Mouyad Darwish v. Liberty Mutual Insurance Company, 2000 ONFSCDRS 68

Neutral Citation: 2000 ONFSCDRS 68

FSCO: A98-001169

BETWEEN:

MOUYAD DARWISH

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Asfaw Seife

Heard: November 21, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

L. Brent Vickar for Mr. Darwish

George O. Frank for Liberty Mutual Insurance Company

Issues:

The Applicant, Mouyad Darwish, was injured in a motor vehicle accident on March 21, 1995. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual paid weekly income replacement benefits ("IRBs") at the rate of $350.80, until January 16, 1998, when they were reduced to zero on the basis that Mr. Darwish failed to co-operate with a Residual Earning Capacity Designated Assessment Centre ("REC DAC"). Liberty Mutual also refused to pay certain attendant care benefits claimed by Mr. Darwish. The parties were unable to resolve their disputes through mediation, and Mr. Darwish 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. Darwish entitled to weekly income replacement benefits from January 17, 1998 and forward, pursuant to sections 7 of the Schedule?
Is Mr. Darwish entitled to payment of attendant care expenses claimed under section 47 of the Schedule?

Result:

Liberty Mutual shall pay Mr. Darwish weekly income replacement benefits of $350.80 from January 17, 1998 until the provisions of Part VI of the Schedule with respect to the payment of loss of earning capacity benefits have been complied with.
Mr. Darwish is not entitled to attendant care benefits.
Liberty Mutual shall pay Mr. Darwish interest on overdue payments in accordance with section 68 of the Schedule.
The issue of expenses is deferred.

EVIDENCE AND ANALYSIS:

At the time of the accident of March 21, 1995, Mr. Darwish was 34 years old, single, and living on his own in an apartment in Toronto. He was employed with Shepherd Products Inc., a furniture manufacturing company, as a machine operator. Mr. Darwish immigrated to Canada in 1988 from Iraq. At the time of the accident, his parents, and his two brothers and their families were living in the United States.

The accident occurred when the car in which Mr. Darwish was a front-seat passenger was rear-ended by a van, while stopped at an intersection. As a result of the impact, Mr. Darwish was thrown forward and his head struck the interior of the car. He sustained extensive bruising to his face and head area. He was taken by ambulance to the North York General Hospital immediately after the accident and was kept overnight while an X-ray and other investigative procedures were conducted. On March 23, 1995, he was taken back to the same hospital by ambulance after he fainted and fell to the floor. A CT scan of his head showed abnormalities. He was transferred to Sunnybrook Medical Centre where he underwent a repeat CT scan of his brain. The CT scans and a subsequent MRI revealed lesions in the left frontal lobe of his brain. There is no dispute that, in addition to neck and back soft tissue injuries, Mr. Darwish sustained a mild-brain injury as a result of the accident. There is less consensus, however, whether his current problems and disability are the result of these injuries.

While Mr. Darwish complained of pain in his neck and back, his main problems have been psychological and psychiatric in nature. These problems were mainly treated pharmacologically, with antidepressants, sedatives, anticonvulsants, and analgesics, including Prozac, Paxil, Serzone, Tegretol, Serax, Flexeril, and Tylenol # 3.

Mr. Darwish claims that since the accident, he has not been able to return to his pre-accident employment as a machine operator or to any other employment because of psychological and psychiatric problems. He attributes these problems to the head injuries he sustained in the accident.

Although Liberty Mutual stopped paying Mr. Darwish IRBs on the grounds that he failed to co-operate with a REC DAC, at the arbitration hearing, it took the position that Mr. Darwish is a malingerer who is deliberately mimicking the symptoms of a psychiatric illness for the purpose of financial gain. Liberty Mutual also submitted, in the alternative, that if Mr. Darwish's symptoms are found to be genuine, they were not caused by injuries attributable to the accident of March 21, 1995.

Mr. Darwish appeared at the arbitration hearing accompanied by his brother, Dr. Samir Darwish. After an order for exclusion of witnesses was made, Mr. Darwish was called to testify on his own behalf; however, he was unresponsive to any of the preliminary questions put to him by the Arbitrator to determine if he understood the purpose of the proceeding and the reason for his attendance. Through an Arabic interpreter, Mr. Darwish first indicated that he wanted to be with his brother, and when his brother was called into the room, Mr. Darwish stated that he only wished to go home. He was excused from the rest of the arbitration hearing with the consent of his legal counsel, who submitted that Mr. Darwish's unresponsiveness is part of his disability.

The Statutory Framework for the Payment of IRBs:

Mr. Darwish would be entitled to payment of IRBs if he can prove, on a balance of probabilities, that as a result of an impairment caused by the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment. Liberty Mutual is required to pay his IRBs during the period that he suffers the requisite disability. In general terms, once 104 weeks have passed since the initial onset of disability, with the person still being disabled, IRBs may be replaced with loss of earning capacity benefits (LECBs), if the payment of LECBs is authorized under Part VI of the Schedule.²

The transition from IRBs to LECBs is generally set in motion by the insurer delivering a written offer to the insured person with respect to the payment of LECBs, if the insured person continues to qualify for IRBs 104 weeks after the onset of his or her disability. If the insured person accepts the insurer's offer, IRBs are replaced by the insurer's offer of LECBs; however, if the insured person rejects the insurer's offer,³ the process for determining the payment of LECBs is set out in section 23. Under this section, an insured person must be assessed by a Residual Earning Capacity Designated Assessment Centre under section 27. Subsection 23(5.1) authorizes the insurer to commence paying LECBs 14 days after receiving the REC DAC report. The benefits are based on the insurer's offer made under section 21, in respect of the insured person's pre-accident earning capacity, and the determination made by the REC DAC of the insured person's gross annual income, in respect of the person's residual earning capacity.

