Neutral Citation: 2000 ONFSCDRS 6

FSCO A98-001070

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUSHIL DHIR

Applicant

and

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

November 23, 24 and 25, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Dhir represented himself

Rita Bambers for Non-Marine Underwriters, Mbrs. of Lloyd's

Issues:

The Applicant, Sushil Dhir, was injured in a motor vehicle accident on January 22, 1994. He applied for and received statutory accident benefits from Non-Marine Underwriters, Members of Lloyd's ("Lloyd's"), payable under the Schedule.¹ Lloyd's terminated weekly benefits in April 1995. The parties were unable to resolve their disputes through mediation, and Mr. Dhir applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Dhir entitled to the following supplementary medical benefits payable pursuant to section 36 of the Schedule?

a) Physiotherapy for TMJ as recommended by Dr. Goldberg;

b) Physiotherapy recommended by Dr. Chan;

c) Massage therapy prescribed by Dr. Eisenberg;

d) Accounts payable to AIM Clinic;

e) Homeopathic treatment provided by Mr. Sondha;

f) Chiropractic treatment provided by David Gryfe;

g) Dental treatments provided by Dr. Laibovitz;

h) Treatments provided by Dr. Goldberg;

i) Airline tickets for trips to India;

j) Other expenses associated with trips to India;

k) Prescription medicines;

l) Transportation expenses to various treatment providers;

m) Expenses for Spiritual Healer;

n) Neuropsychological assessment.

Is Mr. Dhir entitled to housekeeping and home maintenance expenses pursuant to section 55 of the Schedule?
Is Mr. Dhir entitled to rehabilitation benefits pursuant to section 8 of the Schedule?
Is Mr. Dhir entitled to his reasonable expenses of the arbitration.

Certain other expenses were included in the list of benefits claimed however these are in the nature of arbitration expenses and will be considered in that context.

Result:

Mr. Dhir is not entitled to the following supplementary medical benefits claimed pursuant to section 36 of the Schedule?

a) Physiotherapy for TMJ as recommended by Dr. Goldberg;

b) Physiotherapy recommended by Dr. Chan;

c) Massage therapy prescribed by Dr. Eisenberg;

d) Accounts payable to AIM Clinic;

e) Homeopathic treatment provided by Mr. Sondha;

f) Chiropractic treatment provided by David Gryfe;

h) Treatments provided by Dr. Goldberg;

i) Airline tickets for trips to India;

j) Other expenses associated with trips to India;

k) Prescription medicines;

l) Transportation expenses to various treatment providers, except as provided in paragraph 2 below;

m) Expenses for Spiritual Healer;

n) Neuropsychological assessment.

Mr. Dhir is entitled to the expenses for dental treatments provided by Dr. Laibovitz and travel expenses associated with those treatments payable pursuant to section 36 of the Schedule.
Mr. Dhir is not entitled to the housekeeping and home maintenance expenses claimed.
Mr. Dhir is not entitled to the rehabilitation benefits claimed.

EVIDENCE AND ANALYSIS:

The Hearing:

Mr. Dhir chose to represent himself in these proceedings. He was offered the possibility of an adjournment in order to seek advice or representation but chose to proceed unassisted. He was granted permission to tape record the proceedings for his own use during the course of the hearing.

Mr. Dhir gave evidence respecting the issues in dispute and relied on certain documents filed. Lloyd’s called no witnesses, choosing instead to rely on filed reports. Mr. Dhir chose not to cross-examine any of the authors of the reports filed, although he was given the opportunity to do so.

Neither party strictly complied with the Practice Code in filing documents. Despite this all but one document were admitted into evidence. The one exception was a document produced for the first time by Mr. Dhir, on the morning of the first day of the hearing.

There are other disputes between the parties which are the subject of other proceedings. Mr. Dhir advised that he is appealing an arbitration decision respecting his claim for income replacement benefits following the January 1994 accident.² Mr. Dhir also experienced two motor vehicle accidents after the January 1994 accident. An arbitration hearing is scheduled in 2000 to deal with disputes respecting income replacement benefits and medical rehabilitation benefits related to one of these two later accidents.

Background:

At the time of the motor vehicle accident in January 1994, Mr. Dhir was employed as a real estate agent. At that time he was just returning to work after an accident in December 1993. Mr. Dhir suffered soft tissue injuries as a result of the January 1994 accident. There is no evidence of any skeletal damage from the accident. Immediately following the accident Mr. Dhir complained primarily of neck pain, left TMJ pain, left wrist and left leg pain. His complaints now are of neck pain, back pain, headache, and depression. He was unable to work full time for a period of time and received weekly income replacement benefits until April 1995.

