence. In light of the DAC assessment, and in the absence of any reply from Dr. Rad, this small claim is dismissed.

In the fall of 1996, Dr. Kachooie referred Mrs. Gajadhar to Dr. Safar Daei, a psychotherapist. Mrs. Gajadhar attended sessions throughout October and November 1996. Dr. Daei stated that the sessions ended because Mrs. Gajadhar was feeling better. In fact Mrs. Gajadhar took a trip to Trinidad at the time, and was not available for counselling. The sessions resumed in April 1997 and continued until December 1997. Dr. Daei stated that he treated Mrs. Gajadhar for depression and anxiety. He stated that as of the last visit her depression was improved and the anxiety had lessened, but that her memory and concentration were still problematic. He ended the sessions because he had done what he could for her. In a report dated December 15, 1997 he reported that notwithstanding the ending of treatment, she remained substantially disabled because she was still experiencing "a certain degree of anxiety, depression and residual pain symptoms which prevent her from resuming career responsibilities."

On cross-examination Dr. Daei stated that he would classify the level of her symptoms as moderate, and that it was the memory and concentration problems that were disabling. Dr. Daei did not do any formal cognitive testing, nor had he reviewed any of the previous psychological testing. He relied primarily upon Mrs. Gajadhar’s subjective complaints.

Mrs. Gajadhar’s niece’s husband testified that this Mrs. Gajadhar was no longer attentive and that he would not trust the children with her.

I reject Dr. Daei's diagnosis of disabling cognitive impairments. Mrs. Gajadhar is not an accurate historian, as is evidenced by inaccuracies in the information she provided to Dr. Daei, and others. Her subjective complaints of cognitive deficits are not borne out on testing and are belied by her own comment that she spends a lot of time reading, including on complicated medical issues. I do however accept that Mrs. Gajadhar did have ongoing psychological complaints that could benefit from treatment. Notwithstanding that the IME and DAC assessments suggested that Mrs. Gajadhar needed no more than a few sessions to deal with her bus phobia, both the assessments make note of her ongoing use of antidepressants and sleep aids, and both refer to low-grade depression. While it would have been helpful if Dr. Daei had secured the available reports so that he could have focused his efforts, I am satisfied that the treatment was necessary and reasonable.

While Mrs. Gajadhar was in Trinidad in December of 1996, she attended for three chiropractic treatment, at a cost of $600. Quite apart from the fact that on its face the fee seems exorbitant, there was no evidence tendered to contradict the conclusion of the DAC that no further chiropractic care was necessary. The claim is denied.

Mrs. Gajadhar submitted a receipt for an "ankle wrap." I heard no evidence in relation to this expense, and consequently it fails.

Dr. Omarali prescribed a lumbosacral support in May 1996. I heard no specific evidence in relation to this expense, but given the degenerative changes in her lower back, this would appear to be a reasonable expense. I earlier found that the back problem was symptomatic before the accident. However given the escalation in symptoms soon after the accident I am prepared to find that the accident played a sufficient role in the complaint to justify this relatively minor expense.

Mrs. Gajadhar submitted a prescription receipt for Alertonic Elix. The Compendium of Pharmaceuticals and Specialties describes it as a vitamin compound for vitamin B deficiencies. I heard no evidence as to how this was related to the accident. This claim is dismissed.

Mrs. Gajadhar submitted a receipt for a chiropractic treatment in October 1996. I heard no details concerning this expense and accordingly it is dismissed.

Mrs. Gajadhar submitted receipts for taxi fares totalling $504.25. I heard no evidence concerning these receipts. This may be due in part to the fact that at the end of Mrs. Gajadhar’s examination-in-chief, her counsel asked counsel for the TTC if he needed to go through the individual expense receipts. Counsel for the TTC replied that he could go back to it after cross-examination if that was necessary. Counsel for Mrs. Gajadhar did not return to these matters. In submissions, counsel for the TTC indicated that the taxi expenses were denied on the basis that the treatments to which the taxi trips related were unnecessary, or alternatively that Mrs. Gajadhar could have travelled to the appointments by TTC. Without assistance from counsel I am unable to ascertain where all the trips are to and from, but at least some of them would appear to be to the rehabilitation program at the Scarborough General Hospital. These sessions occurred before the DAC assessment suggested no further physical treatment was necessary. It would be reasonable to expect that the treatments would have caused Mrs. Gajadhar some discomfort and I think that a taxi fare is easily justified. On some of the other receipts there are references to needles in the back. We know that periodically Mrs. Gajadhar was receiving steroidal injections. I presume the references on the taxi receipts are to these injections. On their face, these too would appear to be reasonable. It is difficult to comment on the others without the benefit of any evidence or submissions. As a general comment I believe that the taxi trips to and from therapy are justified. If this relatively minor claim cannot be settled, I may be spoken to.