Section 31 provides that no IRBs are payable after LECBs begin to be paid or the amount of LECBs payable to the insured has been determined to be zero.

A number of arbitration decisions have held, and I agree, that in circumstances where the insured person is entitled to an offer of LECBs, and the person is referred to a REC DAC because he or she has rejected the insurer's offer with respect to residual earning capacity, the insurer is required to pay IRBs until 14 days after receiving the REC DAC report,⁴ unless it can avail itself of the remedy provided in subsection 23(6). That subsection provides that if the REC DAC informs the insurer that the report has not been submitted because of the insured person's failure to co-operate, the insurer may, on notice to the person and until a report is submitted under subsection 27(5), pay the person LECBs based on its initial offer.

Did Liberty Mutual Properly Stop Payment of IRBs?

I heard no evidence that, prior to the termination of Mr. Darwish's IRBs, Liberty Mutual questioned his entitlement to the benefits because he no longer suffered a substantial inability to perform the essential tasks of his pre-accident employment. I heard no evidence that Liberty Mutual followed the procedure under section 64 of the Schedule in stopping his benefits.

On the contrary, the evidence shows that in March 1997, prior to the 104-week mark of the accident, Liberty Mutual retained Sibley & Associates, Inc. ("Sibley & Associates"), Rehabilitation Management Consultants, to determine Mr. Darwish's residual earning capacity, with a view to making an offer with respect to the payment of LECBs under section 21. Sibley & Associates was unable to determine Mr. Darwish's residual earning capacity pending investigation of his psychological and cognitive problems. I heard no evidence that Liberty Mutual delivered Mr. Darwish a written offer with respect to the payment of LECBs, under section 21. Instead, Liberty Mutual continued paying Mr. Darwish IRBs for more than nine months after the 104-week-mark, before it referred him to a REC DAC assessment.

Mr. Darwish first attended at the REC DAC on December 8, 1997. This session was cancelled by the REC DAC, on presumed consent of Mr. Darwish's solicitor, because Mr. Darwish "was unable or unwilling to verbalize his thoughts or communicate" with the REC DAC. Mr. Darwish's counsel sent a letter to Liberty Mutual denying that he consented to the cancellation, and asking that the REC DAC be rescheduled. He indicated that Mr. Darwish was attempting to co-operate. He enclosed in his letter a note from Mr. Darwish's family doctor providing background medical information intended to explain Mr. Darwish's behaviour. The REC DAC was rescheduled to start on January 12, 1998, at which time Mr. Darwish attended with Mr. Sharif Zamani, his caregiver.

On January 12, 1998, the REC DAC sent a letter to Liberty Mutual which stated, in part:

There was a question on behalf of the assessing team as to whether [Mr. Darwish] presented in a manner that one would consider competent to undergo a Residual Earning Capacity DAC Assessment...

Based on the client's essentially non-verbal status, his lack of [sic] seeming lack of orientation to time, date, location, person and situation, this client was not a reasonable candidate for a REC DAC process. For that matter, unfortunately, there is no Disability DAC present on the chart and hence absence of a clear diagnosis to account for his behaviour today.

Because of the assessors' concerns regarding this gentleman's presentation and seeming loss of touch with reality, the client's caregiver was specifically instructed that this gentleman should be assessed for possible in-patient admission to a psychiatric department, metabolic work-up and other assessments as may seem necessary at the time. It was felt that the best route would be to take the client through the local emergency department, explaining the deterioration on his condition and allow for an assessment to take place at that time. The client's caregiver noted that he would be speaking to family members and consider the situation from there.

At this time, and unless there is a radical change in the presentation of this client, it is not felt that a REC DAC process is a reasonable undertaking.

By letter dated January 21, 1998, the claims adjuster for Liberty Mutual wrote to Mr. Darwish's counsel, stating:

I have been informed by the REC DAC that your client was again not co-operating. Please be advised pursuant to Section 23(6) we are reducing your client's benefit to our Offer of $0.00. Please advise the writer when Mr. Darwish is willing and able to co-operate with the assessment and I will re-schedule the REC DAC Assessment.

Mr. Darwish's counsel replied with a letter dated January 29, 1998, advising that Mr. Darwish disputed "the loss of earning capacity offer contained in your correspondence dated January 21, 1998." The REC DAC was never rescheduled.

At the outset of the arbitration hearing, the parties agreed that the REC DAC did not issue a report under subsection 27(5) determining Mr. Darwish's residual earning capacity. While Liberty Mutual appeared to take the position that Mr. Darwish failed to co-operate with the REC DAC, I heard no evidence or argument that it was entitled to rely on section 23(6) to determine his LECBs unilaterally.

I heard no evidence to suggest that either party has asked the REC DAC to clarify its letter of January 29, 1998. Liberty Mutual has read the REC DAC letter of January 12, 1998 as communication that the REC DAC was cancelled due to Mr. Darwish's failure to co-operate. I do not agree. I find the REC DAC has not informed Liberty Mutual that Mr. Darwish failed to co-operate. It has left the question unanswered by stating that he was either unable or unwilling to communicate. I do not find such a statement sufficient to invoke the application of section 23(6).

I conclude, therefore, that the REC DAC has neither issued a report under section 27(5), nor did it inform Liberty Mutual under subsection 23(6) that Mr. Darwish failed to co-operate. Accordingly, under these circumstances, Liberty Mutual was not entitled to stop payment of Mr. Darwish's IRBs.

