Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 143

FSCO A05-001820

BETWEEN:

BAVANI THEVARANJAN

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Minor revisions were made to decision on March 1, 2007, in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Beth Allen

Heard: March 13, 14, 15 and 16, and April 28, 2006 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David S. Wilson for Mrs. Thevaranjan

Michael Chadwick for Personal Insurance Company of Canada

Issues:

The Applicant, Mrs. Bavani Thevaranjan, was injured in a motor vehicle accident on April 22, 2004. She applied for and received statutory accident benefits from Personal Insurance Company of Canada ("Personal"), payable under the Schedule.¹ Personal terminated income replacement and housekeeping and home maintenance benefits on October 14, 2004 and October 15, 2004 respectively. The parties were unable to resolve their disputes through mediation, and the Applicant 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:

1. Is the Applicant entitled to income replacement benefits from October 15, 2004 and ongoing pursuant to sections 4 and 5 of the Schedule?

2. Is the Applicant entitled to housekeeping and home maintenance expenses under section 22 of the Schedule for services rendered by housekeepers, as follows: $1,338.12, representing the shortfall between the amount paid from April 24, 2004 and October 15, 2004 and the amount owing during that period at $100.00 per week; and thereafter, from October 16, 2004 and ongoing, at $100.00 per week.

3. Is the Personal liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?

4. Is the Applicant entitled to her arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

5. Is the Personal entitled to its arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

6. Is the Applicant entitled to interest on any overdue benefit payments pursuant to section 46 of the Schedule?

Result:

1. The Applicant is entitled to income replacement benefits of $263.51 per week from October 15, 2004 to April 22, 2006 under section 4 of the Schedule, with interest payable from October 15, 2004 pursuant to section 46 of the Schedule.

2. The Applicant's claim for income replacement benefits under section 5 of the Schedule is dismissed on a technical basis without prejudice to her right to bring a further Application for post-104 week income replacement benefits.

3. (a) The Applicant is entitled to the shortfall of $1,338.12 in the housekeeping and home maintenance benefits, with interest payable on that amount pursuant to section 46 of the Schedule; and to payments of $100.00 per week from October 16, 2004 to April 22, 2006, with interest payable from October 16, 2004 pursuant to section 46 of the Schedule.

(b) I dismiss on a technical basis the Applicant's claim for post-104 week housekeeping and home maintenance benefits without prejudice to her right to bring a further Application under subsection 22(3) of the Schedule for those benefits.

4. The Personal is not liable to pay a special award.

5. The parties did not make submissions on expenses. If they are unable to settle that issue, I remain seized of the matter.

EVIDENCE AND ANALYSIS:

The Accident

The Applicant was involved in an accident on the morning of April 22, 2004 when she was on her way to an appointment with her family doctor, Dr. D.W. Yeung. She was 42 years of age at the time. She was driving the family's 1989 Dodge southbound on Victoria Park Avenue in Toronto. She had slowed down for a red light when her vehicle was suddenly struck from the rear by another vehicle. The Applicant's vehicle then struck the rear of the vehicle stopped at the red light in front of her vehicle.

The Applicant testified that while she was unable to determine the force of the accident, she did recall that with impact her head moved forward and back. She got out of her vehicle and observed damage to the front driver's side of her vehicle. The Applicant testified that she felt tense and disoriented shortly after impact, but did not feel pain at that time. The police did not come to the accident scene. The Applicant indicated that her vehicle was not in driving condition, so she took a ride to the accident reporting centre in the truck towing her vehicle. The Applicant's brother came to the accident reporting centre to pick her up at about 11:30 a.m. The Applicant went home and did not go to work that day.

Medical Conditions

Pre-Accident

The Applicant was questioned about the reason she had an appointment with Dr. Yeung on the morning of the accident. The Applicant responded that she intended to see Dr. Yeung about pain in her right knee. Dr. Yeung's clinical notes and records contain an April 22, 2004 entry to that effect. The Applicant stated that the knee condition developed spontaneously while climbing stairs at home and resolved in five days. The Applicant was also asked about notations in her family doctor's records about pre-accident headaches. The Applicant testified that before the accident she suffered migraine headaches about two or three time per year which caused her to miss work. She explained that post-accident, she developed persistent daily debilitating headaches. The Applicant's testimony, supported by that of her husband's, Mr. Reginald Thavaratnam, testimony, was that before the accident she never suffered from the type of headaches, or the right shoulder, neck and lower back pain she experienced post-accident.

I received no evidence to the contrary and I accept the Applicant's evidence in that regard. I find there is no causation issue in this case.

Post-Accident

The Applicant attended an appointment with her second family doctor, Dr. I. Asirwatham, on April 23, 2004, the day after the accident. The Applicant testified that Dr. Asirwatham is a Tamil-speaking doctor whom she had seen since December 2003 while she continued to see Dr. Yeung. Dr Yeung, whose office was close to her home, was also her mother's physician. The Applicant indicated she gave Dr. Asirwatham an account of her accident-related complaints and he recommended that she undergo physiotherapy.

Disability Certificates dated May 26, 2004 and September 1, 2004 by Dr. James Fung, a chiropractor with Rama Rehabilitation Centre ("Rama"), noted a WAD II injury, right knee, right shoulder and low back pain and indicated she was unable to sit for prolonged periods of time. Orthopaedic and psychiatric consultations were recommended. A letter dated April 25, 2005 by Dr. S.W. Wong, a physiatrist, diagnosed myofascial strain of the neck, upper back and bilateral buttock muscles with referred pain to the leg, insomnia and stress problems. An MRI of the neck and back was arranged. A bone scan report dated April 30, 2005 of the Applicant's shoulders, elbow and knees indicated some degeneration, but no bone damage.

