Neutral Citation: 2003 ONFSCDRS 133

FSCO A02-001646

BETWEEN:

KULAVEERASINGAM RAMALINGAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before: Suesan Alves

Heard: April 29, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David S. Wilson for Mr. Ramalingam Grant Dow for State Farm Mutual Automobile Insurance Company

The Applicant, Kulaveerasingam Ramalingam, was injured in a motor vehicle accident on January 9, 2002 and claimed statutory accident benefits under the Schedule.¹ Mr. Ramalingam brought a motion pursuant to section 67 of the Dispute Resolution Practice Code —Fourth Edition, for interim income replacement benefits and interim housekeeping and home maintenance benefits. State Farm Mutual Automobile Insurance Company, ("State Farm"), opposes this relief.

The issue on this motion is:

Is Mr. Ramalingam entitled to interim income replacement and interim housekeeping and home maintenance benefits pursuant to section 279(4.1) of the Insurance Act, R.S.O. 1990, c.I.8, as amended?

Subject to the further Order of the hearing arbitrator, State Farm shall pay Mr. Ramalingam interim income replacement benefits at the rate of $388.42 per week and interim housekeeping and home maintenance benefits at the rate of $100 per week from April 29, 2003 pending the final order in this matter, pursuant to section 279(4.1) of the Insurance Act.
The expenses of this motion are in the discretion of the hearing arbitrator.

Adjournment request:

The April 29, 2003 date for the motion for interim benefits had been agreed upon in March 2003. On the eve of the motion, Mr. McCarthy, counsel for the Insurer, requested an adjournment because of his involvement in a continuing trial. Mr. Wilson, counsel for the Applicant, opposed the request on various grounds.

I heard the motion for the adjournment on the morning of April 29, 2003. Mr. Dow appeared as counsel for the Insurer, since Mr. McCarthy was unavailable. I declined to grant the adjournment because of the lateness of the request and the nature of the relief sought by Mr. Ramalingam.

I permitted the Insurer to file its materials outside the time period provided under the Dispute Resolution Practice Code, stood the motion down to allow Mr. Dow additional time to prepare his submissions, and gave him the opportunity to respond to the Applicant's reply submissions.

The motion for interim benefits proceeded by way of Affidavit evidence and documents from the parties. No cross-examination took place on the Affidavits.

EVIDENCE AND ANALYSIS:

Background

Mr. Ramalingam was injured in an accident on January 9, 2002. State Farm paid Mr. Ramalingam income replacement and housekeeping and home maintenance benefits until July 2002. State Farm terminated those benefits following insurer examinations by Dr. L. Weisleder, an orthopaedic surgeon, and by Dr. L. Koepfler, a psychologist. Mr. Ramalingam then applied for mediation and arbitration at the Financial Services Commission of Ontario.

On this motion, Mr. Ramalingam seeks interim income replacement benefits ("IRBs") at the rate of $388.42 per week from July 27, 2002, and interim housekeeping and home maintenance benefits at the rate of $100 per week from July 10, 2002. In the main arbitration hearing, Mr. Ramalingam seeks ongoing income replacement benefits, housekeeping and home maintenance services, interest and expenses. State Farm opposes all of Mr. Ramalingam's claims on this motion and in the arbitration, and seeks its expenses of the arbitration.

Considerations on a motion for interim benefits

Subsection 279(4.1) of the Insurance Act gives an arbitrator the authority to make an interim order. That section states: "The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator."

This is a discretionary power. Although the subsection of the Act contains no restrictions as to the circumstances under which interim orders may be made, arbitrators have held that this power is one which is to be exercised only in appropriate circumstances, not routinely. Having regard to the summary nature of a motion for interim benefits, the importance of avoiding the evisceration of the hearing process, and the particular circumstances of the case, arbitrators have considered various criteria which may guide the exercise of that discretionary power.

