Financial Services Commission of Ontario

Neutral Citation: 1999 ONFSCDRS 257

FSCO A98-001038

BETWEEN:

MUDASSAR SHEIKH

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Beth Allen

Heard: June 28, 29 and 30, and October 12 and 13, 1999.

Appearances: Marcel Strigberger for Mr. Sheikh Shawn Patey for Liberty Mutual Insurance Company

Issues:

The Applicant, Mudassar Sheikh, was injured in a motor vehicle accident on October 14, 1995. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual paid Mr. Sheikh income replacement benefits (IRBs) under section 7 of the Schedule from October 21, 1995 until February 18, 1998, when benefits were terminated as a result of the findings of a disability assessment by a Designated Assessment Centre (DAC). Mr. Sheikh seeks reinstatement of his IRBs at the established rate from the benefit termination date onwards, and also asserts that Liberty Mutual is required to make a loss of earnings capacity benefit (LECB) offer. Mr. Sheikh also seeks payment under section 36 of the Schedule for expenses incurred for transportation to and from medical appointments. The parties were unable to resolve their disputes through mediation and Mr. Sheikh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the Act).

The issues in this hearing are:

1. Is Mr. Sheikh entitled to further IRBs under section 7 of the Schedule from the benefit termination date onwards?

2. Is Mr. Sheikh entitled to an LECB offer pursuant to section 21 of the Schedule?

3. Is Mr. Sheikh entitled to expenses for transportation to and from medical appointments pursuant to subsection 36(1)(g) of the Schedule?

4. Is Mr. Sheikh entitled to his expenses incurred in the arbitration pursuant to subsection 282(11) of the Act?

Result:

1. Mr. Sheikh is not entitled to further IRBs under section 7 of the Schedule.

2. Mr. Sheikh is not entitled to an LECB offer pursuant to section 21 of the Schedule.

3. Mr. Sheikh is not entitled to expenses for transportation to and from medical appointments pursuant to subsection 36(1)(g) of the Schedule.

4. I reserve my decision on the expense issue. The question of expenses may now be addressed.

EVIDENCE AND ANALYSIS:

Pre-Accident Employment:

Mr. Sheikh resides with his wife and three minor children. Before coming to Canada in 1979, he had attained about a grade nine education. Mr. Sheikh was employed before the accident as a spot welder and his wife did not and continues not to work outside the house. Mr. Sheikh was employed in this capacity for about 15 years with a steel factory, Baron Metal Industries Inc. (Baron Metal), a manufacturer of steel door frames. During an eight-and-a-half hour shift, Mr. Sheikh would weld about 300 door frames which required him to perform about 600 transactions involving standing, repetitive bending, turning at the waist and lifting of 20-pound frames from three foot high skids, spot welding them by pressing a foot-pedal, and lifting and placing the frames back on skids. This work required Mr. Sheikh to use both hands and arms.

Mr. Sheikh's employer terminated his employment effective February 7, 1996 after he failed to respond to previous inquiries about his return to work.

The Accident:

Mr. Sheikh, then aged 34, was involved in an accident on October 14, 1995. He was driving with his two children as passengers. Another vehicle rear-ended his car when he was stopped at a red light. One of the children sustained a bloody mouth in the accident. I received no evidence that the child sustained any further injuries or suffered any ongoing effects.

Initially, Mr. Sheikh complained of neck, bilateral shoulder and lower back spasm and pain, with no significant improvement. Dr. M.U. Shaikh also noted complaints of dysphagia (problems with swallowing). However, over the months and years following the accident, Mr. Sheikh's complaints, both psychological and physical, have escalated very significantly.

Mr. Sheikh alleges that his neck, lower back, shoulder problems and a left leg condition are attributable to the accident. He further claims that the accident aggravated an old left-shoulder condition and caused a host of psychological and emotional problems. He also asserts that he was emotionally affected after seeing the bloody mouth his child sustained in the accident and claims he has developed a fear of driving, but drives occasionally. Mr. Sheikh submits that he was able to work at his physically-demanding job until the day of the accident and any medical conditions he may have had before the accident were minor and did not interfere with his ability to work.

Liberty Mutual disputes all of Mr. Sheikh's claims and submits: that the accident was not of sufficient impact to cause continuous and disabling injuries; and that if Mr. Sheikh has severe psychological and emotional problems and a disabled neck, left shoulder, lower back and left leg, these conditions were not caused by the accident.

Liberty Mutual filed into evidence a property damage appraisal dated October 17, 1995 (with photographs) in which the damage to the car was estimated to be $294.17. Mr. Sheikh contended that the damage to the car was about $1,000, but filed no documentation to substantiate this claim. During his testimony, he did not recall the nature of the damage to the car. In absence of persuasive evidence to the contrary, I accept that the damage to the car was $294.17.

There is conflicting evidence as to whether or not Mr. Sheikh struck his head and/or lost consciousness. This evidence is important because of the extensive emotional and psychological problems Mr. Sheikh claims he has been experiencing since the accident.

Mr. Sheikh testified that with impact, he hit his left cheek, felt dizzy and saw stars. However, this evidence conflicts with the emergency report from Etobicoke General Hospital where his wife drove him after the accident. The emergency report notes that Mr. Sheikh "did not hit [his] head". Nor is there a note that he hit his cheek. Mr. Sheikh testified that he does not recall whether or not he reported to the medical staff that he had struck his head. The report states that Mr. Sheikh sustained lumbar and cervical spine strains. No x-rays were taken at the hospital. He was prescribed pain killers and, according to the emergency report, he was released from emergency after 35 minutes.

