Neutral Citation: 2004 ONFSCDRS 154

FSCO A03-000831

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LEKHWANTIE NANDKUMAR

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Jeffrey Rogers

Heard:

May 10, 11, 12, 13, 17, 18, 19, 20 and August 23, 24 and 25, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Jeffrey W. Strype, solicitor for Mrs. Nandkumar

Ms. Pamela M. Stevens, solicitor for Economical Mutual Insurance Company

Issues:

The Applicant, Lekhwantie Nandkumar, was injured in a motor vehicle accident on November 30, 1995. She applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ Two earlier disputes between the parties about benefits were resolved after Mrs. Nandkumar applied for arbitration. In the first dispute, an order was made validating an election the Applicant had made to receive Income Replacement Benefits (IRBs). In the second dispute, entitlement to IRBs was the principal issue.

The parties negotiated a settlement in April 2000. The terms of the settlement required the insurer to reinstate payment of IRBs.

A further dispute arose when the Insurer terminated payment of IRBs upon receipt of a Residual Earning Capacity DAC (REC/DAC) report dated December 12, 2000. The assessors concluded that Mrs. Nandkumar was able to return to her previous occupation as a glove lacer with a Residual Earning Capacity of $411.59 per week. That is $3.13 per week less than her pre-accident earning capacity, calculated under section 28 of the Schedule. The Insurer now takes the position that Mrs. Nandkumar is able to return to her former employment or, if disabled, the disability was not caused by the accident.

The position of the Applicant is that when it settled the IRB dispute in April 2000, the Insurer conceded that the Applicant was unable to perform the essential tasks of her former employment. The test for entitlement to an offer for Loss of Earning Capacity Benefits (LECBs) is the same. The Insurer is therefore barred from claiming that the Applicant is able to work, by operation of the principle of issue estoppel. The Applicant's position is also that, in any event, she is unable to return to her former employment, or any employment, as a result of injuries suffered in the accident.

The parties were unable to resolve their dispute through mediation, and Mrs. Nandkumar filed this application. For the purpose of this hearing, the Insurer concedes that Mrs. Nandkumar is entitled to a Loss of Earning Capacity Benefit of $3.13 per week. The parties agree that, if I accept the Applicant's position on disability, she is entitled to an LECB offer of more than $3.13 per week and the quantum of that offer is not an issue in this arbitration.

The issues in this hearing are:

1. Is the Insurer barred from claiming that Mrs. Nandkumar is not entitled to receive weekly LECBs of more than $3.13?

2. Is the amount of Mrs. Nandkumar's weekly LECB, pursuant to section 20 of the Schedule, greater than $3.13?

3. Is Mrs. Nandkumar entitled to supplementary medical and rehabilitation expenses, particulars as set out in a report of RMI dated October 15, 2003², pursuant to sections 36 and 40 of the Schedule?

4. Is Mrs. Nandkumar entitled to attendant care benefits from December 7, 1995, and ongoing pursuant to section 47 of the Schedule?

5. Is Mrs. Nandkumar entitled to payments for housekeeping and home maintenance services, pursuant to section 55 of the Schedule, at $292.80 per year up to October 15, 2003 and at $2,392.11 per year, thereafter?

6. Is Mrs. Nandkumar entitled to payments for the cost of the following examinations: $5,200 neuropsychological assessments; $1,704.67 Community Brain Injury Support assessment; $115.08 physiotherapy assessment; and $2,082.90 Sue Wilkinson-Rehab Management Inc. - pursuant to section 57 of the Schedule?

7. Is Economical liable to pay Mrs. Nandkumar's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

8. Is Mrs. Nandkumar liable to pay Economical's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

9. Is Mrs. Nandkumar entitled to interest on the overdue payment of benefits pursuant to section 68 of the Schedule?

Result:

1. The Insurer is not barred from claiming that Mrs. Nandkumar is not entitled to receive a weekly LECB of more than $3.13.

2. The amount of Mrs. Nandkumar's weekly LECB, pursuant to section 20 of the Schedule, is greater than $3.13.

3. Mrs. Nandkumar is entitled to supplementary medical and rehabilitation expenses to reimburse her for the cost of medication and a lift for the bath as are set out in a report of RMI dated October 15, 2003³, pursuant to sections 36 and 40 of the Schedule.

4. Mrs. Nandkumar is entitled to attendant care benefits of the maximum allowed by subsection 47(4) of the Schedule from the date of her mother's death and ongoing, plus a further 4 months.

5. Mrs. Nandkumar is entitled to payments for housekeeping and home maintenance services, pursuant to section 55 of the Schedule, at $292.80 per year from December 1, 1995 to October 15, 2003 and at $2,392.11 per year, thereafter.

6. Mrs. Nandkumar is entitled to payment of $2,082.90, for the cost of examinations conducted by Sue Wilkinson-Rehab Management Inc., pursuant to section 57 of the Schedule.

7. Economical is liable to pay Mrs. Nandkumar's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

8. Mrs. Nandkumar is entitled to interest on the overdue payment of benefits pursuant to section 68 of the Schedule.

PRELIMINARY RULINGS

Before the hearing started, counsel for the Applicant requested that I appoint the Applicant's husband to represent her in the application. The Insurer did not oppose this request. Without determining the cause of her disability, I was satisfied that the Applicant does not have the mental capacity to proceed in the dispute resolution process. I was also satisfied that Raj Nandkumar, the Applicant's husband, was willing, able and suitable to act on the Applicant's behalf. I therefore exercised the jurisdiction conferred by Rule 10.5 of the Dispute Resolution Practice Code and appointed Mr. Nandkumar to represent the Applicant in the process.

As a matter of procedure, I also ruled that, although the Applicant's document brief was identified as Exhibit 2, the brief was only for ease of reference. The documentary evidence at the hearing would be the documents marked individually as Exhibits.

EVIDENCE

Evidence for the Applicant

The Applicant lives in Brampton with her husband and two children. Lisa, the older child, turned 18 in January 2004. She was nine when the accident happened. Her brother Vijay is now 14. He was five at the time of the accident. Until the accident, Mrs. Nandkumar was employed by Canstar Sports. She laced hockey gloves. She had worked there since 1989 but she had been laid off about two months before the accident, because of lack of work. She was called to return to work in January 1996, but she did not return due to the accident. Now, some nine years after the accident, she has still not returned to work.

