Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 192

FSCO A05-002629

BETWEEN:

CHANDRAKUMARAN VELLIPURAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Lawrence Blackman

Heard: August 14, 15, 16, 17 and September 20, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Robert A. Zigler for Mr. Vellipuram

Mr. Michael W. Smith for State Farm Mutual Automobile Insurance Company

The Applicant, Mr. Chandrakumaran Vellipuram, was injured in a motor vehicle accident on January 1, 2004. He applied for, and received, statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated payment of weekly income replacement benefits (IRBs) effective October 4, 2005.

The parties were unable to resolve their disputes through mediation and Mr. Vellipuram applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. During the course of the arbitration hearing, the parties resolved the issue of the Applicant's entitlement to housekeeping and home maintenance benefits claimed pursuant to section 22 of the Schedule.

The issues remaining in dispute are:

Is Mr. Vellipuram entitled to a weekly income replacement benefit ongoing from October 4, 2005, at the agreed rate of $337.25 per week, claimed pursuant to paragraphs 4(1)(1) and 5(2)(b) of the Schedule?
Is Mr. Vellipuram entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Is State Farm liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?
Is State Farm liable to pay Mr. Vellipuram's legal expenses in respect of this arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Vellipuram liable to pay State Farm's legal expenses in respect of this arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?

Mr. Vellipuram is entitled to payment of an income replacement benefit of $337.25 per week ongoing from October 4, 2005.
Mr. Vellipuram is entitled to interest pursuant to subsection 46(2) of the Schedule, at the rate of two percent per month, compounded monthly, on each bi-weekly income replacement benefit payment of $674.50 from October 4, 2005, from the last date of each bi-weekly period.
Mr. Vellipuram is not entitled to a special award pursuant to subsection 282(10) of the Insurance Act.
The issue of legal expenses claimed pursuant to subsection 282(11) of the Insurance Act may now be addressed in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

In issue in this proceeding are Mr. Vellipuram's entitlement to weekly IRBs under both the paragraph 4(1)(1) "own occupation" test and the paragraph 5(2)(b) "any occupation" test, as well as interest, entitlement to a special award and payment of legal expenses.

I will deal with each of these issues in turn.

E. Pre-104 week entitlement

The paragraph 4(1)(1) IRB entitlement test, covering the first 104 weeks of disability, requires that an insured suffer a substantial inability to perform the essential tasks of his or her pre-accident employment. I am persuaded, on a balance of probabilities, that Mr. Vellipuram has established such entitlement from the October 4, 2005 termination date until December 31, 2005 (being the 104-week mark of post-accident disability) for the following reasons:

1. The Applicant's physically demanding pre-accident employment

At the time of this January 1, 2004 accident, Mr. Vellipuram had been employed as a welder for about a year and a half at Advance Automotive Industries Inc. (Advance), where he was responsible for repairing car engines.

When this accident occurred, Mr. Vellipuram was working three days a week. Human Resources Development Canada paid Mr. Vellipuram for the other two workdays as part of a work sharing program. This work schedule had been in effect for somewhat more than a month. The Applicant expected to return to his usual five-day a week work schedule in the new year. I find that taking Mr. Vellipuram's work situation at the immediate time of the accident provides an inaccurate and time-limited snapshot of his usual duties. I find that his usual requisite essential tasks included working five eight-hour shifts a week.

The Applicant's oral evidence and the Job Demands Analysis of Kidron Valley Rehab (Kidron), were essentially unchallenged. I find that Mr. Vellipuram's work as a welder at Advance was a labour intensive job, requiring speed, accuracy and co-ordination, in a fast paced work environment. I accept the only evidence before me (that of Kidron) that Advance required an employee to be "completely physically capable of meeting all job demands and requirements."

I find that the essential tasks of Mr. Vellipuram's employment at Advance included removing engines or engine parts from a skid either (depending on the weight and shape of the piece) by manually lifting it, or by manoeuvring it (on his own) by hand onto a two-wheel dolly and then taking the item approximately fifteen metres to the Applicant's work table. The item would then be placed on the work table by hand or by using an overhead automatic steel hoist, depending on the weight of the item and whether its shape allowed the assistance of the hoist.

After inspecting for defects, Mr. Vellipuram would be responsible for repairing an item, which might require the use of a variety of tools at his disposal, including a welding torch, drills, wrenches and files. Job tasks on a particular item might include removing seized bolts, cutting, welding, sanding and polishing.

Upon completion of all requisite repairs, the engine would be lifted, using the hoist, onto a dolly. Mr. Vellipuram was responsible for returning the item to the skid. When the skid was fully loaded, a pump lift would be used to remove the skid. Welders had the responsibility to make repairs anywhere throughout the plant.

Based on the Insurer's Functional Capacity Evaluation (FCE) conducted by Mr. L. Grimaldi, a certified kinesiologist, the FCE conducted by the Applicant's expert, Mr. Balaban, and the evidence of the Applicant, himself, I find that the essential tasks of Mr. Vellipuram's pre-accident employment included prolonged standing (at least four hours a day), stooping, neck flexion, forward reaching and handling, as well as frequent walking, bending, twisting, cervical mobility and, less frequently, sitting. Also required was frequent shoulder abduction for lifting and retrieving tools as well as shoulder flexion to operate the hoist or the drill press.

In addition, I find as further essential tasks of the Applicant's pre-accident employment, floor to waist lifting and carrying up to 25 lbs. and, less frequently, floor to waist level lifting and carrying of up to 50 lbs. The Applicant would also be required to push and pull up to 500 lbs. with the assistance of a pump lift.

Even when using the automatic hoist, a larger item would have to be shifted, using both hands, to an upright position to be lifted. Although Mr. Vellipuram is right-handed, he would be required to use his left hand when, amongst other things, he was shifting an engine onto and off of a dolly, as well as when drilling, filing, using a welder and rotating a wrench with full force.

2. The Applicant's pre-accident history indicated family responsibilities, a desire to improve his economic situation and a motivation to return to work

Mr. Vellipuram was born in 1963 in Sri Lanka, where he received schooling until Grade 11. He then attended a technical school where he was trained as a welder. The Applicant worked in Sri Lanka welding in a cement factory and making cupboards in another company. He also had some experience as a kitchen helper. Mr. Vellipuram testified that he had very limited work in his native land because of that country's political turmoil.

State Farm submitted that Mr. Vellipuram's restricted employment in Sri Lanka showed poor work motivation. The Insurer, however, provided no evidence that Mr. Vellipuram was not being truthful about the reasons for his limited work history in Sri Lanka, nor was his evidence in this regard shaken in cross-examination. I accept Mr. Vellipuram's evidence.

Mr. Vellipuram immigrated to Canada in 1991. He took an English as a Second Language (ESL) course for about three months. After six months in Canada, he was eligible to look for work. He looked for employment for two years until he was hired by All Team Glass Company (All Team), first as a general helper and then as a machine operator. State Farm submitted that the approximately two years that Mr. Vellipuram was on social assistance after arriving in Canada again showed poor motivation to work. I find, based on the Applicant's subsequent work history, that his lack of Canadian work experience (the testimony given by the Applicant) was a more probable explanation for his delay in entering the work force than lack of motivation.