In contradiction to the emergency report, Mr. Sheikh and his wife testified that he struck the left side of his face and it developed a bruise two days later that was "all blue and bumpy." Mr. Sheikh testified that when he saw his family physician, Dr. M.U. Shaikh, after the accident, he (Mr. Sheikh) told him that he hit his head. Dr. M.U. Shaikh's clinical note for October 16, 1995 contains no reference to bumps or blue bruising on his face, but notes that the left side of his face was "more tender than the right." In his report of August 28, 1996, Dr. M.U. Shaikh looks back at the October 16, 1995 visit, and notes that Mr. Sheikh's "head was unremarkable but the left side of his face was red and a bit swollen because of the contusion injury." There is no mention of Mr. Sheikh hitting his head in any of his clinical notes and records or reports. Further, Dr. M.U. Shaikh did not clarify in testimony whether he thought Mr. Sheikh had hit his head. He also failed to satisfactorily explain why his clinical notes contain no reference to bruising or contusion on his face or head, symptoms which would likely have been observable during Mr. Sheikh’s first post-accident visits — on October 16, 1995 (two days post-accident) and/or on October 23, 1995 (nine days post-accident).

Mr. Sheikh told different health care practitioners that he lost consciousness for varying lengths of time. According to Dr. Jeffrey Lee's (a treating chiropractor) November 2, 1995 report, he was unconscious for about five minutes; Dr. Adrian Hanick's (a psychiatrist to whom Dr. M.U. Shaikh referred Mr. Sheikh) June 10, 1997 report records 15 minutes; Dr. Sam Ozersky's (a psychiatrist retained by Liberty Mutual) July 6, 1997 report notes two to five minutes; Dr. D. J. McGonigal's (a DAC orthopaedic surgeon) report of January 3, 1998 records that Mr. Sheikh did not remember how he got injured; and Dr. Rava Kakar's (his treating psychiatrist) March 25, 1998 report notes about five minutes.

When cross-examined about these discrepancies, Mr. Sheikh testified that he meant that he was dizzy and seeing stars, and explained that he does not express himself very well in English. When Liberty Mutual's counsel pointed out that Dr. Kakar communicated with him in Punjabi (as Dr. Kakar noted in his testimony), Mr. Sheikh repeated that he meant he was dizzy and seeing stars. I did not find this explanation very helpful. Mr. Sheikh acknowledged under cross-examination that neither his family doctor, nor any other health care practitioner, referred him to be assessed for a head injury.

I find that Mr. Sheikh more likely than not struck the left side of his face with enough impact to make it tender, but not to the extent that he was bruised or lost consciousness.

Psychological/Emotional Complaints:

Mr. Sheikh testified that he did not have a history of emotional or psychiatric problems before the accident. Dr. M.U. Shaikh's records contain the first reference to anxiety in an entry dated February 6, 1996. I note that the letter from Baron Metal terminating Mr. Sheikh's 15-year employment (which notice followed earlier inquiries about Mr. Sheikh's return to work) is dated February 7, 1996. Dr. M.U. Shaikh's first reference to depression is noted on June 6, 1997. In June 1997, over a year-and-a-half post-accident, Dr. M.U. Shaikh sent him to a psychiatrist, Dr. Adrian Hanick, following the complaints of anxiety and depression. Dr. Hanick's report of June 10, 1997 contains numerous additional physical and psychological complaints including: headaches, low back pain, leg pain, left shoulder joint pain, tinnitus, lightheadedness, hearing loss, noise sensitivity and gastric upset; and temper problems, social isolation, worry and dysphoria, diminished appetite, weight loss, hair loss, sleep disturbance, fear of driving, memory problems, learning problems and anxiety. Dr. Hanick opined in his June 7, 1997 report that the motor vehicle accident has brought about Mr. Sheikh's state of psychological, emotional and physical impairment.

Two months after Dr. Hanick began his treatment, Dr. M.U. Shaikh sent Mr. Sheikh to Dr. Kakar, a psychiatrist with a common language and cultural background to Mr. Sheikh. Mr. Sheikh claims that since the accident, he has lost his ability to speak English. For this reason, Dr. M.U. Shaikh felt it would be helpful for Mr. Sheikh to see Dr. Kakar. Dr. Kakar first began treating Mr. Sheikh in August 1997, nearly two years post-accident, and has continued to treat him for the past two years on a once-monthly basis until today. He prepared reports dated September 25, 1997, March 25, 1998 and June 10, 1999.

Dr. Kakar's reports paint a picture of a man with very significant psychological, cognitive and emotional problems. He describes Mr. Sheikh as displaying extreme depression, anxiety, fatigue, forgetfulness, lack of motivation, sadness and lapses in concentration and attention. He diagnosed chronic pain disorder, major affective disorder, unipolar depression, non-psychotic pseudodementia and severe panic disorder. Dr. Kakar further diagnosed obsessive compulsive personality trait, low self-esteem, severe stress, headaches and bilateral shoulder pain.