Mr. Nandkumar described his wife as vibrant, outgoing, independent and intelligent before the accident. She ran the household. When they got married, his job required him to be away from home for extended periods of time. He would often be away on a construction site for several weeks at a time. His wife was in charge of managing the finances of the household and taking care of the children. Her mother had moved in with them about a year after they got married, but she was diabetic and vision impaired when she first moved in, so his wife had to take care of her as well. Later, Mrs. Nandkumar's mother had undergone eye surgery and her diabetes had stabilized. She was then able to assist with first Lisa and, after their son Vijay was born, with both children. Mrs. Nandkumar had remained in charge of the cooking and housework. She was a fastidious home maker and very particular about her personal appearance. She had no history of psychiatric illness.

The accident happened on a wintry night. The Nandkumars had gone to their temple to prepare for a recording to be broadcast on Rogers Cable. It was freezing rain when they were going. They stayed for a couple of hours and decided to leave. Mr. Nandkumar was driving the family's van and Mrs. Nandkumar was in the front passenger seat. It was now snowing. Mr. Nandkumar lost control of the vehicle as he was merging from the Steeles Avenue ramp to Highway 410. The vehicle skidded across the highway, hit the guardrail, spun and hit the guardrail again. Mr. Nandkumar's evidence was that his wife was screaming as the vehicle was skidding. Then the passenger side hit the guardrail and she fell silent. He asked if she was all right and got no response. She did not move. After a while, she opened her eyes and stared straight ahead. She said nothing.

He got out to check for damage. The van ended up in a dangerous position and he wanted to get it out of the way of approaching traffic but he could not drive it because of the damage. Fortunately a tow truck pulled up right away. Mrs. Nandkumar tried to get out of the van. Had she done so, she would have been in danger of being hit by oncoming traffic. Mr. Nandkumar and someone from the tow truck helped her out.

The police could not get to the scene of the accident so the tow truck hooked up the van and took the Nandkumars to a repair shop where they arranged to rent a car. They drove home in the rented car. It was very late by this time, around 1:00 a.m.

Mr. Nandkumar testified that his wife was very quiet and shaking on the way home. Neither of them slept well that night. Mrs. Nandkumar had nightmares and "jumped" in her sleep. The next morning, her face, forehead and lips were swollen. That is when they decided that she should go to the doctor. Mr. Nandkumar had to go to work so Mrs. Nandkumar went to the nearby walk-in-clinic with her mother and her son. The doctor there recommended that she see her family doctor as soon as possible. The following day Mr. Nandkumar did not go to work and he took her to Dr. L.H.K. Chen, the family doctor.

Dr. Chen had some x-rays done and treated Mrs. Nandkumar for pain. He remains her family doctor. I will review his findings later.

Mr. Nandkumar's evidence was that in the first few months after the accident his wife's complaints were of pain on the right side, dizziness and headaches. She continued to have nightmares and she woke up screaming once or twice a night. The treatment she was receiving for pain did not seem to help. She gradually developed psychological problems. Dr. Chen sent her to a specialist who referred her to a psychiatrist. She kept saying that her life was not worth anything. She got irritable with the kids. She did not want him around. She stopped taking care of herself and the kids. She has gradually lost interest in everything, has stopped communicating with anyone and she now needs help with the simplest of tasks.

Mr. Nandkumar continued to work after the accident but he needed help taking care of his wife and the children. Early on, his sister Sandra came over and helped with the laundry. He also received a great deal of assistance from Don and Dolly Bharrat. Don Bharrat is sometimes referred to as Mrs. Nandkumar's brother in the medical reports and records. He had been accepted as Mr. Nandkumar's brother in a traditional ceremony. The Bharrats took Mrs. Nandkumar to medical appointments and assisted her with her personal needs until they decided that they needed to take a break in the year 2000. Mrs. Nandkumar's mother also helped until she became ill herself. The Bharrats started giving more time then. Mrs. Nandkumar's mother died early in 1998. According to Mr. Nandkumar, by the time her mother died, his wife had become so withdrawn that he could not tell whether she was even aware that her mother had died.

When the Bharrats were no longer available, the task of taking care of Mrs. Nandkumar during the day fell to Rookmin Nandkumar, Mr. Nandkumar's mother. This was some time around the death of Mrs. Nandkumar's mother.

Rookmin Nandkumar lives close to her son and she now goes over every weekday to take care of Mrs. Nandkumar. In her evidence, she confirmed Mr. Nandkumar's description of his wife as an energetic, vivacious person who took care of the household and was very involved with her children, before the accident. Although she could not give precise dates, she also confirmed Mrs. Nandkumar's gradual deterioration after the accident. She also painted the picture of initial complaints of pain followed by a gradual deterioration of her psyche, until she did not care to do anything.

She described a typical day since she has been taking care of Mrs. Nandkumar as follows: She gets to the Nandkumar's house around 8:30 a.m. She goes upstairs to find Mrs. Nandkumar in bed. She is either sleeping or just lying there. She gets her out of bed and takes her to the bathroom. She puts the toothpaste on her brush and shows her what to do. Mrs. Nandkumar brushes her teeth. Rookmin takes her to the bath and helps her undress. Rookmin turns on the water. Rookmin puts out soap and shampoo and shows Mrs. Nandkumar what to do. Most of the time, Rookmin has to soap her.

After the shower, Rookmin helps her dress and then leads Mrs. Nandkumar downstairs where she puts her to sit on the sofa. Rookmin turns on the television and tunes it to a soap opera or a kids' show like Sesame Street. Mrs. Nandkumar is indifferent to what is on. Rookmin cannot tell whether she understands. She just sits and stares. Rookmin brings her coffee. Sometimes she will sit in front of the television for half an hour and then fall asleep again. Sometimes when she needs to go to the bathroom she messes herself and Rookmin has to take her upstairs and clean her up. Generally, she stays in front of the television until Rookmin brings her lunch. Rookmin then feeds her lunch. If the weather is good, they may sit out together. Otherwise, Mrs. Nandkumar would sit in front of the television after lunch and sleep there when she feels like it. Mrs. Nandkumar does not communicate verbally with Rookmin. Rookmin guesses that she needs something because she would sit up and stare at her. She sometimes mumbles to herself, not saying words, just making noises.