Mr. Vellipuram was with All Team for about five years, working an eight-hour daily shift. During this period he also worked part-time as a general helper with a welding company. The Applicant's job at All Team, a window manufacturer, required lifting glass panes and mirrors weighing 50 pounds or more. While employed at All Team, Mr. Vellipuram married. He presently has a four-year-old son from this marriage, and a seventeen-year-old from his wife's earlier marriage. Mr. Vellipuram's wife works full-time as a machine operator in a plastics factory.

In 1999, with the assistance of an employment agency, Mr. Vellipuram found full-time work with Gates Fabrication Limited (Gates) as a welder. This company assembled shopping carts, which he was required to lift, carry and manoeuver on an assembly line. Mr. Vellipuram was at Gates until 2000, when he was injured in a car accident. Laid off from Gates, Mr. Vellipuram took certificate courses in TIG (Tungsten Inert Gas) welding, a very precise type of welding methodology, and MIG (Metal Inert Gas) welding, which is used for heavy items such as steel girders. He subsequently obtained employment with Advance Automotive Industries as a welder in June 2002. I accept the Applicant's testimony, evidenced by his return to work, that he had recovered from the right shoulder, neck and lower back injuries sustained in that prior accident.

Mr. Vellipuram's enrollment in the welding courses and his overall work history persuade me that he was motivated to improve his financial situation. His Application for Employment with Advance states that he worked at All Team from 1992 to 1995 and at Gates from 1995 to 2001. This information was incorrect, specifically because it omitted the 1992 to 1994 period of welfare.

I am persuaded that this representation was, more likely than not, deliberate. This misrepresentation cuts two ways. On the one hand, it was a notable exception from verbal testimony I found honest, reliable and credible. On the other hand, it could be seen as further evidence of the Applicant's motivation to find employment, even if it meant extending the length of his actual Canadian work experience. I find that the omission of information in Mr. Vellipuram's Application for Employment does not adversely affect his credibility. Mr. Vellipuram was paid between $12 and $14 an hour as a welder. In 2003, he earned slightly less than $25,000, before taxes, for the year. His IRBs for a year would amount to $17,537. Even taking into account taxes, the financial incentive to remain off work is unclear. Rather, I find important the notation of Dr. J.R. Garber, a psychologist, who saw Mr. Vellipuram at the request of his counsel, that the Applicant stated that it was crucial that he resume gainful employment as his family was dependent on his financial contribution.

3. The seriousness of the motor vehicle accident and the established causative link between the accident and Mr. Vellipuram's subsequent injury complaints

I accept the Applicant's unchallenged evidence that on New Year's Day he was driving southbound on Martin Grove Road, in the City of Toronto, when a northbound motor vehicle made a left-hand turn in front of his car. As a result of the impact, the Applicant's windshield shattered and glass was embedded in his head, causing heavy bleeding. He was unable to move his leg. His left hand was crushed. Mr. Vellipuram's passenger, who was also bleeding, was crying for help. Their car was completely smashed. It took the fire department some fifteen to twenty minutes to extricate Mr. Vellipuram from the wreckage.

Mr. Vellipuram was taken to Humber River Regional Hospital for initial resuscitation and evaluation, and then to the Trauma Room at Sunnybrook & Women's College Health Sciences Centre, Sunnybrook Campus (Sunnybrook), where he underwent surgery regarding his fractures.

Mr. Vellipuram's vehicle was written off due to its age and the amount of damage sustained. The extent of property damage to a vehicle does not equate automatically to injury and disability or to the lack of injury and disability. However, I accept the evidence of Dr. B. Alpert, the Insurer's orthopaedic expert, that the high impact accident described by Mr. Vellipuram could create the injuries sustained and I find that the impact did cause the injuries sustained by Mr. Vellipuram, as set out below. I find that notwithstanding his injuries sustained in the prior accident in 2000, Mr. Vellipuram was functioning well prior to the 2004 accident.

4. The significant injuries Mr. Vellipuram sustained specifically in his left hand and right hip

I agree with Dr. Alpert's evidence that Mr. Vellipuram sustained significant injuries as a result of the 2004 motor vehicle accident. I find that Mr. Vellipuram's injuries included:

– multiple windshield glass fragments embedded in his forehead

– headaches

– a closed head injury/concussion

– a Grade II whiplash injury

– multiple fractures/dislocations of the left hand

– an upper back strain/soft tissue injury

– a chest wall contusion

– a lumbar strain

– a transverse acetabular fracture and right posterior wall acetabular fracture (the acetabulum being the socket for the head of the thigh-bone)

– right knee pain at site of an exterior fixation drilled hole

– psychological symptoms

5. The ongoing treatment, therapy and rehabilitation undertaken by the Applicant

At Sunnybrook, Mr. Vellipuram underwent an open reduction and internal fixation of his right acetabular fractures, performed by Dr. H.J. Kreder on January 5, 2004, and a closed reduction and percutaneous (performed through the skin) pinning of his left hand fractures performed by Dr. P. Binhammer on January 7, 2004. Mr. Vellipuram was discharged from Sunnybrook on January 12, 2004 to his home.

Mr. Vellipuram initially received home therapy. He first required the use of crutches to walk, then the use of a cane. It was not until late 2004 or early 2005 that he was able to walk without support. He received follow-up care from Dr. Kreder. He had a cast on his left hand for four or five months. Through 2004, he received physiotherapy, massage and chiropractic treatment.

Ms. S. Bielawski, an occupational therapist (O.T.), notes in her August 30, 2004 report, that Mr. Vellipuram was seeing his family doctor every two weeks; was attending physiotherapy four times a week, chiropractic treatment four times a week, massage twice a week; and that a psychological appointment had been arranged. Mr. Vellipuram, in fact, had twelve sessions with a psychotherapist that year.

In his December 3, 2005 report, the family doctor, Dr. A. Damji, states that Mr. Vellipuram had been treated with various anti-inflammatories, muscle relaxants and analgesics. Mr. Vellipuram also testified to using creams and ice to combat pain. He sees Dr. Damji every month or so for follow up and renewal of his medication. He is presently seeing a psychiatrist, identified as Dr. Panjwani, for his ongoing psychological problems.

As well, the Applicant attends (as confirmed in the Insurer's surveillance) the Albion Health Centre. Mr. Vellipuram testified, and I accept, that two days a week he swims at the Centre and one day a week he uses the gym. At the gym, Mr. Vellipuram does leg exercises as well as exercise for his left hand. Mr. Vellipuram testified that he pays for this treatment out of his own pocket. It was not clear why these accounts had not been submitted to the Insurer.

Mr. Vellipuram has also, since February 2006, taken further ESL classes at a local community centre, in order to improve his English, as he is of the view that he cannot return to his former employment, and because he is bored at home.

The Insurer argued that Mr. Vellipuram has made no real efforts to seek work or to retrain since this accident. His ESL classes over the last several months belie, to some extent, this submission.