The issues of whether Liberty Mutual was entitled to stop Mr. Darwish's IRBs or to replace them with its own offer of LECBs, and the consequences of an adverse finding in this regard, were before the parties. They had an opportunity to introduce evidence on these issues and to make appropriate submissions.⁵ However, they have not done this.

On the basis of the evidence before me, I find Liberty Mutual has conceded, by its conduct, that Mr. Darwish continued to qualify for IRBs after March 21, 1997, 104 weeks after the onset of his disability. I find Liberty Mutual continued paying him IRBs for almost ten months past the 104-week-mark on the understanding that during that period he remained disabled from returning to his pre-accident employment. I find that Liberty Mutual's decision not to invoke the stoppage of benefits procedure under section 64 at any time, but instead to proceed by way of a REC DAC assessment implies it accepted that Mr. Darwish suffered the requisite disability. Accordingly, I find that Mr. Darwish continued to suffer a substantial inability to perform the essential tasks of his pre-accident employment after March 21, 1997 and is entitled to the payment of IRBs until the provisions of Part VI governing the transition from IRBs to LECBs have been complied with.

Although not necessary for the determination of Mr. Darwish's entitlement to IRBs, for the sake of completeness, I will deal with the issue of whether Mr. Darwish continued to suffer a substantial inability to perform the essential tasks of his pre-accident employment at the time of the stoppage of his IRBs on January 16, 1998. For the reasons that follow, I find Mr. Darwish suffered the requisite disability.

Medical Evidence:

The evidence about Mr. Darwish's medical history before he immigrated to Canada is scant. There are notes in the post-accident clinical records that indicate Mr. Darwish might have spent two years in the Iraq/Iran War, five years in a refugee camp in Iran and several years living in different countries in Europe and the Middle East before settling in Canada.

After his arrival in Canada, Mr. Darwish's relevant pre-accident medical history consists of complaints of back pain in May 1989, episodes of anxiety in 1990, 1991, and 1992 and two motor vehicle accidents in May 1990 and March 1993. Only the May 1990 accident resulted in functional disability for Mr. Darwish. In that accident, Mr. Darwish hit his head on the steering wheel of the car he was driving after being rear-ended. He complained of dizziness, neck and back pain and was off work for about six months.

From September 1994 to the date of the accident on March 21, 1995, Mr. Darwish saw his family doctor sporadically, with occasional complaints of headaches, sore throat and coughing.

I heard evidence from Dr. Samir Darwish and Mr. Saaed Yayavi, Mr. Darwish's friend. By all accounts, prior to the accident, Mr. Darwish was an outgoing, spontaneous, talkative young man who had many friends, participated in social activities, went to school to upgrade his education, and was gainfully employed. I heard no evidence to the contrary. I find that despite any problems he may have had in the past, at the time of the accident of March 21, 1995, Mr. Darwish was a healthy young man who was able to engage in normal employment and social activities.

Since the accident, Mr. Darwish has been seeing Dr. H. I. Obaji, his family physician since 1989, with complaints of severe headaches, dizziness, numbness in his right lower limbs, decreased appetite, lack of concentration, insomnia, and pain in his neck and low back. Because of his continued complaints, Dr. Obaji referred him to various specialists, including Dr. O.F. Veidlinger, neurologist, and Dr. S.A. Hassan, psychiatrist, for consultation.

Mr. Darwish's psychological and cognitive problems started to emerge soon after the accident. In April 1995, Dr. Veidlinger noted that Mr. Darwish was crying, emotional, anxious and forgetful, and was depressed about his lack of immediate recovery. Dr. Veidlinger concluded that Mr. Darwish had "considerable head injury with loss of memory and concussion." He diagnosed him with post-concussive syndrome. Dr. Veidlinger estimated that Mr. Darwish's recovery was going to be slow and gradual. He also suspected that Mr. Darwish might be developing post-traumatic migraine headaches. In June 1995, he noted Mr. Darwish was complaining of nightmares, increased forgetfulness and anxiety. Dr. Veidlinger found that Mr. Darwish was becoming very depressed and that he required treatment with Prozac, an antidepressant. Dr. Veidlinger saw Mr. Darwish on several occasions during the following three years with continued deterioration of his symptoms.

Mr. J. Kugelmass, a rehabilitation consultant hired by Liberty Mutual, reported on June 7, 1995, that the primary causes of Mr. Darwish's functional limitations were cognitive and emotional problems related to his head injury. He recommended that Mr. Darwish be examined by a psychiatrist and a neuropsychologist to accurately identify his cognitive and emotional problems.

Dr. L. Freedman, neuropsychologist, examined Mr. Darwish on October 11, 1995 at Liberty Mutual's request to assess his disability. Dr. Freedman conducted standard neurocognitive and psychometric testing, and found that Mr. Darwish showed "significant and marked subtest compromise in the verbal domain involving attentional processing, mental calculations and analytic reasoning." He found that "overall memory function showed asymmetric compromise of moderate severity confined to the verbal modality." Dr. Freedman stated that evaluation of Mr. Darwish's affect revealed "marked clinical abnormality." Specifically, he found that Mr. Darwish was experiencing "marked psychological and emotional distress...suggestive of a significant depression, anxiety and phobic disturbance."