Dr. Robert Grossman conducted a disability DAC in April 1995, which supported the Insurer's view that Mr. Dhir was no longer disabled from working. The results of the disability DAC are not relevant to the issues to be determined in this hearing — Mr. Dhir's entitlement to the medical and rehabilitation benefits claimed — except for the fact that the regrettable actions of the DAC assessor have coloured Mr. Dhir's view of the process leading to this arbitration. Mr. Dhir believes, not unreasonably, that Dr. Grossman became an advocate for the Insurer. Moreover, Mr. Dhir also believes that Dr. Grossman's opinions have tainted the entire process including the medical assessments relevant in this arbitration. I note that arbitrator Renahan in an earlier arbitration respecting Mr. Dhir's claims for income replacement benefits, found that Mr. Dhir's perception that the DAC assessor had become an advocate for the Insurer was reasonable. I agree with that assessment; however, I can find no evidence that this fact had any impact on the other assessments conducted during the course of Mr. Dhir's rehabilitation.

In order to establish entitlement to the medical and rehabilitation benefits in question, Mr. Dhir must establish that he sustained impairments as a result of the accident and that the expenses claimed were reasonably incurred as a result of the accident.

Lloyd's claimed that Mr. Dhir no longer suffered from impairments as a result of the January 1994 accident after December 1995. It also took the position that Mr. Dhir's complaints are related either to a pre-accident condition of chronic pain syndrome, or are the consequence of two subsequent automobile accidents. Finally, Lloyd’s also submitted that certain expenses sought by Mr. Dhir were not authorised by the Schedule even if it could be said that they are related in some way to impairments he sustained as a result of the accident.

Medical Evidence:

Mr. Dhir’s medical history includes significant pre-accident problems. His complaints prior to the January 1994 accident included left arm pain, numbness and discomfort in his legs, numbness in his left hand, headaches, constant left shoulder pain moving into his left neck region, memory loss, low back pain.

Mr. Dhir injured his back in a workplace fall in 1985. He received a 10 per cent workers compensation pension for a period of time. He claims that he no longer receives a pension but was unable to say when it was terminated, or why. He fell at his workplace in 1991 and was off work for an indeterminate period of weeks or months on workers compensation benefits. Dr. David Morgenthau, a neurologist diagnosed a chronic pain syndrome.³ In a letter dated July 20, 1993, Dr. Morgenthau reported that Mr. Dhir was complaining of increased pains.⁴ Another physician, Dr. Veronica Halmos, suggested that Mr. Dhir suffered from "fibromyalgia with a chronic pain syndrome."⁵ The notes of Dr. L. Jakab, Mr. Dhir's family physician, were relied upon by Lloyd's.⁶ They are replete with complaints by Mr. Dhir of neck pain, neck pain radiating into the arm and hand, headaches, chronic pain syndrome complaints which date from 1991 to the January 22, 1994 accident.

Mr. Dhir relies on his ability to function prior to the accident in question. He testified that in the year prior to the accident he made $60,000 to $ 70,000 selling real estate in a poor market and was able to work 60 to 70 hours per week. He claims that subsequent to the January 1994 accident, he was unable to achieve that level of function for a considerable period of time.

However, Mr. Dhir was in a car accident on December 10, 1993. He injured his back in that accident and was off work from the date of the accident until just prior to the January 1994 accident. In this arbitration Mr. Dhir claimed that he was able to return to work full time after the December 1993 accident. I prefer the evidence that he gave in the prior arbitration related to his claim for income replacement benefits where Mr. Dhir testified that he was not working at full capacity when he returned to his work just prior to the January 1994 accident.

The evidence also discloses that Mr. Dhir was able to return to work and gradually increase his hours of work over time. In the latter part of 1997 he was able to work a 40 hour week and earn, he claimed, $35,000 to $40,000 in a three to four month period.

Mr. Dhir put into evidence the consultation notes of Dr. Howard Jacobs who saw him periodically from 1994 to 1997. They document Mr. Dhir's complaints but do not show a connection between his physical complaints and the January 1994 accident.

Mr. Dhir filed the consultation notes of Dr. J.S. Gardner-Nix. He saw Dr. Gardner-Nix for a chronic pain consultation in June and July 1998. The doctor concluded that Mr. Dhir had suffered a mild head injury or whiplash. Dr. Gardner-Nix does not attribute this injury to the January 1994 accident.