The Insurer argued that the lack of formal ongoing therapy, the lack of regular pain medication and the lack of any referral by the family doctor to an expert regarding his orthopaedic injuries undermine the allegation of significant ongoing physical problems. I find Mr. Vellipurum's continued exercise routine, his continued use of medication on an "as needed" basis, and his recent further referral for psychological help are evidence of ongoing difficulties.

Dr. Kreder's January 2005 clinical entry noted that he would next see the Applicant at the two-year mark (which would be in or about January 2006) for a final orthopaedic assessment. That the Applicant instead saw Dr. G. Lloyd, also a respected orthopaedic surgeon, in October 2005 and June 2006, albeit at the request of his counsel, does not, in my view, detract from the seriousness of the orthopaedic injuries sustained by Mr. Vellipuram in this accident.

6. The overall supporting medical evidence of the Applicant's treating and retained experts

(a) Dr. J.R. Garber

At the request of his counsel, with the assistance of a Tamil interpreter, Mr. Vellipuram saw Dr. Garber, a psychologist, on two occasions, over the course of sixteen hours, in the Autumn of 2005.

Dr. Garber agreed with Dr. K.K. Zakzanis, the Insurer's neuropsychological expert, that the Applicant's difficulties were not rooted in any neurocognitive compromise. However, he provided a detailed diagnosis of Mr. Vellipuram having a major depressive disorder and a chronic pain disorder. Dr. Garber was further of the view that the extent, duration and intensity of this disorder disabled Mr. Vellipuram from returning to his pre-accident work.

Dr. Garber found Mr. Vellipuram maintaining "a rather stoic, reserved and withdrawn stance" during the assessment. This was my general impression during the hearing. The Applicant noted continuing right hip pain (aggravated by prolonged standing or sitting), intermittent right knee pain (especially aggravated by persistent bending), low back pain, intermittent left hand pain and numbness, headaches and intermittent numbness in his forehead. He further noted sleeping difficulties, changes in eating behaviour, markedly reduced energy, some degree of being asocial and reclusive and "an apparent transient struggle with hopelessness." Mr. Vellipuram stated that he used a cane during the winter months to improve his stability on slippery surfaces.

Dr. Garber's psychometric testing included validity indices. On the Test of Memory Malingering (TOMM), Mr. Vellipuram scored results which "could be interpreted by some as an attempt to portray himself in an unfavourable light." On other tests for malingering, Mr. Vellipuram also achieved "invalidating results." In a lengthy discussion, Dr. Garber ascribes these results to possible depression, defensiveness, language and cultural artifact.

It was Dr. Garber's view that, notwithstanding Mr. Vellipuram's "colourful portrayal" of his difficulties to Dr. Zakzanis, his "intense and dramatic expression" could not be equated with wilful misrepresentation. Dr. Garber opined that a person's inclination towards hyperbole cannot disqualify one's total presentation. He questioned Dr. Zakzanis' failure to consider, as an alternative explanation, that Mr. Vellipuram's test results represented a "cry for help" of one "plagued by thoughts of worthlessness, hopelessness and personal failure," with an extremely negative evaluation of himself and his life. Dr. Garber was of the view that it "would not be unreasonable for Dr. Zakzanis to provide Mr. Vellipuram with every benefit of the doubt."

The results garnered by Drs. Garber and Zakzanis (hired by the respective parties) raise concerns as to the veracity of the complaints voiced by the Applicant, that he exaggerated his problems either as "a cry for help" or for hoped for material gain in the form of continued or resumed IRBs which might be crucial to his family's financial well-being. Given this, one must tread with caution in accepting, prima facie, or at face value, the level of disability alleged by the Applicant. Hence, one also looks to physical medicine and physical-demands experts for assistance.

(b) Dr. H.J. Kreder

A very brief January 13, 2005 fracture clinic note of Dr. Kreder, a treating orthopaedic surgeon, states that Mr. Vellipuram was no longer using walking aides, was admittedly much improved, had an excellent range of motion on examination and, in terms of his neurovascular status, was intact.

Nonetheless, Dr. Kreder states in his note that he did not think the Applicant would be able to return to his former employment. He supported retraining, as he did not think Mr. Vellipuram would be able to do this "exceedingly heavy" type of work in the future. Dr. Kreder did not give medical reasons for his opinion, which significantly diminishes its weight. Nonetheless, I find Dr. Kreder's opinion as a treating expert (retained by neither side) of some note regarding the proposition that having sustained the said injuries, one may achieve an excellent range of motion and a good recovery, yet still be disabled from demanding physical work.

(c) Dr. A. Damji

As Mr. Vellipuram's family doctor, Dr. A. Damji had the benefit of an ongoing relationship with the Applicant and the opportunity of seeing him on repeated occasions. In his brief report of June 28, 2006, Dr. Damji was of the view that the Applicant, having attained maximal medical recovery, was left with a permanent partial disability as a result of the accident that would prevent him from performing physically intensive job duties. Dr. Damji supported a vocational rehabilitation and retraining program. However, Dr. Damji does not lay a factual foundation for his conclusions, and hence, by itself, the report is of little assistance.

(d) Dr. G.J. Lloyd

In his December 9, 2005 report, Dr. Lloyd, an orthopaedic surgeon retained by the Applicant's counsel, found restricted range of right hip movement, including rotatory movements reduced to about 50% of normal. Dr. Lloyd was of the view that there was legitimacy to Mr. Vellipuram's complaints of pain and stiffness and that it was probable that at some point during his lifetime, Mr. Vellipuram would require reconstructive surgery.

Dr. Lloyd also found legitimacy for Mr. Vellipuram's complaints of reduced grip strength and numbness of his left hand, and opined that the Applicant would continue to have reduced left handed grip strength. Dr. Lloyd was of the view that Mr. Vellipuram had sustained a very significant disability.

In his further report of June 22, 2006, Dr. Lloyd noted the Applicant had continuing pain and stiffness related to his right hip injury, which restricted his walking, standing and sitting. Mr. Vellipuram continued to complain about difficulty gripping objects with his left hand. He reported taking seven or eight Tylenol 3 a month. Dr. Lloyd found continuing restrictions of movement of the hip. His diagnoses and prognoses remained the same, specifically that the "known natural history of the injuries that occurred to his pelvis and left hand" precluded him from returning to his pre-accident work, or to any occupation requiring heavy bi-manual activities.

(e) Mr. A. Balaban

Mr. Balaban is an Exercise Physiologist retained by the Applicant to conduct an FCE. His first assessment of Mr. Vellipuram was in June 2005, a month after an Insurer's Medical Examination (IME) FCE by Mr. Grimaldi, a certified kinesiologist. Mr. Balaban's second assessment was conducted in May 2006, somewhat more than two years after the car accident.

Mr. Balaban notes Mr. Vellipuram's hours of work as eight hours a day, five days a week, which I have accepted as a more accurate picture of his pre-accident employment. Mr. Balaban related that the Applicant would make his way through three to four skids a day, each skid having 12 to 13 engine blocks. According to Mr. Balaban, the Applicant indicated that he had to work quickly and "feed" the assembly line.