The children get home at around 3:00 p.m. They greet their mother and hug her. She does not respond. Sometimes she cries as she sits in front of the television for no apparent reason. Rookmin generally goes home at night but she stays over on occasion. Generally, Mr. Nandkumar would take over when he gets home from work. Rookmin confirmed that she has heard Mrs. Nandkumar shouting out at night like she was frightened.

She too saw no reaction when her mother died although Mrs. Nandkumar had been very close to her mother. Rookmin has noticed no change in Mrs. Nandkumar's condition over the last couple of years.

Jill Anthony, the Nandkumar's former neighbour, was also called as a witness. She lived next door to the Nandkumars from 1992 until the Nandkumars moved to their current home in 2000. She said that she had gone over and introduced herself when the Nandkumars moved in and had become very close to the children and to Mrs. Nandkumar. They exchanged recipes and visits and talked constantly in person and by telephone. They had a great time together. She admired the Nandkumar kids. They were so well behaved. She took advice about her own child from Mrs. Nandkumar. She described Mrs. Nandkumar as a spotless housekeeper, involved in her children's lives and her church, close to her husband. She would not have minded having a marriage like the Nandkumars'.

After the accident, the friendship gradually waned. She saw Mrs. Nandkumar a few times in December 1995. She was complaining of pain. She appeared not to be herself. She appeared frustrated at not being able to do things. She declined an invitation to visit at Christmas. In the first six months of 1996 Jill went over to visit two to three times a week. Mrs. Nandkumar was becoming withdrawn. She seemed sad and frustrated. Once, she said that she felt useless. She said "I am a young woman, your age, and look at me." She said "look at what my children have to do for me." The children were doing the laundry and they had to get her things. Mrs. Nandkumar would not come over to visit any more. She no longer called. She was a bit short tempered with the children when she had always had all the patience in the world. Over the next few months, she appeared to just give up. Jill tried to encourage her to do things to relieve the pain but she would just stare or say "I tried, it hurts." She would not give advice with Jill's child as she used to. Jill lost her father in 1996 and all Mrs. Nandkumar said was "I'm sorry." This was very different from the support Mrs. Nandkumar had given when Jill had earlier lost her mother. Jill went on to describe a gradual deterioration of Mrs. Nandkumar's condition. Jill saw her less and less. She tried to interest her in planting a garden, something in which she had taken pride before the accident, but she got no reaction. After the Nandkumars moved, she went over to the new house for a visit. She found Mrs. Nandkumar in her nightgown and a housecoat at 2:00 p.m. She tried to talk to her but she just sat there.

Both of the Nandkumar children also testified. Lisa is in grade 12 now. She is 18. She remembers her mother as very talkative before the accident. She remembers her mother getting up with her before the accident. Dad would already be at work. Mom made breakfast. She made dinner, she did the cleaning, she was always there when she needed someone to talk to. She had a lot of friends. She remembers her mother reading to the children and singing with them.

Her recollection was that, after the accident, her mother was not able to do anything. She stopped talking, she was always crying out about pain. Her mother no longer saw her off to school. She would be sleeping. She confirmed her mother's present condition as essentially non-communicative. She spends a lot of time sitting on the couch with the television going. She is like a baby again and they are taking care of her. They have to help her dress, help her clean up after she goes to the bathroom. Lisa does her hair and her make-up. They try to talk to her and they get no response. They take her out when they go to McDonalds or grocery shopping. Her brother is always concerned that she may fall and he holds her hand. When they are in the grocery store, she would put things that they did not want in the shopping cart. They do not discourage her but, when she is not looking, they put the things back. Lisa feels she now has no relationship with her mother.

Although Vijay was only 5 when the accident happened, he said that he remembers his mother used to talk to him "and stuff" before the accident. They used to throw a ball around and she was interested in how he did at school. She was talkative. He described her as depressed now. She sits in front of the television watching Barney and Sesame Street. She does not care what channel is on. She does nothing around the house. She talks to no one.

Caesar Rizzutto, Mrs. Nandkumar's hairdresser for the last 10 years, was also called as a witness. He was unaware that Mrs. Nandkumar had been involved in an accident but he has noticed that she has changed. She used to joke around a lot with him. She usually says nothing now. Her husband and the children do all the talking. Her daughter gives him instructions on how to do her hair.

Medical Evidence

The disagreement between the parties centres around divergent medical opinions on two questions:

1. Are the symptoms that Mrs. Nandkumar displays upon examination, an accurate reflection of her condition?

2. If they are, what is the cause of her condition?

The Applicant relied on the medical notes and record of Dr. Chen, the family doctor. He has been Mrs. Nandkumar's family doctor since 1983. The Applicant also called as witnesses Dr. Robert van Reekum, a psychiatrist, with expertise in the area of acquired brain injuries and Dr. John Rossiter-Thornton, a psychiatrist with expertise in schizophrenia and mood disorders.

Dr. Chen saw the Applicant four days after the accident and he continues to be involved in her treatment. He did not testify but his notes and records were filed as an Exhibit.⁴ Because of his continuous involvement in her treatment, Dr. Chen's notes and records contain the most complete picture of Mrs. Nandkumar's treatment after the accident and her pre-accident health. The notes show entries from August 1992 to June 2000. The records include reports from various doctors to whom Dr. Chen referred Mrs. Nandkumar and the results of many of the tests she has undergone.

Dr. Chen produced a typed version of his handwritten notes for the period August 1992 to January 1996. The handwritten notes themselves are illegible.

Dr. Chen notes on several dates prior to the accident, starting in 1992, that he advised Mrs. Nandkumar with regard to stress related anxiety neurosis. No treatment was prescribed and he did not refer her to a psychologist or a psychiatrist. He also certified in a letter dated July 21, 1999 that Mrs. Nandkumar had been his patient since September 1983 and she had not had any psychiatric problems prior to the accident.

When Dr. Chen saw Mrs. Nandkumar on December 4, 1995, he took a history that indicated that she had hit her head on the door post in the accident. She complained of pain in the head, neck and ear. He found tenderness in the right side of her skull, muscle spasm in the cervical spine and decreased movement. He diagnosed "neck strain" and prescribed painkillers and physiotherapy.