Dr. Kakar also described the behavioural manifestations of Mr. Sheikh's condition — an inability to keep track of time and conversations, extreme psychomotor retardation, an inability to watch television or to read books, talking to himself, agitation, impatience, "sit[ting] for hours staring into space not even responding to his own name" and "lost in his own world not paying attention to what was happening in the interview..." However, Dr. Kakar concluded that "[t]here was no evidence of any formal thought disorder, hallucination, delusion or depersonalization..." Dr. Kakar also testified that Mr. Sheikh became incontinent in his office during one of his sessions. He testified that Mr. Sheikh displayed the objective signs of an underlying psychiatric disturbance — dry tongue, palpitation, tachycardia, sweating, shaking, hand wringing and difficulty breathing and swallowing. Dr. Kakar prescribed medication for depression and anxiety.

Dr. Kakar gave Mr. Sheikh a poor prognosis and concluded that Mr. Sheikh was completely and permanently disabled from doing any type of work and in his September 25, 1997 report stated that "I don't think this man is even currently able to look after himself." In this report, Dr. Kakar notes that Mr. Sheikh experiences a "severe amount of stress related to being involved in MVA and its sequelae." However, it is not clear from his reports whether he attributes all of Mr. Sheikh’s psychological and emotional conditions to the accident.

Liberty Mutual questioned Dr. Kakar as to whether he had contacted the Ministry of Transportation to have Mr. Sheikh's driver's licence suspended in view of his attention, concentration, memory and psychomotor problems. Dr. Kakar said he had not done so because he believed Mr. Sheikh only drove for short distances.

Dr. M.U. Shaikh's records contain no references to any severe psychiatric or behavioural problems. Over an approximate three-year period after the accident, he has conducted half-hour psychotherapy sessions with Mr. Sheikh during medical visits. Yet it appears that he did not observe the striking problems described by Drs. Hanick and Kakar in their reports to him (Dr. M.U. Shaikh). His records contain only bare references to anxiety and depression. Despite the extreme picture of disability described by the psychiatrists, Dr. M.U. Shaikh did not refer Mr. Sheikh to a psychiatric facility. Dr. Kakar did not do so until August 1999, two years after he began observing Mr. Sheikh's extreme emotional and cognitive problems. There is no evidence whether Dr. Kakar made this referral in response to Drs. Herschberg's and Sood's recommendations (discussed below). Nor, in light of Mr. Sheikh's behaviour, did Dr. M.U. Shaikh seek to have his driver's licence suspended. In fact, Dr. M.U. Shaikh testified that he urged Mr. Sheikh to drive when he was well.

The psychiatrists Liberty Mutual retained to assess Mr. Sheikh and the DAC psychiatrists present somewhat different evaluations of Mr. Sheikh.

Dr. Ozersky assessed Mr. Sheikh on behalf of Liberty Mutual in July 1997, one month after Dr. Hanick saw him and one month before Dr. Kakar began his treatment. In his July 6, 1997 report, he notes that Mr. Sheikh identified his principal complaint as marital distress due to his inability to support his family. Dr. Ozersky's report also indicates that Mr. Sheikh reported feelings of hopelessness and lack of motivation to tend to his personal hygiene. Dr. Ozersky noted mild concentration and motivation impairments, but concluded that these were not of such a nature as to disable him from returning to his job. According to the report, Mr. Sheikh seemed "somewhat frightened and a bit anxious, but did not display any physical signs of anxiety."

Dr. Ozersky noted that Mr. Sheikh "walked up the stairs to my office without any difficulties of posture or gait." He also indicated that he noticed no difficulties in attention or concentration, although Mr. Sheikh seemed to speak with a "downcast tone." In spite of Mr. Sheikh's complaints of pain and anxiety, Dr. Ozersky found that his heart rate was normal, which he concluded to be an unusual finding since "[o]ne would expect heart rates of above 100 if there was any kind of significant pain or anxiety or discomfort." He found no evidence of suicidal ideation or mood lability. Dr. Ozersky attributed any possible sign of cognitive impairment to a language barrier.

Dr. Ozersky concluded that Mr. Sheikh exaggerated his symptoms and found for this reason that it would be difficult to diagnose major depressive illness. He found Mr. Sheikh's psychological stressors were marital and financial problems. He offered a prognosis of "poor" in view of the operative secondary gain factors and his lengthy unemployment.

Mr. Sheikh had the assistance of a professional Punjabi interpreter during the disability DAC assessment Dr. Herschberg conducted on December 18, 1997. Dr. Herschberg opined that Mr. Sheikh was malingering and feigning psychiatric illness. After asking Mr. Sheikh some questions, he concluded that Mr. Sheikh exhibited the characteristics of "pseudologica fantastica." This term describes a psychiatric symptom where a person gives an approximate or "near miss" answer to a question such that it is apparent that to give that answer, he would have had to know the correct answer. Dr. Herschberg cited the example of Mr. Sheikh's answer to an inquiry about his birthday. Mr. Sheikh stated that his birthday is February 16, 1961, when his actual birthday is March 16, 1961.

In his report, Dr. Herschberg referred to the medical reports of other doctors who had previously seen Mr. Sheikh. He noted, in contrast to the information Mr. Sheikh provided to the other doctors, that Mr. Sheikh did not remember how the accident occurred - whether it was a rear-end or head-on collision. However, according to Dr. Herschberg, Mr. Sheikh did recall that he hit his head on the steering wheel and lost consciousness.

Dr. Herschberg also reported and testified that Mr. Sheikh displayed some rather unusual behaviour. About 30 minutes into the interview, Mr. Sheikh pulled a piece of newspaper from his pocket and began tearing it into pieces and eating it at five to ten minute intervals. When Dr. Herschberg inquired about why he ate the newspaper, he responded "people were saying bad things about him" and he was "heading for the moon." Dr. Herschberg questioned why a person who appeared to display such extreme psychiatric distress would remain in the community rather than inside a psychiatric institution.

