Neutral Citation: 2000 ONFSCDRS 97

FSCO A98-001289

BETWEEN:

M. A.

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

March 20 to 23, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ian A. Little for Ms. A

Eric K. Grossman for State Farm Mutual Automobile Insurance Company

The Applicant, M.A., was injured in two motor vehicle accidents on June 3 and October 18, 1996. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly caregiver replacement benefits on February 4, 1997. It paid Ms. A $1,000 in respect of her claim for housekeeping expenses, less than the amount she claims in this proceeding, and refused her claim for attendant care benefits. The parties were unable to resolve their disputes through mediation, and Ms. A 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 Ms. A entitled to caregiver benefits after February 4, 1997?
Is Ms. A entitled to additional benefits in respect of housekeeping expenses?
Is Ms. A entitled to attendant care benefits?

Ms. A is entitled to caregiver benefits from February 4, 1997.
Ms. A is not entitled to additional benefits in respect of housekeeping expenses.
Ms. A is entitled to attendant care benefits from June 4, 1996 to November 4, 1996.

Ms. A was injured in two motor vehicle accidents, the first on June 3, 1996, and the second on October 18, 1996, both times as a passenger. She does not dispute that she only sustained soft tissue injuries but alleges that she has been unable to return to her pre-accident caregiver, housekeeping and self-care activities due to chronic pain and substance abuse problems she has experienced since, and as a result of, these accidents. At the time of both accidents, Ms. A was the single parent of three children born on February 9, 1990, November 29, 1991 and February 5, 1993, respectively. Ms. A's husband and father of her children, Sam A., claims to have acted as one of their and Ms. A's caregivers since the accident. Other caregivers have included Ms. A's brother, Emmanuel A.W., and persons hired from outside the family.

State Farm responded to both accidents and, as regards the disputed issues, paid Ms. A caregiver benefits claim until February 4, 1997, $1,000 in respect of housekeeping and nothing for attendant care. State Farm denies that Ms. A has remained unable to engage in her pre-accident activities, or that she has continued to suffer from a partial or complete inability to carry on a normal life, due to accident-related impairments. It points instead to the injuries Ms. A sustained in a slip-and-fall earlier in 1996, injuries which, it alleges, she attempted to conceal. The Insurer alleges that Ms. A's complaints of pain are exaggerated and that she has made her use of alcohol deceitfully conspicuous when being examined on behalf of the Insurer. Further, the Insurer argues that Ms. A discharged herself from an alcohol dependency program against medical advice, thus failing to "mitigate her loss" by seeking treatment. It also contends that Ms. A cannot simultaneously claim caregiver and attendant care benefits if the latter are "really claims for dependent care" under section 54 by virtue of section 54(2) of the Schedule.

Ms. A received treatment for the injuries sustained in both accidents from, among others, Dr. A. Hirsch, her family doctor. In his health practitioner's certificate following the accident of June 3, 1996,² Dr. Hirsch diagnosed a whiplash injury with strain to the thoracic and lumbar regions of the spine and a contusion to the left knee. Dr. Hirsch's health practitioner's certificate following the accident of October 18, 1996³ similarly diagnosed a whiplash injury with strain to neck muscles, lower back and contusion of left knee but it added "anxiety-depression."

In fact, Ms. A's problems with anxiety and depression were first recorded by Dr. Hirsch in his clinical note of July 26, 1996,⁴ less than two months after the first accident. Around that same time, Ms. A started to complain to Dr. Hirsch of sleeping problems, decreased appetite and fatigue, and he decided to refer her to Dr. T. Sooriabalan, a psychiatrist.⁵

Dr. Sooriabalan, psychiatrist

Ms. A was first seen by Dr. Sooriabalan on September 24, 1996. Dr. Sooriabalan's clinical notes⁶ confirm that he saw Ms. A six times between September 1996 and January 1997 when the notes stop. The OHIP summary⁷ confirms that he saw her ten times in 1997 and five times prior to July 24, 1998 when the summary stops. Dr. Sooriabalan did not testify at the hearing.

Dr. Sooriabalan's first report to Dr. Hirsch, dated February 14, 1997,⁸ described and diagnosed the consequences of the first accident as follows:

She met with a car accident on the 3^rd of June, 1996. Since then she has been experiencing severe backache, pain in the neck, headaches, and pain in the ears. At the time of the accident she was a passenger in the back seat.

For the physical pain she is going for physiotherapy and takes pain killers, including Tylenol #3, Naproxen, and a sleeping tablet. In addition to the somatic pain, she experiences tiredness, weakness, dizziness, is unable to drive the car, and is scared to drive or to be in the front seat of the car.

She gets very angry at her children for no apparent reason, gets very irritable and unable to bear any noise, doesn't want to socialize with any people, has lost interest in everything, gets very depressed and, in addition to that, she has been experiencing suicidal ideation, sleep disturbances with nightmares, crying spells, forgetfulness and poor concentration.

Because of her sleeping problem, at times she drinks strong whiskey to induce sleep and to reduce her pain. She gets very emotional nowadays and says "small things upset me and I cry."

