Neutral Citation: 2000 ONFSCDRS 185
FSCO A99-000544
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SOM DUTT
Applicant
and
NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S
Insurer
REASONS FOR DECISION
Before:
M. Kaye Joachim
Heard:
September 11, 12, and 13, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Murray Tkatch for Mr. Dutt
Karen Earl for Non-Marine Underwriters, Mbrs. of Lloyd's
Issues:
The Applicant, Som Dutt, was injured in two motor vehicle accidents on November 16, and November 24, 1997. He applied for and received statutory accident benefits from Non-Marine Underwriters, Mbrs. of Lloyd's ("Lloyd's"), payable under the Schedule.1 Lloyd's terminated weekly income replacement benefits on September 17, 1998. The parties were unable to resolve their disputes through mediation, and Mr. Dutt applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is:
- Is Mr. Dutt entitled to income replacement benefits beyond September 17, 1998?
Result:
- Mr. Dutt is entitled to income replacement benefits from September 17, 1998 and ongoing.
EVIDENCE AND ANALYSIS:
In order to be entitled to weekly benefits within the first 104 weeks of disability, Mr. Dutt must establish that he suffers a substantial inability to perform the essential tasks of his pre-accident employment, as a result of the accidents. After 104 weeks of disability, Mr. Dutt must establish that he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience, as a result of the accidents.
Mr. Dutt is suffering from a serious psychiatric condition, variously characterized as post-traumatic stress disorder, major depressive episode with psychotic features, psychotic disorder, not otherwise specified, and schizo-affective disorder. The parties dispute both the cause and the disabling degree of his condition. It is well established in the arbitral jurisprudence that the insured need not establish that the accident is the sole cause of his or her difficulties. If the accidents of November 16 and 24, 1997 made a material contribution to Mr. Dutt's ongoing psychiatric condition, then he is entitled to weekly income benefits, provided that he meets the requisite disability tests.
Mr. Dutt's psychiatric condition affects his thought processes, rendering the reliability of his oral evidence somewhat problematic. Mr. Dutt testified that while he believed himself to be testifying truthfully, he could not guarantee the veracity or accuracy of his answers. Some of his evidence is contradicted by the documentary evidence and his memory of dates and events is questionable. However, this case does not depend to any great extent on Mr. Dutt's oral evidence. I am satisfied that, given the nature of Mr. Dutt's mental condition, it is appropriate to rely on the medical records, the surveillance evidence, and other documentary evidence.
Mr. Dutt is 48 years old. He was born and educated in India. Mr. Dutt testified that he has an Honours degree from the Punjabi University and a certificate in Herbal Medicine. He testified that he was continuously employed in India, in various capacities, including manager of a restaurant, clerical worker in a factory, and purchasing clerk in a government office. Mr. Dutt did not introduce any documents corroborating these details and it is typical of Mr. Dutt's condition to have an idealized version of one's pre-psychiatric abilities. However, I find that nothing turns on this early employment and education history.
From 1981 until 1994, Mr. Dutt worked at the State Bank of India, rising to the position of inspection assistant, a job which involved some auditing functions.
Following an arranged marriage in 1992, Mr. Dutt immigrated to Canada in 1994. Almost immediately, Mr. Dutt began experiencing marital problems.
Mr. Dutt worked at various jobs since 1994, including as a general labourer in an auto parts factory and as a machine operator for a television manufacturer. In 1995, Mr. Dutt applied to the Toronto Police Force for work as a school crossing guard. At that time his family doctor, Dr. N. Jaffer, certified that Mr. Dutt was physically and mentally fit. Mr. Dutt worked as a crossing guard from January 1996 until the time of the accidents.2 The job involved attending at various school sites four times during the day, for approximately one hour each time, for a total of four hours per day, 20 hours per week.
Mr. Dutt also worked briefly as a cashier/clerk at A-1 Electronics from May 1, 1997 to June 22, 1997, when he was let go due to a shortage of work.3
Mr. Dutt obtained another job at Intertec Security & Investigation Ltd as a full-time evening security guard. He began this job in August 1997 and continued up until the date of the November 24, 1997 accident. He was working close to 40 hours per week at this job.4
From October 1994 until May 1996, Mr. Dutt attended at Dr. Jaffer's on a regular basis, complaining about work and marital problems. Dr. Jaffer noted symptoms of stress, anxiety, sleeplessness, and fatigue. Dr. Jaffer diagnosed reactive depression and prescribed anti-depressants and anxiety medications.
On January 27, 1996, shortly after separately temporarily from his wife, Mr. Dutt attended at the Emergency Department of Mount Sinai Hospital complaining of pain in his chest. He was noted to be quite depressed and unable to sleep.5 He was discharged with a diagnosis of "anxiety" and advised to contact Public Health about his situation. Mr. Dutt reconciled with his wife, but on March 31, 1996 moved out permanently.