Dr. Herschberg concluded that "[i]t is hard to imagine that a minor rear-end collision, producing less that $300 worth of damage, could account for his clinical presentation." He further concluded that Mr. Sheikh does not suffer from any emotional, behavioural or cognitive deficits directly as a result of the accident.

Dr. B.D. Sood, a psychiatrist, also assessed Mr. Sheikh, with the aid of a family member as an interpreter, in conjunction with a MedRehab DAC assessment. In his report dated October 18, 1998, Dr. Sood described Mr. Sheikh as extremely tense and fidgety, with multiple somatic anxiety complaints. He displayed poor recall, poor concentration, pre-occupation with physical symptoms, crying and a need for assurance, slow and laboured speech, and dull affect. However, he showed no evidence of hallucination or suspicion. According to Dr. Sood, Mr. Sheikh spoke of suicide and complained of serious marital problems. Based on Mr. Sheikh's self-report and the other medical documentation he reviewed, Dr. Sood diagnosed moderate to severe depression and recommended ongoing psychiatric care and in-patient observation at a psychiatric facility. He made no comment about a connection between Mr. Sheikh's need for psychiatric care and the accident.

In August 1999, Dr. Kakar referred Mr. Sheikh to be assessed by Dr. D. M. Magder at the Depression Clinic at the Centre for Addiction and Mental Health, Clarke Division. Mrs. Sheikh and a cousin helped with interpretation. Dr. Magder indicated in his August 29, 1999 report that he would not provide an opinion on the connection, if any, between Mr. Sheikh's medical condition and his car accident. In his report, Dr. Magder described Mr. Sheikh as staring fixedly into space, having little spontaneous movement, and having a pained expression on his face. He commented that he understood that Mr. Sheikh spends most of his time lying in bed or sitting in a chair all day and at times suffers from incontinence.

In summary, Dr. Magder stated that a diagnosis is difficult. He concluded that Mr. Sheikh presents a picture of depression but stated,

...although many unusual and idiosyncratic aspects of his presentation, especially his rather stereotyped behaviour and inability to engage, perhaps suggest that there are some atypical and unusual features not associated with depression. The extreme lack of activity at home including the incontinence is again very unusual.

Dr. Magder recommended that Mr. Sheikh be treated "as if" he were suffering from a major depression.

Analysis of the emotional/psychological evidence:

Mr. Sheikh presented as a very poor historian. When testifying, he did not display the stuporous and trance-like behaviour or extreme communication problems described by Dr. Kakar.

Mr. Sheikh seemed generally alert, although he appeared at times to close his eyes. Although he answered the majority of questions, much of his testimony was of limited value because he answered "I don't remember" to questions in crucial areas of evidence. I find on the whole, that the reliability of Mr. Sheikh's evidence has been adversely affected by his inconsistent presentation to medical practitioners, by his inconsistent accounts about the accident, and his alleged loss of consciousness and injury to his head.

I accept Dr. Herschberg's opinion that Mr. Sheikh's emotional and psychological symptoms and behaviour were very inconsistent with the minor impact of the accident. Dr. Herschberg concluded and I find that it is hard to imagine a minor rear-end collision with minimal damage accounting for Mr. Sheikh's extreme clinical presentation, particularly under circumstances where there is no credible evidence of a head injury or loss of consciousness.

My view of the psychological evidence is further fortified by what I consider to be glaring inconsistencies within this evidence. I am referring specifically to inconsistencies between Dr. M.U. Shaikh's and Dr. Kakar's evidence. Because of these inconsistencies, I am not prepared to give a great deal of weight to Dr. M.U. Shaikh's and Dr. Kakar's evidence about Mr. Sheikh's psychological problems. I also find that Dr. M.U. Shaikh and Dr. Kakar presented as advocates for Mr. Sheikh rather than objective medical witnesses.

For instance, I find it hard to accept that Dr. Kakar has treated Mr. Sheikh for over two years with little improvement in his condition to the present, supposedly observing a very clinically dysfunctional presentation, and yet he did not find it necessary to treat Mr. Sheikh more frequently than once a month. Over the two years, Dr. Kakar did not, until around the time of the hearing, consider it important for Mr. Sheikh's welfare to refer him for assessment or treatment by a psychiatric facility, even though he found Mr. Sheikh unable to look after himself. This is also despite Dr. Herschberg's comments in December 1997 and Dr. Sood's recommendation in October 1998 that Mr. Sheikh be observed as an in-patient in a psychiatric facility.

I am further troubled by Dr. Kakar's contention that despite Mr. Sheikh's problems, it is all right for him to drive short distances. Dr. Kakar testified that he leaves it to Mr. Sheikh to decide when he is well enough to drive. If indeed Mr. Sheikh has the problems Dr. Kakar has described, I find that driving under these circumstances would compromise not only Mr. Sheikh's safety but also the safety of other drivers and pedestrians. I received some evidence that Mr. Sheikh has driven since the accident. Mr. Sheikh and his wife testified to this. As well, video surveillance depicts Mr. Sheikh in February 1999 at a self-serve gas station, filling his car's gas tank, adjusting the car mirrors and driving away, with no apparent difficulty. This raises some doubt that Mr. Sheikh suffers from as severe a psychological problem as he claims. I find it difficult to believe that he could occasionally recover from such extreme psychological symptoms to the point where he has the cognitive facility at times to drive a car.