On a mental status examination, I found this lady to be very depressed and I also observed she could not sit on the chair for more than a few minutes as she had to stand up because of the pain.

A diagnosis of Major Depressive Disorder and Post Traumatic Stress Disorder precipitated by the car accident was made and she was started on Manerix 150mg b.i.d., Oxazepam 300mg hs, and I saw her every three weeks for supportive psychotherapy.

In a second note dated August 15, 1997⁹ addressed "to whom it may concern," Dr. Sooriabalan wrote:

I wish to confirm that [M] is continuing to receive treatment from us for a major psychiatric illness. In addition, she suffers from chronic pain.

As a result of these conditions, she is not able to look after her children. Hence, I would recommend her husband to stay at home to look after their children and other household matters.

In a third report to Ms. A's counsel, dated October 30, 1997,¹⁰ Dr. Sooriabalan referred to the second accident and observed no improvement in Ms. A's condition.

In spite of all our efforts, this lady continues to be depressed, suffers from bodily aches and pains, at times she is very muddled and confused. As a result she is not able to look after her children or cope with any daily routines at home. Fortunately, at present, Mr. [A] stays at home to look after the children and attends to the household needs. This has been very helpful for the whole family and as well as the patient.

I would also like to confirm that as a result of the accident she sustained on the 3^rdof June, 1996 and again on the 18^th of October, 1996, she suffers from substantial inability to engage in the care giving activities in which she was engaged at the time of the accident.

The last report of Dr. Sooriabalan filed at the hearing, dated September 23, 1998, again described no change in Ms. A's condition but explained her alcohol abuse problem and its unsuccessful treatment as follows:

In addition to the psychological trauma, this lady suffers from severe bodily aches and pains. In order to numb the pain as well as to help her with her sleep, she has started to drink alcohol almost daily. This problem has never been there prior to the accident.

Although she was admitted to an alcohol rehabilitation centre for treatment of the alcoholism, she could not stay more than two weeks as the centre stopped all of her medications including pain killers. She could not bear the pain and as a result she left the centre after two weeks.

The DAC assessments:

On September 19, 1996, Ms. A was referred to the Canadian Rehabilitation Institute (CRI) for a designated assessment centre (DAC) medical and rehabilitation assessment. CRTs reports¹¹ indicate that it was asked "to determine if further chiropractic or any other forms of treatment are reasonable and necessary." Ms. A was assessed on October 9, 1996 by a chiropractor and a physiotherapist, on October 24, 1996 by an orthopaedic specialist and on October 24, 1996 by a psychiatrist. None of these assessors testified at the hearing.

The chiropractor, Dr. M. Rajwani, was unable to conduct a physical examination due to Ms. A's complaints of extreme pain and self-limiting behaviour. He nevertheless concluded that she was "not a good candidate for any form of physical treatments" including "chiropractic, physiotherapy and active rehabilitation" and recommended that such treatments be discontinued. He also expressed the opinion that "her pain does not correlate in any way with any physical condition that is present."

Using a pain and disability questionnaire, the physiotherapist, Susan Wagar, determined that Ms. A perceived herself to be so crippled that, "according to studies," she was either exaggerating or she should have been bed-bound. Ms. Wagar also found discrepancies between Ms. A's physical abilities when she was being observed but not tested as compared to when she was being tested or examined. Ms. Wagar concluded that "further physiotherapy and/or rehabilitation programs are not likely to serve to accelerate Ms. A's functional recovery at this time" but "that she would benefit from some sort of psychological or behavioural therapy aimed at addressing the psychological and/or behavioural component to her clinical picture."

The orthopaedic assessment was conducted by Dr. I. Grosfield. He also observed discrepancies between Ms. A's abilities when she was being observed but not examined as compared to when she was being examined. He did not doubt that Ms. A had sustained soft tissue injuries to the cervical and lumbar regions of her spine and to her left knee but he did not "feel that further physiotherapy or chiropractic treatment [was] going to help." Dr. Grosfield stated the opinion:

Her symptom complex is, I feel, exaggerated but I don't feel that it is malingering. I feel that she does have the discomfort and she is just frightened to proceed through the discomfort to carry out her activities.

I think she has to be encouraged into increasing her activities, be aware that the increase will produce some discomfort but then in the long run, it is similar to coming out of a cast for a broken leg, that initially you have pain but you have to walk on it in order to get it normal again.

Ms. A's psychiatric assessment was performed by Dr. Robert Notkin. Of the four DAC assessments, it was the only one that took place after the second motor vehicle accident of October 18, 1996. Dr. Notkin encountered serious problems interviewing Ms. A, problems of a kind not reported by the previous assessors. But while his report described these problems, it also expressed opinions about her mental condition and its potential cause. Dr. Notkin wrote:

...It became quite clear, early on in the interview, that the woman appeared to be severely mentally ill. She had great difficulty in answering the bulk of her [sic] questions. She is extremely slowed, psychomotorly and appeared puzzled after questions were asked. It became clear that she was not concentrating on the questions and I would often have to actually wave my hand in front of her eyes for her to focus better on me being in the room with her. I wondered if she was experiencing psychotic phenomena and so I specifically inquired about these. Affect appeared to be depressed. She overtly cried at certain points during the interview. Thought form and content were not normal. She experienced thought blocking. Her thought content was sparse. She admitted to having paranoid delusions of people following her on the streets and that people were out to harm her. She described being so frightened by this that at times, she does not leave the home. There was suicidal ideation expressed that was not active currently. There was perceptual abnormalities described. She described auditory hallucinations. These were of a command nature and talk to her and tell her to do things. She did not admit to any command hallucinations, telling her to kill herself. Cognition showed impairment...