On April 20, 1996 Mr. Dutt called an ambulance, complaining of left chest pain and shortness of breath. He was noted to be depressed and was diagnosed with "anxiety."
In April 1996, Mr. Dutt began attending at the office of Dr. A. P. Chong, a general practitioner. He continued seeing Dr. Chong until November 9, 1996. Although Dr. Chong’s clinical notes and records were subpoenaed, only lab test results were produced. No clinical notes and records were made available. The only evidence about the nature of those visits between May and November 1996 is the decoded OHIP list of services. The OHIP summary indicates some visits in May and November 1996 for "anxiety neurosis, hysteria, neurasthenia, reactive depression." Although the OHIP summary is not necessarily a reliable indication of the complaints made or the treatment rendered, in light of Mr. Dutt's ongoing depression and anxiety since 1994, I am prepared to infer that Mr. Dutt continued to exhibit symptoms of anxiety and depression while seeing Dr. Chong.
There are no recorded visits to any health practitioners for one year prior to the accidents.
On November 16, 1997, Mr. Dutt was involved in a motor vehicle accident. His car was struck at the back on the driver’s side. Mr. Dutt experienced pain in his neck and left knee.
On November 18 he began seeing a new family physician, Dr. R. Mohan. On that first visit, in addition to his physical injuries, he reported feeling frustrated and depressed. Mr. Dutt continued working for a few days. On November 21, 1997 he reported to Dr. Mohan that he was off work and that he was feeling depressed. He reported that he had previously experienced a bout of depression 20 years ago in India, and one year ago when he separated from his wife.
On November 24, 1997 Mr. Dutt was involved in a second accident when his car was struck on the front corner of the driver's side. Mr. Dutt believes he lost consciousness for a brief time; however, he was walking around when the ambulance arrived. He reported neck and back pain to the ambulance attendants. He was transported to the hospital. Upon arrival at the hospital he was oriented and could recall the events of the accident. He was discharged the next day.
On November 26, 1997, a clinical psychologist from ACT Health Group wrote to Dr. Mohan that Mr. Dutt had reported being depressed and anxious, was suffering nightmares, and hearing voices. ACT recommended referral to a psychiatrist.
Dr. Mohan promptly referred Mr. Dutt to Dr. R. C. Jain, a psychiatrist. On December 5, 1997, Dr. Jain reported that following the two accidents in November 1997, Mr. Dutt suffered from multiple soft tissue pains and that he had since developed "psychiatric symptoms in the form of anxiety, panic, phobias of traffic & driving. Depressed mood. Insomnia. Headaches. Dizziness and Lethargy. On Exam he shows thought disorder as well as paranoid thinking with poor judgement." Dr. Jain's diagnosis was "Post Traumatic Stress Disorder with Depression and Paranoid Features." Dr. Jain opined that Mr. Dutt was not fit to work and was fully disabled. Dr. Jain stated that Mr. Dutt needed supervision in self care and could not look after his household chores. He recommended placement in a supervised group home for treatment purposes and began a course of anti-psychotic and anti-depressant medications.
On January 6, 1998, Mr. Dutt reported to Dr. Mohan that he was seeing scenes of the accident and hearing voices.
In January 1998, Dr. J. Mitsopulos , the psychologist from ACT, interviewed Mr. Dutt who reported a disrupted sleep cycle, heart palpitations, shakiness, decreased appetite, difficulties with memory and concentration, nightly nightmares and flashbacks of his first accident. He reported feeling depressed, anxious and restless. He angered easily and he felt lonely. He had not driven since the second accident due to nervousness. He was rated as severely depressed and anxious. Dr. Mitsopulos believed that Mr. Dutt's symptoms were directly related to his accidents.
In mid-January 1998, Dr. Jain arranged for Mr. Dutt's admission to a treatment and rehabilitation facility for psychiatric patients in Brantford. He remained there for approximately one month.
In March 1998 Mr. Dutt was assessed by a psychiatrist, Dr. R. Notkin, at the request of the Insurer. Dr. Notkin found that Mr. Dutt has symptoms consistent with a Major Depressive Episode and psychotic features. He concluded that Mr. Dutt was disabled from returning to his former employment from a psychiatric perspective due to depression with psychotic features. He recommended further psychiatric care and medication.
In light of Mr. Dutt's report that he had no prior psychiatric history, Dr. Notkin was prepared to relate Mr. Dutt’s symptoms to the motor vehicle accident. However, Dr. Notkin believed that Mr. Dutt may have had a pre-existing personality disorder, and recommended that Mr. Dutt’s pre-accident medical records be obtained to determine the issue of causation.