The Applicant testified she was in a depressed and sad state of mind on the day after the accident. She stated she felt no pain during that day so she did not seek medical attention. However, when she awoke the following morning she felt pain in the right side of her neck and head, lower back near the tail bone, right leg near the thigh and knee, and bilateral shoulder pain, more severe on the top of her right shoulder. The Applicant also testified about a problem with sleep deprivation since the accident which she did not experience before the accident. She stated that she had difficulty falling asleep and remaining asleep because of pain. She would awake around 6 a.m. each morning suffering from fatigue and pain. The Applicant's husband testified that he has observed displays of his wife's pain since the accident. He testified she complains of back pain and sits with her head tilted sideways. He stated that her pain seems to be less intense just after physiotherapy treatment, but the pain would always return shortly afterwards.

The Applicant testified that she began to suffer from depression after the accident. She indicated that she feared that the pain would never go away. She had flashbacks of the accident and has feared getting into a car. Her husband stated that the Applicant told him she would no longer drive and was even nervous being a passenger because she feared being rear ended. The Applicant testified, supported by her husband's evidence, that because of her physical and emotional status, she could not return to work, which has heightened her depression because she could no longer earn a living and assist with the family finances. The Applicant testified, supported by her husband's evidence, that she loves her children very much and always enjoyed playing with them and taking them to the park to play and to swim. After the accident she could no longer do these things because of her pain and this too has contributed to her depression. The Applicant's husband confirmed the Applicant's evidence that she did not suffer from sadness or depression before the accident. She was a "normal" person who would engage in activities with the children and would drive their car without fear.

Treatment

On April 28, 2004, the Applicant began attending treatment at Rama Rehab where she was diagnosed with and treated for right knee strain/sprain, WAD II (with headaches) and low back pain. Rama recommended that the Applicant apply ice to the affected areas, avoid prolonged standing and to use a back support when sitting. From April 28, 2004 until April 28, 2005, two to three times weekly, the Applicant underwent various modalities of passive treatment including massage, chiropractic adjustments, TENS treatment, acupuncture and stretching exercises. Tylenol III and the application of heat and ice packs were recommended for pain. She stated that throughout the summer of 2004, the pain in her head, neck and right shoulder was constant and severe and that she would only feel relief for about three or four hours after treatment and then the pain would return. As well, the application of hot and cold packs and Tylenol III only provided temporary relief.

The Applicant testified that with treatment some of her conditions improved or disappeared while others persisted. With treatment at Rama over the summer of 2004, the pain in her right thigh and knee subsided and eventually resolved completely, as did the pain on the right side of her head. After the summer of 2004, the pain in the Applicant's left shoulder improved, becoming less severe than on the right side. Regarding her headaches, the Applicant indicated that after the accident, her headaches did not worsen but continued to occur off and on. She testified the right shoulder and neck and back pain have persisted on a constant basis to the present, in spite of treatment. The pain in the Applicant's neck, shoulder and lower back would vary in severity depending on her physical activity. She testified that her right neck and shoulder pain increases if she uses her hands. Moving her head causes headaches and prolonged sitting aggravates her lower back pain.

The Personal rejected a treatment plan by Rama and in April 2005 terminated any further funding for this type of treatment, despite the Applicant's continued complaints of pain. The Applicant testified that she continued to find her pain unbearable so, at her own expense, she resumed treatment with Rama, one day per week at $10.00 per visit, from September 2005 to January 2006, at which time Rama went out of business.

On December 19, 2005, the Personal approved a treatment plan for 20 psychological treatment sessions with Dr. R. S. Miller for depression, the first of which took place January 24, 2006. The Applicant had attended three sessions by the time of the hearing.

Employment

The Applicant claims, as required by section 4 of the Schedule, that the impairments she sustained in the accident have disabled her from returning to her pre-accident employment. The Personal paid income replacement benefits at $263.51 per week until October 14, 2004 at which time it terminated payment as a result of the findings of insurer's examinations by AssessMed Functional Medicine Evaluation ("AssessMed").

The Applicant also seeks post-104 week benefits under section 5 of the Schedule which requires her to establish a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. The Applicant technically made this claim by checking the appropriate box on the Application for Arbitration. The Applicant's counsel submitted that the Applicant is entitled to an order for ongoing income replacement benefits from the termination date onwards and that it would be inappropriate to limit the order to cover only the 104-week period. According to the Applicant's counsel, there is one benefit and if the Applicant is found entitled at the time of the hearing (whether the hearing takes place before or after the 104-week point), then she is entitled to an ongoing order for benefits. The first four days of this arbitration took place before the 104-week point and the last day was resumed afterwards. The Applicant's counsel further submitted that the parties would then be entitled to reassess the Applicant and to seek a variation order.

Counsel for the Personal opposed this position. He argued that the only income replacement benefit issue is the Applicant's entitlement to benefits during the 104-week period based on a determination of whether she is substantially able to perform her pre-accident employment and housekeeping tasks. According to this submission, I lack jurisdiction to decide the post-104 week issue under section 5 and the order should therefore be restricted to benefit entitlement during the 104-week period.

The Applicant had attained a Bachelor of Commerce degree in Sri Lanka before immigrating to Canada in 1988. Over the years before the accident, the Applicant obtained relatively consistent employment through employment agencies with brief periods of unemployment while awaiting new assignments, and during training and maternity breaks. From February 2003, until the day of the accident, the Applicant was working on an assignment with the Royal Bank of Canada ("RBC") as a data entry clerk. She worked full time, 40 hours per week, from 9 a.m. to 5 p.m. The Applicant's main duty was to input data through a computer which required her to sit for prolonged periods of time, to concentrate, and to attend to detail for extended periods. She testified that she had only a few brief periods of absence from work due to illness during her 12 years with RBC.

The Applicant testified, as did her husband, that she has not been able to return to work since the accident because she cannot sit for prolonged periods of time due to her persistent neck and back pain and has problems with concentration because of her psychological condition. In support of that evidence, they both testified that the Applicant used to use their home computer to prepare financial records for their church on a volunteer basis. However, after the accident she could no longer sit or concentrate long enough to do this, but rather began instructing her husband on how to do that work.