Need may be a factor, coupled with the merits of the case.² Need has been interpreted to mean an absence of cash flow, as well as impairment of capital which would jeopardize the Applicant's future security in order to meet day-to-day living expenses.³ In other cases, arbitrators have concluded that significant non-compliance by an insurer of mandatory provisions of the Schedule, without need or urgency, is a sufficient basis for exercising the discretion to make an order for interim benefits.⁴

Arbitrators have considered the merits of an applicant's case, but have disagreed about the standard of proof which an applicant must meet to establish entitlement to interim benefits. Arbitrators have held that the applicant must establish a prima facie case for entitlement,⁵ a strong prima facie case, a convincing case.⁶ The standard of proof has also been expressed as one which is somewhat higher than at a hearing: on all the material presented the arbitrator should find it not only reasonable, but also very probable, that an applicant will be found to be entitled to the benefits sought.⁷

I agree with Arbitrator Manji's statement of the merits test in Malabanan and Canadian General Insurance Company (OIC A96-00084, July 26, 1996), and in Ioannidis and Canadian General Insurance Group (OIC A97-001551, December 15, 1997). According to that test, on a motion for interim benefits, an Applicant must establish a prima facie case, in the sense that "the insured person must produce evidence which, if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement."

Mr. Ramalingam's circumstances

Mr. Ramalingam bases his claim for interim benefits on financial need and the merits of his case. For the following reasons, I conclude that on this motion Mr. Ramalingam has adduced evidence which, if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement. I also conclude that I should exercise my discretion to award Mr. Ramalingam interim income replacement and housekeeping and home maintenance benefits, pending the final order in this matter.

1. Need

Mr. Ramalingam deposed that he has less than $20.00 in the bank, and no assets. Since his income replacement and housekeeping and home maintenance benefits were terminated in July 2002, he has borrowed approximately $19,000 to meet modest expenses for himself, his wife and five year old son. Mr. Ramalingam deposes that when one of the persons who loaned him $4,000 asked for repayment, he used his wife's credit card to obtain a cash advance to repay the debt. Mr. Ramalingam deposes that he has no ability to pay his ongoing expenses except by borrowing further funds. His wife works part-time earning approximately $200 per week, and is seeking full-time employment. I am satisfied on the basis of this evidence that the Applicant is unable to meet modest living expenses for himself and his family and has established financial need.

2 Merits

(A) IRBs

In order to succeed in his claim for entitlement to IRBs at the hearing, Mr. Ramalingam will have to satisfy the hearing arbitrator that, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment as a janitor.⁸ I find that the following evidence, if unanswered and believed, would render reasonable a conclusion that Mr. Ramalingam is entitled to income replacement benefits.

Pre-accident condition and employment

Mr. Ramalingam complains that as a result of the January 2002 motor vehicle accident he suffers from neck, shoulder and low back pain, incontinence, depression and anxiety.

According to Dr. E. George, Mr. Ramalingam's family doctor since 1990, pre-accident, Mr. Ramalingam experienced low back pain in May 1998 and in February 2000, has complained of neck pain since 1990, and last complained to her of neck pain in October 2001. Mr. Ramalingam has also complained of dislocations of his right shoulder pre-accident. Dr. George reports that Mr. Ramalingam last complained to her of shoulder pain in January 1994.

Mr. Ramalingam has a significant pre-accident condition of advanced degenerative disc disease in his neck, with flattening of the cervical spinal cord, but without any abnormal signal. Dr. George referred Mr. Ramalingam to Dr. R.H. Wilson, a neurologist, for ongoing management of this condition prior to the accident.

In 2001, as a result of Mr. Ramalingam's degenerative disc disease, seemingly minor activities-such as sitting with his neck flexed while completing an income tax return for a friend,⁹ or suddenly reaching out to grab something¹⁰—have caused Mr. Ramalingam significant pain and given rise to neurological consults with Dr. Wilson. On both occasions, Dr. Wilson recommended conservative treatment, rather than surgery. Dr. Wilson has prescribed pain killers, anti-inflammatories, physiotherapy and recommended a modification of Mr. Ramalingam's job to avoid bending, lifting and twisting movements.

In October 2001, Dr. Wilson reported to Dr. George that Mr. Ramalingam had a marked improvement in his pain levels. Dr. Wilson reported that Mr. Ramalingam had almost a full range of neck movements— only mildly restricted in extension— and a full range of shoulder movements without alteration in sensation or motor function.