Mr. Balaban noted in June 2005 that the Applicant was complaining of headaches, intermittent pain in his neck, upper and lower back, right hip and right knee. He further complained of pain in his upper and lower left arm and hand, with a loss of feeling at times. Pain relief was obtained from, amongst other things, Advil, analgesic gel and heat. In May 2006, the symptoms were largely the same, but the aching in the right hip and buttock were now of varying intensities, with no mention of loss of feeling of the left hand.

Mr. Balaban's findings, most relevant to the essential tasks of the Applicant's pre-accident employment, included:

– in the initial assessment, Mr. Vellipuram could perform five 6 lb. lifts. from floor to waist (his heart rate increasing from 68 to 80 beats per minutes). The evaluator terminated 8 lb. lifts after the first repetition because of decreased control, decreased balance and reported pain in the right lower back, right buttock, right hip and right knee. Mr. Grimaldi's assessment showed the Applicant exceeding "sedentary level" static lifting, but declining to lift 8 to 12 lbs. due to anticipated pain. Mr. Grimaldi stated that there was no report or demonstration of any objective signs of discomfort. In May 2006, at Mr. Balaban's second assessment, Mr. Vellipuram could lift 15 lbs. with five repetitions (his heart rate increasing from 80 to 120 bpm). He, however, momentarily lost his balance and reported lower back, right hip, right knee and mid-back pain. Because of decreased control, the evaluator terminated further testing.

– in June 2005, Mr. Vellipuram could carry bilaterally (with his heart rate increasing from 72 to 88 bpm) 6 lbs. over 50 feet (roughly equalling the 15 metres from the skid to the work area). Testing was terminated due to decreased balance and control of the load, and reported right hip pain consistent with observed changes in body mechanics. In May 2006, Mr. Vellipuram could carry (with his heart rate increasing from 84 to 120 bpm) 15 lbs. over a distance of 50 feet, but with pain complaints including left hand needle-like pain. Mr. Grimaldi did not assess Mr. Vellipuram's carrying abilities.

– significantly decreased left hand grip strength in both of Mr. Balaban's assessments. Mr. Grimaldi did not test the Applicant's grip strength.

– In May 2006, Mr. Vellipuram tolerated less than two minutes of shoulder height work fastening and unfastening nuts and bolts at different levels and in different positions. His heart rate increased from 84 to 104 bpm and he reported pain in his lower back, neck, left hand and wrist. In June 2005, he had tolerated only 39 seconds attempting these same tasks. That his heart rate had only increased from 72 to 80 bpm in June 2005 may well indicate much greater effort in May 2006, but still, with limited abilities at the latter date.

Mr. Balaban's June 2005 report concluded that Mr. Vellipuram did not demonstrate the functional ability to perform his pre-accident work. He was of the view that the Applicant's postural tolerances, lifting and carrying abilities and his ability to ambulate were all affected primarily by functional limitations in the right hip region. Mr. Balaban further opined that Mr. Vellipuram demonstrated changes in body mechanics consistent with this evaluation.

In his May 2006 report, Mr. Balaban attributed some of Mr. Vellipuram's improvement to the use of different compensations, as well as increased strength and endurance. Overall, however, Mr. Balaban concluded that, notwithstanding this improvement, the Applicant's lifting capacities and positional tolerance remained low.

Mr. Balaban's report sets out numerous indicators of consistency, including: 1. Mr. Vellipuram's measured increased heart rate reflected effort and coincided with progressive loads during lifting and carrying; 2. the co-efficients of variance for the hand grip strength task indicated the results and degree of effort were consistent and reliable; and 3. the finding that termination of the tasks was consistent with changes in body mechanics and indicators of fatigue and pain reports. These conclusions were not challenged.

Mr. Balaban further concluded in May 2006 that although there was improvement from June 2005, Mr. Vellipuram did not meet the physical demands of his previous job as a "welder/engine rebuilder." However, notwithstanding improved sitting tolerance from 45 minutes in June 2005 to 60 minutes in May 2006, Mr. Balaban opined that Mr. Vellipuram still did not meet the criteria for sedentary work, and thus, was unable to perform any work.

I accept Mr. Balaban's reports as very strong, factually substantiated evidence of Mr. Vellipuram's inability to meet the essential tasks of his pre-accident employment, and specifcially, lifting and carrying up to 25 lbs. on a frequent basis, and up to 50 lbs. on a less frequent basis.

7. The Insurer's Medical Evidence

(a) Dr. R.B. Hines

Dr. Hines is a psychiatrist who assessed Mr. Vellipuram in June 2005 at the request of the Insurer. In his report, Dr. Hines noted that the Applicant was taking three or four tablets of Tylenol 3 a week, as needed, for pain. Regarding psychological complaints, Mr. Vellipuram noted continuing nightmares, problems falling and staying asleep, sadness, anger at his situation, fear and anxiety driving, and poor energy, all in the context of continued pain and stress due to, amongst other things, his inability to work. He stated that his marriage was not happy.

Dr. Hines reported the Applicant as co-operative, calm and relaxed. He was of the view that the Applicant did not appear to be in any acute physical or emotional distress, he did not appear to be sleep deprived, and thought it odd that the Applicant reported weight gain notwithstanding a reported loss of appetite.

Dr. Hines concluded that Mr. Vellipuram did not presently have a psychiatric diagnosis or illness and, from a psychiatric perspective, did not meet the "any occupation" test.

In his verbal testimony, Dr. Hines noted that he used an interpreter about 90% of the time during his interview. He reaffirmed that the Applicant did not appear depressed, that he did not have a flat effect, that his energy appeared normal and that he was alert and focussed. Nonetheless, Dr. Hines testified that while his opinion was that the intensity and duration of the Applicant's symptoms could not justify a psychological diagnosis, this did not mean that the Applicant was not, in fact, experiencing what he had related, or that Dr. Hines was denying that Mr. Vellipuram had those symptoms.

In cross-examination, Dr. Hines conceded the obvious limitations of his area of expertise. His opinion that the Applicant's speech was clear and coherent was based on asking the interpreter. Measuring a person's energy level based on how they look is not necessarily accurate. There is no fool-proof way of determining what is going on in another human being. Dr. Hines indicated, as well, that he did not disbelieve Mr. Vellipuram's complaint of loss of appetite. Dr. Hines agreed that one can gain weight with less activity, even with a reduced appetite.

As stated in Quattrocchi and State Farm Mutual Automobile Insurance Company (FSCO A-006854, September 29, 1997), the lack of a medical diagnosis is not fatal to a claim. Disability is decided on function, not on meeting the precise criteria of a medical disorder. I find Dr. Hines' evidence as to the reliability of the Applicant's complaints and his ability to perform the essential tasks of his pre-accident employment to be of little assistance.

(b) Dr. K.K. Zakzanis

Dr. Zakzanis is a psychologist. He saw the Applicant in June 2005 for an assessment, at the request of State Farm.

Dr. Zakzanis found it improbable that Mr. Vellipuram had sustained a traumatic brain injury or that he had any neuropsychological disorder or impairment. As the Applicant has not advanced any such disability, Dr. Zakzanis' opinion in this area is of little assistance to the inquiry before me.