Dr. Freedman concluded that "the clinical and medical history pertaining to the March 1995 accident is consistent with a diagnosis of mild concussive brain injury." He found, "specifically, the medical history indicates that there was probably a minor and brief loss of consciousness following the accident," and that following his initial discharge from the North York General Hospital, Mr. Darwish "apparently sustained either a syncopal [loss of consciousness], vaso-vagal, or possible epileptic episode." Dr. Freedman noted the brain CT scan and MRI findings (sub-frontal white matter lesions) were abnormal. However, Dr. Freedman suspected that, from a neurocognitive perspective, the MRI findings were "presently asymptomatic and unrelated to the mild concussive injury sustained in March of 1995."

Dr. Freedman felt that the degree and magnitude of cognitive compromise he saw on formal testing "clinically exceed[ed] the type of residual impairment that could be seen at this stage following a mild concussive brain injury." Dr. Freedman noted, however, that "Mr. Darwish does present with a probable psychologic and emotional disturbance of moderate severity related to a post-traumatic stress disorder."

Dr. Freedman recommended that Mr. Darwish receive supportive psychotherapy and that he continue taking the multiple medications prescribed for him.

On October 12, 1995, Mr. Darwish was seen by Dr. R. Hershberg, for a psychiatric Insurer's Examination ("I.E."). Dr. Hershberg heard from Mr. Darwish essentially the same complaints as he had related to Drs. Obaji, Veidlinger and Freedman. However, Mr. Darwish reported feeling better during the previous two weeks as a result of the antidepressant medications he had been taking.

Dr. Hershberg concluded that Mr. Darwish was suffering from "a slowly resolving post-traumatic stress disorder." He recommended the continuation of drug therapy for his depression as well as relaxation training and psychotherapy.

Mr. Darwish started seeing his treating psychiatrist, Dr. Hassan, on October 30, 1995. Dr. Hassan identified three sets of symptoms that Mr. Darwish was showing at the time: 1) a symptom cluster that points to depression and post-traumatic stress disorder, including sadness, fear, sleep disturbance, panic, appetite changes, loss of sexual desire, fatigue, helplessness, hopelessness, loss of interest and death wishes; 2) post-injury symptoms pointing to skeletal-muscular injuries, and; 3) symptoms suggesting an organic brain disorder - frontal lobe injury, evidenced by personality changes, frustration, loss of control, night terror, headaches "and what may be epileptic seizures (his whole body jerks unexpectedly several times a day)." Dr. Hassan, in consultation with Dr. Veidlinger, prescribed various antidepressant and anti-convulsive medications.

I accept the conclusions of the medical reports of Dr. Veidlinger, Dr. Freedman, Dr. Hershberg, and Dr. Hassan. These physicians were able to conduct tests and physical examinations and take detailed histories directly from Mr. Darwish. I find that on the basis of these reports, in October 1995, Mr. Darwish was experiencing significant, disabling psychological and cognitive problems emanating from depression, post-traumatic stress syndrome, post-concussion syndrome, cognitive problems and overall memory difficulties as a result of the accident related injuries. I find that while Mr. Darwish had received some temporary relief from the medications he was taking, his general condition was not improving when he was examined by Dr. Hershberg in October 1995, contrary to what was submitted by counsel for Liberty Mutual.

I find Mr. Darwish's problems continued to worsen during the following years. In February 1996, Mr. Darwish was seen by Dr. M. Hall on an orthopaedic I.E. and by the Canadian Back Institute for a Functional Capacity Evaluation ("FCE"). Dr. Hall found nothing orthopaedically wrong with Mr. Darwish; however, he noted that during the interview, Mr. Darwish "burst into tears when talking about his situation." Dr. Hall was not able to take any significant history from him. Dr. Hall found Mr. Darwish's case perplexing. He suggested the possibility that Mr. Darwish could be deliberately exaggerating his symptoms for secondary financial gain. The FCE determined that the "the primary barriers preventing Mr. Darwish from participating in an active rehabilitation program appear to be associated with the reported cognitive and emotional problems."

Mr. Darwish continued to be treated by Dr. Obaji, Dr. Veidlinger and Dr. Hassan in 1996. In his consultation note to Dr. Obaji, dated February 27, 1996, Dr. Veidlinger stated:

This patient is now on Tegretol and has developed a very widely based conversion reaction with a repetitive movement, stuttering, deviation of the neck and shoulder, as well as pseudodementia. For example, he cannot tell me the date. He was unable to [sic] very simple one-digit additions. He could not name the Prime Minister of Canada, etc. Moreover, he has numbness over the right side of his body and showed me how he can put needles through his flesh without being aware of it. Indeed, I tested him and he made no reaction whatsoever to repeated pin pricks to the hand. The patient is under psychiatric care by Dr. Hassan. He is most concerned that he cannot even look after his daily needs and he has really regressed to an infantile state. For this reason he needs some help at home, and I wonder if his insurance could arrange this.

Dr. Veidlinger reported that Mr. Darwish was not responding to the medications he was taking, and that he was unable to work or cope with his everyday life. He felt that his prognosis remained "very poor."

In her report dated June 28, 1996, Dr. Obaji concluded that Mr. Darwish was prevented from returning to his pre-accident employment and from performing his activities of daily living because of "lumbo sacral and cervical sprain, post-traumatic psychosis, depression, pseudoseizure, pseudodementia and headaches."

Mr. Darwish's emotional and psychological state continued to deteriorate. In July 1996, he underwent a medical/rehabilitation DAC assessment at Columbia Comprehensive Rehabilitation Centre. Mr. Darwish attended at the assessment with a friend who filled out the forms for him. The DAC team was unable to obtain any useful information or history from Mr. Darwish himself. It raised "a serious question regarding his mental competence to even understand and consent to the assessment process, let alone make decisions or competently take part in treatment." The DAC advised that even though the psychological assessment was not able to provide a definitive diagnosis, "speculation such as the possibility of a psychotic disorder warrants further, more comprehensive investigation and intervention." The DAC felt, however, that Mr. Darwish's "current psychopathology appears to be related to the motor vehicle accident, in spite of contributing pre-morbid factors, the accident and its consequences immobilized Mr. Darwish and precipitated the current problems."