The Applicant's data entry job required her to alphabetically file materials for about an hour each day. This task required her to carry heavy accordion file folders (an average of four inches in thickness) and to reach above her head to file some of them on higher shelves and to bend down to file some on the lower shelves, while other files had to be filed at waste level.

I found the Applicant's evidence about her inability to resume her work-related tasks straightforward and credible. She was detailed in her description of her work responsibilities and painted a clear and unembellished picture of how both her physical and psychological conditions prevent her from returning to her job. Her testimony was consistent with that of her husband and the medical records of her complaints since the accident, and in accord with the opinions of both her physical and psychological treatment providers and assessors. Further, as will be seen below, the Personal was not able to successfully controvert the Applicant's evidence.

Housekeeping and Home Maintenance Claim

The Applicant resides in a three-bedroom house with a rented basement with her husband, two minor sons and her mother. The Applicant testified, supported by her husband's evidence, that she did all of the housework and care of the children before the accident. The evidence was that the husband cut the grass, planted flowers, sometimes accompanied the Applicant for grocery shopping, and put out the garbage.

The Applicant claims $100.00 per week for housekeeping and home maintenance services under subsection 22(1) of the Schedule. This section requires the insurer to fund reasonable and necessary expenses for housekeeping and home maintenance services if, as a result of accident-related injuries, the insured person is substantially disabled from performing the services she normally undertook before the accident. The Personal paid a portion of the housekeeping and home maintenance benefits from April 24, 2004 to October 15, 2004, at which time it terminated them as a result of the findings in AssessMed's reports dated August 12 and 20, 2004. The Applicant claims the shortfall between the amount claimed and the amount paid during this period, in the amount of $1,338.12, with interest payable on that amount pursuant to section 46 of the Schedule, and $100.00 per week from October 16, 2004 and ongoing.

The pre-hearing letter, dated October 25, 2005, contains a claim for housekeeping and home maintenance benefits at $100.00 per week from April 22, 2004 (less amounts paid) and ongoing [emphasis added]. This could technically be seen, as the Applicant's counsel argued with respect to the income replacement issue, to extend the Applicant's claim past the 104-week point under which circumstances the claim would be governed by subsection 22(3) of the Schedule. That provision requires that the insured person obtain a catastrophic designation to establish entitlement to those benefits after the 104-week point. However, I received no submissions or evidence from either party on that issue.

The Applicant testified that after the accident her ability to perform her household duties was hampered by fatigue and pain. Her right shoulder, right side of her neck and back pain have disabled her from undertaking those tasks. The Applicant stated that in spite of her pain she would attempt to do small chores such as dishwashing, sweeping and cutting meat and vegetables. Her back pain would increase as a result of being required to stand during those chores, so she was unable to do that work. The Applicant stated that she has had to enlist the services of Ms. Shamini Sivanathan, her brother's wife, who lived with her husband and children as tenants in the Applicant's basement.

The Applicant submitted invoices for housekeeping services for the periods April 24, 2004 to October 16, 2004 and from October 17, 2004 to May 15, 2005. The Applicant also submitted a Statement of Housekeeping dated January 25, 2006, signed by Ms. Sivanathan, stating that she performed housekeeping services from May 14, 2005 to January 25, 2006 for 22 to 3 hours per day, 5 to 7 days per week, for $9.00 per hour. The Applicant clarified in testimony that until October 17, 2004 the rate was $8.00 per hour. During the period of her service, Ms. Sivanathan did vacuuming, grocery shopping, cleaning, as well as meal preparation for the current day, and at times, for the following day. The Applicant testified that her husband would complete the chores that Ms. Sivanathan did not finish. After January 25, 2006, Ms. Jeyanthini Navendram took over performing these tasks because Ms. Sivanathan gave birth to a child.

I found the Applicant's evidence credible about the barriers to performing her housekeeping chores presented by her physical impairments. This evidence was supported by her husband's evidence. It is also consistent with her assessors' and medical practitioners' opinions about the limitations presented by her physical impairments. As will be seen below, the Personal brought no evidence to successfully controvert the Applicant's evidence.

Assessments

Requested by the Applicant

Dr. Miller assessed the Applicant for psychological complaints on October 24 and November 10, 2005. His report, dated January 24, 2006, was consistent with the Applicant's testimony about the effect on her of the fear, pain and depression she developed after her April 22, 2004 accident. Dr. Miller found that the Applicant presented as honest and cooperative and motivated to accept strategies he offered to improve her health. Dr. Miller noted frequent non-verbal pain behaviours such as shifting in her seat and standing at times. The Applicant told Dr. Miller of her depression and anxiety as a result of the losses she has incurred since the accident - her inability to work, to care for and play with her children and to undertake her household chores. Diagnostic testing conducted by Dr. Miller generally reflected the Applicant's psychological and emotional complaints.

The Applicant also underwent a functional capacity evaluation ("FCE"), conducted on June 28, 2005 by Mr. Atila Balaban, a physiotherapist. The findings of this assessment were consistent with the Applicant's complaints about her inabilities to perform her employment and household tasks and consistent with the findings of other medical practitioners. The FCE revealed functional limitations primarily in the neck/shoulder, upper back and thoracolumbar regions which affected: the function of upper extremity work; the extension of her neck and head; waist to shoulder lifting; carrying; sitting; overhead work; squatting; and hip flexion activities.