Mr. Dhir also relied upon some consultation notes of Dr. Allan Gordon. Dr. Gordon saw Mr. Dhir in September 1996 and August 1997. The notes indicate that Mr. Dhir may have some difficulties with his back, but they do not establish that these problems resulted from the January 1994 accident. On the contrary, these notes indicate that Mr. Dhir’s difficulties may flow in part from pre-existing conditions, including a congenitally narrow spinal canal and problems associated with his diabetes. I also note that Dr. Gordon understood that Mr. Dhir had no symptoms of back and neck pain prior to the January 1994 accident. That is not the case, since as related above Mr. Dhir has a well documented and significant pre-accident history of back and neck pain.

Mr. Dhir began seeing Dr. Barry Laibovitz in September 1994 for treatment of his temporomandibular joint (TMJ) complaints. Mr. Dhir reported to Dr. Laibovitz that these complaints started after the January 1994 accident. He complained at that time of spontaneous bilateral muscle pain which was exacerbated by chewing as well as complaints of episodic pain in the right temporalis muscle which could develop into a severe headache which might persist for days.⁷ Treatment consisted of an intra oral device and physiotherapy. Mr. Dhir's attendance for treatment was sporadic as he was having ongoing dental problems and could not wear the appliance. Mr. Dhir discontinued his treatments with Dr. Laibovitz in June 1995.⁸

In March 1995, Mr. Dhir saw a dentist, Dr. Goldman, who identified a fracture to tooth 16. The script tendered in evidence contains the statement "strong possibility of trauma to jaw as causative factor."⁹

Mr. Dhir returned to Dr. Laibovitz in October 1996 reporting that he had been involved in another accident in May 1996 which had exacerbated his quiescent temporomandibular complaints. Dr. Laibovitz recommended a new oral device as well as a short course of physiotherapy.¹⁰

Dr. Jakab referred Mr. Dhir to Dr. Michael Goldberg, another dentist in the spring of 1996. Dr. Goldberg concluded that Mr. Dhir was suffering a temporomandibular disorder, possibly associated with his motor vehicle accident."¹¹ Mr. Dhir saw Dr. Goldberg again on May 4, 1996 at that time he recommended that a bite plane be made for Mr. Dhir. He was then temporarily lost to follow up."

Mr. Dhir returned to Dr. Goldberg on June 9, 1997 at which time he requested the bite plane be fabricated. It was inserted on July 28, 1997. According to Dr. Goldberg's report the bite plane offered little immediate relief. Physiotherapy was recommended to address the musculoligamentous component of Mr. Dhir's pain complaint. Dr. Goldberg reports that Mr. Dhir was then again lost to follow up.¹²

Mr. Dhir was referred to the Accident Injury Management Clinic in May 1997 by Dr. Jakab to take part in the clinic's chronic pain program.¹³ John VanDeursan, a psychologist who conducted the initial screening interview, later recommended a neuropsychological assessment based upon Mr. Dhir's reports of cognitive difficulties. Mr. Dhir entered the AIM Clinic Program. He testified that he received benefit from its multi-disciplinary treatment program.

Dr. Paul Morris, a psychiatrist, first saw Mr. Dhir in February 1999. Dr. Morris indicated that Mr. Dhir had been "experiencing symptoms of chronic pain, anxiety and depression which appear to have been precipitated by a motor vehicle accident on [sic] January 1994" and diagnosed Mr. Dhir as suffering a pain disorder associated with both psychological factors and a general medical condition.¹⁴

On a referral from Dr. Tommy Chan, Mr. Dhir was assessed by Dr. Max Klienman for a history of pain in his legs. In a report dated October 21, 1999, Dr. Klienman reported that Mr. Dhir had some mild diabetic neuropathy and a superimposed mild left L5 radiculopothy.¹⁵ There is no suggestion that any of this is related to the January 1994 accident.

In a November 1, 1999 report Dr. Chan noted that a CT scan showed mild degrees of facet degenerative changes at L3-4 with a congenitally narrow spine canal at L4-5 causing mild degrees of degenerative spinal stenosis. Dr. Chan also identified a small left disc bulging which may have been displacing the left L5 nerve root.¹⁶ There is no indication that this is connected to the January 1994 accident.

Mr. Dhir was assessed by a medical rehabilitation DAC in December 1995.¹⁷ In the report Dr. Gordon and Leslie Corrigan concluded that no further active or passive therapies should be undertaken in response to the January 1994 accident. This conclusion followed from a diagnosis of cervical, shoulder and lumbar soft tissue strain "with features of pain magnification associated with aggravation of underlying cervical and lumbar degenerative disease." These conditions were aggravated by Mr. Dhir's obesity and deconditioned state.

