Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 127

FSCO A05-002601

BETWEEN:

THURKA SHANMUGALINGAM

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before:

Susan Sapin

Heard:

April 30 and May 1, 2 and 3, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on May 22, 2007.

Appearances:

Adam Ezer for Ms. Shanmugalingam

Darrell March for RBC General Insurance Company

The Applicant, Thurka Shanmugalingam, was injured in a motor vehicle accident on March 9, 2005. She applied for and received statutory income replacement (IRB), medical and housekeeping benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ RBC terminated these benefits and took the position that Ms. Shanmugalingam's injuries fell within the Pre-approved Framework Guideline for Whiplash Associated Disorder Grade II injuries With or Without Complaint of Back Symptoms ("the WAD II Guideline")²Ms. Shanmugalingam maintained her injuries fell outside the WAD II Guideline, and therefore she should be entitled to further benefits. The parties were unable to resolve their disputes through mediation, and Ms. Shanmugalingam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Shanmugalingam entitled to income replacement benefits (IRBs) from June 13, 2005 until February 28, 2006 under section 4 of the Schedule?
Is Ms. Shanmugalingam entitled to expenses of $3,917 for treatment received from Focus Rehabilitation Group through November 2005 under section 15 of the Schedule?
Is Ms. Shanmugalingam entitled to housekeeping expenses of $100 per week from April 11, 2005 until May 9, 2005 under section 22 of the Schedule?
Under section 47 of the Schedule, is Ms. Shanmugalingam required to repay IRBs of $114.30 to RBC, representing the difference between the $83.10 per week RBC paid and the re-calculated benefit of $75.48 per week?
Is Ms. Shanmugalingam entitled to a special award under s. 282(10) of the Insurance Act because RBC unreasonably withheld benefits?
Is either party entitled to their arbitration expenses?

Ms. Shanmugalingam is not entitled to IRBs from June 13, 2005 until February 28, 2006 under section 4 of the Schedule.
Ms. Shanmugalingam is not entitled to expenses for treatment received from Focus Rehabilitation Group through November 2005, under section 15 of the Schedule.
Ms. Shanmugalingam is not entitled to housekeeping expenses.
Ms. Shanmugalingam shall repay $114.30 to RBC under section 47 of the Schedule.
Ms. Shanmugalingam is not entitled to a special award under s. 282(10) of the Insurance Act.
If the parties are unable to agree on the amount of arbitration expenses, either party may refer the matter to me to be determined.

1. Background and Issues

At the time of the accident, Ms. Shanmugalingam was a 22-year old student attending English-as-a-second-language classes full time. In addition, she had just been hired as a casual worker and had worked the previous week at ITW Construction Products. The accident occurred when a car allegedly travelling about 50 kilometres an hour struck Ms. Shanmugalingam's car on the driver's side as she turned left out of a parking lot. She reported being slightly shaken in the accident, but that she did not strike any part of her body against the interior of the car. The police were called, her car was towed away and later repaired, and a friend drove her to a collision reporting centre to report the accident, and then drove her home.

Ms. Shanmugalingam testified that she had a headache that night and took some Tylenol but felt "serious pain" the next day, when she went to Focus Rehabilitation Group ("Focus") on the advice of a friend. She was assessed by Dr. David Huang, a chiropractor. She immediately began treatment consisting of passive modalities, massage, functional exercises and chiropractic care which continued twice a week until June 27, 2005.

Ms. Shanmugalingam returned to school a week after the accident and completed her English course in June 2005. She claimed she could not carry out her housekeeping chores or return to work at ITW because of her injuries. She got a job at Tim Horton's three or four days a week for about four months from July to October 2005, and stated she had to quit because of pain. She enrolled in a one-year accounting program at Centennial College in September 2005, attending four two-hour classes three days a week, and began working part time at Shopper's Drug Mart in February 2006, where she now works full time.