In a report dated August 10, 2005, Dr. Wong concluded that he observed physical impairments, in direct disagreement with the findings in Dr. Raymond Zabieliauskas' August 12, 2004 report (discussed below). Dr. Wong pointed out that he had seen the Applicant on three occasions and confirmed a diagnosis of moderate myofascial injuries to her thoracic spine, cervical spine, levator scapulae muscles, sacral spine, gluteal muscles, as well as post-traumatic insomnia and psychological problems. Dr. Wong concluded that the Applicant's muscle injuries explain her symptomatology and functional disability and gave a prognosis of guarded. In subsequent letters dated August 26, 2005 and January 10, 2006, Dr. Wong confirmed the medical opinion expressed in his August 10, 2005 report. In those reports, Dr. Wong noted that the findings by Mr. Balaban in the FCE and the results of the MRI conducted on December 7, 2005 supported his findings about the Applicant's physical disabilities.

Ms. Sophie Bielawski conducted an in-home occupational therapy assessment of the Applicant's activities of daily living. In a report dated January 16, 2006, she reviewed the previous assessments requested by the Applicant and the Personal. Ms. Bielawski recommended a collaborative program to guide and assist the Applicant with pacing, safe body mechanics, household reorganization, ergonomics and energy management, work simplification and pain management/relaxation. Among the other types of services she suggested, Ms. Bielawski recommended 27 hours per week of assistance with daily housekeeping, particularly with shopping, sweeping, dusting, vacuuming, making beds, cleaning bathrooms, washing floors, cleaning the stove/oven/fridge, taking out the garbage, laundry, ironing and cooking. With respect to Ms. Bielawski's recommendation for assistance with the lawn, gardening, raking of leaves and snow shovelling, I note that the Applicant's husband, not the Applicant, did the substantial part of this work.

Requested by the Insurer

Dr. R. J. Zabieliauskas

The Personal ordered physiatrist and psychological insurer's examinations pursuant to section 42 of the Schedule that were conducted by AssessMed on August 12 and August 20, 2004 respectively. Dr. Raymond Zabieliauskas, a physiatrist, and Dr. Peter Marton, a psychologist, conducted evaluations and testified for the Personal at the hearing.

Dr. Zabieliauskas has practised as a physician since 1982 and began specializing in physical medicine in 1989, during which year he took an appointment as a lecturer at the University of Toronto. He is a member of the medical staff at various hospitals and at a rehabilitation facility in Toronto. Dr. Zabieliauskas has experience as a Designated Assessment Centre ("DAC") assessor, and as an assessor with the Workers' Safety and Insurance Board, the Toronto Transit Commission, Air Canada and a nursing home.

On cross-examination, the Applicant's counsel questioned Dr. Zabieliauskas about his professional background and medical practice and attempted to elicit evidence of Dr. Zabieliauskas' bias in favour of insurers in preparing assessments. The Applicant's counsel established that AssessMed principally performed DAC assessments as well as medical evaluations for insurers and employers. The Applicant's counsel questioned Dr. Zabieliauskas about his income from AssessMed. Dr. Zabieliauskas' evidence was that for the last six years he conducted on average four to six assessments per week at an average cost of $1,000 to $2,000 per report. Dr. Zabieliauskas testified that AssessMed pays any expenses associated with the assessments and that he earned approximately $300,000 in 2004 from preparing assessments for AssessMed.

Dr. Zabieliauskas prepared a report dated August 12, 2004 and a brief follow-up report dated February 16, 2006 The latter report primarily commented on Mr. Balaban's August 8, 2005 FCE report. Dr. Zabieliauskas interviewed the Applicant on August 12, 2004 and concluded that the Applicant did not suffer from any objective physical impairments as a result of the accident. On cross-examination, he testified that if a person complains of pain, but displays no clinical or objective signs of pain, then he would conclude that the person is able to return to her pre-accident employment and household tasks. That is, according to Dr. Zabieliauskas, if there are no muscle spasms, limitations of movement, or any objective x-ray findings in the person's medical picture, then the person can return to their pre-accident activities.

The Applicant's counsel questioned the reliability, accuracy and completeness of the findings in Dr. Zabieliauskas' report. A registered nurse conducted the testing of the Applicant's functional abilities. The nurse conducted numerous tests and recorded measurements for cardiovascular fitness, the Applicant's abilities and her performance times for various physical tasks and movements such as the ability to stoop, to lift, to push a cart, to reach, to grasp, to turn, and to walk. The Applicant's counsel questioned Dr. Zabieliauskas about the nurse's training to observe and assess a person's bio-mechanical limitations in performing the assigned functions.

Dr. Zabieliauskas answered, "I don't know. She's an R.N., Sir."

Regarding the background material to and preparation of his reports, Dr. Zabieliauskas stated that he did not have the family doctor's clinical notes and records when he prepared his more comprehensive August 12, 2004 report. Dr. Zabieliauskas testified he read Mr. Balaban's report, but did not recall whether Mr. Balaban commented on the Applicant's bio-mechanical limitations. The Applicant's counsel pointed out that Dr. Zabieliauskas did not produce his written background notes with his reports and questioned the reason for this. Dr. Zabieliauskas responded that he dictated the report from the notes and subsequently destroyed the notes. Dr. Zabieliauskas hastened to add that he developed this policy to avoid being cross-examined about his notes by a "lawyer of your ilk" (referring to the Applicant's counsel) and to avoid being asked to interpret every "squiggle" and "jotting." Rather than be faced with that, Dr. Zabieliauskas stated, his practice is to destroy the notes. Dr. Zabieliauskas agreed that the accuracy of his report cannot be verified by any contemporaneous background notes.

The Applicant's counsel also questioned the accuracy of the testing data outcomes recorded by the nurse and the divergence illustrated between some of the nurse's observations during intake and testing, and her and Dr. Zabieliauskas' written conclusions.

The Applicant cross-examined Dr. Zabieliauskas on various aspects of the findings in the August 12, 2004 report. The report stated that the Applicant was inconsistent on 38% of the tests performed which would mean a consistency rate of 62%. Dr. Zabieliauskas concluded that in 9 of the 24 tests administered, the Applicant's performance exceeded standard consistency rates. The Applicant's counsel questioned Dr. Zabieliauskas' oral evidence that the person's performance must meet the standard of being consistent in about 75% to 80% of the tests, or conversely, have an inconsistency rate of no higher than 20 to 25%. On questioning, Dr. Zabieliauskas conceded that the consistency/inconsistency standard is mentioned nowhere in his report or its appendix. He went on to say, without being specific, that the standard is contained somewhere "in the literature."