... It is perhaps important to know that at some point in this interview, she briefly made mention of another motor vehicle accident that apparently happened at some point in this past week. She could not provide any details of this as was characteristic of the whole interview. Based on my interview, this woman presents a picture of severe psychiatric impairment. She exhibits psychotic symptoms of paranoid delusions and auditory hallucinations of a command nature, she shows evidence of severe Major Depressive Episode, and she shows evidence of moderate cognitive impairment.

... With the assumption that this has all taken place only since the motor vehicle accident, I would need to look at the motor vehicle accident as being causal. As I have indicated obtaining her complete medical file, would help clarify this assumption.

In view of these findings and of Ms. A's admission that she was drinking eight to ten ounces of Vodka per day, Dr. Notkin recommended that Ms. A be admitted to a psychiatric ward to control her medication and alcohol intake and to undergo neuropsychological testing. He also reported to the Children's Aid Society his "concern about her ability to care for her children." Finally, he contacted Dr. Hirsch by telephone to arrange for him to "see her immediately and ...[to] insure that she receive ongoing psychiatric follow-up." Dr. Notkin learned of Dr. Sooriabalan's involvement from Dr. Hirsch; he had not been supplied with copies of Dr. Sooriabalan's records when the DAC referral was made.

Dr. Shah, psychologist:

Ms. A was examined on behalf of the Insurer by Dr. Hemendra Shah, a psychologist, on February 23, 1998. Dr. Shah encountered the same kind of problems communicating with Ms. A as had Dr. Notkin. In his first report,¹² Dr. Shah observed that "at times it took three or four reiterations before the psychometrist could understand her. Occasionally, Ms. A seemed to say things totally unrelated to the task or that had no relevance whatsoever, or she would appear to speak incoherently." She was found to be "emotionally labile" and "apathetic and indecisive." The report stated that Ms. A "gave the impression she was in pain" by fidgeting, squirming, moaning, groaning, grimacing, sighing and holding her head. She also took a prescription drug and consumed alcohol while in the presence of a psychometrist. After a series of telephone conversations, apparently with Ms. A's lawyer, the assessment was terminated and Dr. Shah informed the Children's Aid Society of his "concerns regarding Ms. A's ability to care for her children."

Dr. Shah's first report expressed the following opinion about Ms. A's behaviour at the assessment and about the cause of her problems:

In general, Ms.[A] impressed the examiners as appearing to deliberately wanting to terminate the assessment without completing it. Her seemingly reticent nature, in conjunction with her strange behaviour coupled with her drug use, made the termination of the assessment almost a foregone conclusion.

A possibility of malingering was indicated on the WMT [Word Memory Test]. From my perspective, her behaviour was irresponsible and inexcusable. It is my opinion that a car accident, similar to the one that Ms. [A] was involved in, cannot be a causative factor of such display of behaviour as exhibited by Ms. [A.]

However, without examining Ms. A a second time, Dr. Shah issued a second report dated December 2, 1999¹³ in which he effectively withdrew his earlier opinion without substituting a new one. He wrote:

Since she did not cooperate with the neuropsychological assessment, I was unable to determine her functioning level at that time and what, if any, impact the accident may have had on her cognitive abilities.

I feel it is imperative for Ms.[A] to refrain from substance abuse and to put forth her maximum effort in a comprehensive neuropsychological assessment, to enable a psychologist to determine her present cognitive abilities and to offer an opinion regarding a possible causal relationship between the accident and her cognitive abilities. The assessing psychologist would most likely need her complete medical file dating back to 1990, to determine when she began her substance abuse and what, if any, effect it may have had on her functioning level.

Dr. Shah did not testify at the hearing.

Dr. Kirkpatrick, psychiatrist:

Ms. A was further examined on behalf of the Insurer on March 17, 1999 by Dr. X. R. Kirkpatrick, a psychiatrist. Dr. Kirkpatrick's first report dated June 30, 1999¹⁴ referred, as had Drs. Shah and Notkin's reports, to problems obtaining information from Ms. A but Dr. Kirkpatrick also noted that Ms. A's behaviour was variable:

Ms. [A's] behaviour over the course of the assessment was extremely unresponsive and uncooperative. For the most part, she made no eye contact and, in fact, lay back in her armchair with her eyes averted or closed and frequently seemed not to hear my questions until they had been repeated several times. When she did respond, she tended to speak in a low mumble but she was capable of raising her voice and speaking clearly when irritated by the persistence of my questioning. Although I was initially concerned about the possibility of poor language comprehension, Ms. [A] insisted that she did not require an interpreter and, when she did respond to question, it seemed evident that she had understood correctly.