As indicated above, Mrs. Nandkumar had gone to a walk-in-clinic before she went to Dr. Chen. Dr. S. Nada-Rajah who treated her at the clinic, indicates in his report dated July 2, 1999 that he had seen her on December 1, 1995 with complaints of pain in her neck, head and right shoulder. He found muscle spasm in the neck and right shoulder with marked impairment of range of motion. Dr. Nada-Rajah saw her once more on January 25, 1996 and had nothing new to report.

Although Dr. Chen notes that he prescribed physiotherapy on December 4, 1995, it appears that Mr. Nandkumar first sought treatment from a chiropractor instead. She went to see Dr. A. Glatter on December 6, 1995. In his report of February 23, 1996, Dr. Glatter indicates that the initial complaints were right sided neck pain radiating into the arm and associated dizziness, blurred vision, tinnitus in the right ear, thoracic pain and chest pain. In February 1996, Dr. Glatter diagnosed "a cervical dysfunction occurring concomittantly (sic) with a post traumatic tension type headache due to mild head injury."

Dr. Chen had earlier referred Mrs. Nandkumar to Dr. R. Curkowskyj, an orthopaedic surgeon. He made no significant findings in his report of December 27, 1995.

Dr. Chen's records also contain a report from Dr. D. Selchen, a neurologist who conducted an independent examination for Economical on April 1, 1996. Dr. Selchen took a history of the accident from Mrs. Nandkumar that was consistent with previous accounts. Dr. Selchen's impression was that neck, shoulder and back pain were "somewhat improved" but that headaches had gotten worse. In addition, there were complaints of dizzy spells. He described them as "episodic imbalance and lightheadedness of the sort that one frequently sees after minor head injuries". He observed her to be "a pleasant, cooperative, rather depressed looking woman who exerted reasonable effort during examination." His physical examination produced unremarkable results. He did not think that the physical injuries should result in long-term disability but found that "her major disability at this point relates to a significant depressive reaction to the events." He concluded that "it will be difficult for the patient to return to full time work until this issue is correctly addressed." Although not retained to treat Mrs. Nandkumar, Dr. Selchen contacted Dr. Chen with recommendations for treatment of the depression he had diagnosed.

Mr. Nandkumar testified that Dr. Chen initially did not grasp the implication of Mrs. Nandkumar's symptoms. He thought that he was dealing with a simple soft tissue injury. Dr. Selchen's actions prompted Dr. Chen to refer Mrs. Nandkumar to Dr. M. Sumner, a psychiatrist.

On May 23, 1996, Dr. Sumner made a preliminary diagnosis of "closed head injury with personality change, cognitive impairment." He also diagnosed chronic pain syndrome. He observed Mrs. Nandkumar to be dazed and confused. He noted that most of her thoughts were about the difficulties that she has and that her husband did most of the talking.

From this point onward no treating medical practitioner sees the soft tissue injury to Mrs. Nandkumar's neck as the real cause of her disability and, despite a battery of x-rays and other imaging, no objective evidence is found to illustrate a connection between Mrs. Nandkumar's continuing disability and the accident. She continued to seek treatment and the records confirm the worsening symptoms that her family described.

Dr. Sumner treated her until he left for the United States. She then came under the psychiatric care of Dr. J.R. Johnson who has seen her on numerous occasions since October 1998. His diagnosis is chronic post traumatic stress disorder with a secondary diagnosis of chronic pain disorder.⁵ He gave this opinion, having seen Mrs. Nandkumar over almost two years and 15 sessions. He was satisfied that the condition was caused by the accident.

In his evidence, Dr. van Reekum sought to explain how the initial diagnosis of "neck strain" that Dr. Chen made could be consistent with an opinion that the accident caused Mrs. Nandkumar's current condition. He has an extensive background in research and treatment of patients with acquired brain injuries. Along with holding several other posts, he is currently a consultant in neuropsychiatry in the acquired brain injury program at Chedoke-McMaster Hospital and an assistant professor in the Department of Psychiatry at the University of Toronto. He was retained by Mrs. Nandkumar's solicitors to conduct a medical-legal assessment. He has reviewed most of the medical records and he met with Mrs. Nandkumar on January 19, 1999 and May 22, 2001.

He concluded that Mrs. Nandkumar suffered a traumatic brain injury in the accident which, although initially diagnosed as "mild" caused her to develop "a severe Major Depression (MD), which is an illness of the brain, and this is directly secondary to the injury to her brain....While it is often difficult for people to understand this apparent discrepancy, there is considerable research evidence available to confirm that cases of initial mild severity TBI can lead to very poor outcomes. Why this occurs is not well understood"⁶...

He confirmed that opinion in his oral evidence. In his experience, the initial severity of a brain injury correlates poorly with the outcome. The outcome of a mild injury could be severe and there could be a good outcome with a severe injury.

He was not surprised that no physical evidence of the injury was disclosed in any of the imaging procedures that Mrs. Nandkumar had undergone. That is because present imaging techniques cannot detect a mild brain injury. He explained for example that, since the area of the brain that is typically injured in an accident of this kind does not bleed, there may be an injury that causes no detectable physical damage. This is why Dr. J.Y. Chu, a neurologist to whom Mrs. Nandkumar was referred by Dr. Chen, was able to diagnose post-traumatic depression in 1999, despite a normal SPECT scan.

Dr. van Reekum's evidence was that the nerve cells of the brain may be ripped or otherwise injured as the brain decelerates in an accident. There may also be a "contusional" injury where the brain slams against bones at the front of the skull. The frontal temporal parts of the brain are not involved in maintaining consciousness, so there can be an injury to this part of the brain, without a loss of consciousness. The most common site of injury is not involved in sight and hearing. So normal results on the evoked potentials testing that Dr. M. Rathbone conducted were not surprising.

When Dr. van Reekum saw Mrs. Nandkumar, she was non-responsive. His diagnosis of a brain injury was based on the history he got from Don Bharrat who accompanied her on her first visit, the information in the medical records that he examined and his observation of Mrs. Nandkumar. He noted the reports of her apparent confusion at the scene, Dr. Chen's finding of tenderness of the skull on his initial examination and "classic symptoms of TBI since then which include the postconcussion syndrome of dizziness, pain, fatigue, irritability, lability, attentional and memory complaints."⁷

Dr. van Reekum was also not surprised at the gradual manner in which Mrs. Nandkumar's health deteriorated after the accident. His experience is that, often, the initial focus is on pain. Symptoms of a brain injury, such as dizziness, are often ignored or not mentioned. Later, as in this case, dizziness and ringing in the ears starts to get mentioned. Even then, the first explanation is often the more obvious injuries.