I also find Dr. M.U. Shaikh's medical evidence problematic. In spite of the fact that he has been conducting half-hour psychotherapy sessions with Mr. Sheikh for over three years, and he had received reports from Drs. Hanick and Kakar, his clinical notes and reports contain absolutely no references to any extreme or unusual behaviour. Dr. M.U. Shaikh testified that he deferred to Dr. Kakar's judgement of whether Mr. Sheikh should be permitted to drive.

In looking at Drs. Ozersky's and Herschberg's evidence, I took into account that they each saw Mr. Sheikh on only one occasion. However, both of these doctors found that Mr. Sheikh exaggerated his condition, and attributed his problems to factors such as feigning, malingering and a desire for secondary gain because of financial and marital stressors.

Although it is somewhat difficult to make sense of the psychological/psychiatric evidence, I find that I can readily draw one conclusion — that Mr. Sheikh did not establish that he had any disabling psychological or emotional injuries as a consequence of his minor-impact car accident. I find it is not likely that viewing his son's bloody mouth after the accident had the significant impact on Mr. Sheikh that he alleges since I have no evidence that he complained to his treating doctors about the effect on him of his son's injury.

Looking at the totality of the evidence before me, I can reasonably infer that Mr. Sheikh quite likely suffers from some non-accident related psychological and emotional problems. For instance, it is reasonable to expect Mr. Sheikh to be very troubled about the state of his left shoulder (discussed below) just before the accident, especially in view of the physical demands of his job. Mr. Sheikh also subsequently lost his 15-year job and would understandably find the prospect of finding another one very distressing given his limited education, skills and facility with English. He also spoke to the various psychiatrists about his financial and marital problems.

However, I find he exaggerated his problems at times particularly when he saw Dr. Hanick, Dr. Kakar and Dr. Herschberg. I think it is likely that Dr. Kakar suspected that Mr. Sheikh was exaggerating, which I believe might explain his seeming lack of concern about him driving. I also find it difficult to believe, if Mr. Sheikh displayed this behaviour with Dr. M.U. Shaikh, that his family physician would not have noted this in his records. It is therefore reasonable to conclude that Mr. Sheikh did not exhibit the same behaviour when attending Dr. M.U Shaikh. I note that the period Dr. Kakar treated Mr. Sheikh coincided with that of Dr. M.U. Shaikh. I find that if Mr. Sheikh's extreme presentation were a true reflection of his level of psychopathology, it is unlikely that he would have behaved so differently during the same period before two doctors. Dr. Herschberg concluded, and I agree, that Mr. Sheikh intentionally produced his extreme symptoms.

I therefore conclude that Mr. Sheikh did not sustain any psychological or emotional impairments as a result of the accident that would disable him from resuming his employment.

Physical complaints:

Left shoulder condition:

Mr. Sheikh contracted polio in his left shoulder during his infancy. He admitted to having pre-accident problems with left shoulder abduction. However, he claims this problem was corrected by surgery performed by Dr. Geoffrey Lloyd (an orthopaedic surgeon) in May 1983. Mr. Sheikh downplayed the effects of a left shoulder disability on him before the accident. He denied under cross-examination that he ever took time off work because of this. A portion of Mr. Sheikh's employment file was produced at the hearing. However, the documents in the file do not assist in explaining the reason(s) for his absences from work in the year before the accident.

The pre-accident clinical notes and records of a previous family doctor, Dr. B. Lau, note numerous complaints of shoulder pain and prescriptions for pain medication from 1993 up to months before the accident. In May 1993, Dr. Lau reported a pulled left shoulder muscle and his records contain numerous left shoulder complaints up to June 1995. Dr. M.U. Shaikh records in entries from July 1995 to September 1995, left shoulder pain with movement, weakness and muscle wasting. He also prescribed pain medication.

One month before the accident, in a report dated September 18, 1995, Dr. B.S. Sehmi, Mr. Sheikh's treating orthopaedic surgeon, reported that for the past two or three years, Mr. Sheikh was having increasing problems using his left shoulder. Dr. Sehmi stated: "His job has been heavy and now, he cannot abduct. Clinically, it appears that the muscle transfer has torn off ..."

In testimony, Dr. Sehmi explained these comments. He indicated that his last appointment with Mr. Sheikh before September 1995 was in 1984. Dr. M.U. Shaikh had referred Mr. Sheikh to him (Dr. Sehmi) because, over the previous two or three years, Mr. Sheikh was again having shoulder problems. Dr. Sehmi testified that at the September 15, 1995 visit, Mr. Sheikh was in a great deal of pain and could not abduct his shoulder, which led Dr. Sehmi to suspect, on clinical examination, that the muscle transfer Dr. Lloyd performed in 1983 had ruptured. Dr. Sehmi explained that he did not know the details of Dr. Lloyd's surgery so his diagnosis was not definite. However, when cross-examined, Dr. Sehmi acknowledged that it would have been difficult on September 15, 1995 for Mr. Sheikh to do his job as a welder. The accident occurred one month later, on October 14, 1995.

In his March 20, 1996 report, Dr. Lloyd opined that surgery would not be of assistance to Mr. Sheikh. He noted in his April 7, 1997 report that Mr. Shaikh's left shoulder "has a deformity of the humeral head, together with osteoarthritic changes to the region of the glenohumeral joint." Like Dr. M.U. Shaikh, Dr. Lloyd concluded that Mr. Sheikh's left shoulder was vulnerable because of his pre-accident condition and he did not believe that Mr. Sheikh could resume his welding job.