The Applicant's counsel also challenged the 38% inconsistency rate recorded by the nurse and relied upon by Dr. Zabieliauskas. AssessMed uses certain measures purported to be standardized for functional testing. The tests use universal characteristics of work ("Methods-Time Measurement") such as grip, turn, move, walk and stoop, etc. The tests then compare the performance of the person being tested to an Industrial Standard, or the time it takes the average worker with average skill and judgement to perform a task over an 8 hour day, with appropriate rest periods and without undue fatigue or stress. The tests also purport to contain a measure ("Coefficient of Variance") that discriminates between average and poor effort and measures the variation in the times it takes a person to do the same task several times. If there is too much variation in the times, the person's performance will be found to be too inconsistent. The Applicant's counsel reviewed the scores on some tasks and, using the AssessMed assessment tools, pointed out that AssessMed had miscalculated the Applicant's rate of inconsistency. That is, rather than a 38% inconsistency rate, it ought to have been calculated at 12.5% (a score well below the 20 to 25% rates to which Dr. Zabieliauskas referred) with only 3 of the 24 test scores reflecting inconsistency, rather than 9 out of 24, as stated in the report. The Applicant's counsel pointed out that Dr. Zabieliauskas erred by using a 10% Coefficient of Variance rather than 15% and this error resulted in the incorrect 38% inconsistency rate.

I found Dr. Zabieliauskas was unable, to my satisfaction, to refute the Applicant's interpretation of the Applicant's performance data and to coherently explain the basis of the AssessMed scores. When responding to the Applicant's counsel's questions about the 10% rate versus the 15% rate, Dr. Zabieliauskas asserted that the Applicant's counsel was "looking at numbers that are not that important." I find this response unacceptable since AssessMed's assessment of the Applicant's abilities was based on these very scores.

I also found troublesome AssessMed's treatment of the signs of pain displayed by the Applicant during the assessment. The nurse recorded that during testing and intake, the Applicant frequently squirmed in her chair and frequently changed her position in her chair.

Dr. Zabieliauskas acknowledged that those behaviours could be legitimate expressions of pain and that the nurse failed to repeat those observations in the narrative portion of her report. Nor does Dr. Zabieliauskas' report mention those behaviours, because according to his evidence, he made no such observation during his assessment. Counsel for the Applicant pointed out that Dr. Zabieliauskas noted in his report that the Applicant "showed no overt signs of discomfort" while also stating that she held her neck during the assessment. Dr. Zabieliauskas conceded that the neck holding behaviour could also be a genuine and objective sign of pain and discomfort. He conceded on questioning that access to his background notes might have been of assistance in clarifying this area of evidence.

I note throughout each day of the hearing, whether she was testifying or not, the Applicant regularly squirmed and changed positions in her seat, stood up for periods of time, grimaced and rubbed her right shoulder and neck.

Overall, I found Dr. Zabieliauskas' evidence of little value in determining the Applicant's entitlement to accident benefits. He did not appear to be balanced and objective in his assessment of the Applicant. I also find he displayed a lack of understanding of the assessment tools used by the nurse to arrive at her conclusions, and upon which he relied to find the Applicant capable of returning to her pre-accident activities. He had no knowledge of whether the nurse who conducted the testing had the appropriate training to conduct an assessment. I found Dr. Zabieliauskas, on many occasions throughout his testimony, to be uncooperative, sarcastic and flippant, which in my view further devalued his evidence.

Dr. Peter Marton

Dr. Peter Marton also testified on behalf of the Personal. He testified that he attained his PhD in clinical psychology in 1977 in New York State. He is a registered member of the Ontario College of Psychologists and of the Ontario and American Psychological Associations. He has conducted a practice in clinical psychology since 1977, specializing in the treatment of both adults and children. Dr. Marton conceded he does not have expertise in treating and assessing chronic pain. He testified that in his practice he performs assessments at the request of several assessment facilities predominantly for insurers and employers. He does a minimum of two insurer examinations per week for AssessMed. Overall, Dr. Marton performs five to six insurer and employer assessments for four assessment facilities weekly, earning about 40% of his income from this practice.

On August 20, 2004, he assessed the Applicant to determine whether she was substantially disabled psychologically by the accident from returning to her pre-accident employment and housekeeping activities. He prepared a report dated August 20, 2004 and a brief report dated March 2, 2006. On cross-examination, Dr. Marton stated that he had neither a job demands analysis nor the Applicant's pre-accident clinical notes, records, consultation notes or test results from the Applicant's medical practitioners before him when he prepared his August 20, 2004 report. Dr. Marton admitted he only asked the Applicant general questions about her pre-accident job and therefore had little knowledge of the Applicant's pre-accident occupation when he prepared his report. When the Applicant's counsel presented a description of the Applicant's job demands to Dr. Marton, he disagreed that data input would require a considerable level of concentration, and went on to try to diminish the demands of the Applicant's job by holding up as a standard the concentration required of an air traffic controller.

Dr. Marton's failure to properly consider the Applicant's pre-accident job has caused me to discount this area of his evidence.

Dr. Marton testified in chief that he received Dr. Zabieliauskas' August 12, 2004 report before he did his assessment. However, the Applicant's counsel presented a letter to Dr. Marton dated September 16, 2004 attaching Dr. Zabieliauskas' report. In response to this evidence, Dr. Marton attempted to explain how he could have indicated in his August 20, 2004 report that he had reviewed Dr. Zabieliauskas' report - a report he actually had received after September 16, 2004. I find Dr. Marton's testimony in this area made no sense, which I find affected his credibility as a witness. I further conclude the value of his report is further discounted by the fact that he did not have Dr. Zabieliauskas' report and other key medical and employment documentation when he prepared his report.