Dr. John Rossiter-Thornton was also retained by counsel for Mrs. Nandkumar to conduct a medical-legal assessment. He saw Mrs. Nandkumar on June 23, 2003. He was accepted as an expert witness in the field of psychiatry, with particular expertise in the treatment of schizophrenia and mood disorders.⁸ The report he prepared for counsel was entered as Exhibit 35.⁹

He testified that, when he saw Mrs. Nandkumar, she presented as childlike. Any information that he got from her was wildly inaccurate. She sat on the couch most of the time. At times she got up and paced. She appeared to be irritated when Mr. Nandkumar who accompanied her to the interview, attempted to help. She cried sometimes for no apparent reason.

He took a history from Mr. Nandkumar, reviewed the medical brief that counsel had provided and viewed the videotapes produced upon surveillance of Mrs. Nandkumar by the Insurer. His diagnosis was post traumatic stress disorder, driving phobia, psychotic disorder and amnesic disorder. He concluded that Mrs. Nandkumar was permanently disabled with a very poor prognosis. He saw nothing in the videotapes that was inconsistent with his own assessment of Mrs. Nandkumar or the description of her that her husband gave. His view was that it was not possible to comment on Mrs. Nandkumar's cognitive functioning, based on the videotapes. His opinion was that Mrs. Nandkumar's current condition was caused by injuries suffered in the accident.

He found no evidence of a pre-accident history of psychiatric symptoms. The best indication of that conclusion was that Mrs. Nandkumar was functioning well before the accident. He described Mrs. Nandkumar's brain injury as a "subtle brain injury" caused by a whiplash type injury or banging the head. Like Dr. van Reekum, he also was not surprised that the testing that Mrs. Nandkumar had undergone had not revealed damage to the brain. According to him, an EEG, which assesses the electrical function of the brain, only measures the activity in the top 1 centimetre of the brain, and therefore it misses deeper damage. An MRI tells nothing unless there is gross and obvious damage and is helpful only to disclose whether the structure of the brain is intact and a SPECT scan is simply not sensitive enough to detect subtle damage. Perfectly normal tests may reflect a patient who is clinically impaired. The tests are not the patient. You have to accept what you see clinically.

He described the mechanics of the injury just as Dr. van Reekum had done in his evidence. The delicate brain is housed behind sharp bones at the front of the skull. It does not take much to damage it. The effects vary from patient to patient. Different people have different functions affected. He gave an example of a patient who was functional, but unable to make change, and another who could drive a car but was unable to get gas although able to observe that the gauge was on empty.

It is not unusual for it to take a while for symptoms to develop. However, he saw the report of confusion at the scene of the accident as an early indication that something was grossly wrong. In his report he notes as follows:

This woman has been assigned a variety of different diagnoses in an attempt to explain her clinical presentation. But it is not surprising that someone with no previous significant psychiatric history does not now conveniently fit into a psychiatric diagnostic category as a consequence of a traumatic brain injury. Though there can be common features in people suffering from traumatic brain injury, it is unreasonable to expect the clinical presentations and impairments resulting from traumatic brain injury to fall into predictable or convenient diagnostic categories.¹⁰

He agreed with the opinion of Dr. Sumner, Mrs. Nandkumar's first treating psychiatrist, who in 1996 made a diagnosis of closed head injury with personality change. Although the term was different from his, he saw Dr. Sumner as describing the same thing. He also agreed with Dr. van Reekum's diagnosis of major depression. He saw that diagnosis as simply placing the emphasis on different symptoms. He also noted that Dr. Selchen, who examined Mrs. Nandkumar for the Insurer even before she sought psychiatric treatment, made a diagnosis of depression in April 1996. Dr. Selchen diagnosed a minor head injury despite a "fully normal neurological examination." He said that "her major disability at this point relates to a significant depressive reaction to the events which have occurred" and recommended "psychological intervention on a semi-urgent basis."¹¹ He noted that Dr. Selchen, as a neurologist, used neurological terms to describe the same condition that he had observed and diagnosed.

Evidence for the Insurer

The Insurer's position is based largely on surveillance of Mrs. Nandkumar that was conducted between August 1996 and April 15, 2004. Copies of the 10 videotapes produced were entered as Exhibits 16 to 25. The videotapes are soundless. In the period of surveillance, Mrs. Nandkumar was only observed out by herself once. That was on April 23, 1997 when she appeared to leave home walking on her own at 1:38 p.m. and returned at 2:10 p.m. carrying a small bag. The report regarding this surveillance indicates that Mrs. Nandkumar went to a drugstore and made a small purchase.¹² Mr. Nandkumar testified that he was in the garage at home on that occasion and could watch her as she walked down the street.

Except for that one occasion, Mrs. Nandkumar is always accompanied, usually by her son and daughter. When walking with her children, her son is almost invariably holding her hand while her daughter walks ahead or behind. The children explained that her son is afraid that she might fall. There are several instances in which Mrs. Nandkumar appears to be speaking. However, none of the investigators were in a position to overhear what she said. Mr. Nandkumar, Rookmin Nandkumar and the children explained that she talks but what she says is unintelligible. They talk to her in an attempt to engage her. There is nothing in the videos to refute that explanation. In one video, shot on February 12, 2000, Mrs. Nandkumar appears to be engaged in conversation. However, she is sitting alone in the family vehicle.

There is no observation of Mrs. Nandkumar being in control of any event. When the family is shopping for groceries, she is observed following along and participating minimally. She never pushes the cart. She does not pay for the groceries. She does not unpack the cart.

Mrs. Nandkumar attended to be assessed at a Residual Earning Capacity DAC (REC/DAC) on December 7, 2000.¹³ The assessors concluded that Mrs. Nandkumar was able to return to her previous employment.

When Mrs. Nandkumar appeared to be assessed she was non-communicative. Dr. Koepfler, a member of the DAC team as a psychologist, attempted to take a history from her but she was not successful. Her evidence was that, without a history from Mrs. Nandkumar, she would have preferred not to give an opinion on her condition. Instead, she would simply have reported her to be uncooperative or non-communicative. However, she contacted FSCO and was told that this option was not available to her. She had to give an opinion. Her opinion relies heavily on the videotapes. She was provided with copies of the tapes from surveillance conducted on February 12, 25 and 26 and March 25, 2000, and surveillance reports dated on February 21, March 2 and March 31, 2000.¹⁴

Dr. Koepfler agreed that the history contained in the records showed a gradual deterioration in Mrs. Nandkumar's condition. She also agreed that, if the observations of Mrs. Nandkumar's behaviour by treating physicians and the presentation in her own examination were accurate, Mrs. Nandkumar could be suffering from "a major depression."