Dr. Huang assessed Ms. Shanmugalingam, prepared an initial examination report, completed a Disability Certificate and submitted four Treatment Plans to RBC, dated March 10, April 28, June 8 and November 23, 2005, for treatment worth a total of $6,684.³

There is no dispute that Ms. Shanmugalingam suffered soft tissue injuries to her neck, back, shoulders and arms in the accident, and that she complained of headache, dizziness, sleeplessness, anxiety and fear of driving. RBC paid $3,002 towards Ms. Shanmugalingam's treatment expenses but refused to pay for more on the basis that her impairments fell within the WAD II Guideline, which would limit entitlement to treatment to what is available within the WAD II Guideline's comprehensive framework — in this case, to $1,320 for the first six weeks of treatment, which RBC paid. RBC argued that it approved and paid for a further $1,702 over and above the WAD II Guideline under the second Treatment Plan, in good faith, and any further treatment was not reasonable or necessary. RBC also disputed that Ms. Shanmugalingam met the disability tests for IRBs and housekeeping expenses.

For her part, Ms. Shanmugalingam claimed her impairments fall outside the WAD II Guideline and that the treatment she received was reasonable and necessary for her accident-related impairments. She further claimed a special award on the grounds that RBC's decision to treat her impairment as within the WAD II Guideline and its refusal to pay for treatment outside it, or for further IRBs or housekeeping expenses, was unreasonable and in bad faith. According to her, there was sufficient evidence to indicate that her impairments fell outside the WAD II Guideline.

2. Entitlement to Medical and Rehabilitation Benefits

a) The Law

Section 14 of the Schedule provides that insurers shall pay for medical treatment that is reasonable and necessary as a result of an accident. The insured person bears the onus of meeting this test on a balance of probabilities. Where the insured person suffers an impairment that falls within one of the Pre-ApprovedFramework Guidelines ("PAF Guidelines"), an insurer is not required to pay for treatment expenses that exceed what is provided for in the guideline.⁴ If an arbitrator in any dispute about whether one of these guidelines applies determines that it does apply, the treatment is deemed to have been reasonable and necessary.⁵

The initial determination of whether a PAF Guideline applies is made by the treating health practitioner with reference to criteria contained in the guideline itself.

Sections 37.1 and 38 of the Schedule set out two, separate, detailed procedures for the claiming, paying, disputing and stopping of benefits depending on whether the insured person's impairment is one to which a PAF Guideline applies (s. 37.1); or does not apply (s. 38).

The insured person's treating health practitioner initiates medical treatment by completing and submitting to the insurer either a Treatment Confirmation Form (OCF-23), if the impairment is within a guideline, or a Treatment Plan (OCF-18), if the impairment is outside a guideline. These forms are several pages long, reflect the requirements of the Schedule and the criteria in the PAF Guideline, and require sufficient detail for the insurer to be able to determine that the treatment claimed is payable.

Under ss. 38(8)2 and (12.1)(a), of the Schedule, if a claim for medical treatment is initiated with an OCF-18, the insurer is entitled to reject the plan on the basis that the insured person has an impairment to which a PAF Guideline applies and to require the insured person to be assessed by a Designated Assessment Centre (DAC).

If the DAC report confirms that a PAF Guideline applies, the insurer "may reject the treatment plan and may treat the application for benefits as an application under section 37.1 "⁶, in which case, as stated above, if an arbitrator subsequently finds that the insured person's impairment falls within the guideline, the treatment provided is deemed to have been reasonable. If, however, an arbitrator finds that an impairment falls outside a PAF Guideline, the issue to be determined becomes whether the treatment obtained was reasonable and necessary.

The relevant portions of the WAD II Guideline criteria for determining whether the impairment is one to which that guideline applies reads as follows:

... an insured person's impairment comes within the Guideline if . . . the insured person is determined to have sustained an injury that:

(a) resulted from an acceleration-deceleration mechanism of energy transfer to the neck, presents as a complain of neck pain, stiffness, or tenderness, and musculoskeletal signs(s), including decreased range of motion and point tenderness, and therefore meets the criteria for "Whiplash Associated Disorder Grade II" (also known as WAD II) set out in the Societe de l'assurance automobile du Quebec's Task Force . . .

(b) may include a complaint of non-radicular back symptoms associated with the WAD II; and

An insured person who has sustained an impairment covered by this Guideline may also exhibit other common symptoms including: shoulder pain; referred arm pain (not from radiculopathy); dizziness, tinnitus, headache; difficulties with hearing and memory acuity, dysphagia; and temporomandibular joint pain. These additional symptoms would not exclude an impairment from this Guideline unless they require separate treatment from that provided under this Guideline.