Over the course of this assessment, Ms.[A] showed a very restricted range of emotional expression with the only departure from apathetic withdrawal being somewhat histrionic pounding and dry sobs when I persisted in trying to elicit information about her accidents. However, when the subject was changed, her apparent distress readily subsided. She did not appear to be severely or pervasively depressed, giving instead an impression of regressed and resistive behaviour.

Dr. Kirkpatrick noted that while Ms. A did not acknowledge any physical health problems prior to the motor vehicle accidents, documentation of pre-accident medical treatment¹⁵ established that she had sustained injuries to her left knee and hip in a slip-and-fall on February 19, 1996, about three and a half months prior to the first motor vehicle accident.

Dr. Kirkpatrick drew attention to a comment made by Dr. D. Katz, a specialist in physical medicine and rehabilitation from whom Ms. A received treatment for her slip-and-fall injuries. In his report dated April 20, 1996,¹⁶ Dr. Katz stated that Ms. A actively resisted assessment and displayed "emotional overlay." Dr. Kirkpatrick then referred to the finding of an occupational therapist on September 10, 1997¹⁷ when Ms. A was assessed for cognitive function and "scored 0/5 when told what she was being tested for, and 5/5 when unaware that she was being tested." Dr. Kirkpatrick also highlighted the report of Dr. Paul H. Grant, an orthopaedic specialist, who found "excessive pain focus and exaggerated pain behaviour" when he examined Ms. A on February 17, 1998.¹⁸ Dr. Kirkpatrick concluded that "Ms.[A] has been prone to exaggerated pain behaviour and self-limiting behaviour at least as far back as February, 1996."

Dr. Kirkpatrick's report pointed out that despite Dr. Notkin's concern on October 24, 1996 about the safety of Ms. A's children, in her next meetings with Drs. Hirsch¹⁹ and Sooriabalan,²⁰ Ms. A denied hearing voices and maintained that she could look after her children with outside help.

While Dr. Kirkpatrick acknowledged in her report that Ms. A was admitted to the Donwood Centre for Addiction and Mental Health at the end of July 1998, she doubted the veracity of Ms. A's complaints of leg and neck pain. In particular, she noted the August 6, 1998 nurses' progress report which read: "client seen in cafeteria by nursing staff walking without limp, neck straight." Dr. Kirkpatrick also stressed that Ms. A "'left the program Against Medical Advice on August 25, 1998' purportedly because her pain made it too difficult to attend."²¹

Based on these observations and after completing her own examination, Dr. Kirkpatrick expressed the following opinions about Ms. A's mental health:

...While I cannot rule out the possibility of an underlying psychiatric disorder, Ms. [A's] bizarre, exaggerated and uncooperative behaviour during my assessment cannot be accounted for by any psychiatric disorder that could conceivably be attributed to the motor vehicle accidents in June and October, 1996. I would also consider it most unlikely that her behaviour could be accounted for by cultural norms. Overall, it was my impression that the seemingly psychiatric abnormalities were largely deliberately assumed and predominantly under conscious control.

Overall, it would appear that following the 1996 motor vehicle accidents, a pre-existing pattern of somatization and deliberately exaggerated pain behaviour became focused on potentially compensable symptoms attributed to the motor vehicle accidents. There is, in my opinion, no firm evidence that Ms. [A] has ever suffered a significant head injury or any form of psychiatric illness attributable to the motor vehicle accidents. While her behaviour is strongly suggestive of underlying characterological pathology which would, of course, long pre-date the subject motor vehicle accidents, the absence of adequate reliable historical information about her pre-accident functioning prevents firm conclusions in this regard.

In summary, the preponderance of evidence indicates that the complaints and behavioural abnormalities evinced by Ms. [A] are deliberately, if inconsistently, assumed in a manner indicative of malingering. I would therefore not consider her to be disabled on psychiatric grounds from undertaking any activity that it is judged physically safe for her to perform. Under the circumstances, no further form of psychiatric or psychological intervention is required with respect to the 1996 motor vehicle accidents.

Although I have confidence in the opinions expressed above, given that Ms. [A] did state that she had been experiencing command hallucinations that might lead her to harm her children, as required by law I informed the Children's Aid Society of these concerns immediately after my assessment.

Subsequent to her first report, Dr. Kirkpatrick was supplied with information regarding Ms. A's qualifications as a "Health Care Aide" and her pre-accident job search efforts²² and, during her cross-examination, she described Ms. A as person with a good background and a good education who had managed to survive her separation and was "able to function." Ms. A was not, in Dr. Kirkpatrick's oral opinion, "the sort of person who would go to pieces" after, or be "unable to adjust to the stress" caused by, her February, June and October 1996 accidents.