However, she did not accept Mrs. Nandkumar's presentation as accurate because of the videotapes she reviewed. She testified that she saw a perfectly normal, functioning individual in the videotapes. Her impression of the videotapes was that Mrs. Nandkumar had no difficulty conversing. She concluded that she was now electing not to do so.

She agreed that she could not tell from the soundless tapes whether anything Mrs. Nandkumar said was intelligible but she thought that her facial expressions and body language appeared normal. She was also not satisfied that the history supported development of a psychosis because of lack of early complaint of psychological symptoms. Her opinion was also affected by the fact that Mrs. Nandkumar appeared well groomed, self-neglect being an indicia of depression. She did not ascertain whether she had groomed herself for the attendance.

Dr. Koepfler concluded that Mrs. Nandkumar had chosen not to participate in the assessment and was "considerably higher functioning than she chose to demonstrate."¹⁵

The assessors at an Attendant Care Needs DAC done on December 16, 2002 also concluded that Mrs. Nandkumar was not disabled as a result of the accident.

Dr. Richard Hershberg, a psychiatrist with expertise in neuropsychiatry and geriatric psychiatry, was the member of the DAC team who was responsible for diagnosis. His diagnosis was Symptom Magnification Syndrome, a condition that "can be produced consciously or unconsciously to control one's life circumstances."¹⁶ He concluded that "while there are likely unconscious factors influencing Ms. Nandkumar's behaviour, the possibility also arises that secondary gain motivators are operant and this was clearly demonstrated by the claimant's objective presentation today and on various earlier evaluations compared with what was observed on the video tapes."

Mrs. Nandkumar was again non-responsive. Dr. Hershberg took a history from Mr. Nandkumar, reviewed the medical records and reports and viewed copies of the videotapes from surveillance. His opinion was that "various pre-existing and ongoing psychosocial stressors in Ms. Nandkumar's life are being expressed through somatic channels providing both primary and secondary gain, and in particular addressing her likely passive dependent personality style." He based this opinion largely on Mr. Nandkumar's report that his wife had sometimes felt under stress in the workplace and Dr. Chen's record of having counselled her for stress. He saw Mrs. Nandkumar's condition as "a face saving escape from a potentially humiliating failure or the need to address an untenable situation."

He doubted the diagnosis of brain injury because he did not believe that the reports of Mrs. Nandkumar's confusion at the scene of the accident were accurate and he found no early complaint in the records of symptoms of a brain injury or post traumatic stress such as nightmares, or reliving the events.

He agreed that confusion at the scene would be consistent with a minor brain injury. However, one would expect a speedy recovery. He agreed that it was not unusual for a person who has suffered a minor brain injury to initially seek treatment for pain only and not to report symptoms of the brain injury until later. However, others would notice those symptoms.

ANALYSIS:

Issue Estoppel

The facts relevant to this issue are not in dispute. They are as follows: When the parties settled the arbitration application on the issue of entitlement to IRBs, the Insurer already had the surveillance that the DAC assessors later relied on in concluding that Mrs. Nandkumar was not disabled as a result of the accident. The settlement required the Insurer to reinstate payment of IRBs. After the settlement, the Insurer made an offer for payment of LECBs as required by section 21 of the Schedule. The Applicant rejected the offer and requested a DAC pursuant to section 23 of the Schedule. The Insurer continued to pay IRBs, as the Schedule requires, until receipt of the DAC report. Based on the report, the Insurer terminated payment of IRBs and instead started paying $3.13 per week, the LECB calculated pursuant to the report.

The Applicant submitted that, in settling the IRBs, the Insurer admitted that the Applicant was substantially unable to perform the essential tasks of her employment and agreed that the surveillance did not prove otherwise. The Insurer is therefore estopped from now adopting a contrary position, based on a DAC opinion that is founded on the same surveillance.

The Insurer submitted that it settled the issue of entitlement to IRBs only. It did not settle the claim to the distinct benefits at issue in this application and there is no prior decision on the issue of the Applicant's ability to work.

A neat summary of the principle of res judicata is found at page 10 in the Director's Delegate decision in Saliba and Allstate Insurance Company of Canada :

The common law plea of res judicata can take two forms: cause of action estoppel, and issue estoppel. In the first, the defendant seeks to strike the action on the basis that it has already been adjudicated. In the second, the defendant concedes that the subsequent action is different, but maintains that a crucial issue common to both proceedings has already been determined, and cannot be revisited in the second proceeding. See Angle v. Canada (Minister of National Revenue), 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248...

The three requirements for a plea of issue estoppel are: (1) the same question has been decided; (2) the decision giving rise to the estoppel was final; and (3) the parties or their privies are the same as the parties to the first decision. See Angle v. Canada, supra .¹⁷

I accept the Insurer's submission that the principle does not apply because only one of the three elements is present here. The parties are the same, but there has been no decision and therefore no decision on the same issue.

The prior application was settled. It was not decided. Although counsel did not indicate how the application was disposed of, it is safe to assume that any order would have been a consent order dismissing the application. There was no adjudication of the merits of the application. There was no actual admission of liability and no deemed admission as in the case of a consent judgment. The principles relevant to consent judgments that were applied in Bank of Montreal v. Coopers Lybrand Inc.¹⁸ do not apply here.

The Insurer could not have later claimed that Mrs. Nandkumar was not entitled to receive an LECB offer because she did not continue to qualify for IRBs after 104 weeks. But the Insurer was not bound to any amount to be offered.

In any event, had the technical requirements of issue estoppel been met, I have the discretion not to apply the principle and I would have exercised that discretion here. In the context of accident benefits claims, where claims may arise at any time, the insurer has an ongoing obligation to adjust the claim in good faith and the Schedule specifically contemplates serial applications, the principle should be construed narrowly and applied cautiously.¹⁹ Here, fairness would require that the insurer have the right to change its position, based on new opinions it acquired, pursuant to the DAC dispute resolution process dictated by the Schedule.