Dr. Fred Langer, an orthopaedic surgeon who saw Mr. Sheikh on July 15, 1997 on behalf of Liberty Mutual, found that Mr. Sheikh's complaints of left shoulder impairment were referable solely to his pre-accident status. He opined that there is no evidence that this condition was affected by the accident.

Dr. D.J. McGonigal, an orthopaedic surgeon who conducted a disability DAC assessment on December 29, 1997, came to a similar conclusion. He stated in his January 3, 1998 report that Mr. Sheikh had significant symptomatology and abnormal findings before the accident and there is no evidence that he sustained an injury to his shoulder in the accident. Dr. McGonigal concluded that the shoulder impairment is permanent but unrelated to the accident.

Cervical and lumbar spine conditions:

The medical evidence reveals that pre-accident, Mr. Sheikh had mild degenerative changes in his cervical spine.

The medical evidence also discloses that Mr. Sheikh experienced pre-accident back problems. Dr. Lloyd's April 7, 1997 report states that his lumbar spine shows slight scoliosis (probably secondary to polio) and "quite significant degenerative disc disease at the L5-S1 level." As well, a radiological report dated May 21, 1998 reveals a central disc herniation at L4-5 (this will be discussed more fully below). The pre-accident clinical notes and records of Dr. Bashir Shaikh (a previous family doctor) and Dr. Lau record work-related back and other injuries from 1986 until the time of the accident, for which they prescribed pain medication. Dr. Bashir Shaikh's notes from 1986 to 1989, record injuries to the lower back, calves, legs and shins from heavy lifting and falling on skids at work. Dr. Lau's records from May 1993 to June 1995 contain numerous entries of sore back complaints, including specific complaints about his lower back.

After the accident, Dr. Sehmi did not see Mr. Sheikh until April 1, 1997 (about a year-and-a-half post-accident). In his April 16, 1999 report, after reviewing Dr. Lau's notes, Dr. Sehmi opined, like Dr. M.U. Shaikh, that Mr. Sheikh did not suffer from serious back problems before the accident. However, Dr. Sehmi had not reviewed Dr. Bashir Shaikh's clinical notes and records in coming to this opinion. During cross-examination, Liberty Mutual's counsel read to Dr. Sehmi the entries from Dr. Bashir Shaikh's notes (1986 to 1989) which referred to back complaints. Dr. Sehmi maintained his opinion about Mr. Sheikh's pre-accident back condition, but provided no explanation or reasons for that opinion.

Drs. Langer and McGonigal concluded that Mr. Sheikh did not sustain disabling musculoskeletal impairments to his neck and back, but rather soft tissue injuries which ought to have resolved within the weeks or months following the accident.

Left leg condition:

The first complaint of left leg pain in Dr. M.U. Shaikh's records appears in an entry dated December 29, 1997, over two years post-accident. Mr. Sheikh testified that when his lower back hurts, the pain radiates down his whole left leg causing it to shake.

Mr. Sheikh was first diagnosed with a herniated disc in May 1998, about two-and-a-half years post-accident. A diagnosis of left leg sciatica appears in Dr. M.U. Shaikh's April 15, 1998 clinical note. Entries in Dr. M.U. Shaikh's clinical notes for May 6, 1998 and July 14, 1998 record bilateral leg pain, with pins and needles sensations. On April 15, 1998, Dr. M.U. Shaikh referred Mr. Sheikh to Dr. Sehmi who sent him for a CT-scan of his lumbosacral spine. As noted above, the May 21, 1998 radiological report indicates "a central disc herniation at L4-5. The L5-S1 disc is degenerated..." Dr. Sehmi's opinion, as stated in his August 27, 1998 report, is that the accident caused the central disc herniation. He explained in testimony that a disc herniation can be asymptomatic for a period of time, even as long as two years, and can become symptomatic with a trauma such as Mr. Sheikh's car accident. In Dr. Sehmi's opinion, this condition, combined with his other conditions, has disabled Mr. Sheikh from returning to work.

Liberty Mutual cross-examined Dr. Sehmi about the development of leg pain with a disc herniation. Liberty Mutual pointed to the evidence that Mr. Sheikh did not complain of leg pain until over two-years post-accident. Liberty Mutual asked Dr. Sehmi whether it is likely in most cases of herniated discs, that leg pain would develop fairly soon after the injury. Dr. Sehmi acknowledged that this was true in most cases, but also stated that the pain can worsen as time passes if the nerves in the area of the affected disc sustain increased pressure.

In a report dated May 31, 1999, Dr. Otto F. Verdlinger, a neurologist, stated from his examination of Mr. Sheikh on February 9, 1999, that Mr. Sheikh reported pain on straight leg raising and decreased sensation over his left leg. He diagnosed an L4-5 disc herniation and degenerative changes at the L5-S1 nerve root level. He noted that his symptoms are aggravated by the super-added psychological factors he and other examiners have observed. It appears from his reports that Dr. Verdlinger was not aware of the details of the accident or Mr. Sheikh's medical complaints following the accident, and for this reason, I did not find his report very helpful. Dr. Verdlinger concluded that since "the (leg pain) symptoms occurred at the time of the accident it is only reasonable to conclude that the disc herniation occurred at the time of the accident or at least was aggravated at the time."