Dr. Marton retained a psychometrist to administer six psychometric tests to the Applicant: the Malingering Probability Scale, the Wahler Physical Symptoms Inventory, the Sensations Scale, the Multidimensional Pain Inventory, the Personality Assessment Screener and the Clinician Hamilton Depression Rating Scale. Dr. Marton conceded on questioning that he did not know the psychometrist, did not ask her for a curriculum vitae and was not familiar with her qualifications. The Applicant's counsel questioned Dr. Marton about the test results. I found many of Dr. Marton's attempts to explain the results confusing.

For instance, looking at the results in the Malingering Probability Scale, according to the report, the Applicant displayed a low probability for malingering. Dr. Marton testified he only agreed with this finding in part, without offering a satisfactory explanation for this comment. He also conceded that the psychometrist had used incorrect numerical measures to arrive at the result. Dr. Marton did not explain to my satisfaction what effect the incorrect numerical measures would have on the assessment of the Applicant's performance. Dr. Marton also made the surprising remark that although the test purports to test for malingering, it really does not. Again, Dr. Marton did not explain this statement satisfactorily. Throughout his evidence on the testing results, Dr. Marton also gave evidence that undermined the value of the other tests administered to the Applicant without providing comprehensible explanations for these opinions. I find this supported the Applicant's credibility.

On the whole, I find Dr. Marton's reports and his oral evidence of little or no value in determining whether the Applicant sustained a psychological impairment that substantially prevents her from resuming her pre-accident employment and housekeeping tasks. I find he was not forthright in presenting some of his evidence and displayed a lack of expertise in understanding the psychometric tests that were administered. I also find that he was not balanced and objective in his assessment of the Applicant. Dr. Marton also conceded that he had not acquired the expertise and training in the assessment of the psychological aspects of chronic pain problems.

Credibility - Motivation and Failure to Mitigate Loss

The Personal also raised credibility issues. It attempted to elicit evidence of both an ulterior motivation for the Applicant's claim for accident benefits and of a failure on her part to mitigate her losses.

Counsel for the Personal questioned the Applicant and her husband about the benefit they might gain by the Applicant not returning to work. In answer to questions about whether the family could be maintained financially without the Applicant's income, both the Applicant and her husband responded it would not be possible. Their evidence was that they would not be able to pay their bills. The husband testified that he had worked for about ten years as an accounting comptroller with the Canadian Imperial Bank of Commerce. At the time of the accident, he earned about $34,500 annually and at the time of the hearing, about $36,000 annually. The husband testified that at the time of the accident, the mortgage payment on the home was about $1,400 per month or $17,000 annually and the family debt, beyond the mortgage, on a line of credit and credit cards was about $12,000. The family incurred about $27,000 additional debt after the accident. In 2005 the Applicant regretfully cashed out $1,000 of her $3,000 R.R.S.P. to pay bills. The husband testified that their total debt since the accident was about $35,000 not including interest. The Applicant and her husband asserted that the family debts and expenses are overwhelming and they would be much better off financially if the Applicant could return to work. They fear that they will have to sell their home if their debt continues to increase. Their evidence is that she would return to work were it not for her physical and psychological problems.

The Personal submitted that the Applicant has not mitigated her loss because she has not rented her basement apartment for several months. The Applicant and her husband testified that the rent charged for the basement apartment for a family was $600 monthly and for a single person was $350 monthly. After the Applicant's brother and family moved out, she last rented the apartment to a single man who moved out on January 31, 2006. She had not rented it since then because there was some prospect that the last tenant would return. The Applicant and her husband indicated that for safety and security reasons, they would only rent their apartment to people they knew or heard about through friends by word of mouth, so they would never advertise in the newspapers for tenants. The Personal argued that the Applicant could have mitigated the family's financial situation by renting the apartment after January 31, 2006. The Personal further submitted that were they to have advertised, the market would have allowed them to rent it for more than $350 per month.

I do not accept the Personal's argument that an ulterior motivation or secondary gain lies behind the Applicant maintaining her claims for accident benefits. The Insurer brought no evidence to prove this allegation. I find the Applicant and her husband testified credibly and brought documentary evidence to show the marked decline in their financial status without the assistance of the Applicant's income. That the Applicant paid for treatment from her own pocket after benefits were terminated, indicates a motivation to get better. I accept the Applicant's evidence that there is no financial benefit to being unemployed and that their financial circumstances have become quite precarious since the Applicant has not earned an income.

I also do not accept the Personal's argument that the Applicant's entitlement to accident benefits should be affected by the Applicant's failure to mitigate her loss by renting her basement. There is no provision in the Schedule that requires insured persons in receipt of accident benefits to use their assets to mitigate their accident-related losses. The Applicant is under no obligation to rent her basement apartment in order to maintain benefit entitlement. Moreover, I find it especially unreasonable for the Insurer to even suggest an insured person risk the security of their family and household to get the optimal rental amount for the basement apartment.

REASONS FOR DECISION:

Income Replacement Benefits

As I found above, the Applicant testified credibly and straightforwardly. Her evidence was supported by her husband's testimony, and the documentary evidence of her various assessors and treatment providers that she suffers from both physical and psychological impairments that substantially prevent her from performing the essential tasks of her employment as a computer data entry clerk.

I was impressed by the Applicant's dedication to improve her health by paying for treatment for several months from her own pocket, in spite of her family's precarious financial status, after the Personal terminated benefits. The Personal was unable to establish that secondary gain underlies the Applicant's claims. On the contrary, I find the Applicant's response to this allegation actually persuaded me that the family would clearly benefit were she able to return to work.