Mr. Ramalingam deposes that since July 2, 2001, he has worked full time on a regular basis as a janitor with 1079062 Ontario Inc. He deposes that his work included the cleaning and waxing of floors and other relatively heavy jobs. He deposes that he was required to lift up to 50 pounds from floor to waist and waist to shoulder level, to move an industrial size vacuum cleaner, a waxing machine and garbage carts, and to bend over frequently and be on his feet for the entire shift. Mr. Ramalingam deposes that he did this work on a regular basis for approximately six months until January 9, 2002, the date of the motor vehicle accident.

Post-accident condition

Mr. Ramalingam alleges that the motor vehicle accident of January 9, 2002 involved the exertion of significant forces on his vulnerable person causing him a great deal of pain. He deposes that because of his pain he has difficulty falling asleep and remaining asleep. This, in turn, affects his ability to concentrate. He deposes that he spends half the day lying down due to pain, and is unable to stand or walk for more than a short period of time. Mr. Ramalingam alleges that he is therefore substantially unable to perform his pre-accident job and his housekeeping and home maintenance duties.

Mr. Ramalingam has adduced opinion evidence on this motion to support his claims of disability from Dr. George, his family physician, Dr. R. Jain, orthopaedic surgeon, Dr. K. Meloff, neurologist, Dr. R.V. Fuller, chiropractor, and Dr. R.S. Miller, a psychologist.

In February 2002, Dr. George, Mr. Ramalingam's family physician, completed a disability certificate in which she opined that Mr. Ramalingam cannot do any work involving bending or heavy lifting or using his right arm for above-shoulder activities. As a result of the accident he has lower back pain, numbness and aches and pain in his right leg; neck pain, headache and shoulder pain; is nervous, and has flash backs. More recently, in a medical report dated October 31, 2002, Dr. George opined that Mr. Ramalingam "... seems to be in much pain still. I do not think he can do his cleaning job at present."

Dr. Jain, orthopaedic surgeon, saw Mr. Ramalingam with respect to his shoulder at the request of his family physician. In July 2002, Dr. Jain reported that Mr. Ramalingam had severe pain with abduction and external rotation of his right shoulder. In her opinion, Mr. Ramalingam perhaps had a rotator cuff tendinitis, rather than a true shoulder dislocation. Dr. Jain referred Mr. Ramalingam for physiotherapy and recommended an MRI to better define the problem with his shoulder.

Dr. Meloff, neurologist, reported in October 2002 that the motor vehicle accident seems to have aggravated Mr. Ramalingam's neck and low back pain. Dr. Meloff opined that "the combination of these difficulties precludes heavy lifting and makes it impossible for him to do heavy work."

In a report dated December 4, 2002, Dr. Miller, psychologist who treated Mr. Ramalingam following the accident, diagnosed an adjustment disorder associated with his accident with mixed anxiety and depressed mood, and a GAF score of 45. Dr. Miller noted that Mr. Ramalingam's severe back and neck shoulder pain, some urinary incontinence and post-traumatic anxiety, "are significantly disabling and have reduced Mr. Ramalingam's functional level. He is not capable of completing most day to day tasks at home nor is he capable of working. He clearly continues to suffer a substantial inability to perform the essential tasks of his employment..."

In a disability certificate dated August 7, 2002, Dr. Fuller, chiropractor who treats Mr. Ramalingam, opined that Mr. Ramalingam has some 10 impairments which cause him to be substantially disabled from performing his pre-accident job.

Based on the above, I find the Applicant has adduced evidence on this motion of the heavy nature of his job, of his vulnerability as a result of a pre-accident condition, and of his post-accident condition which, if unanswered and believed, would render reasonable a conclusion that he is substantially unable to perform the essential tasks of his pre-accident employment as a janitor as a result of the motor vehicle accident. For these reasons, I conclude that I should exercise my discretion to award Mr. Ramalingam interim income replacement benefits.