The DAC recommended a review of medications and scrutiny for possible adverse interaction, as well as neurological and neuropsychological assessments to rule out organic factors being responsible for his condition.

I find the observations of the DAC psychologist, Dr. L. Mermigis, particularly significant. He reported that Mr. Darwish presented "as a man who is severely emotionally disturbed." He found his "affect was considerably constricted and predominantly depressed. He wept frequently, and on one occasion, when he believed that his medications were lost, he displayed numerous signs of anxiety, including some shaking and stuttering," frequent shaking of his leg, biting his nails, and twirling his shirt with his finger. Dr. Mermigis observed that Mr. Darwish was "very distractible," and that he maintained throughout the assessment, a "blank stare which conveyed no understanding of what was being asked."

Dr. Mermigis noted that "Mr. Darwish displayed even more disturbing behaviour, which are at times associated with psychosis." He observed that Mr. Darwish tended to perseverate in his speech and exhibited considerable difficulty expressing his thoughts, a condition which Dr. Mermigis stated "is frequently but not exclusively, found in individuals with psychotic illness."

Dr. Mermigis speculated that Mr. Darwish might be suffering from a psychotic disorder and warned that Mr. Darwish's inability to seek, make decisions about and receive his treatment may lead to further deterioration in his condition. Dr. Mermigis recommended exploring the option of having a legal guardian to make informed decisions on Mr. Darwish's behalf.

Dr. Mermigis was unable to explain the reason for Mr. Darwish's deterioration following the motor vehicle accident. However, he stated: "[Mr. Darwish's] psychological condition at this time is in excess of what would be expected from most individuals involved in similar accident." With regard to Liberty Mutual's question about the causal relationship between the accident and Mr. Darwish's symptoms, Dr. Mermigis commented:

With respect to the question of whether the client's psychopathology is related to his motor vehicle accident, the only evidence available to me for answering that question is the fact that from all accounts, Mr. Darwish was employed and functioning on his own prior to his accident and has not been able to do so since. As mentioned above, there are no doubt pre-morbid factors that have contributed to his current condition , but it appears to be the accident and its consequences that immobilized him and precipitated his psychopathology at present.

I find the conclusions of the medical/rehabilitation DAC report significant since it was an independent medical assessment which confirmed the nature and cause of Mr. Darwish's problems. It was the last medical assessment Mr. Darwish underwent before the 104-week mark of the accident and the only one conducted during the following 12 months. I find that by March 21, 1997, all of the medical evidence in the possession of Liberty Mutual, including the I.E.s, showed that Mr. Darwish was suffering serious psychological, emotional and cognitive problems which were disabling him, not only from work but also from his daily activities. I find that the medical evidence shows that Mr. Darwish's condition continued to decline from the date of the accident, without any significant period of improvement.

I find it significant that none of the psychologists, psychiatrists or neurologists who saw Mr. Darwish to that point had expressed any concerns about Mr. Darwish's credibility or the legitimacy of his symptoms. In summary, I find that Mr. Darwish continued to suffer a substantial inability to perform his essential tasks, as a result of the accident, after March 21, 1997.

During the 12 months following the medical/rehabilitation DAC, Mr. Darwish continued to see his family doctor with the same complaints and to take the medications prescribed for him, including Serzone (antidepressant) Tegretol (anticonvulsant), Ativan (anxiolytic, sedative), Flexeril (muscle relaxant) and Tylenol #2 (analgesic).

In June and July 1997, Mr. Darwish underwent a series of psychiatric and neurological examinations. Dr. S. Shapiro, psychiatrist and Dr. R. Roussev, neurologist, examined him at the request of Liberty Mutual. Mr. Darwish's solicitor arranged psychiatric and neurological assessments by Dr. A. Hanick, and Dr. M. Weber, respectively, who examined him a second time in January 1999. All four physicians testified at the hearing.

Mr. Darwish attended all the 1997 assessments accompanied by Mr. Zamani, his caregiver. In January 1999, he was accompanied by Dr. Samir Darwish, his older brother. Mr. Darwish himself did not provide any history to the physicians nor were they able to conduct any tests or physical examination.

The doctors, with the exception of Dr. Shapiro, noted in their reports that they were told by Mr. Zamani that Mr. Darwish's health had been deteriorating, and that he had become completely dependent on others, requiring constant supervision and attention. He had progressively become withdrawn and rarely engaged in meaningful conversation. Mr. Zamani reported that Mr. Darwish had been exhibiting unusual and bizarre behaviour such as spending a great deal of time "playing" a computer game without showing corresponding action, reporting that he saw images on the television screen when the television set was not on and speaking to his family on the phone when no one was on the line.

Dr. Samir Darwish told Dr. Hanick and Dr. Weber in January 1999, substantially the same history Mr. Zamani provided to them and to Dr. Roussev in June 1997. He told them that since Mr. Darwish came to live with him in April 1998, his condition had not improved. He told them that Mr. Darwish spent most of the day at home alone, flipping television channels with no apparent interest or attention, and that he would go into his room at night, close the door and speak to someone when there was no one else in the room. Dr. Samir Darwish reported that when Mr. Darwish went out of the house, he was usually accompanied by his father, who also lived with him, but occasionally, he would go out on his own and wander around, usually walking in the park.