The WAD II Guideline also specifies that an impairment does not come within the guideline if it is either a WAD I impairment, or:

(b) despite being assessed within 28 days of the injury as having an injury described in Section 2, there are specific pre-existing occupational, functional or medical circumstances of the insured person that:

i. significantly distinguish the insured person’s needs from the needs of other persons with similar impairments that come within this Guideline; and

ii. constitute compelling reasons why other proposed goods or services are preferable to those provided for under this Guideline.

(b) Did Ms. Shanmugalingam suffer an impairment that falls within the WAD II Guideline?

I heard no evidence to persuade me on a balance of probabilities that Ms. Shanmugalingam's impairments fell outside the WAD II Guideline, including the evidence of Dr. Huang, Ms. Shanmugalingam's treating chiropractor, who testified at the hearing on her behalf.

Dr. Huang examined Ms. Shanmugalingam the day after the accident and completed and submitted to RBC an OCF-18 Treatment Plan form, indicating he considered her impairments to fall outside the WAD II Guideline. On the form, Dr. Huang described the injuries as:

WAD 2

Thoracic spine - strain/sprain

Lumbar spine - strain/sprain

Shoulder girdle - sprain/strain (Bilateral)

Upper arm - Bicipital tendonitis (Bilateral)

Forearm injury of muscle and tendon (Bilateral)

Headache - post traumatic with dizziness

Where asked, at Part 8c of the form, "Is this an impairment referred to in a Pre-approved Framework (PAF) Guideline", Dr. Huang responded: "No." Where asked to explain why the OCF-18 form was being submitted instead of the alternative PAF Confirmation Treatment Confirmation Form (OCF-23), Dr. Huang wrote "Please refer to part 7 [the list of injuries above] and 10 c." At Part 10(c) of the form, Dr. Huang identified the "barriers to recovery" as: "Female patient with initial injury reactions such as sleep disturbances, nervousness. Not working due to MVA injuries." He recommended a comprehensive rehabilitation programme and a psychological assessment to overcome these barriers.

Dr. Huang further indicated, where required on the OCF 18, that the Applicant's impairment from the injuries identified affected her ability carry out her activities of employment and of normal life because of ". . . difficulty lifting, bending, carrying, pushing, pulling, work, housework, overhead activities, and sleeping. Prolonged sitting, standing and walking are provocative."

The Disability Certificate completed by Dr. Huang listed the same injuries and much of the same information as the Treatment Plan; in addition, he wrote that Ms. Shanmugalingam was substantially unable to perform the essential tasks of her employment because she was "unable to perform activities of repetitive bending, carrying, overhead activities, lifting, getting up, pushing and pulling without aggravation." On the last page, Dr. Huang wrote: "The patient is currently having difficulty sleeping which is related to stress and anxiety. The patient continues to have anxiety and fear when driving and when riding in a vehicle. A psychological consultation is required."

Without more, I find it is simply not possible to assume, solely from the information provided on these forms and without any further supporting medical information such as a psychological assessment, that Ms. Shanmugalingam's injuries fell outside the WAD II Guideline, given that the guideline itself specifically includes symptoms of back, arm and shoulder pain, headache and dizziness in the definition of a WAD II injury.

Unfortunately, Dr. Huang’s testimony and assessment reports⁷ provided little further in the way of evidence that would assist me to determine whether Ms. Shanmugalingam’s had a WAD II -type injury or something more. Dr. Huang had no independent recollection of Ms. Shanmugalingam’s injuries or treatment and relied for his testimony on his notes, his initial assessment report and two follow-up reports. He testified that he diagnosed Ms. Shanmugalingam's impairments from an approximately 50-50 combination of objective findings and her subjective reporting. On examination in chief, although he stated he was familiar with the WAD II Guideline, he did not refer specifically to the criteria outlined above. He based his conclusion that Ms. Shanmugalingam's impairments fell outside the guideline on his examination of her; the areas injured; her report of "quite a bit of extremity pain" and pain in the shoulders, upper arms and low back; her "barriers to recovery" such as stress, fear of driving and psychological issues; high pain scores; and his conclusion that her injuries were severe enough that she stopped work.