Mr. Dutt was assessed at a medical rehabilitation DAC in April 1998 for the purpose of assessing, among other things, the reasonableness and necessity of further psychiatric treatment. The examining psychiatrist, Dr. S. Ozersky, found elements of schizoid personality disorder, a major depressive episode with psychotic features, and severe cognitive impairment. Dr. Ozersky did not doubt the necessity for psychiatric treatment but questioned the relationship between Mr. Dutt’s condition and the motor vehicle accidents. Dr. Ozersky believed that Mr. Dutt had a pre-disposing personality and mistakenly believed that Mr. Dutt had been on psychiatric medication shortly before the accident.
No question in my mind that this man had some pre-disposing personality before the accident and most probably a treated psychiatric disorder given the prescription. There seems to be a history of social isolation, and atypical beliefs. Furthermore, there is no evidence of any severe head injury enough to cause this degree of "cognitive deterioration. "Although the accidents may have aggravated the onset of a depressive disorder with psychotic symptomatology and cognitive impairment, his history suggests a pre-existing disposition. Otherwise, it would be highly atypical for a man to develop this degree of impairment given the nature of his accident...Saying that, I do believe that the motor vehicle accident precipitated his present illness in that he seems to have established a functional equilibrium, although schizoid, for himself before the accident. In terms of causation then, I would state that his present symptomatology is not related to the motor vehicle accident given the likely presence of other pre-existing illness. However, previous records are essential to be definitive.
Meanwhile, Mr. Dutt remained continuously under psychiatric care. He switched from Dr. Jain to Dr. R. Frith in March 1998 as Dr. Jain's office was not conveniently located. Dr. Frith immediately noticed psychotic features in Mr. Dutt's presentation. Mr. Dutt continued to see Dr. Frith until June 1998, when he switched to Dr. K. Mantro who has remained his psychiatrist ever since.
In September 1998, Dr. Mantro, Mr. Dutt's treating psychiatrist, noted that Mr. Dutt was unable to perform the basic activities of daily living and was getting home care assistance for cooking, laundry, and personal care. Dr. Mantro found him to be suffering from a major depression, with a total lack of motivation, and a severe degree of memory impairment. Dr. Mantro submitted a more recent report dated August 2000, outlining her ongoing psychiatric treatment of Mr. Dutt. Her current diagnosis is Post-Traumatic Stress Disorder with Depression and Anxiety, related to the motor vehicle accident. In her view, Mr. Dutt continues to be disabled from any gainful employment.
Disability:
None of the treating or examining psychiatrists have disputed that Mr. Dutt suffers from a serious psychiatric disorder, manifesting itself in severe depression, panic attacks, and psychotic episodes. Dr. Mantro, Mr. Dutt's treating psychiatrist, has opined that Mr. Dutt has been unable to return to any gainful employment since June 1998 and ongoing. There is no psychiatric evidence which suggests that Mr. Dutt's psychiatric condition is not genuine, and no psychiatrist has suggested that Mr. Dutt is employable. I find that the evidence establishes that Mr. Dutt was not capable of returning to his pre-accident employment or any alternative employment since his benefits were terminated in September 1998.
Causation:
All of Mr. Dutt's treating practitioners and psychiatrists attributed his ongoing psychiatric condition to the accidents. However, their opinions are undermined by the fact that they have not reviewed Mr. Dutt's pre-accident medical history.
Dr. Ozersky, the DAC psychiatrist, did not believe that Mr. Dutt's psychiatric condition was related to the accidents. However, his opinion was undermined by his mistaken belief that Mr. Dutt was taking psychiatric medication shortly before the accident. Further, his opinion is contradictory. On the one hand, he states that Mr. Dutt had reached a "functional equilibrium" prior to the accidents, and that the accidents "may have aggravated the onset" of his condition and "precipitated his present illness." On the other hand, he concludes that Mr. Dutt's post-accident symptoms were not related to the motor vehicle accidents.
After his first insurer medical examination in April 1998, Dr. Notkin attributed Mr. Dutt's psychiatric condition to the accidents, with the caveat that this was based on Mr. Dutt’s self-report of no pre-accident mental health problems. He recommended a review of the pre-accident medical records to address the issue of causation further. Dr. Notkin was subsequently provided with most of Mr. Dutt's pre-accident medical records. Having reviewed them, Dr. Notkin prepared a subsequent opinion on causation. In his view, the clinical notes and records of
Dr. Jaffer clearly demonstrate that Mr. Dutt had schizotypal and paranoid personality features prior to the accident and suffered from a psychotic disorder (undiagnosed) prior to the accidents.
Dr. Notkin was the only psychiatrist who has reviewed Mr. Dutt’s pre- and post- accident medical records. I accept Dr. Notkin’s evidence that Mr. Dutt suffered from a pre-existing personality disorder and likely suffered from an undiagnosed psychotic disorder, not otherwise specified, prior to the accident.