Mr. Sheikh testified that he uses a cane when the pain in his leg(s) is intense. He apparently did this despite Dr. M.U. Shaikh's advice in his April 15, 1998 clinical note that Mr. Sheikh "is not to use walking stick." This note contains the first mention in Dr. M.U. Shaikh's records of Mr. Sheikh using a cane. I received evidence which shows Mr. Sheikh exhibiting varying extremes of impairment when walking. During the June 1999 and October 1999 hearing sessions, I observed Mr. Sheikh on all five days using a cane whenever he walked and consistently ambulating very slowly, in an extremely bent over posture with a constant grimace on his face. I viewed video surveillance conducted a few months earlier by an investigator retained by Liberty Mutual. The video depicts Mr. Sheikh in February 1999 talking with a friend while walking at a regular pace, on wet, snowy pavement without limping, in an upright posture, without a cane.

Liberty Mutual played the video for Dr. Sehmi. Then Liberty Mutual asked Dr. Sehmi to observe Mr. Sheikh walking in the hearing room and asked Dr. Sehmi for his comments. Dr. Sehmi agreed with Liberty Mutual that Mr. Sheikh's gait and walking pace were dramatically different. When cross-examined about the difference in his manner of walking, Mr. Sheikh responded that he was feeling better the day the video was taken.

The medical practitioners who assessed Mr. Sheikh's disability made various observations of Mr. Sheikh's gait. Dr. Ozersky noted in July 1997 that Mr. Sheikh "walked up the stairs to my office without any difficulties of posture or gait." Mr. Sheikh had attended Dr. M.U. Shaikh about six times between his December 29, 1997 visit (when he first complained of leg pain) and his April 15, 1998 visit (when the cane was contraindicated), and there is no report of his using a cane. However, Dr. McGonigal reported that on December 29, 1997 Mr. Sheikh complained of leg pain, carried a cane, but did not appear to limp.

Analysis of the physical disability evidence:

After considering the evidence on Mr. Sheikh's physical complaints, I conclude that he did not sustain disabling physical injuries to his left shoulder, neck, lower back or left leg as a result of the accident. I took a number of factors into account in coming to this conclusion. I considered: the impact of the collision and the extent of property damage to the car; Mr. Sheikh's history of pre-accident physical problems; the temporal relationship between the accident and his physical complaints; and his tendency to exaggerate and embellish his disability.

Regarding the impact of the accident, Dr. Sehmi testified that the level of damage to the car does not determine the degree of injury to a person's body and he concluded that it was possible for a person to sustain disabling injuries in a low impact accident. Contrary to this opinion, Dr. McGonigal, the DAC orthopaedic surgeon, testified that he has found in his 20-year practice as an orthopaedic surgeon, that it is highly unlikely that a person involved in such a minor accident would sustain longstanding physical problems.

In his discussion of the accident in his April 7, 1997 report, Dr. Lloyd described the accident as a "substantial rear-end collision." I assume that Dr. Lloyd arrived at this description of the accident from Mr. Sheikh's self-report since there is no indication in his report that he referred to any other source. Later in the report, in his discussion of Mr. Sheikh's injuries, Dr. Lloyd opined that "the presence of dysphagia places a soft tissue strain in the more severe range." While this statement suggests a causal link between the impact and dysphagia, I find that Dr. Lloyd did not explain the causal connection between dysphagia and physical trauma generally, or the connection between Mr. Sheikh's dysphagia and the particulars of his accident. I therefore have difficulty with Dr. Lloyd's opinion in this area. Moreover, I received no other helpful medical evidence about this disorder. I cannot conclude from the dysphagia diagnosis alone that Mr. Sheikh sustained severe soft tissue strains in the accident, particularly in the face of other evidence that suggests otherwise.

I can reasonably conclude in this case, that in view of the amount of damage to Mr. Sheikh's car ($294.17), the accident more likely than not did not cause disabling physical injuries. I considered the impact issue in relation to Mr. Sheikh's left shoulder condition. Mr. Sheikh had a significant pre-accident history of problems with his left shoulder, which became increasingly acute in the months before the accident to the point that one month before the accident, Mr. Sheikh could not abduct the shoulder. Dr. Sehmi acknowledged, in view of this level of disability, that Mr. Sheikh would have had difficulty doing his job as a spot welder one month before the accident. This evidence tends to support Dr. McGonigal's opinion, which I accept, that Mr. Sheikh's left shoulder disability results from his pre-accident post-polio weakness and osteoarthritis and is not the consequence of the low impact accident in question.

A similar analysis can be applied to Mr. Sheikh's neck and back complaints. Again, the medical evidence reveals ongoing back complaints up to just months before the accident and pre-accident degenerative conditions in his neck and back. On balance, it is reasonable to conclude in all the circumstances, particularly in view of the significant credibility problems in this case, that Mr. Sheikh's neck and back conditions are more likely than not the consequence of non-accident related factors than the result of the minor impact accident.

Concerning the left leg condition, I also considered the length of time between Mr. Sheikh's accident and his complaints of leg pain. In determining this issue, I relied on Dr. Sehmi's acknowledgement that with herniated discs, there is usually a close temporal relationship between the trauma and the emergence pain symptoms. Therefore, I find that, if Mr. Sheikh does suffer from left leg pain, this more likely than not was not caused by the accident, since he did not complain about pain until over two years after the accident. I also considered the credibility problems with Mr. Sheikh's evidence about his left leg problems. I have already found in relation to his psychological claim, that Mr. Sheikh has a propensity to exaggerate his disability. I believe this is likely the case with his leg pain claim as well.