Mrs. Gajadhar was referred by Dr. Kachooie for massage treatment, in the spring of 1996. She attended eight sessions in April. Mrs. Gajadhar testified that she stopped this form of treatment because it caused spasm in her back. The sessions took place in the interval between the IME by Dr. Soon-Shiong and the medical and rehabilitation DAC. Dr. Soon-Shiong indicated that passive treatment would not have long-term effect. That may be so, but in my view, in light of her ongoing complaints of back pain a short trial of massage therapy was a reasonable course of action, and the expense is allowed.

I will deal with the claim for housekeeping expenses related to the cleaning of Mrs. Gajadhar's bedroom in a moment, but first I return to the question of the income replacement benefit.

Mrs. Gajadhar relied very heavily upon Dr. Kachooie's opinion to substantiate her claim for a disability benefit. Dr. Kachooie saw Mrs. Gajadhar periodically throughout 1996 and 1997. He arranged for various tests including CT scans, X-rays, and nerve conduction studies. He also conducted a number of physical examinations, and arranged for a number of the treatments as set out in the preceding pages of this decision. Dr. Kachooie described his role as the co-ordinator of her musculoskeletal treatment.

In a medical-legal report dated October 27, 1996, Dr. Kachooie stated that Mrs. Gajadhar remained "totally disabled" on the grounds that repetitive lifting and bending would aggravate her symptoms. In a January 1998 updating report he noted that she continued to be symptomatic with neck, low back pain, and chronic myofascial pain syndrome. He reported "moderate improvement" in the level of pain and function but stated that persistent symptoms of pain in her neck and back and periodic acute flareups continued to limit her function.

In addition to the earlier diagnosis Dr. Kachooie found evidence of carpel tunnel syndrome in Mrs. Gajadhar's right arm.

Arbitrators have frequently relied upon the testimony of family doctors or co-ordinating specialists such as physiatrists, commenting upon the fact that these doctors, by virtue of their ongoing contact with the individual, have the broadest and most in-depth understanding of the patient's condition. However, in this case, I find that Dr. Kachooie did not have a clear picture of Mrs. Gajadhar's condition, or the course of her treatment.

Notwithstanding the fact that Dr. Kachooie identified himself as the co-ordinator of her musculo-skeletal care, he did not order copies of test results or reports, except from those sources he himself referred Mrs. Gajadhar to. Nor did he review the IME reports or DAC reports in advance of testifying. Consequently, Dr. Kachooie did not have as complete a picture as might be expected. By way of example, I point to the fact that he reported in the spring of 1996, that Mrs. Gajadhar had not had any active rehabilitation since leaving the CBI, and that in his opinion she was well motivated and would do well in a structured program. When making these comments and judgments, he was unaware of Mrs. Gajadhar’s enrollment at the Scarborough General Hospital Sports and Injury Rehab clinic, and the rather limited results obtained due to Mrs. Gajadhar’s poor attendance. By way of a second example I point to his criticism of the CBI program, made without the benefit of a review of the program expectations for Mrs. Gajadhar.

Because Dr. Kachooie did not obtain reports from secondary sources he did not have alternate information against which to verify the information being provided by Mrs. Gajadhar. Dr. Kachooie testified that he has a great deal of experience assessing patients with musculoskeletal complaints and can verify the authenticity of their complaints in a number of ways. Dr. Kachooie stated that he believed Mrs. Gajadhar had a low pain threshold and a tendency to exaggerate her symptoms, but that in general he had no reason to doubt her credibility. I have found otherwise. In any patient with chronic complaints there is an element of preoccupation and exaggeration that is expected and legitimate. However I have set out a number of instances where I found that Mrs. Gajadhar was consciously attempting to deceive. By way of another example I point to the examination by Dr. Bushuk. He testified that Mrs. Gajadhar flinched and complained upon even light touch. Dr. Kachooie admitted that he had not witnessed any such demonstration.

Dr. Kachooie’s comment that he witnessed some exaggeration in her complaints suggests that he was not entirely reliant upon Mrs. Gajadhar’s self-reporting, but a review of his reports satisfies me that he did rely heavily upon her subjective complaints. Having the benefit of reviewing all of the treating and assessment reports, and noting the number of inconsistencies in Mrs. Gajadhar's evidence, I am not prepared to rely as heavily upon those subjective complaints as was Dr. Kachooie.