On cross-examination, Dr. Huang agreed he rated Ms. Shanmugalingam's distress as "moderate" when he first saw her, and that six weeks of treatment was reasonable for an initial treatment recommendation. He agreed that her injuries were soft tissue of whiplash type of which he had seen hundreds, and that there was nothing extraordinary about Ms. Shanmugalingam’s injuries. He also agreed that he diagnosed her impairments as WAD II and that she received the standard treatment for soft tissue injuries.

As symptoms such as shoulder, arm and back pain, as well as the headache and dizziness Ms. Shanmugalingam also reported all appear to be included in the WAD II Guideline, and as Dr. Huang did explain that Ms. Shanmugalingam's headaches were due to referred neck pain typical of a whiplash injury, I would have expected him to explain why in Ms. Shanmugalingam's case, her other physical impairments differed sufficiently from those# listed in the WAD II Guideline criteria, to take her out of it; in particular, whether or not her back pain was "radicular." This, Dr. Huang did not do.

Dr. Huang also appears to have gauged the severity of Ms. Shanmugalingam's complaints, and therefore her injuries, in part on the fact that she told him her injuries prevented her from returning to her job at ITW. Given that he admitted he knew very little about her actual job duties, and that he simply inferred an inability to work from the limitations he observed and her subjective report, I find that this inference was not a reliable enough indicator of the severity of her injuries for him to use it as part of his determination that they fell outside the WAD II Guideline for the purpose of treatment. This finding is reinforced by Ms. Shanmugalingam herself, who conceded that her own family doctor had not recommended she stay off work, but had said to her that if she didn't feel well enough to work, she shouldn't go to work, leaving the decision up to her. She chose not to attempt to return to work at ITW.

With the possible exception of the accident-related anxiety, stress and fear of driving identified by Dr. Huang, I find Dr. Huang's evidence does not support a conclusion that Ms. Shanmugalingam's impairments fell outside the WAD II Guideline. These psychological issues, however, were assessed just over three months after the accident by two psychologists, Dr. Peter Marton, at the Insurer's request on June 29, 2005, and Dr. Kenneth Keeling, on Ms. Shanmugalingam's behalf, on July 5, 2005. Ms. Shanmugalingam did not report a fear of driving to either assessor. Both concluded that she did not meet the diagnostic criteria for any psychological illness, and that treatment was not warranted. In fact, Dr. Keeling reported that Ms. Shanmugalingam stated she was not interested in counselling. Contrary to Dr. Huang's initial assessment, there is no evidence that there were any significant psychological issues or that they were a barrier to recovery. This is borne out by the fact that Ms. Shanmugalingam appears to have recovered sufficiently to begin a new job within a few weeks of these assessments and enroll full time at Centennial College in September; in short, to have gotten on with her life.

Finally, another important WAD II Guideline factor not addressed by either Ms. Shanmugalingam or Dr. Huang in their testimony, or in any of Dr. Huang's treatment plans or assessment reports, and which was not evident from the detailed treatment invoices Focus submitted to RBC, was whether Ms. Shanmugalingam required or actually received separate treatment from that provided under the guideline for any of her symptoms. Evidence on this point might have explained exclusion from the guideline, yet none was provided.

RBC referred Dr. Huang's March 10, 2005 Treatment Plan to a "Fast-track" DAC review on the question of whether Ms. Shanmugalingam's impairments fell within the WAD II Guideline, something it was specifically entitled to do under the Schedule⁸

Dr. Guerriero, a chiropractor, conducted a paper review (dated April 7, 2005) of the Treatment Plan, the Disability Certificate and Ms. Shanmugalingam's Application for Benefits, and concluded that:

Ms. Shanmugalingam sustained injuries to which a WAD II PAF guideline applies. She sustained a Grade II WAD injury along with a lumbar sprain, and injury to the upper extremities. There is no compelling reason why Ms. Shanmugalingam should be treated outside of the PAF guideline for the first six weeks after the accident.

Dr. Huang had recommended 12 sessions of chiropractic modalities, massage therapy and active rehabilitation for a cost of $2,688.00. The WAD II PAF guideline pays a fee $1,160.00 plus an allowance of $160 for supplementary goods and services.