Mr. Dhir was also seen by Dr. R. John McComb, a dentist, as part of the December 1995¹⁸ medical rehabilitation DAC assessment. Dr. McComb found symptoms that were consistent with post-traumatic temporomandibular joint problems. However, according to Dr. McComb, Mr. Dhir was at that point long past the acute phase and no further treatments were necessary. Dr. McComb did not consider it necessary to provide Mr. Dhir with a bite plane to replace the one broken several months earlier, because Mr. Dhir had not been handicapped by its loss.

Mr. Dhir was assessed a second time in respect of the January 1994 accident by a med-rehab DAC in January 1998. Dr. Jack Mayer, a neurologist, noted that Mr. Dhir had recovered sufficiently from the January 1994 accident to be working a 40 hour week by the end of 1997, the inference being that no further treatments were necessary.¹⁹ Dr. R. Herschberg who conducted a psychiatric assessment, found no serious emotional, cognitive or behavioural deficits directly attributable to the 1994 accident. Dr. Herschberg attributed Mr. Dhir's difficulties to a long standing somatoform disorder and concluded that no psychological treatments were required as a consequence of anything resulting from the January 1994 accident.²⁰

Dr. Howard Vernon, a chiropractor, saw Mr. Dhir as part of the same assessment. He concluded that Mr. Dhir had likely received maximum benefit from what was described as an ample program of passive therapy by the time of the May 1996 accident. Dr. Vernon concluded that no further structured treatments were necessary or reasonable.²¹

George Lebi, a physiotherapist, found that Mr. Dhir had received reasonable treatment for the soft tissue injuries that he sustained in the January 1994 accident and that no further treatments were reasonable for that.²² Mr. Lebi did suggest a short course of therapy to deal with any impairments arising from the December 1997 accident.

Analysis:

I find that Mr. Dhir sustained soft tissue injuries to his neck and back as a result of the January 1994 accident. I also find that Mr. Dhir had suffered from similar difficulties prior to the accident. Despite his significant pre-accident history of complaints I accept Mr. Dhir's evidence that he had been able to function until the December 1993 accident. I find that Mr. Dhir was still experiencing the effects of the December 10, 1993 accident and was not functioning at full capacity at the time of the January 1994 accident. Whether caused by the December 1993 or the January 1994 accident, I find that his physical problems were largely resolved by December 1995 and that Mr. Dhir was able to function at his pre-January 1994 accident level by mid-1997 at the latest.

I also find that he fractured a tooth in the accident and that the subsequent diagnosis of a TMJ disorder resulted from the accident.

Accordingly I will now consider the particular claims of Mr. Dhir.

Air tickets and expenses associated with trips to India:

These expenses are not compensable under the Schedule. I am not prepared to decide whether or not such a claim could ever be sustained. However, in these circumstances the evidence offered in support of the claim is inadequate. The medical evidence in support of the trips is limited to two prescription forms neither of which is sufficient to support a finding that the trips were reasonably incurred for treatment of impairments attributable to the January 1994 accident.²³

There is very limited documentation of these expenses as well. No tickets were produced. Two documents were submitted, one an undated duplicate invoice from an individual related to Mr. Dhir whom he would not identify. As for the other expenses associated with the trips to India, there is absolutely no documentation of them or any explanation of what they might have been.

Homeopathic Treatment - Mr. Sodha:

Mr. Dhir could offer no assistance respecting the nature of the treatments offered. There is no evidence to support a finding that they are reasonable or necessary. I find that Lloyd's is not required to pay these expenses.

Physiotherapy for back, legs and headaches prescribed by Dr. T. K. Chan:

The claim for these expenses is not supported by the evidence. There is no evidence that any of the particular impairments identified by Dr. Chan are related in any way to the January 1994 automobile accident.

Massage Therapy prescribed by Dr. Eisenberg:

The evidence in support of this claim is limited to an undated prescription from Dr. Eisenberg for massage therapy "because of residual pain and emotional problems from 3 m.v.a.'s." I find that this evidence is insufficient to establish that the expenses claimed are reasonable.

Chiropractic treatment from David Gryfe:

No evidence was offered in support of the reasonableness of this expense. Lloyd's is not required to pay this expense.