Lloyd's submitted that Mr. Dutt's physical injuries from the accidents prompted the need for medical attention, and that his contact with doctors merely revealed (but did not cause) his ongoing psychiatric problems. Lloyd's relied upon Dr. Notkin's opinion that Mr. Dutt's current psychotic condition was not caused by the motor vehicle accidents.
Dr. Notkin had no satisfactory explanation for Mr. Dutt's apparent functioning in the year prior to the accidents. Dr. Notkin did not find it significant that Mr. Dutt had not sought medical treatment for his psychiatric condition in the year prior to the accidents. He speculated that Mr. Dutt may have become paranoid and distrustful of doctors and so withdrew from treatment. However, there is no basis for such speculation. On the contrary, the medical records indicate that Mr. Dutt did not hesitate to seek out medical attention and freely discussed his stress and depression with his doctors.
I find that Mr. Dutt's psychiatric condition was under control and that he was functioning at work for at least one year prior to the motor vehicle accident. Mr. Dutt did not seek any medical treatment in respect of depression, stress, or other psychotic illness. He likely did not have access to any anti-depressant, anti-anxiety, or anti-psychotic medication during that period. He did not make any visits to emergency rooms. He was working approximately 20 hours a weeks as a school crossing guard throughout that period. In addition, he obtained a second job at an electronics store in the spring of 1997, and in August 1997, he began a full-time job as a night security guard. He was living on his own, separated from wife. Two of the significant factors which had contributed to his stress problems in 1995 (dissatisfaction with work or lack of work, and his marital problems) were not present during this year. In my view, the evidence strongly supports a finding that Mr. Dutt's pre-accident mental state was under control. In the words of Dr. Ozersky, he had reached a "functional equilibrium."
I find that Dr. Notkin's opinion on causation was also seriously weakened by his belief that the first psychotic symptoms appeared in March 1998, several months after the accident.6 I find that Mr. Dutt began exhibiting psychotic symptoms immediately after the accident. Within days of the accident, Mr. Dutt was complaining of depression. Within weeks, he was having flashbacks and nightmares of the accident, hearing voices, and was placed on anti-psychotic medication. Dr. Notkin agreed in cross-examination that if there was a marked change or deterioration in symptoms quite soon after the accident, and an absence of other stressors, then this would increase the likelihood that the accidents caused or contributed to the deterioration of Mr. Dutt's condition. I find that in fact, both of these conditions were present.
In summary, Mr. Dutt had a pre-existing psychiatric condition, and had suffered episodes of depression, anxiety and possibly undiagnosed psychosis. Mr. Dutt was a psychiatrically fragile individual. However, his condition was under control for a year prior to the accident. He was living on his own, and working at two jobs just prior to the accident. He was not taking any medication. Following two motor vehicle accidents in quick succession, Mr. Dutt suffered an immediate deterioration in his mental condition and was no longer able to work. His nightmares and flashbacks to the accidents clearly link his condition to the accidents. I am satisfied that in all the circumstances, Mr. Dutt's mental deterioration after the accident was as a result of the accidents.
Accordingly, I find that Mr. Dutt is entitled to income replacement benefits from September 17, 1998 and ongoing.
EXPENSES:
If the parties are unable to resolve the issue of expenses, they may make written submissions on this issue.
October 2, 2000
M. Kaye Joachim
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 185
FSCO A99-000544
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SOM DUTT
Applicant
and
NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Non-Marine Underwriters, Mbrs. Of Lloyd's shall pay income replacement benefits from September 17, 1998 and ongoing.
October 2, 2000
M. Kaye Joachim
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
- Mr. Dutt did not work during February and March 1996. He resumed working from April to June 1996. There is no work available in the summer. He worked from September 1996 to June 1997 and from September 1997 until after the November 16, 1997 accident.
- Exhibit 11, Record of Employment, A-1 Electronics, July 3, 1997
- The Record of Employment from Intertec Security indicates a total of $3,754.18 insurable earnings and 452.25 insurable hours. This yields an hourly wage of approximately $8.30. The Employer's Confirmation of Income indicates that Mr. Dutt earned $1,392.46 in the four weeks prior to the accident. Dividing $1,392.46 by $8.30 yields 167.8 hours over four weeks, for an average of 41.94 hours per week.
- The Insurer emphasized that this emergency record indicates that Children's Aid was contacted, which indicates the seriousness of Mr. Dutt's mental condition at that time. However, the records indicate that Mr. Dutt expressed concern about the quality of his wife's care, and the instructions to Mr. Dutt were to contact Children's Aid.
- Dr. Notkin did have access to the medical records of Dr. Jain, and noted the presence of psychotic symptoms soon after the accident. However, in his oral evidence, Dr. Notkin emphasized several times that the psychotic symptoms first appeared in March 1998, and that delay in the onset of symptoms was a factor in his reasoning.