In her second report, dated December 14, 1999,²³ Dr. Kirkpatrick challenged directly Dr. Sooriabalan's opinion that Ms. A's "pain, alcohol abuse, depression and post-traumatic stress disorder" could all be attributed to her 1996 motor vehicle accidents. She wrote:

Dr. Sooriabalan does not appear to have had any first hand knowledge of Ms. [A's] level of functioning prior to her accidents nor has he had access to her complete medical records. Moreover, Dr. Sooriabalan's reports are somewhat impressionistic and do not include a full formal psychiatric history, mental status examination and formulation and it is therefore impossible to determine whether the diagnosis he specifies were justified by the particulars of Ms. [A's] presentation or what the relationship between her psychopathology and the motor vehicle accidents may be. I refrained from commenting on these reports in my original report because Dr. Sooriabalan's conclusions cannot, in my opinion, be considered solidly evidence-based and confirm only that Ms. [A] has presented in a dramatically dsyfunctional manner.

In her oral testimony, Dr. Kirkpatrick denied the existence of the criteria necessary to make a diagnosis of post-traumatic stress disorder or any other profound psychotic condition in Ms. A's case and noted that Dr. Sooriabalan only reported "anxiety neurosis," a milder condition, in his OHIP billings. Dr. Kirkpatrick acknowledged that Ms. A may have been suffering from a mild depression of the sort described in a kinesiologist's report dated July 26, 1996²⁴ as follows: "she relays that she is 'depressed' because she is not as active as she was prior to the accident and therefore, is unable to be with her children due to her current pain and limitations."

Additional medical/assessment reports and records of importance:

The following records are listed in roughly chronological order.

Dr. Katz's final diagnosis from the slip-and-fall was soft tissue injuries to the lumbar spine and both lower extremities and he recommended that Ms. A continue the phsyiotherapy treatment she had been receiving for these injuries. Her last treatment prior to the first motor vehicle accident was on May 23, 1996 at Eglinton Warden Physiotherapy.²⁵

As mentioned in Dr. Sooriabalan's first report, Ms. A also received physiotherapy treatment after the first motor vehicle accident. A series of nine heat and passive movement sessions began on June 10, 1996 at Canada's Rehab Centre. On July 15, 1996, the Centre switched Ms. A to a more active form of treatment for+further 15 sessions. However, the Centre's discharge report, dated August 29, 1996, made the following observations:

Throughout her course of therapy Ms. [A] was extremely pain focused in her pain behaviour and complaints with no change or indication of relief. She showed minimal progress during the active program due to guarding behaviour and very low exercise tolerance. Despite continued attempts and encouragement Ms.[A] did not reach a therapeutic level of exercise.

We suggest that perhaps some pain management or behavioural therapy should be pursued to address her pain focused behaviour. At that point, a more accurate indication of her functional level could be ascertained.²⁶

On July 15, 1996,²⁷ Dr. L. Georgevich, a neurologist, found "no true reproducible objective neurologic deficit" but informed Ms. A that her "perceived left-sided weakness is due to pain" which could "go on for several weeks or months after an accident like this."

The first in a series of In-Home Assessments was performed by Herrold & Vernon Disability Management Inc. on July 26, 1996²⁸. Ms. A informed the assessors that "she was healthy pre-injury and that she had no problems with her neck and back." It was determined that Ms. A required 25.25 hours per week of "homemaking services" together with assistive equipment and training on their use, 19.3 hours per week of "childcare services" and 5.3 hours per week of "attendant care." The "Assessment of Attendant Care Needs" Form 1, also completed by one of the assessors on July 26, 1996,²⁹ clarified that the attendant care claim was for Ms. A's personal attendant care, not for dependent care expenses under section 54.

The first post-accident record of Ms. A complaining of pain in the right foot region is contained in Dr. Hirsch's clinical note of November 1, 1996.³⁰ His clinical note of October 19, 1996, the day after Ms. A's second motor vehicle accident, contained no reference to pain in the right foot region, though it did contain references to pain in other specific regions of Ms. A's body. When Dr. Hirsch sent Ms. A for a whole body bone scan on November 7, 1997, it showed "some arthritis in the talonavicular region of the right foot."³¹

A second In-Home Assessment was performed on November 4, 1996³² by CRA Managed Care, Inc. These assessors concluded that while Ms. A had the physical capacity to perform all her pre-accident functions and required no help for housework or personal care, she was unable to safely care for her children or prepare large or complicated meals because of "inattention, unsafe behaviour...directly related to her mental/emotional and cognitive status." The assessors found that Ms. [A] had a "very poor understanding of the concept 'hurt v. harmful' pain" and "displayed pain-focused behaviours such as moaning, wincing and crying out."

In his report dated April 17, 1997,³³ Dr. Jack Stein, a rheumatologist, noted Ms. A's complaints of pain on the left side of the neck, down the lower leg and left knee but found her complaints "exaggerated, especially in trying to correlate the head tilted to the left and the peculiar right knee posturing."

Dr. Hirsch's clinical notes of May 9, 1997 and March 3, 1998³⁴ confirm that he agreed with Dr. Sooriabalan's diagnosis of chronic pain.

Dr. Garry Moddel, another neurologist, saw Ms. A on May 30, 1997³⁵ but again found no neurological deficit, stating rather that the "pain in her neck is muscular but I think there is a large functional overlay."