I also prefer the evidence of the Applicant and her husband over that of the Personal because they were able to provide a detailed, daily picture of the effect that the Applicant's medical conditions have on the functional abilities required to do her job. The Personal's assessors' view of the Applicant was restricted by the time limits on their assessments. I also accept the opinions and assessments of the Applicant's family doctor, Dr. Asirwatham, and the treatment providers at Rama who examined the Applicant over extended periods of time on many occasions, over the opinions of Dr. Zabieliauskas and Dr. Marton. The latter assessors each saw the Applicant for a brief time on one occasion. I have already spoken to the serious difficulties I had with Dr. Zabieliauskas' and Dr. Marton's oral evidence and the substance of their reports, the consequence of which was that they were not able to successfully controvert the Applicant's evidence.

I therefore find that as a result of the Applicant's accident-related head, neck, back and shoulder pain and her sleep deprivation, depression and concentration problems, she is disabled from performing the essential tasks of a computer data entry clerk. I therefore conclude that the Applicant is entitled to income replacement benefits under section 4 of the Schedule at the rate of $263.51 per week from October 15, 2004 to April 22, 2006, with interest payable from October 15, 2004.

I now turn to the post-104 week benefits issue. Although the Applicant claimed income replacement benefits under sections 4 and 5 of the Schedule in her Application for Arbitration, the evidence of both parties in the hearing focussed on the 104 week test under section 4 of the Schedule. I heard no evidence pertaining to the complete inability test under section 5. The order being sought by the Applicant's counsel is for ongoing benefits which in effect extends the Applicant's claim past the 104-week point. I find it appropriate in these circumstances to grant income replacement benefits under section 4, and to dismiss the claim for post-104 week benefits under section 5. However, because I did not adjudicate the post-104 week issue on the merits, the dismissal is solely on a technical basis and without prejudice to the Applicant's right to bring a further Application for post-104 week income replacement benefits.

Housekeeping and Home Maintenance

The Applicant claims the shortfall in housekeeping and home maintenance benefits between the amount claimed and the amount paid by the Personal from April 25, 2004 to October 15, 2004 in the amount of $1,338.12 and $100.00 per week from October 16, 2004 and ongoing.

I find the Applicant presented credible, detailed evidence about how her accident-related physical conditions, fatigue, emotional and psychological problems present barriers to her ability to grocery shop, to sweep, to dust, to vacuum, to make beds, to clean bathrooms, to wash floors, to clean the stove/oven/fridge, and to do laundry, to iron and to cook. I prefer her evidence of her housekeeping needs over that of the Personal's assessors, supported as it was by the evidence of her husband, her treatment providers and medical assessors.

I therefore find that the Applicant is entitled to housekeeping and home maintenance benefits at the rate of $100.00 per week from April 24, 2004 to April 22, 2006. The Personal is required: to pay the shortfall of $1,338.12 which represents the difference between the amount it paid from April 24, 2004 to October 15, 2004 and the cost of the services at $100.00 per week, with interest payable on that amount pursuant to section 46 of the Schedule; and to pay for these services at $100.00 per week from October 16, 2004 to April 22, 2006 with interest payable from October 16, 2004 pursuant to section 46 of the Schedule.

As noted earlier, the pre-hearing letter reflects that the Applicant technically claims ongoing housekeeping and home maintenance benefits which, under the circumstances, would include a claim for post-104 week benefits. I received no evidence or submissions from either party in relation to subsection 22(3) of the Schedule on the issue of the Applicant's entitlement to those benefits. Because I did not adjudicate the merits of that issue, I also dismiss that claim on a technical basis without prejudice to the Applicant's right to bring a further Application for post-104 week housekeeping and home maintenance benefits.

Special Award

The Applicant claims a special award pursuant to subsection 282(10) of the Insurance Act on the basis that the Personal unreasonably withheld income replacement and housekeeping and home maintenance benefits. Her counsel argued that the Personal ought not to have relied on a medical assessment such as that of Dr. Zabieliauskas who based his unfavourable assessment on his finding that there were "no objective signs of impairment." From this submission, I understand the Applicant's counsel to say that the Personal ought not to have relied on that finding by its assessor given that the current understanding in medical circles is that pain is more complex than its reduction to objective findings. The Applicant also submitted that the Personal became inflexible when it failed to reconsider the termination of benefits after receiving further medical evidence from the Applicant that supported her entitlement to income replacement and housekeeping and home maintenance benefits.

Counsel for the Personal submitted that this is not an appropriate case for a special award. He argued that the Applicant's counsel's conduct prevented the Personal the opportunity to have further assessments conducted. He pointed to the chronology of events around the delivery of the Applicant's assessment reports and the Personal's attempts to schedule insurer's examinations.

The Personal terminated the Applicant's income replacement and housekeeping benefits in October 2004 based on the physiatrist and the psychological reports by Dr. Zabieliauskas and

Dr. Marton respectively. The Personal's counsel pointed out that at the pre-hearing discussion on October 19, 2005, the Applicant's counsel failed to inform the Personal of assessments that had earlier been performed on behalf of the Applicant in August 2005. The Personal did not have access to these assessments until after the pre-hearing, on October 21, 2005, when it received Mr. Balaban's FCE report, dated August 8, 2005, and Dr. Wong's physiatrist reports, dated August 10 and 26, 2005. On January 15, 2006, the Personal served notice to the Applicant of its intention to request she attend further insurer's examinations - a functional evaluation on February 28, 2006, a psychiatric assessment on March 8, 2006, and a physiatrist assessment on April 4, 2006. The March 13 to 16, 2006 hearing dates had been set at the October 19, 2005 pre-hearing discussion.

Subsequently, the Applicant's counsel delivered further assessments to the Personal on January 30, 2006, one and a half months before the hearing - Dr. Miller's psychological report and Ms. Bielawski's occupational therapy report.