I note that the Applicant presented no evidence that the Insurer expressed a position on LECBs or that there was detrimental reliance on the conduct of the Insurer and did not frame the argument as one of promissory estoppel.

The merits of the application

Dr. Koepfler did not believe that Mrs. Nandkumar's symptoms were honestly displayed. To accept that conclusion, I must reject the evidence of Mr. Nandkumar, Rookmin Nandkumar, the children and Jill Anthony and agree that the videotapes show a normal individual. I do not. I accept their evidence.

A broad conspiracy between these witnesses appears to me unlikely and there was nothing in the content of their evidence or the manner in which they testified that increased the likelihood that they had gotten together to support Mrs. Nandkumar's false presentation. They were all consistent in their description of Mrs. Nandkumar's condition and that description was consistent with the observations in the medical records. The adult witnesses all agreed on the gradual deterioration that Mrs. Nandkumar experienced. The children did not recall this gradual deterioration. For them, the change was abrupt. This is not surprising, given their ages at the time of the accident.

I do not agree that the videotapes show a perfectly normal person. As noted above, Mrs. Nandkumar is alone for only a brief period, often holding her son's hand, never in charge of any event or leading any activity. Although in no obvious discomfort, she appears stiff, robotic and disengaged. There are no obvious signs of pain, but there is nothing in the evidence to suggest that the Applicant claims to be currently incapacitated by pain. Her limitations are mental not physical. She is certainly not the vibrant, independent individual she was before the accident. Although her lips are moving in the videos, I do not agree that she appears to be carrying on a conversation. There is no instance where she appears to be engaged with the persons she is supposedly talking to, there is no appearance of give and take. The appearance is consistent with her speaking unintelligibly. Particularly telling is the tape from February 12, 2000 where Mrs. Nandkumar appears to be carrying on a conversation by herself. This tape lends credence to the evidence that Mrs. Nandkumar mumbles away unintelligibly. Dr. Koepfler did not comment on this behaviour. She did agree that, if Mrs. Nandkumar's presentation were accurate, she may be suffering from a major depression.

Having found that the basis of Dr. Koepfler's opinion is unsound, I do not accept her opinion. On the other hand, Dr. Hershberg appears to accept Mrs. Nandkumar's presentation as accurate, but opines that her condition is not accident related because it is a reaction to the accident, caused by pre-accident, "likely unconscious" factors. That opinion does not support a finding that Mrs. Nandkumar's condition is not "as a result of...the accident" as set out in subsection 7(1) of the Schedule.

The question is one of legal, not medical causation. To find legal causation, I must be satisfied that but for the accident Mrs. Nandkumar's condition would not have arisen.²⁰ To the extent that Dr. Hershberg's opinion is that Mrs. Nandkumar's condition is an accurately portrayed, unconscious reaction to symptoms from the accident, his opinion supports a finding her condition was caused by the accident. By his logic, because of the accident, with no conscious intervening act, she has developed her present symptoms.

Dr. Hershberg also appears to state that Mrs. Nandkumar's presentation may be false, because of "the claimant's objective presentation today and on various earlier evaluations compared with what was observed on the videotapes." As stated above, I do not accept that the presentation is false. I therefore do not accept Dr. Hershberg's opinion where it relies on that assumption.

I also do not find it reasonable to conclude, as Dr. Hershberg did, that "longstanding charactero-logical factors and associated psychosocial stressors seem to be playing the major role in perpetuating her...Symptom Magnification Syndrome." Such a conclusion appears to me to be at best speculation, when Mrs. Nandkumar was functioning before the accident, had no history of psychiatric illness as certified by Dr. Chen, and the conclusion is based on a history taken from Mr. Nandkumar that repeats the same complaints of stress for which Mrs. Nandkumar had occasionally consulted Dr. Chen.

Doctors Koepfler and Hershberg also doubted the reliability of earlier diagnoses on three principal grounds:

1. Lack of early report of symptoms consistent with brain injury or post traumatic syndrome.

2. No objective evidence of a brain injury.

3. Regression rather than recovery.

I will address each in turn.

Lack of early report of symptoms

Dr. Hershberg agreed with Dr. van Reekum's evidence that it is not unusual that a brain injured person will not report symptoms of brain injury in the early stages of treatment, when the emphasis is on pain relief. Therefore, lack of early report of symptoms is not indicative of the absence of a brain injury.

In any event, I do not accept that symptoms consistent with a brain injury were not reported early. There is no dispute that Mrs. Nandkumar suffered a blow to her head in the accident. It was the swelling to her face that was the cause of alarm the next day and the reason to seek medical attention. When Dr. Chen first saw her, he found tenderness on the right side of the skull. Although she did not wander into traffic at the scene of the accident, it has been consistently reported that she was confused. On December 1, 1995, she apparently told Dr. Nada-Rajah that she was the driver of the car. As Dr. Rossiter-Thornton noted, this may be an early instance of the loss of cognitive function, more significant instances of which are later documented. When she saw Dr. Glatter on December 6, 1995 she reported headaches, dizziness, blurred vision and tinnitus in the right ear, all symptoms consistent with a brain injury.

I therefore do not accept that there was no early report of symptoms consistent with a brain injury.

It is more accurate to say that there was no early diagnosis of a brain injury.

No objective evidence of brain injury

Doctors van Reekum and Rossiter-Thornton agreed that the results of the various imaging investigations that Mrs. Nandkumar has undergone do not rule out a brain injury. Certainly, the results did not rule out a diagnosis of brain injury for Mrs. Nandkumar's treating physicians. Doctors van Reekum and Rossiter-Thornton explained their opinions as I summarized above. Dr. Hershberg disagreed but gave no explanation for the basis of his disagreement and gave no insight into why the contradictory opinions were not well founded. In the circumstances, I prefer the opinions of Doctors van Reekum and Rossiter-Thornton because of their greater experience in the treatment of patients with acquired brain injuries and clear explanation of the basis of their opinions. I find that the test results do not rule out the diagnosis of brain injury.

Regression rather than recovery

Clearly Mrs. Nandkumar has gotten worse, rather than better, since the accident. No one would have expected that. This is why it appears to have surprised Dr. Chen and her family. That may be reason to look closely at her condition to determine whether it was caused by the accident. It is not reason to conclude in the face of compelling evidence, that her condition is not accident related. Certainly not every injured person has a speedy and predictable course of recovery. Mrs. Nandkumar has not.