Of note, however, was Dr. Zakzanis' view that Mr. Vellipuram's validity test results raised strong suspicions of possible feigning or deliberate exaggeration.

Also of note, specifically regarding the "any occupation" disability test, Dr. Zakzanis found Mr. Vellipuram to be reading at a post-secondary school level, within the Low Average range, and regarding language (presumably English) abilities, scoring in the average range. These results are quite striking, considering specifically the findings of Mr. D. Antflick, a vocational evaluator retained by the Applicant, that Mr. Vellipuram's English speech, syntax and vocabulary were estimated at being within the early primary school level, that he could use only simple basic English and could communicate effectively only with the assistance of his son.

In a very brief, undated note entitled "RE: errata", Dr. Zakzanis states, without further explanation, that the academic and language scoring should not have been included in his evaluation. One queries the extent to which Dr. Zakzanis was testing the abilities of the translator attending the evaluation, rather than the Applicant. This unexplained error, as well as Dr. Zakzanis' apparent failure to provide all of his records to Dr. Garber, casts a pall over the methodological accuracy of his report, and causes me to give little weight to his opinion.

(c) Dr. R. Zarnett and Ms. D. Westbrook

Dr. Zarnett is an orthopaedic surgeon. Ms. Westbrook is a physiotherapist. They both saw the Applicant on April 19, 2005 for a Designated Assessment Centre (DAC) evaluation of Mr. Vellipuram's attendant care needs. Although not insurer medical examiners, the Insurer relied on their medical opinions, and hence, I include their reports in this section.

Dr. Zarnett was of the view that the Applicant had an excellent recovery from his injuries, that he had excellent function and demonstrated the functional ability to resume all self care tasks. The Applicant was noted as continuing to take Voltaren. Ms. Westbrook also noted that Mr. Vellipuram was taking Voltaren, as well as taking Advil two or three times a week, for pain. The Applicant was also noted as seeing his family doctor, Dr. Damji, every two to three weeks.

Given the purpose of these assessments was not to determine work disability, and that the assessment was some five months prior to the termination of IRBs, the value of the reports is limited. State Farm, however, argues that the reports are helpful as the findings, in their submission, correspond to those of Dr. Alpert, who saw the Applicant for an IME shortly after the DAC assessment.

Dr. Zarnett noted that the Applicant complained of right leg and back pain, as well as weakness (but not pain) in his left hand. Regarding the left hand and wrist, Dr. Zarnett noted full range of motion of all joints. He also noted some weakness in grip strength, but for reasons not given, Dr. Zarnett states that no objective measurement of grip strength was done. Dr. Alpert notes full range of motion regarding both wrists. There is no specific notation by Dr. Alpert regarding grip strength. On cross-examination, however, Dr. Alpert testified that such an examination would be included in his finding that the Applicant "had an intact neurovascular status in his upper extremities, including muscle strength, sensation, and deep tendon reflexes." Even accepting that as being true, Dr. Alpert's failure to provide his specific findings and measurements lessens the weight to be given to his opinion.

Regarding the right hip, Dr. Zarnett found reduced internal and external rotation, as well as abduction and adduction, albeit, in Dr. Zarnett's words, "slight." Dr. Alpert found a "near full range of motion" of the right hip. However, Dr. Zarnett opined that Mr. Vellipuram continued to have some limitations with respect to prolonged standing, walking, lifting and carrying.

The Insurer submitted that Dr. Zarnett's notation only of right leg and back pain, and Dr. Alpert's notation only of right hip, left hand and left shoulder pain, suggested that Mr. Vellipuram was exaggerating his other complaints. Ms. Westbrook's notations of ongoing complaints, however, are more expansive, noting mid and low back pain, right hip pain, right knee pain and sleep disturbance. She also notes pain and numbness regarding the right hand, pain being aggravated by gripping, lifting and squeezing. Given the significant, objective and continuing left hand injuries and her own findings regarding grip strength noted below, it appears probable that Ms. Westbrook had inadvertently marked down the wrong hand.

Ms. Westbrook did note that Mr. Vellipuram walked with a mildly antalgic gait (limp), favouring his right leg. When ascending stairs, he held the railing for support and placed both feet on each step, favouring his right leg. Dr. Alpert found that Mr. Vellipuram walked with a good gait, only slightly favouring his right leg. This issue before me, however, is not how the Applicant walks to the examination room, but whether he can perform his pre-accident physical employment competitively, eight hours a day, five days a week.

With regard to work function, I found more relevant Ms. Westbrook's findings, using the Jamar Grip Strength test, that Mr. Vellipuram's right (dominant) grip strength was 82 lbs., whereas his left (non-dominant) grip strength was 27 lbs. I find this evidence consistent with Mr. Balaban's findings of significant weakness in the left arm, which supports a finding of continued disability from the essential tasks of the Applicant's pre-accident employment.

(d) Mr. L. Grimaldi

As noted, Mr. Grimaldi is a certified kinesiologist, who saw the Applicant for an FCE at the request of State Farm, on May 10, 2005.

Mr. Grimaldi concluded, based on the evaluation results, that Mr. Vellipuram did not demonstrate the ability to perform aspects of his pre-accident employment. He specifically noted the Applicant's inability to perform constant standing and stooping, frequent walking, twisting, crouching and floor to waist lifting and carrying up to 25 lbs., and occasional climbing, pushing and pulling of 50 lbs.

However, Mr. Grimaldi was of the view that Mr. Vellipuram's performance was self-limited and inconsistent. He stated that there were no signs of discomfort observed during the evaluation. Nonetheless, Mr. Vellipuram declined to complete three of the twelve evaluation protocols. Mr. Balaban, the Applicant's FCE expert, critiqued Mr. Grimaldi's report, stating that there was no evidence (such as heart rate data) provided by Mr. Grimaldi for his finding of self-limited and inconsistent effort. As well, Mr. Balaban noted that Mr. Grimaldi did not provide the time durations of activities such as forward reaching, neck flexion and handling. I note that Mr. Grimaldi's assessment omits any mention of carrying abilities or hand grip strength.

However, Mr. Grimaldi concluded that as he could not determine the presence or absence of what he termed "consistent functional impairment," he deferred to Dr. Alpert to answer whether the Applicant was able to perform the job duties enumerated above. Accordingly, Mr. Grimaldi's assessment is of little assistance in determining the disability questions before me.

(e) Dr. B. Alpert

Dr. Alpert saw Mr. Vellipuram on May 6, 2005, at the request of State Farm, for an IME. Dr. Alpert testified that in determining disability from an orthopaedic perspective, he relied on what he termed "hard facts," that is, the presence or absence of objective findings. He testified that people, with effort, can accomplish a lot, even in pain. He queried how much pain one can be in if only occasionally one has to take an anti-inflammatory, and one can walk without an aide, reports improvement and has full range of movement.

Dr. Alpert's answer to Mr. Grimaldi's question about functional impairment was that as he did not detect evidence of "substantial residual musculoskeletal impairment, impairment, long-term disability, or indication for physical restrictions." It was his orthopaedic opinion that Mr. Vellipuram was not substantially unable to perform the essential tasks of his pre-accident employment as a welder.