Unlike Dr. Roussev, Dr. Hanick, and Dr. Weber, Dr. Shapiro reported that he heard no history from Mr. Zamani suggesting that [Mr. Darwish] had hallucinations or was driven by delusional stimuli or that he was experiencing any "psychotic thought disorder." The only history that Dr. Shapiro recorded as having been provided by Mr. Zamani was that Mr. Zamani reported that sometimes Mr. Darwish acted childishly, quarrelling for the TV remote control with Mr. Zamani's children, and sometimes he acted normally. Dr. Shapiro noted that Mr. Zamani said Mr. Darwish "never really became as he was before the accident," that he would take him to his office, where "he would sit at the computer and work on it but then, he would make several telephone calls. I told him not to do it. But you have to watch him all the time."

All four doctors made similar observations about Mr. Darwish's presentation during the examinations. They noted that Mr. Darwish appeared bewildered, was easily distracted, and tended to be possessive of his bag containing his medications. He repeatedly clicked a pen on and off while also shaking his right leg up and down, frequently manipulated his genitalia and asked to visit the washroom. Dr. Roussev and Dr. Shapiro noted that Mr. Darwish was able to state his own name, the names of his brothers, his age and how long ago he arrived in Canada. Dr. Shapiro noted that Mr. Darwish walked "in a tip-toe manner, making few little steps back and forward, glancing intensely around himself, displaying fear and apprehension, seemingly, inspecting the walls and the ceiling, sat at the edge of the chair looking frequently back at Mr. Zamani in a mute desperation, as if pleading for the [sic] rescue."

Dr. Hanick felt that Mr. Darwish's "presentation is in keeping, by itself, with a diagnosis of an undifferentiated schizophrenic disorder." However, he stated that this diagnosis cannot be made where there is evidence of an underlying medical condition, such as the cerebral trauma that Mr. Darwish sustained. Dr. Hanick testified, however, that "psychotic states closely resembling schizophrenia can clearly appear after such forms of cerebral trauma." He stated that given the clear documentation in the medical evidence that Mr. Darwish suffered organic brain change (of frontal lobe injury), the correct diagnosis in this case is "a psychotic disorder due to a general medical condition."

With regard to Mr. Darwish's unresponsiveness, Dr. Harnick explained that Mr. Darwish chooses to respond to people depending on his psychotic influences. Generally, he would respond to people he likes and trusts. Dr. Harnick rejected the suggestion that Mr. Darwish was mimicking the symptoms of a psychotic illness. Dr. Hanick testified that Mr. Darwish's presentation was consistent with the recognized symptoms of schizophrenia, although the degree of infantile behaviour he exhibited was a bit unusual.

Dr. Weber was of the opinion that as a result of the traumatic brain injury he sustained in the accident, Mr. Darwish suffers from ongoing symptoms of post-concussion syndrome. He agreed with Dr. Hanick that he also suffers from schizophrenia-like symptoms which greatly overshadow his post-concussive symptoms.

Dr. Roussev agreed with Dr. Weber that Mr. Darwish suffered from post-concussion syndrome due to his mild brain injury. However, he did not agree that those symptoms were still ongoing when he examined Mr. Darwish in June 1997. He testified that the time frame for recovery from the symptoms of post-concussive syndrome is generally three to six months after the trauma. Dr. Roussev agreed with Dr. Hanick and Dr. Weber that Mr. Darwish's symptoms resemble those of schizophrenia and that he was disabled by them; however, he did not agree that they can be attributed to the mild brain injury he sustained in the accident. He opined that "Mr. Darwish's inability to return to pre-accident essential duties is unlikely to be due to pain, fear of injury or neurological injuries sustained in the course of the accident but is most likely due to a psychiatric disorder which has evolved in the recent past" without relationship to the accident. He testified that "it is highly unlikely that delayed posttraumatic psychosis would be physiologically related to the mild head injury incurred by Mr. Darwish."

Dr. Roussev did not explain what unrelated factors were responsible for Mr. Darwish's problems, other than stating that Mr. Darwish "has no described family history of this disorder [schizophrenia]; however, sporadic cases are entirely possible and the current described function and symptoms most resemble that disorder." If Mr. Darwish's symptoms cannot be attributed to causes other than the injuries arising from the car accident, Dr. Roussev offered the possibility that Mr. Darwish might be malingering. He testified that one can "fake" the symptoms of a psychotic disorder, "at least for a period of time."

Dr. Roussev commented in his report that Mr. Darwish's "symptomatology since the end of 1995 has followed a continuous and somewhat stepwise deterioration" which is "clearly at variance with the natural history of postconcussive disorder." He opined that "any cognitive impairment stemming from the closed head injury incurred in the course of MVA would be greatly overshadowed by the current symptom presentation."

Dr. Shapiro agreed that traumatic brain injuries can generate schizophrenia-like symptoms. However, he did not feel this was an appropriate diagnosis in Mr. Darwish's case because Mr. Darwish exhibited behaviour that he considered to be "inconsistent with the sequellae of irreversible brain damage" such as, since the motor vehicle accident, being able "to drive a car, to work at a computer, to attend independently to physiotherapy programs, to travel, to be left alone safely with small children, etc."

Dr. Shapiro concluded, reluctantly, that in light of Mr. Darwish's "avoidance of certain independent medical evaluations, extended period of time that Mr. Darwish spent abroad (with his family in the United States) inconsistent presentations at different times to various specialists in the past two years and ongoing financial litigation, the deliberate production of symptoms, driven by external incentives, should be considered as the first differential diagnosis."