For instance, while Mr. Sheikh's inconsistent use of a cane is alone not sufficient to discredit him, taken in the context of all the evidence, I find this evidence damaging to his credibility. Dr. M.U. Shaikh did not think Mr. Sheikh's leg condition severe enough to warrant the use of a cane. Yet Mr. Sheikh persisted, at certain times, to use the cane against his family doctor's advice. I considered the fact that, although Mr. Sheikh saw Dr. M.U. Shaikh several times during the several months between his first complaint of leg pain and Dr. M.U. Shaikh's contraindication of a cane, there is no indication during this period that Mr. Sheikh carried a cane to his doctor's office. However, he carried a cane to DAC assessments conducted around this time. Dr. McGonigal observed that he carried the cane but did not seem to limp.

I agree with Dr. Sehmi that Mr. Sheikh's behaviour at the hearing is in striking contrast to what he displayed on the video taken only months earlier. As noted earlier, during both the June and October 1999 sessions of the hearing, Mr. Sheikh was consistently hunched over a cane when he walked, ambulating with a slow gait. The fact that in the video he was able to walk upright at a normal gait without a cane over wet and snowy pavement, strongly suggests to me that Mr. Sheikh has greatly exaggerated his left leg condition.

Conclusion on the IRB issue:

I do not accept Mr. Sheikh's claim that he is entitled to further IRBs under the Schedule. I find that he failed to produce persuasive evidence that he sustained either ongoing emotional/ psychological or physical injuries in his October 14, 1995 accident that substantially prevent him from performing the essential tasks of his job as a spot welder. There is evidence that Mr. Sheikh might be disabled by psychological and physical conditions unrelated to the accident, but these conditions are not compensable under the Schedule. I find therefore that Mr. Sheikh is not entitled to any further IRBs under section 7 of the Schedule.

Loss of Earning Capacity Benefit Offer:

Since I find that Mr. Sheikh is not entitled to IRBs beyond the February 18, 1998 benefit termination date, Liberty Mutual is not required under section 21 of the Schedule to make an LECB offer.

Transportation Expenses:

Mr. Sheikh produced no evidence to substantiate his claim under section 36 of the Schedule for expenses for transportation to and from medical appointments. I therefore find that he is not entitled to benefits for supplementary medical expenses.

EXPENSES:

The parties made no submissions as to expenses. Liberty Mutual indicated that it wished to await my decision in this matter to prepare its submissions on the expense issue.

1. I suggested that the parties prepare written submissions to be filed and served on dates I set in this decision.

2. If the parties cannot agree on the assessments of their respective expenses, I will require from both parties written itemizations of the expenses they are claiming in respect of the arbitration hearing to be filed and served with their submissions.

3. Mr. Sheikh shall file with the Commission and serve on the Insurer his submissions no later that January 10, 2000. Liberty Mutual is required to file with the Commission and serve on the Applicant its response no later than January 24, 2000. Mr. Sheikh shall file and serve its reply no later than February 7, 2000.

December 23, 1999

Beth Allen Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 257

FSCO A98-001038

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MUDASSAR SHEIK

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Sheikh is not entitled to further IRBs under section 7 of the Schedule.

2. Mr. Sheikh is not entitled to an LECB offer pursuant to section 21 of the Schedule.

3. Mr. Sheikh is not entitled to expenses under subsection 36(1)(g) of the Schedule for transportation to and from medical appointments.

4. I reserve my decision on the expense issue. The question of expenses may now be addressed.

December 23, 1999

Beth Allen Arbitrator

Date

SCHEDULE

Parties:

Applicant: Mudassar Sheikh

Insurer's Representative: Tina Maasland, Senior Claims Manager

Witnesses:

For the Applicant: Dr. Rava Kakar Dino Taricani Mudassar Sheikh Zaheer Khawaja Nazia Sheikh Dr. Bhajan Singh Sehmi Dr. Mehtab Uddin Shaikh

For the Insurer: Sandra Thompson Dr. Richard Herschberg Dr. Donald James McGonigal Stephen Smith

Court Reporters:

Daniela Deluca, Nadine Pawliw and Maria Rossi, of Professional Court Reporters Inc.

Interpreter:

Suman Handa of OmniCom Interpreter Services

Exhibits:

Exhibit 1 Applicant's Arbitration Medical Brief

Exhibit 2 Referral by Dr. Kakar to Depression Clinic at Clarke Institute of Psychiatry

Exhibit 3 Insurer's Medical Reports & Records Brief

Exhibit 4 Respondent's Production Brief

Exhibit 5 Clinical Notes & Records and X-ray Reports Brief

Exhibit 6 Super Auto Body Ltd, property damage report

Exhibit 7(a) Dr. Kakar's Clinical Notes & Records

Exhibit 7(b) Report from Dr. D.M. Magder dated October 1, 1999

Exhibit 8(a) Employment File from Baron Metal Industries Inc.

Exhibit 8(b) Applicant's time cards from Baron Metal

Exhibit 9 Letter from Liberty Mutual to Dr. Fred Langer dated June 27, 1997

Exhibit 10 Video Surveillance

Transcripts:

For June 28, 29 and 30 and October 12 and 13, 1999

Legal Authority:

Athey v. Leonati 1996 CanLII 183 (SCC), [1996]3 S.C.R.458.

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.