A third In-Home Assessment was performed, again by CRA Managed Care, Inc. on September 10, 1997.³⁶ The assessors on this occasion found a discrepancy in Ms. A's cognitive impairment tests, as noted by Dr. Kirkpatrick, and concluded that she "had the physical ability to perform all of her essential pre-accident normal daily activities." However, they concluded:

...it is necessary to note that the client demonstrates bizarre behaviour such as episodes of staring off into space and purporting to hear 'noises' and 'voices'. Also, the client's husband stated during the assessment that the client drinks alcohol (vodka, specifically) to the point of drunkenness at times. It is the opinion of this therapist that such behaviour is unsafe in terms of child care and that the client is thus not able to independently and safely perform caregiving tasks. Such behaviour is not necessarily related to the client's accident of June, 1996 or October, 1996. [emphasis in the original]

The report of this assessment also states: "client was asked twice about the existence of any pre-injury conditions and the client clearly stated both times that she does not have any pre-existing conditions."

Ms. A was examined by a third neurologist, Dr. Hart Schutz, on September 24, 1997.³⁷ He found her "to be totally disconnected from surrounding activities and did not participate in the interview or in the examination" but nevertheless communicated complaints of pain in the right ankle, left knee, low and upper back, neck and chest, and of headaches, confusion and insomnia. After reviewing the medical history and conducting a limited examination, Dr. Shutz concluded: "The physical and anatomical problems have subsided long ago. The emphasis on treatment should be of psychological and psychiatric nature in this patient."

An orthopaedic specialist, Dr. E. English, could find nothing abnormal in Ms. A's left wrist and right ankle when she reported pain at those sites on January 20, 1998.³⁸

When examined by Dr. Paul H. Grant, an orthopaedic specialist on February 17, 1998, Ms. A reported pain at various sites of her body but stated that "the most affected area" was her right ankle which had started to cause "constant aching pain...immediately after the accident." Ms. A also told Dr. Grant that she was "perfectly normal prior to the accident." Dr. Grant further noted that "she repeatedly asked for Tylenol and stared blankly, pretending not to hear, and most of the questions had to be repeated two or three times. However, this appeared to be intentional, although it may be a side effect of the significant and excessive amount of medication this woman appears to be ingesting as well as alcohol. "Ms. A was apparently observed drinking alcohol in the waiting room after Dr. Grant's examination. Dr. Grant agreed with the second In-Home assessors” "concern with respect to Ms. [A's] ability to properly look after her children." He also agreed with Dr. Schultz that her treatment "should be of a psychological or psychiatric nature" and recommended "urgent admission of an in-patient substance abuse program."

Ms. A was interviewed for admission to the Donwood Centre for Addiction and Mental Health³⁹ on May 6, 1998. She stated that her "drinking skyrocketed" after her car accident of June 1996, that she was in constant pain and that she could not look after her children the way she used to do. Ms. A was admitted to the Centre as an in-patient from July 30 to August 12, 1998 for treatment of her abuse of alcohol, benzodiazepines and narcotics. The Donwood physician noted on August 10, 1998 that there was "no clear anatomical basis" for Ms. A's "chronic neck and ankle pain." Ms. A was readmitted to the Centre on August 18, 1998 but, according to a Case Management Report, "had a great deal of difficulty attending all her sessions due to her chronic pain condition" and was discharged on August 25, 1998. The Case Manager stated that Ms. A's "recovery issue" was "to find alternate ways of getting relief from her pain" and recommended that Ms. A obtain treatment at the Addiction Research Foundation's (ARF) pain management clinic.

As Dr. Kirkpatrick pointed out, the Centre's Discharge Summary indicated that Ms. A was "discharged Against Medical Advice" but the Centre's records provide no explanation for this category of discharge. The same record also indicated that Ms. A was "advised to contact the Addiction Therapist for further recovery planning." Based on the evidence before me, it would not appear that Ms. A subsequently sought treatment at the ARF pain management clinic or contacted an addiction therapist regarding a further recovery plan.

The last record from a treatment provider is Dr. Hirsch's letter of October 23, 1998⁴⁰ in which he recommended that Ms. A return to her country of origin for a period of time. Dr. Hirsch provided the following explanation for this advice:

I think that since medical therapy and counseling here have not done much to improve her mental status, being with her family in a totally different environment offers a new type of therapy for which she is in great need.

Non-medical evidence:

Ms. A

During her examination-in-chief, Ms. A appeared extremely tired and unfocused, sat with her head tilted, occasionally arose from her chair in apparent pain and sometimes became tearful. She was unable to state her date of birth, her country of origin, her school-leaving age, her date of arrival in Canada, her date of marriage, her education in Canada, her work experience or her address. She had no recollection of the car accidents. She testified that she takes a lot of medications but that they only help for a few minutes or hours and that she cannot sleep due to nightmares and headaches. She admitted to drinking alcohol and to staying in bed most of the time though her children sometimes wake her before going to school. She testified that she used to drive her kids to school. She stated that she does no cooking due to her inability to hold things without dropping them. She identified "Joyce" as the housekeeper and caregiver and her husband, Sam, as the person who buys groceries and takes her for appointments with Drs. Hirsch and Sooriabalan. She had no recollection of talking to the Children's Aid Society.