Dr. Shapiro testified that the presentation he saw in his office "was of an organic disability, of insanity due to brain damage." He stated that Mr. Darwish is capable of mimicking the symptoms of a psychotic individual because "everyone knows the common image of a crazy person."

I prefer the opinions of Dr. Hanick and Dr. Weber to those of Dr. Shapiro and Dr. Roussev. I find that it is more probable that Mr. Darwish's current symptoms are generated by the brain injury he sustained in the accident than the suggestion that Mr. Darwish is mimicking them. I heard no evidence about Mr. Darwish avoiding or failing to co-operate with any of the medical assessors retained by Liberty Mutual, as suggested by Dr. Shapiro. The evidence is that none of the physicians who examined or assessed Mr. Darwish before Dr. Shapiro, with the possible exception of Dr. Hall, have expressed a concern about Mr. Darwish being a malingerer or mimicking his symptoms. Dr. Shapiro himself testified that he was uneasy in reaching this conclusion. I also note that Dr. Shapiro's suggestion of malingering was premised on his initial understanding that there was no medical condition of a brain injury that could better account for his symptoms.

I am not persuaded by Dr. Roussev's opinion that Mr. Darwish no longer suffers the effects of post-concussion disorder. This conclusion is not consistent with his finding that in June 1997, Mr. Darwish's psychiatric and cognitive manifestations greatly overshadowed the symptoms of his postconcussive syndrome.

I accept Dr. Hanick's uncontradicted opinion that a diagnosis of schizophrenia cannot be made if the disturbance can be better attributed to a direct physiological effect of the brain trauma. I find it more probable that Mr. Darwish's schizophrenia-like symptoms are generated by the injury to his brain, rather than a psychiatric disorder unrelated to the accident, the causes of which are undetermined, as suggested by Dr. Roussev. This finding is consistent with Dr. Roussev's concession that, although a rare phenomenon, even a mild traumatic brain injury can generate the symptoms of schizophrenia.

I reject Dr. Roussev's conclusion that there is no link between Mr. Darwish's current symptoms and the brain injury. This conclusion is based largely on his own assessment of the early progression of symptoms that at the time of Dr. Hershberg's report of October 17, 1995, Mr. Darwish was exhibiting some "relatively minor symptoms" and that he was recovering from the majority of symptomatology. Dr. Roussev felt that there was an abrupt change in Mr. Darwish's condition in 1996, suggesting his subsequent problems were unrelated to his head injury. I do not agree. As I found above, Mr. Darwish was not improving in October 1995; rather his condition to that point had been steadily declining; although the decline was more significant in 1996.

To support its position that Mr. Darwish is not suffering from "a bona fide" disability, Liberty Mutual relies on surveillance videotape footage taken on June 18 and 19, 1997 (the dates of the psychiatric and neurological I.Es) and December 8, 1997 (the date of the REC DAC examination) showing Mr. Darwish engaged in normal conversation, driving a car and taking public transit on his own; and the evidence of Dr. Ashok Sajnani, Mr. Darwish's ophtalmologist who testified that Mr. Darwish presented as a normal, healthy person on his examination on December 12, 1997, three days after his attendance at the REC DAC.

The surveillance videotapes and the evidence of Mr. Cory Wickham, private investigator, show on June 18, 1997 Mr. Darwish engaged in an apparent conversation with Mr. Zamani, exhibiting no unusual behaviour while sitting with Mr. Zamani in Dr. Shapiro's waiting room. The next day, on June 19, 1997 after leaving Dr. Roussev's office, Mr. Darwish was driven by Mr. Zamani to a location near the Don Valley Parkway where Mr. Zamani turned control of the car over to Mr. Darwish. Mr. Darwish then drove the car for approximately 13 minutes to an apartment building where he was known to reside. On December 8, 1997, after his appointment at the REC DAC, Mr. Darwish walked alone some distance to a bus stop, waited for the bus for a few minutes, along with other people, and boarded normally when it arrived.

Liberty Mutual submitted and I agree that Mr. Darwish's behaviour depicted in the videotapes of June 18 and 19, 1997 appear to be inconsistent with his presentation during the medical examinations on the same dates and with the history of complete dependency Mr. Zamani provided to the doctors. Without the benefit of a sound track on the videotape, I am unable to conclude whether Mr. Darwish "engaged in meaningful conversation" as Dr. Shapiro suggested. However, given the relationship between Mr. Darwish and Mr. Zamani, his caregiver, I find the inconsistency in his behavior is more probably attributable to psychotic influences than to intentional malingering. The same analysis applies with respect to the absence of unusual behaviour during the eye examination with Dr. Sajnani, who had been his eye doctor since March 1993. I accept Dr. Hanick's uncontradicted testimony that Mr. Darwish's unresponsiveness is a manifestation of his psychotic influences and that he will speak to people he likes and trusts.

Dr. Roussev and Dr. Shapiro testified that Mr. Darwish's ability to drive a car is inconsistent with the manner of his presentation at their examination and the history of his disability. Dr. Roussev testified that while it is possible for psychotic individuals to drive a car when they are not under psychotic influences, the "infantile behaviour" he observed in his office would preclude his driving.

Dr. Weber and Dr. Hanick disagreed. They testified that while psychotic individuals should not drive, they can do so. Dr. Hanick testified that "If Mr. Darwish was driving to his home, that is not troubling. But if he drove to his doctor's office, that would be inconsistent."