Physiotherapy Recommended by Dr. Goldberg for TMJ:

In a report dated April 3, 1998 Dr. Goldberg stated that "it was likely that Mr. Dhir would benefit somewhat from a course of physiotherapy." Dr. McComb writing in January 1996 thought that he required no further treatment other than self administration of heat. I note that in June 1997 Dr. Laibovitz wrote that Mr. Dhir could benefit from a short course of physiotherapy for his TMJ.

I conclude that Lloyd's is not required to pay for this expense, although I am persuaded that Mr. Dhir has suffered some impairment to his TMJ. The limited medical support for this treatment makes it impossible for me to find that it is a reasonable expense.

Dental Expenses paid to Dr. Laibovitz:

The amount claimed is for a bite plane fabricated on the recommendation of Dr. Laibovitz. It is an expense that has been incurred on the advice of a treating physician at a time when there was no dispute that Mr. Dhir continued to suffer some lingering TMJ difficulties. I find that this is a reasonable expense related to an impairment caused in the accident.

Expenses for Prescriptions:

The evidence supporting the claim for these expenses is extremely limited. Receipts are provided which indicate the item prescribed, the date it was dispensed and the name of the physician making the prescription. The receipt also indicates the amount claimed by Mr. Dhir, being the difference between the total cost of the prescription and an amount payable by some other party.

I find that any expense for a prescription given by Dr. Isenstein is not a reasonable expense as it does not relate to the January 22, 1994 accident. Based upon the limited evidence before me I also find that prescription expenses incurred after December 24, 1997 are not related to the January 22, 1994 accident.

The remaining prescription expenses include prescriptions by Dr. Gordon, Dr. Jakab and an L. Sarabia. The expenses for prescriptions by Dr. Gordon and Dr. Jakab between January 22, 1994 and December 24, 1997 are allowed. Based upon the material provided to me that amount is $102.13.

Transportation Expenses:

These expenses relate to travel to and from various treatment providers, some of which have been considered above. In addition there is a general claim for a significant sum for travel to the "family doctor and other."

The expense claimed for travel to and from Dr. Laibovitz of 159 km is allowed.

Special Healer:

Mr. Dhir could not say what this person’s name was. He testified that the payments made were in the nature of an offering or donation and that the sum claimed was an estimate of how much he had donated.

I find that this claim is not a reasonable expense for the treatment of an impairment caused by the January 1994 accident.

Neuropsychological Assessment:

The only evidence offered in support of this claim is the note of Dr. Van Deursan from September 1997. I have found that Mr. Dhir had returned to his pre-accident level of function by that time. There is no follow up report from Dr. Van Deursan. I find that this expense is not reasonable and need not be paid by Lloyd’s.

Rehabilitation Services provided by the AIM Clinic:

I find that Mr. Dhir is not entitled to have these expenses for rehabilitation provided by the AIM clinic paid by Lloyd s. Although Mr. Dhir feels that this program was beneficial to him and an improvement over the program he participated in at the CCRI in 1996, his belief is not a substitute for evidence that the expenses were reasonably incurred in treating impairments from the January 1994 accident.

Dr. VanDeursan’s assessment in May 1997 that Mr. Dhir would benefit from his chronic pain program is insufficient to establish that the expense is reasonable in light of Mr. Dhir's pre-accident history. Dr. VanDeursan’s reporting that Mr. Dhir felt that his complaints stem from the January 1994 accident is not helpful either, particularly in light of Mr. Dhir's pre-accident history of chronic pain as well as the evidence of degenerative back problems that may also explain at least some of his complaints. I also note that according to Mr. Dhir his return to more complete functioning is underway almost simultaneously with the commencement of the AIM program.

On balance I find that these expenses are not reasonably related to the treatment of impairments resulting from the January 1994 accident.

Amounts payable to Mr. Vishal Dhir for housekeeping and Home Maintenance:

Vishal Dhir is Mr. Dhir's son. According to Mr. Dhir, his son provided help with the business as well as some housekeeping assistance. In addition Mr. Dhir provided a document which he said was signed by his son and which indicates that Vishal Dhir was hired by his father to do his chores around the home and to help with his business work"²⁴.

I find that Mr. Dhir is not entitled to the amounts claimed because there is insufficient evidence that they were required as a consequence of injuries sustained in the January 22, 1994 automobile accident. To the extent that the claim relates to the operation of his real estate business it is not a housekeeping expense but more properly considered in the context of a income replacement benefit. Mr. Dhir's claim for an income replacement benefit has been dealt with already.

EXPENSES:

The parties may speak to the issue of expenses if unable to resolve that issue themselves.

January 13, 2000

David Muir Arbitrator

Date