On cross-examination, Ms. A became somewhat more responsive to questions. She confirmed her signature on an OCF12 form dated June 28, 1996⁴¹ identifying no restrictions on her activities of daily living before the motor vehicle accident of June 3, 1996. She made no attempt to explain how that pre-accident profile could be reconciled with the Drs. Katz' and Kun's descriptions⁴² of the injuries she sustained in her February 1996 slip-and-fall accident.⁴³ Ms. A acknowledged that in 1998 she went to Ghana with her daughter Jessica, then age seven, to visit her mother and that this trip would have involved at least two stops each way: one in Europe for four to six hours and another in the city in Ghana where the airplane landed before going on to her mother's home. In her cross-examination, Ms. A also identified "Emmanuel" and "Jane" as persons who have sometimes helped her in her own apartment. She further testified that "Sam [her husband] moved back to help protect the kids. "

Emmanuel A.W.:

Emmanuel A.W. is Ms. A's brother. He testified that he was not aware of her having any health or drinking problems prior to the first motor vehicle accident but that she "did not function properly" thereafter. He testified that first "Jane" and then "Joyce" took care of Ms. A's children, cleaned the house and did the laundry during the day. However, after receiving a telephone call from the eldest child, Mr. A.W. concluded that another adult also needed to be in the apartment during the night and he decided to move in. He stayed from late 1996 to the summer of 1999, a few months after Sam moved back into the apartment. Mr. A.W. testified that he found bottles of alcohol in the apartment and observed Ms. A taking medicine and withdrawing into her room or the bathroom, subjecting those around her to rude outbursts and failing to care for her children.

Sam A:

Sam A. testified that he and Ms. A were married in September 1987 and separated in May 1993. Mr. A stated that Ms. A had worked after receiving her Health Care Aide certificate in 1990 but that she stopped working following the birth of their second child in November 1991. He testified that he was unaware of Ms. A having any health or drinking problems at any point prior to the June 1996 motor vehicle accident though he subsequently learned about her slip-and-fall injuries. He stated that Ms. A was treated by Dr. Hirsch after this accident because his office was next to Dr. Kun's and Dr. Kun was booked. Despite their separation in 1993, Mr. A stated that he had no concerns about Ms. A's raising the children. He stayed in contact with the children and was, in fact, with them at the time of Ms. A's first motor vehicle accident on June 3, 1996.

Mr. A testified that Ms. A became "inactive" after this accident: she no longer prepared meals, did laundry or housekeeping or drove the children to school. He stated that he arranged for "Jane" to come to the apartment to do these things. Mr. A testified that in March 1997, he could no longer afford to pay Jane so he quit his job to become the children's caregiver for a period of approximately nine months. Counsel then attempted to correct these dates by reference to records obtained from Toronto Social Services Division.⁴⁴ Mr. Little maintained that Mr. A stopped work for a nine-month period starting in March 1998. Mr. Grossman pointed out that Mr. A was in receipt of insurance benefits for an injury from April to June 1998.

Mr. A testified that he did not become fully aware of Ms. A's drinking problem until Dr. Notkin notified Dr. Hirsch and the Children's Aid Society at the end of October 1996. Soon after, Mr.A testified, Dr. Hirsch came to Ms. A's apartment while he was there and told the couple that because Ms. A was drinking and abusing drugs, the Children's Aid Society might take their children.⁴⁵ Mr. A confirmed that Emmanuel moved into the apartment around this time to be with the children at night as Ms. A could not be wakened. He also confirmed that he is now living in the apartment himself though his evidence was unclear as to when he moved back in. Mr. A testified that Ms. A continues to drink alcohol, despite his efforts to cut off her supply, and that she remains unable to take care of the children, stating that "even a hug is a problem." However, Mr. A's evidence did not indicate that he or anyone else is taking care of Ms. A's personal needs and he confirmed that she travelled to Ghana and back in late 1998.

ANALYSIS AND CONCLUSION

I find that Ms. A sustained psychological as well as physical injuries in the motor vehicle accidents of June 3 and October 18, 1996 but that she has only recovered from the physical injuries.

I accept the opinions of Drs. Hirsch and Sooriabalan that, within a year of the first accident, Ms. A developed disabling psychological and chronic pain conditions. I further accept the opinions of Drs. Notkin and Sooriabalan that this accident caused or has contributed to Ms. A's unresolved conditions. There is no evidence before me that Ms. A was disabled by such conditions prior to June 1996. The "emotional overlay"comment made by Dr. Katz following Ms. A's February 1996 slip-and-fall does nothing more than establish her predisposition to manifest psychological symptoms following physical injuries. This predisposition, if it existed, may have delayed Ms. A's recovery from the injuries she sustained in the motor vehicle accidents but it does not preclude her from recovering benefits if those accidents caused or contributed in a material way to her ongoing, disabling condition. I am satisfied that they did.

In making this finding, I do not ignore the clear evidence that Ms. A has attempted, on the one hand, to conceal her February 1996 accident while, on the other hand, to exaggerate her limitations following the motor vehicle accidents and even to implicate other areas of her body (right ankle) not injured in those accidents. But while this evidence is obviously consistent with the allegation of malingering made by the Insurer, it does not necessarily prove such an allegation. In my view, the preponderance of the evidence in this case does not support a finding of malingering.