The Personal brought a motion, heard on February 10, 2006, requesting that the Applicant attend the further insurer's examinations. The Applicant's counsel opposed the Personal's request. In an order dated February 13, 2006, the pre-hearing arbitrator declined the request, finding the medical examinations not reasonable and necessary pursuant to section 42 of the Schedule. The pre-hearing arbitrator was critical of the Personal's delay until just before the hearing in requesting these examinations and suggested that it would have been appropriate for the Personal to have more expeditiously sought updated opinions from the witnesses it named as witnesses for the hearing - Dr. Zabieliauskas and Dr. Marton. The pre-hearing arbitrator also found that the Personal had not met its onus of establishing that the further examinations served the purpose of adjusting the file rather than bolstering its case for the hearing.

The pre-hearing arbitrator further found, and I concur, that the Applicant's counsel's lapse, without explanation, in delivering Mr. Balaban's and Dr. Wong's August 2005 reports until October 21, 2005, after the parties had discussed productions at the October 19, 2005 pre-hearing, was an egregious failure to disclose. I find, as did the pre-hearing arbitrator, that this conduct also contributed to unnecessary delay in moving forward with the case and clarifying the medical evidence for the hearing.

The Personal's counsel argued that the Applicant's counsel cannot have it both ways. That is, he cannot move to block the Insurer's opportunity to obtain further insurer's examinations while at the same time delaying disclosure of the Applicant's assessments and generating new reports just before the hearing.

I find that this is not the appropriate case for a special award for the following reasons.

The Personal relied on the respective August 12 and 20, 2004 reports of Dr. Zabieliauskas and Dr. Marton to terminate income replacement benefits and housekeeping and home maintenance benefits on October 14, 2004 and October 15, 2004 respectively. It is common ground that an insurer may be entitled to rely on the opinions of the assessors it retains to determine whether it will continue to pay benefits to an insured person or not. However, it may be the case, as it turned out in this matter, that an adjudicator might find the insurer's examinations presented inadequate justification for the termination of benefits.

In the adversarial system, the parties are expected to read their expert reports critically and not simply rely on the conclusions in deciding how to adjust claims.²However, they are not expected to be able to prejudge the evidentiary value of a report or the performance of an expert witness before they are tested in a legal proceeding. It is most often the case that the worth of an expert report or witness is only appreciated through the rigours of the adversarial process. I believe this is what occurred in this case. I find a party should not be penalized or faulted, as the Applicant's counsel suggests, for having gone ahead to a hearing, under these circumstances, with expert evidence they have generated to support their case, no matter how weak in retrospect this evidence turned out to be.

Delay can be attributed to both parties in this case.³ The Personal did not receive the first of the Applicant's assessments - Dr. Wong's April 25, 2005 and May 17, 2005 physiatrist reports - until eight and nine months respectively after it conducted its examinations. As noted earlier, a further delay attributable to the Applicant's counsel's conduct resulted from his failure to forward Mr. Balaban's and Dr. Wong's August 2005 reports to the Personal until October 21, 2005. The Personal further contributed to the delay problem by not notifying the Applicant of its intention to schedule the three further insurer's examinations until January 15, 2006, two months before the hearing. The pre-hearing arbitrator censured the Personal for not scheduling earlier assessments by denying its adjournment request and declining to allow the examinations to be conducted.

I found both Dr. Zabieliauskas' and Dr. Marton's reports and oral evidence to be problematic and inadequate to substantiate the Personal's benefit denials. The result of this, of course, is that the Personal did not succeed. It must reinstate income replacement and housekeeping and home maintenance benefits with interest - the risk an insurer bears if it proceeds to arbitration with expert evidence that does not support its decisions to deny benefits.

In the end, the Applicant had the advantage of having substantially more medical assessments than the Personal to support her case in the hearing, a fact that contributed to her ultimate success.

In all the circumstances of this case, I find the Personal did not unreasonably withhold benefits and, therefore, a special award is not appropriate.

EXPENSES:

I received no evidence or submissions on expenses under subsection 282(11) of the Insurance Act and I encourage the parties to settle this issue. Failing this, I can be spoken to.

August 24, 2006

Beth Allen Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 143

FSCO A05-001820

BETWEEN:

BAVANI THEVARANJAN

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. The Personal shall pay Mrs. Thevaranjan income replacement benefits at the rate of $263.51 per week from October 15, 2004 to April 22, 2006 under section 4 of the Schedule, with interest payable from October 15, 2004 pursuant to section 46 of the Schedule.

2. I dismiss, on a technical basis, the Applicant's claim for income replacement benefits under section 5 of the Schedule without prejudice to her right to bring a further Application for those benefits.

3. The Personal shall pay the shortfall in the housekeeping and home maintenance benefits of $1,338.12, representing the shortfall between the amount paid from April 24, 2004 to October 15, 2004, and the amount owing during that period at $100.00 per week, with interest payable on that amount pursuant to section 46 of the Schedule. The Personal shall also pay $100.00 per week from October 16, 2004 to April 22, 2006, with interest payable from October 16, 2004 pursuant to section 46 of the Schedule.

4. I dismiss, on a technical basis, the Applicant's claim for housekeeping and home maintenance benefits beyond 104 weeks after the accident under subsection 22(3) of the Schedule without prejudice to her right to bring a further Application for those benefits.

5. The Applicant's claim for a special award is dismissed.

6. If the parties do not settle the expense issue, I remain seized to hear that issue.

August 24, 2006

Beth Allen Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The Director's Delegate in these cases held that the conduct of both parties is relevant in considering a special award: AXA Insurance Company and Rocca, (FSCO P99-00020, August 1, 2000) and GAN Canada Insurance Company and McConachie, (FSCO P97-00069, October 28, 1998) appeals
3. 3Arbitrators have applied this principle in relation to insurers' reliance on DAC assessments in the following special award cases: Fimiani and Liberty Mutual Insurance Company, (FSCO A97-001518, January 11, 2000) and Rumak and Personal Insurance Company of Canada, (FSCO A01-000065, October 7, 2004)