However, in his report, Dr. Alpert qualified that opinion, saying that Mr. Vellipuram would benefit from a graduated return to work over four to six weeks to allow the Applicant to "gain in both physical endurance and psychological confidence." The graduated return would start at three to four hours a day, five days a week, and then increase to full-time work.

By Explanation of Benefits Payable dated August 4, 2005, State Farm advised Mr. Vellipuram they were terminating benefits effective October 3, 2005 (a little more than eight weeks hence) on the basis of Dr. Alpert's recommended gradual return to work, notwithstanding the orthopaedic finding that the Applicant did not suffer a substantial inability to return to work as a welder. The Explanation further advised that his pre-accident employer, Advance, would not discuss whether the Applicant's job was still available to him.

In testifying in chief that he anticipated that Mr. Vellipuram, with the benefit of a graduated return to work, could return to forty hours a week of work, Dr. Alpert appeared to be more firmly placing a graduated return to work as a prerequisite to full employment, rather than something offered as a benevolently gratuitous option to an immediate return to work.

On cross-examination, Dr. Alpert testified that if a graduated return to work was not possible, then the Applicant's gym regime would suffice. Dr. Alpert testified that it was not necessary for him to see Mr. Vellipuram again, as he was confidant that Mr. Vellipuram would be improved in a further four to six weeks.

On cross-examination, to a significant extent, Dr. Alpert endeavoured to answer questions by reiterating the reasons for his disability conclusions. One question asked of Dr. Alpert was whether he simulated any of Mr. Vellipuram's work duties. Dr. Alpert responded that he did not ask Mr. Vellipuram to weld, as that was not part of a normal orthopaedic examination.

When asked what work movements he did ask the Applicant to perform, he stated that he assessed walking and standing. When asked how far he asked the Applicant to walk, he said from the waiting room to the history taking room, and from there to the examination room. Dr. Alpert then further recited the normal findings on his examination. When asked how far the Applicant walked, Dr. Alpert said that he did not have the exact distance. When asked to agree that it was not a significant distance, Dr. Alpert answered that what was of significance was the Applicant's gait. Dr. Alpert conceded that Mr. Vellipuram was protecting his right hip when walking. Nonetheless, Dr. Alpert queried whether this was simply due to fear of pain.

Dr. Alpert conceded, on cross-examination, that Mr. Vellipuram did have significant injuries. He conceded causation to the extent that the impact described could create the injuries sustained. He conceded, the second time the question was asked, that it sometimes happens that a person with this type of injury may have long-term pain. He conceded that psychological factors could affect ability to the extent that lack of psychological motivation could affect function.

The Applicant submitted that on cross-examination Dr. Alpert endeavoured to merely repeat how he came to his conclusions and that he approached any additional information by ascribing to it the worst interpretation for the Applicant. Essentially, the Applicant argued that Dr. Alpert was an advocate, not an impartial witness.

However, that is not the main weakness in Dr. Alpert's evidence.

First, the key fundamental question is not how one presents in a twenty or thirty minute examination. The question is not whether one can flex one's neck once, or twice, or a few times, on examination, but rather, if repeated movement of the neck is required in one's job, whether one can perform that function hour after hour, day after day, week after week. The challenge for an examiner is to endeavour to extrapolate from the data gathered from the examination and from all other relevant sources of information, whether or not the person examined is substantially unable to perform the essential tasks of one's employment. Indeed, it was the question that Dr. Alpert's co-examiner, Mr. Grimaldi, wanted the orthopaedic surgeon to answer. In this particular case, one questions the extent to which bending one's back or rotating one's shoulder in an examination room is determinative of whether one can lift 20 lb. engine blocks. One questions the extent to which walking from one room to another is relevant to one's ability to stand for four hours a day. It is simply insufficient, especially where an insured has sustained real and significant injuries, to ignore the necessary extrapolation as to how those findings persuade one whether an insured is able to return to physically demanding work and that it is reasonable to require that person to do so. I agree with Mr. Balaban's comment that it "is highly questionable that one can determine an individual's ability to perform medium to heavy work based on a very limited assessment of strength [by Dr. Alpert]."

Which leads to what I find to be the even more significant concern with Dr. Alpert's evidence. Implicitly, I believe Dr. Alpert was of the view that when he saw the Applicant, it was not reasonable to require Mr. Vellipuram to immediately return to work. Rather, a graduated return was incumbent. Dr. Alpert testified that in the absence of such a graduated return, a further six to eight weeks of Mr. Vellipuram's gym routine would suffice. Having said that, I find, although not explicitly said by Dr. Alpert, this was a prerequisite to any return to full duties. I find that it was incumbent on Dr. Alpert to review Mr. Vellipuram upon the completion of that training. I find it insufficient to merely presume that the Applicant would be automatically able to return to all of the physical demands of competitive full-time employment.

I find that Dr. Alpert's endorsement of a graduated return to work supports Mr. Vellipuram's continued impairment in terms of the full scope and hours of his essential pre-accident duties. I find Dr. Alpert's failure to reassess Mr. Vellipuram a major weakness, such that little weight can be given to what is essentially a prediction concerning this Applicant's future condition.

8. the Insurer's surveillance

The Insurer retained Delta Claims Service & Investigations to conduct surveillance of the Applicant. This was done on three consecutive days in May 2006. During the period of surveillance, Mr. Vellipuram spent somewhat more than an hour and a half at the Irene Risk Community Centre, and attended twice at the Albion Health Centre, on both occasions for about an hour. This supports the Applicant's evidence regarding ongoing treatment and rehabilitation.

The Insurer submits that the significance of the surveillance is that, notwithstanding his supposed continuing left hand injury, on several occasions Mr. Vellipuram is seen carrying plastic bags with his left hand, as well as opening car doors and trunks. In one instance, Mr. Vellipuram is seen carrying a plastic bag with his left hand over his shoulder, with his wrist flexed back. The Applicant testified that he was going to the Albion Club, carrying his towel, goggles and wet swim gear. The Applicant agreed that he could hold up to ten lbs. He stated that the bag weighed less than ten lbs.

In another instance, the Applicant emerges from a supermarket with his wife carrying two grocery bags and he himself carrying the car keys. It is Mr. Vellipuram's wife who opens the trunk, puts the bags in, and closes the trunk. The Applicant merely opens his own car door.

The surveillance shows that the Applicant is not completely disabled. Given that there was no apparent dispute with the April 28, 2005 Attendant Care DAC of Ms. Westbrook that no further attendant care assistance was required, that does not appear to be an area of contention. It is not clear how the surveillance assists me, for example, in determining Mr. Vellipuram's ability to lift and to carry loads up to 50 lbs. Nor is the surveillance especially helpful in addressing the other more physically taxing essential tasks of Mr. Vellipuram's pre-accident employment. The surveillance is certainly much less persuasive than the efforts of Mr. Balaban's very complete FCE to precisely address the specific physical components of Mr. Vellipuram's pre-accident employment.

9. the Applicant's credibility

State Farm submits that certainly by the Fall of 2005, there was little objective evidence supporting disability in this case. The Insurer submits that in the real world, most orthopaedic injuries heal, and for those which allegedly do not, there must be objective evidence why there is an ongoing problem.