In the circumstances I prefer the opinions of the IME and DAC assessors, who concluded that Mrs. Gajadhar was not disabled. Legitimate criticism can be levelled at each of the individual reports, but taken as a group they represent overwhelming evidence that there is no physical impairment that would prevent Mrs. Gajadhar from returning to work as her niece's housekeeper and nanny. Mrs. Gajadhar clearly has some limitations. Some such as the upper back and shoulder would appear to be directly related to the accident. The limitations resulting from the degenerative changes in Mrs. Gajadhar's back were exacerbated by the accident. Other problems such as the carpel tunnel cannot be attributed to the accident. However the key point is that these physical limitations are insufficient to cause a "substantial inability" to carry out her employment.

In the absence of any physiological explanation, Mrs. Gajadhar's claim must rest upon limitations resulting from the pain caused when Mrs. Gajadhar attempts activity. The most striking feature of the various attempts to measure Mrs. Gajadhar's functional abilities was the inconsistencies and the lack of effort. In light of the various negative findings concerning Mrs. Gajadhar's credibility, I conclude that many of the inconsistencies are the result of Mrs. Gajadhar's deliberate attempts to overstate her disability.

I accept that Mrs. Gajadhar has a low pain threshold, and that she continues to suffer from residual problems from the accident. No doubt the degenerative changes in her lower back will be a lifetime burden, but Mrs. Gajadhar has not presented sufficiently consistent and credible evidence to satisfy me that she is incapable of fulfilling the essential tasks of her employment.

In reaching the conclusion that Mrs. Gajadhar is capable of returning to her duties if she chooses to, I place considerable weight on the nature of the job duties and the relatively light physical demands. With respect to the child care responsibilities, only one of the children has to be lifted, and only on a few occasions per day. With respect to the housework, I note that the residence is a three-bedroom apartment, contained all on one floor. The best evidence suggests that Mrs. Gajadhar spent about two hours per day cleaning. Keeping in mind Dr. Kachooie’s comments that it was repetitive bending and lifting that is problematic, I see no reason why Mrs. Gajadhar cannot organize her affair if she chooses, so as to allow her to complete her duties. Some of the heavier cleaning such as the oven or fridge may be more difficult, but these are occasional tasks, around which other duties may be arranged so as to provide some relief.

I completely reject the notion that Mrs. Gajadhar is incapable of cleaning even her own bedroom. None of the medical evidence supports this allegation. It is this type of gross exaggeration that undermines Mrs. Gajadhar’s credibility.

Expenses:

While a large part of Mrs. Gajadhar’s claim failed, other portions were successful, and in ordinary circumstances I would expect that Mrs. Gajadhar would be entitled to her arbitration expenses. If this matter cannot be resolved, I may be spoken to.

Order:

1. Mrs. Gajadhar’s claim for further income replacement benefits is dismissed.

2. The TTC shall pay to Mrs. Gajadhar $4,860 representing the account of Dr. Safar Daei.

3. The TTC shall pay to Mrs. Gajadhar $129.77 representing the cost of a lumbosacral support.

4. The TTC shall pay to Mrs. Gajadhar $599.20 representing the cost of massage therapy administered by the Therapeutic Massage Clinic.

5. Mrs. Gajadhar’s claim for reimbursement of chiropractic treatments is dismissed.

6. Mrs. Gajadhar's claim for reimbursement of an ankle wrap is dismissed.

7. Mrs. Gajadhar's claim for reimbursement of a prescription for Alertonic Elix is dismissed.

8. Mrs. Gajadhar's claim for housekeeping expenses is dismissed.

9. Mrs. Gajadhar is entitled to interest on outstanding expenses in accordance with section 68 of the Schedule.

December 1, 1998

Stewart McMahon Arbitrator

Date

Appendix

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on February 17, 18, 19 and 27, 1998 and March 20, 1998, before me, Stewart McMahon, Arbitrator.

Present at the Hearing:

Applicant: Mrs. Clara Gajadhar

Mrs. Gajadhar's Representative: Mr. David F. Longley Barrister and Solicitor

TTC's Representative: Mr. Boyd Critoph Barrister and Solicitor

TTC’s Officer: Mr. Raman Trichur

Witnesses: The Applicant Mr. Harminder Sandhu Dr. A. Kachooie Dr. Allan Rosenbluth Dr. Safar Daei Mr. Roger Davidson

Exhibits: Twelve exhibits were filed at the hearing.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 2, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3Insurers and their representatives must recall that the insured person has the right to select the treatment centre, and they [the insurers]must be careful not to persuade their insureds to change facilities without very good reason.