I find Mr. Darwish's ability to drive a car, attend a medical examination, and take public transit on his own inconsistent with Mr. Zamani's description that he needed constant supervision. This evidence puts the history of complete dependency provided by Mr. Zamani into question. However, while I find Mr. Darwish's ability to drive a car in heavy traffic without incident troubling, I cannot conclude on the basis of this evidence alone, that Mr. Darwish is faking his symptoms. I note that subsequent to this incident there is evidence in the materials filed that Mr. Darwish's driver's license was suspended by the Ministry of Transportation on medical grounds.

Liberty Mutual submits that Mr. Darwish's history as provided to the doctors by Mr. Zamani is inconsistent, contradictory and misleading and therefore the medical opinions based on that history should be rejected. Liberty Mutual referred to many instances in the medical records where Mr. Zamani was inconsistent when he related Mr. Darwish's background before immigrating to Canada and his educational and employment history to the various doctors. I find that the medical reports since Mr. Darwish started attending I.E.'s accompanied by Mr. Zamani show several instances of inaccuracies. However, I do not find these inconsistencies to be significant or to substantially affect the opinions of the assessors. Most of the discrepancies are not related to the material elements of the findings. Mr. Zamani was not called to testify. It was open for either party to call him as a witness to explain the apparent discrepancies. However, this was not done.

The material evidence relating to Mr. Darwish's unusual behaviour was given by Dr. Samir Darwish, and I find it substantially consistent with that related by Mr. Zamani to Drs. Hanick, Weber and Roussev. I found Dr. Samir Darwish a reliable witness who gave his evidence truthfully and in a straightforward fashion. Liberty Mutual has not questioned his credibility. I accept his testimony that before the accident, Mr. Darwish was "a lively, outgoing, spontaneous, talkative" individual who added life to the family and that after he came to Canada, he was engaged in a variety of jobs and took steps to upgrade his education. I accept Dr. Samir Darwish's evidence that after the accident Mr. Darwish's personality changed, and that his condition rapidly deteriorated to the point where, in April 1998, when Mr. Darwish came to live with him in Baltimore, he was exhibiting the schizophrenia-like behaviour reported to Dr. Hanick and Dr. Weber.

Causation:

Liberty Mutual argues that if Mr. Darwish is disabled, his inability was caused by medical conditions other than those attributable to the motor vehicle accident. The consensus of the medical opinion to the 104-week mark of the accident was that Mr. Darwish's problems were caused by the injuries he sustained in the accident. The experts who testified on behalf of Liberty Mutual agreed that if Mr. Darwish's schizophrenia-like symptoms are found to be genuine and related to his brain injury, Mr. Darwish would be totally disabled as a result of those symptoms.

I have found that despite any medical problems he had before the accident, Mr. Darwish was able to work as a machine operator from 50 to 60 hours per week. I heard no expert opinion about any post-accident medical condition, apart from the injuries he sustained in the accident, that was responsible for or contributed to his disability. Mr. Darwish may have a yet unknown, pre-existing condition that contributed to his disability. However, as has been established in a number of arbitration cases, the insured person is not required to prove that the motor vehicle accident is the only cause of his disability. It is sufficient that he prove, on a balance of probabilities, that the contribution of the accident to his or her disability is material. I find, on the totality of the evidence in this case, Mr. Darwish has discharged this onus.

Accordingly, I find that Mr. Darwish suffers a substantial inability to perform the essential tasks of his pre-accident employment, and is entitled to weekly income replacement benefits from the date of termination until they are properly replaced by LECBs, under Part VI of the Schedule.

Attendant Care Benefits:

Pursuant to paragraph 47(1)(a) of the Schedule, the insurer is required to pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aid or an attendant. Attendant care benefits are payable for services in respect of routine personal care activities such as dressing, undressing, grooming, feeding; basic/supervisory attendant care such as cleaning the bathroom after the person's use, changing the person's bedding, clothing care, ambulatory support; and skilled attendant care for complex health/care and hygiene functions that require skilled or trained personnel, such as bowel care, skin care, bathing, oral hygiene, administering medication, and assisting the person with prescribed exercise programmes.

Mr. Darwish claims payment of attendant care expenses incurred on his behalf by his brother, Dr. Samir Darwish, since the time of the accident. Dr. Samir testified that he paid Mr. Zamani a total of $9,500 (in United States currency) during 1997 and 1998 for food, lodging and attendant care services he provided to Mr. Darwish, while Mr. Darwish lived with him in Toronto. He also testified that since April 1998, when Mr. Darwish started living with him in Baltimore, he has been paying Ms. Afaf Tamimi ($8.00 per hour, for four hours a day, three days a week) to provide housekeeping and attendant care services to Mr. Darwish.

Mr. Zamani and Ms. Tamimi did not testify. I received very little evidence concerning the nature of attendant care services Mr. Darwish required or received from his caregivers. Apart from two notes by Dr. Veidlinger in February 1996 saying that Mr. Darwish "needs some help at home," and Dr. Obaji recommending in April 1997 that Mr. Darwish spend more time with his family for psychological support, I heard no expert evidence suggesting that the impairment that Mr. Darwish sustained in the accident disabled him to the extent that he requires attendant care.

I find the surveillance investigation evidence showing Mr. Darwish driving, attending medical examinations on his own and taking public transit without assistance strongly indicate that he does not require attendant care services.

Accordingly, I am not persuaded that Mr. Darwish is entitled to the attendant care benefits claimed.

EXPENSES:

The issue of expenses is deferred. The parties are urged to come to an agreement on this issue.

April 7, 2000

Asfaw Seife Arbitrator

Date