Setting aside, for the moment, the serious, obvious and objective injuries sustained by the Applicant in this accident, this submission is contrary to the broadly accepted principle set out in Quattrocchi and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997) that should the objective evidence not explain the degree of pain reported by the insured person, that person's credibility becomes important. In other words, in the real world, where science and medicine do not yet hold all the answers as to the workings of the human body, one's subjective pain complaints must be considered in all of the circumstances.

These considerations include the consistency of the person's complaints (which I have addressed, in part, in the above section on Mr. Vellipuram's ongoing treatment, therapy and rehabilitation) and the apparent level of function (which I have addressed, in part, in a review of the reports of Mr. Balaban).

State Farm maintains that Mr. Vellipuram is not a particularly motivated person. It notes in support what it submits is his limited work experience in his native Sri Lanka and that he did not work for two years when he first came to Canada. They further note his failure to try to return to work following this accident.

In this hearing, the most moving evidence before me was that of the Applicant’s wife, Ms. Kamala Ambikai. She described the significant change in her husband from a pre-accident jovial person, who spent a lot of time with their children and helping the family, to someone who is depressed and irritable. She described a post-accident event when her husband tried to put the younger child in a swing, and how he cried when he was unable to lift the child. She described her husband as being restless at night, and sleeping most of the time in the dining room so as not to disturb his wife, who has a hard labouring job to go to in the day. She has seen him suffering in pain, taking Tylenol 3 or having her bring hot bags, ointments or giving hand massages.

Ms. Ambikai testified that her husband has built a circle around himself. She wants him to get out of that "circle," to motivate him to get better and to lead a normal life. She herself works shift work starting at 3:30 p.m. as a machine operator in a car parts company. She describes it as heavy work. She has not tried to find her husband a job there, because the work is very physical, and he cannot do the lifting or carrying. The accident has affected the family financially. I note the report of Ms. S. Akram-Pall, psychotherapist, dated June 7, 2004, only a few months after the accident, wherein the Applicant is quoted as saying that the "[f]uture is going to be bad. Before the accident me and my wife were working hard to save some money to buy a house and for children's education but now everything has been lost." At that point in time, the Applicant, who was still receiving weekly IRBs, is reported as sitting home all day, worrying about his future.

Ms. Ambikai cried through parts of her evidence. I found Mr. Vellipuram's reaction to his wife's testimony noteworthy. He looked completely humiliated. He kept his head down. He avoided eye contact with his wife. The couple left the hearing room separately. I do not think that this was an act for my benefit. I found Ms. Ambikai entirely credible.

This evidence is supported by an August 30, 2004 Assessment of Activities of Daily Living prepared by Ms. S. Bielawski, O.T., at the Insurer's request. Ms. Bielawski noted that Mr. Vellipuram "expressed his sadness, irritability and frustration at having lost his sense of personal control, which has resulted in depression, decreased self-image (self-esteem), loss of dignity, independence and respect." Her recommendations included a referral to a psychologist "to deal with physical losses/ major life changes, fears and anxiety when driving, depression and withdrawal from normal activities."

Ms. Akram-Pall, who Mr. Vellipuram saw for twelve sessions of psychological treatment from June to September 2004, states in her August 24, 2005 report, that the Applicant "had plans and hopes for his children’s better future, which according to him got vanished due to the accident. [He] was worried for his health, future, and financial problems."

I find that Mr. Vellipuram’s pre-accident history indicates that he was a motivated person. His move to a distinctly new country, his efforts to learn a new language, the added responsibilities of a wife and two children, his generally consistent work history since being hired with All-Team in the early 1990s, his working two jobs for a period of time, his advancement from unskilled general help to skilled work, his successful completion of additional courses, all belie the suggestion of some intrinsic lack of motivation.

Mr. Vellipuram’s medical improvement also speaks to his motivation to get better. There is also financial motivation to again be a meaningful contributor to his family’s well-being, and to have the respect of his family. Notwithstanding the Insurer’s claim of lack of effort in rehabilitating himself, their own investigators confirmed Mr. Vellipuram’s continuing rehabilitation efforts.

In conclusion, I am persuaded that Mr. Vellipuram’s pre-accident work and family history showed a motivation to improve his economic situation and a motivation to work. I find that he has sustained, as a result of this accident, significant and objective injuries, specifically to his left hand and his right hip. I find that he has received and continues to pursue appropriate treatment and rehabilitation. I find that his pre-accident employment was physically demanding, specifically requiring heavy lifting and carrying, prolonged standing, frequent bending and twisting and the need for two strong hands to weld, drill, sand and polish. I find the expert support for his continuing impairment from these duties, specifically that of Mr. Balaban, more persuasive than the expert opinions proffered by the Insurer. I find Mr. Vellipuram credible in his pain complaints. I find that as a result of this accident, Mr. Vellipuram has sustained an impairment in the loss of physical function. I find that as a result of this impairment, Mr. Vellipuram has been, and continues to be substantially unable to perform the essential tasks of his pre-accident employment. Accordingly, I find that Mr. Vellipuram is entitled to weekly IRBs up to the 104 week mark following this accident, which would be on or about January 1, 2006, as mandated by the Schedule.

B. Post-104 week entitlement

3. the post-104 week entitlement test

Paragraph 5(2)(b) of the Schedule provides that for any period longer than 104 weeks of disability, an applicant is entitled to weekly IRBs if he or she is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience. I will proceed to address Mr. Vellipuram's reasonable employment options.

2. the Applicant's limited employment options

I find that the Applicant has limited employment options in Canada. His education in Sri Lanka is limited to Grade 11 and subsequent technical training in welding. His education in Canada is limited to ESL and specialized welding training.

Mr. Vellipuram testified at this hearing with the assistance of a Tamil interpreter. The provision of an interpreter for an applicant is not evidence of one's inability to speak English, but rather the accommodation of a legitimate right to best understand and respond to the questions put to one during one’s oral testimony and to understand what is being said by the participants in a hearing. I do, however, accept this Applicant’s evidence that he has limited, perhaps best termed, basic ability to speak in English, notwithstanding Dr. Lloyd's June 2006 comment that he had the sense that the Applicant's comprehension of English was improving. I accept the Applicant's evidence that he still has problems both understanding and being understood in English, and that he cannot provide detailed answers or elaboration. I find his evidence unshaken on extensive cross-examination. I find his evidence supported by Mr. Antflick, the registered rehabilitation professional retained to assess Mr. Vellipuram’s employment options. I find that there was no contrary evidence presented by State Farm.

The Insurer submitted that Mr. Vellipuram should, after this number of years in Canada, be able to speak functional English. Functional in this context must mean the ability to speak English in a competitive work environment. I find that Mr. Vellipuram may get by with his limited linguistic skills in essentially physical employment. I received no evidence from the Insurer as to what expanded employment prospects would indeed be reasonable in light of the Applicant’s present knowledge of English. I am not persuaded that employment having greater linguistic demands than his pre-accident employment is a reasonable prospect.