At a full hearing on the merits, the hearing arbitrator will be in a position to consider all the evidence, including opinion evidence from State Farm that Mr. Ramalingam is not disabled. It also appears likely that the hearing arbitrator will be asked to determine questions of causality and credibility.

(B) Housekeeping & home maintenance benefits

Section 22 of the Schedule obliges an insurer to pay a maximum of $100 per week for reasonable and necessary additional expenses incurred as a result of an accident for housekeeping and home maintenance services, if the insured person is substantially unable to perform the housekeeping and home maintenance services that he or she normally performed before the accident.¹¹

Mr. Ramalingam, his wife and five year old son occupy two bedrooms in a four bedroom, three bathroom house. Members of Mr. Ramalingam's extended family occupy the remaining space. Prior to the accident Mr. Ramalingam's wife had been completing a course in business accounting at Centennial College where she had been attending for three years, while working part-time as a file clerk for about 20 hours per week at $10.00 per hour. Mr. Ramalingam worked the night shift, returned home, slept and then did a great deal of the necessary housekeeping, including cooking, cleaning, laundry, grass cutting and snow shovelling. He deposes that he spent up to two and sometimes three hours per day on such activities pre-accident.

Mr. Ramalingam deposes that following the accident, he arranged for his sister-in-law who lives in the house to replace the services he provided prior to the accident at the rate of $150 per week. Of this amount, State Farm reimbursed him at the maximum rate of $100 per week until July 9, 2002. Mr. Ramalingam claims interim housekeeping and home maintenance benefits at the rate of $100 per week from July 10, 2002.

Mr. Ramalingam alleges that as a result of his injuries in the motor vehicle accident, he is substantially unable to perform pre-accident housekeeping and home maintenance duties.

In a disability certificate dated February 2, 2002, Dr. George, family physician, opines that Mr. Ramalingam suffers an impairment which substantially prevents him from performing pre-accident housekeeping and home maintenance activities, because he cannot do any work involving bending or heavy lifting and cannot use his right arm to perform above-shoulder activities.

In a disability certificate dated August 7, 2002, Dr. Fuller, chiropractor, sets out the basis for his opinion that Mr. Ramalingam is substantially unable to perform his pre-accident housekeeping and home maintenance duties. The particulars include Mr. Ramalingam's difficulties with mobility, shopping, meal preparation, doing dishes, cleaning, laundry, and outdoor home maintenance.

In December 2002, Dr. Miller, a psychologist who has treated Mr. Ramalingam, opined that his low level of function is such that he is substantially unable to do most of his day-to-day housekeeping and home maintenance duties. In Dr. Miller's opinion, Mr. Ramalingam is unable to complete household tasks as a result of pain and his low functional level, and is frustrated and depressed as a result of his inability to function. She recommends reinstatement of housekeeping assistance by the Insurer.

Thus, Mr. Ramalingam has adduced evidence that pre-accident, he normally performed significant housekeeping and home maintenance duties, and that he is substantially unable to perform those duties post-accident. He has adduced evidence that he has hired someone else to perform those activities resulting in additional expense. Mr. Ramalingam has also adduced evidence of the types of services provided, the number of hours spent per week and the rate for those services. I find that the above evidence, if accepted and believed and unanswered at a hearing, would render reasonable a conclusion on a balance of probabilities that the services Mr. Ramalingam claims are reasonable and necessary.

For these reasons, I conclude that I should exercise my discretion in Mr. Ramalingam's favour in regard to his claim for interim housekeeping and home maintenance benefits at the rate of $100 per week.

I find the appropriate duration of the order for interim income replacement benefits and interim housekeeping and home maintenance benefits is from the date of the motion pending the final order in this matter. As is the case with all interim orders, this order is subject to the further order of the hearing arbitrator. My findings are of an interim nature and are not binding on the hearing arbitrator who will have fuller evidence, and who will be in a better position to assess the evidence.

EXPENSES:

Both parties claim their expenses of the arbitration. However, the question of the expenses of this motion was not addressed at the hearing. I leave that question in the discretion of the hearing arbitrator.

September 5, 2003

Suesan Alves Arbitrator

Date