CONCLUSION

I accept the evidence of Mr. Nandkumar and the other witnesses called by the Applicant. I find that the Applicant's condition is as they described and I accept the opinions to the effect that her condition is caused by the accident. I find that the opinions of Doctors van Reekum and Rossiter-Thornton are reasonably founded upon the evidence and I accept them. I reject the opinions to the contrary. I realize that there are several different diagnoses by doctors whose opinions are that Mrs. Nandkumar's condition is caused by the accident. I accept Dr. Rossiter-Thornton's explanation that the different doctors are using the language of their own area of specialization to describe the same thing. In finding that the accident caused her condition, it is not necessary that I choose a diagnosis.

BENEFITS PAYABLE

LECBs

Mrs. Nandkumar was substantially unable to perform the essential tasks of her employment or any other employment at the date of termination of benefits and her condition remains unchanged. She is therefore entitled to an offer of weekly LECBs of more than $3.13 per week.

Medical and Rehabilitation expenses

The evidence is that the only expenses the Applicant has incurred as required by sections 36 and 40 of the Schedule are the cost of medication and the cost of a lift for the bath. I find those expenses to be reasonable and the Applicant is entitled to reimbursement.

Counsel for the Applicant submitted that I should make a determination of the reasonableness of the other proposed expenses claimed in the application, in order to avoid a future dispute between the parties. No submissions were made as to the source of my jurisdiction to do so. I find no such jurisdiction.

Attendant Care

It is not clear when Mrs. Nandkumar first required significant assistance with the activities of daily living and when she first required full-time assistance. It appears that she was more or less able to take care of herself for some time after the accident and then gradually deteriorated to the point of almost complete dependency.

The earliest date at which it is clear that Mrs. Nandkumar required full-time assistance is the date of her mother's death in "early" 1998. By that time, regardless of how the types of care are divided, she would clearly be entitled to the maximum benefit allowed by subsection 47(4) of the Schedule. This is much less than the actual cost of the required care, as set out in Form 1 dated December 6, 1999 and June 17, 2003.

In the absence of a precise date when full-time assistance would have been first required and a fixed period for part-time assistance, a further four months at the maximum rate appears to be reasonable, given Mrs. Nandkumar's gradual deterioration.

Housekeeping

Mr. Nandkumar required assistance with housekeeping immediately following the accident and, although she resumed some of her duties, she never recovered to the point of resuming all of her duties and then she regressed to her current state. I find that the claimed amounts of $292.80 per year up to October 15, 2003 and $2,392.11 per year after that are reasonable.

Examinations

I heard no evidence on the reasonableness of the neuropsychological assessments, the Community Brain Injury Support assessment and the physiotherapy assessment, or whether the cost has been incurred. I will therefore not order payment for those assessments.

The reports of Sue Wilkinson entered as Exhibits 7 and 28 were reasonable and necessary and the claimed cost of $2,082.90 is reasonable, given the time clearly spent in their preparation. The Applicant is entitled to recover that cost.

INTEREST

Mrs. Nandkumar is entitled to payment of interest on the overdue benefits, pursuant to section 68 of the Schedule. Counsel for the Insurer submitted that interest on any amount awarded for attendant care should be restricted because of delay in providing information, but gave no specifics on how the Insurer's ability to adjust the claim has been impeded. I see no reason to limit the Applicant's entitlement to interest.

EXPENSES:

Of the criteria I am required to consider by the Expense Regulation, the only one relevant to this hearing is degree of success. Given the Applicant's success, the Applicant is entitled to her expenses of the hearing.

October 20, 2004

Jeffrey Rogers

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 154

FSCO A03-000831

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LEKHWANTIE NANDKUMAR

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Raj Nandkumar is appointed to represent the Applicant in the dispute resolution process and to receive and administer statutory accident benefits on her behalf.

2. The amount of Mrs. Nandkumar's weekly LECB, pursuant to section 20 of the Schedule, is greater than $3.13.

3. Economical shall pay Mrs. Nandkumar supplementary medical and rehabilitation expenses to reimburse her for the cost of medication and a lift for the bath as are set out in a report of RMI dated October 15, 2003²¹, pursuant to sections 36 and 40 of the Schedule.

4. Economical shall pay Mrs. Nandkumar attendant care benefits of the maximum allowed by subsection 47(4) of the Schedule from the date of her mother's death and ongoing, plus a further four months.

5. Economical shall pay Mrs. Nandkumar $292.80 per year from December 1, 1995 to October 15, 2003 and at $2,392.11 per year, thereafter for housekeeping and home maintenance services, pursuant to section 55 of the Schedule.

6. Economical shall pay Mrs. Nandkumar $2,082.90, for the cost of examinations conducted by Sue Wilkinson-Rehab Management Inc. pursuant to section 57 of the Schedule.

7. Economical shall pay Mrs. Nandkumar interest on the overdue payment of benefits pursuant to section 68 of the Schedule.

8. Economical shall pay Mrs. Nandkumar's expenses in respect of the arbitration under section 282(11) of the Insurance Act. If the parties are unable to agree on the quantum, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 20, 2004

Jeffrey Rogers

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2Exhibit 2, Tab 10
3. 3Exhibit 2, Tab 10
4. 4Exhibit 11, Tab 13 Arbitration Brief
5. 5Exhibit 62, Report dated February 9, 2001.
6. 6Exhibit 30, page 11 (Exhibit 2, Tab 17)
7. 7Exhibit 30, page 11
8. 8See CV at Exhibit 34
9. 9Tab 23, Exhibit 2
10. 10Exhibit 35, page 49
11. 11See Dr. Selchen's report in Dr. Chen's records, Exhibit 11
12. 12Exhibit 26.
13. 13The DAC report was filed as Exhibit 46.
14. 14Exhibits 20, 21, 22, 38, 39 and 40.
15. 15Exhibit 46, Page 26
16. 16Exhibit 56, Page 13
17. 17(FSCO P00-00052, July 19, 2002)
18. 18(1996), 1996 CanLII 12088 (SK CA), 137 D.L.R. (4th) 441
19. 19See Stelzer and Zurich North America Canada, (FSCO P02-00035, February 6, 2004)
20. 20See Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at para.14
21. 21Exhibit 2, Tab 10