To begin with, I am persuaded that Ms. A has, in fact, been abusing drugs and alcohol in a misguided effort to control pain experienced since the accidents. Ms. A appears to have admitted that to Dr. Sooriabalan; there is no evidence that he learned about it from Dr. Notkin, as perhaps Dr. Hirsch did. Ms. A may have conspicuously consumed alcohol in Dr. Grant's office in February 1998 but she did not do so while simultaneously hiding her dependence from Dr. Sooriabalan. She also sought treatment for that dependence, treatment which, I find, failed because she has not found more appropriate ways of controlling pain.

Further, I accept the evidence of Emmanuel A.W. and Sam A. that Ms. A did not have these kinds of problems before the motor vehicle accidents but that, as a result of these problems, Ms. A has been unable to care for and has, in fact, neglected her children. I do not, therefore, find this to be a case where the "injured" party feigns disability while being examined but shows no signs of disability when not being observed for insurance purposes. Ms. A may well have exaggerated or even fabricated her auditory hallucinations and some of the other behaviour observed during interviews and at the hearing but, based on the evidence of Emmanuel A.W. and Sam A., I find that she has also neglected her children since the accident.

I accept Dr. Kirkpatrick's opinion that Dr. Sooriabalan may not have assigned the correct diagnostic label to Ms. A's psychological and chronic pain condition. However, I do not accept Dr. Kirkpatrick's opinion that Ms. A is a malingerer for the following reasons.

First, in her oral testimony, Dr. Kirkpatrick acknowledged the existence of a milder psychological condition in July 1996. It follows then that even Dr. Kirkpatrick did not believe that Ms. A's psychological problems were entirely fabricated.

Second, as her treating psychiatrist, Dr. Sooriabalan started to see Ms. A in September 1996 and saw Ms. A on at least 20 subsequent occasions during the period for which he provided reports; Dr. Kirkpatrick only saw Ms. A once, almost three years after the accident. It is perhaps true that Dr. Kirkpatrick had more information than Dr. Sooriabalan regarding "Ms. [A's] level of functioning prior to her accidents." However, as stated previously, available information of this kind establishes at most Ms. A's predisposition to manifest psychological symptoms following physical injuries; it does not establish the existence of pre-existing, symptomatic, psychological problems. Nor does it contradict Dr. Sooriabalan's opinion that, as a result of her motor vehicle accidents, Ms. A became unable to engage in the caregiving activities in which she was engaged at the time of the first accident.

Third, I attribute no evidentiary value to Dr. Kirkpatrick's speculation in her first report that Ms. A's "pre-existing pattern of somatization and deliberately exaggerated pain behaviour... is strongly suggestive of underlying characterological behaviour which would, of course, long pre-date the subject motor vehicle accidents." Dr. Kirkpatrick admitted that "the absence of reliable historical information about her pre-accident functioning prevents firm conclusions in this regard." I cannot, therefore, find that Ms. A suffers from an "underlying characterological pathology." Moreover, I note that in her oral testimony, Dr. Kirkpatrick appeared to take a different view of Ms. A, stating that her background, education and survival of separation demonstrated that she was not "the sort of person who would go to pieces" after, or be "unable to adjust to the stress" caused by, her 1996 accidents. I remain perplexed as to how Dr. Kirkpatrick could arrive at the conclusion that Ms. A was a malingerer whether she viewed Ms. A as a person with a pre-existing propensity to deliberately exaggerate or as a person with a good background and a demonstrated capacity to cope with stress. In any event, Ms. A's predispositions, whatever they may have been, do not constitute a bar to her recovery as long as the motor vehicle accidents in question caused or contributed in a material way to her developing a compensable disability.

As for Ms. A's failure to mitigate her losses by seeking treatment for chronic pain and substance abuse, I find that the Insurer did not avail itself of the procedure set out in section 73 of the Schedule. It will now have another opportunity to do so.

I find that Ms. A is entitled to caregiver benefits at the rate prescribed by the Schedule from February 4, 1997.

In accordance with the report of Herrold and Vernon Disability Management Inc. and up to the date of the first report of CRA Managed Care, Inc., I find that Ms. A is entitled to attendant care benefits for 5.3 hours a week at the rate prescribed by the Schedule from June 4, 1996 to November 4, 1996.

I retain jurisdiction if the parties cannot agree on the correct rates at which either caregiver or attendant care benefits are to be paid.

Unlike caregiver and attendant care benefits, the Schedule does not stipulate rates at which housekeeper benefits are to be paid. No evidence was entered in connection with payments or rates of payments made or to be made to "Jane" or "Joyce" or anyone else in connection with housekeeping, as opposed to caregiving or attendant care services. I, therefore, deny Ms. A's claim for housekeeper benefits beyond the $1,000 already paid by State Farm.

EXPENSES:

I retain jurisdiction to deal with expenses in the event the parties are unable to agree.

June 5, 2000

David Leitch Arbitrator

Date