In any event, State Farm agreed that Mr. Vellipuram’s job experience in Canada was that of skilled labour. They further agreed that his job experience was as a welder earning $25,000 to $26,000 a year. The Insurer did not provide any evidence of what they would consider to be appropriate alternative employment reasonably commensurate with the Applicant’s prior education, training or experience.

While Mr. Vellipuram has returned to ESL classes, he has not registered with any job agency or made any effort to return to employment, including Advance. Mr. Vellipuram submitted that the jobs for which he is qualified require at least four hours of standing, which he cannot do. The onus is on the insured person to establish that he or she is suffering a complete inability to engage in any employment for which one is reasonably suited by education, training or experience.

Mr. Antflick set out in his report the wage scales for employment as a welder, welding machine operator, glass finishing machine operator, as well as an office cleaner and a dishwasher, occupations with which he stated the Applicant had experience. However, there was conflicting evidence whether Mr. Vellipuram had indeed worked as a cook or as a general helper cutting vegetables in a restaurant or with a cleaning company.

In Fernandes and Zurich Insurance Company (FSCO A97-001971, September 20, 2000), Arbitrator Joachim found certain identified alternative employment "reasonably unsuitable" because they would involve a substantial wage loss from what the applicant had been earning in the several years before the accident. I find the jobs of office cleaner, dishwasher and general restaurant helper inappropriate for Mr. Vellipuram by reason of his skilled employment as a welder, earning between $12 and $14 an hour, which is close to Mr. Antflick's entry level of $16 an hour for welders and soldering machine operators (based on 52 weeks a year, 40 hours a week). The entry level salaries for dishwashers and office cleaners are roughly $8 an hour, which is between half and two-thirds of Mr. Vellipuram's actual or potential income as a welder.

A test for post-104 week IRB entitlement is set out by Director’s Delegate Naylor in Canadian Surety Company and H.K. (FSCO P98-00041, February 29, 2000) as follows:

The appropriate approach is a flexible, fact-based one, in which, while the legal onus always remains on the insured, the sufficiency of the proof depends on what is reasonable in the circumstances. This involves consideration of the evidence presented by both parties, including the nature of the individual’s condition and extent of the disability, the efforts the insured has made to position himself or herself to return to the workforce, the vocational assistance made available by the insurer and the options for alternative work that have been put forward.

I agree with the opinion of Dr. Lloyd, orthopaedic surgeon, in his December 9, 2005 report, that given Mr. Vellipuram's limited knowledge of English, his lack of educational sophistication and identifiable transferable skills, it is difficult to identify a job for which the Applicant is presently suited. In his June 22, 2006 report, Dr. Lloyd ruled out the Applicant working as a welder, welding machine operator, blast finishing machine operator, office cleaner or dishwasher, positions which Mr. Vellipuram had the ability to perform before the accident.

I find that the Applicant has real and valid physical limitations, as evidenced by the reports of Mr. Balaban, and supported by the treating orthopaedic surgeon, Dr. Kreder. I find that Mr. Vellipuram’s reasonable job prospects are limited to employment which is physical in nature. I find that what is presently reasonably suitable to this Applicant is full-time skilled physical labour. I am persuaded that Mr. Vellipuram is unable to engage in such full-time skilled physical employment in a competitive work environment as a result of injuries sustained in this motor vehicle accident.

I find that the Applicant is endeavouring to broaden his future job prospects by taking ESL classes, which will hopefully allow an eventual return to the work force. I find that to be reasonable, especially considering that State Farm, relying essentially on Dr. Alpert’s opinion, has failed to provide any present vocational alternatives to Mr. Vellipuram. I am persuaded, based on what is reasonable in the facts of these circumstances, that Mr. Vellipuram suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience ongoing from 104-weeks of disability.

3. Interest

Subsection 46(1) of the Schedule provides that an amount payable in respect of a benefit is overdue if not paid within the time required under Part X of the Schedule. Under subsection 46(2), interest is payable on the overdue benefit from the date the amount became overdue at the rate of two percent per month, compounded monthly.

Part X of the Schedule encompasses subsection 35(2) which provides that if the weekly benefit is payable, the benefit shall be paid within fourteen days after the insurer receives the application. Subsection 35(4) requires the IRB to be paid at least once every second week.

The parties agree that Mr. Vellipuram’s correct weekly IRB is $337.25.

Accordingly, I find that State Farm shall pay Mr. Vellipuram interest of two percent per month, compounded monthly, on each bi-weekly IRB payment of $674.50 from October 4, 2005, from the last date of each bi-weekly period.

4. Special Award

Subsection 282(10) of the Insurance Act requires an arbitrator to grant an insured person a special award if one finds that an insurer has unreasonably withheld or delayed payments.

Mr. Vellipuram submits that the IMEs arranged by State Farm were below what one should expect. He argues that as the medical examiners were agents of the insurer, State Farm is responsible for their conduct. The Applicant noted specifically the failure of the IME practitioners to respond to the further additional expert reports (of Drs. Damji, Garber, Lloyd and Mr. Antflick and Mr. Balaban) which State Farm sent to its experts for their review by letter dated March 17, 2006. Mr. Vellipuram argues that had the Insurer's experts read these further reports, their conclusions would have changed.

The Insurer responded that there was no basis for a special award in this case. It was unknown why the IME examiners did not provide a response to the Insurer’s March 17, 2006 letter. Arbitrator Palmer defined "unreasonable" behaviour by an Insurer in withholding or delaying payments in Plowright and Wellington Insurance Company (OIC A-003985, October 29, 1993) as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate. She described the standard expected of an insurer as "one of sound and moderate judgment." The standard, as stated by Director's Delegate McMahon, is not one of perfection.²

An insurer has a duty to continuously reconsider its position upon receiving further information. In J.C. and ProgressVve Casualty Insurance Company of Canada (FSCO A03-000290, September 24, 2004), Arbitrator Allen based her special award on the Insurer’s "failure to reinstate benefits in the face of mounting evidence of the Applicant's disability."

In this case, State Farm did forward the further evidence to its experts. Further, it asked for their comments, and specifically asked that if the experts opinions changed, that their reasoning be provided. I find that this was a reasonable approach for the Insurer to take, in considering whether its prior refusal was tenable.

State Farm should have followed up when its experts failed to respond. It did not. However, based on the testimony of the two experts who, in the circumstances, had the most relevant evidence, namely Dr. Alpert and Dr. Hines, these further reports did not change their opinions.

Hence, a timely response by the experts to the further evidence would not have changed the basis of the Insurer's decision to terminate IRBs.

Therefore, the real question is whether it was unreasonable for the Insurer to have relied on the IME reports. There was no argument that it was unreasonable for State Farm to have relied on the IME reports to terminate benefits. Specifically, there was no argument that it was unreasonable for State Farm to have terminated IRBs without having Dr. Alpert further review the Applicant after a proposed four to six week graduated return to work.

Accordingly, I find that the Applicant has failed to lay a basis for a special award claim.

EXPENSES:

Having issued orders determining all issues in dispute except that of legal expenses, should the parties not agree on entitlement to or the amount of such expenses, they may request an appointment to determine same, in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

December 8, 2006

Lawrence Blackman Arbitrator

Date