Thus the treatment plan dated March 10, 2005 by Dr. Huang is not reasonable and necessary.

I accept the conclusions in this report in the absence of any persuasive evidence to contradict it. I further find that it was not self-evident, from the information supplied to RBC and to Dr. Guerriero in the Treatment Plan and Disability Certificate provided by Dr. Huang, that Ms. Shanmugalingam's injuries or treatment needs fell outside the WAD II Guideline. Under the circumstances, and given the lack of any further medical information to the contrary, it was reasonable for RBC to reject the Treatment Plan on that basis, and to pay only for treatment in accordance with the framework set out in the guideline, which is what RBC was entitled to do and which it did.

As Ms. Shanmugalingam presented no further evidence that would persuade me that her impairments fell outside the WAD II Guideline, I find that they did not.

Ms. Shanmugalingam attempted to argue that the severity of her accident-related impairments were severe enough to fall outside the guideline, and that this was so because the car that struck her was travelling at (at least) 48 kilometres an hour, the impact was significant, and her car was so badly damaged it had to be towed.

For its part, RBC relied on the report of Rob Seaton, a former police officer with special training and experience in accident reconstruction, to refute Ms. Shanmugalingam's version and conclusion. Mr. Seaton concluded, based on the collision sequence and damage and Ms. Shanmugalingam's own evidence, that the collision was "consistent with both a low speed impact and optimal seatbelt performance, limiting occupant motion."

The difficulty with this type of evidence, of course, whether lay or expert, is that neither witness has any medical qualifications, and the evidence is completely useless for the purpose of assisting me in forming an opinion about the connection, if any, between the severity of impact and the severity of injury in this case. That question could have been put to an expert qualified to answer it, but was not. I find therefore that the severity of the impact has no bearing on the nature of the resulting impairments or whether they came within the WAD II Guideline in this case.

As I have determined that the WAD II Guideline applies, the treatment received up to the limit provided for in the guideline, in this case, $1,320, is deemed to be reasonable and necessary, and Ms. Shanmugalingam is not entitled to anything further under the March 10, 2005 Treatment Plan.

(c) The April28, 2005 Treatment Plan

RBC approved and paid for the second Treatment Plan, submitted by Dr. Huang, dated April 28, 2005, in the amount of $1,702, but advised Ms. Shanmugalingam, her legal representatives Mazin and Rooz, and Focus that Ms. Shanmugalingam would be responsible for expenses above the $1,702 approved.⁹ Nevertheless, Focus continued to invoice RBC for treatment, and Dr. Huang sibmitted a third Treatment Plan, dated June 6, 2005.

(d) The June 6, 2005 Treatment Plan

As RBC referred the June 6, 2005 Treatment Plan for a Designated Assessment under ss. 38(12) of the Schedule, the issue in dispute is no longer simply whether the WAD II Guideline applied, but whether the Treatment Plan was reasonable or necessary.

The assessment was conducted on October 18, 2005 by Dr. M. Rajwani, a chiropractor, and Ms. T. Scheid, a massage therapist. I agree with their conclusions that the Treatment Plan was not reasonable or necessary and that no further treatment was required, for the reasons set out below.

Dr. Rajwani, as the Primary Evaluator, prepared a report and testified at the hearing at Ms. Shanmugalingam's request. He found that at the time of his assessment, Ms. Shanmugalingam presented with a Grade II Whiplash Associated Disorder and moderate lumbosacral strain. He readily conceded that she had residual pain in her neck and low back at the end ranges of motion, and that she had told him that she would obtain one day of pain relief from the massage and exercises prescribed by Dr. Huang.

Dr. Rajwani concluded nevertheless that the Treatment Plan was not reasonable or necessary because "an adequate course of intervention had already been provided, and at that stage of recovery, a more independent approach to management should have been considered." Dr. Rajwani felt that, as Ms. Shanmugalingam was a well-educated young woman who had been taught proper exercise management, and actually reported she did her exercises at home and found them helpful¹⁰, there was no compelling reason why she could not manage her own care and her pain independently from that point on. He felt that, all things considered, further passive modalities such as she had been receiving, were not reasonable or necessary.

I found Dr. Rajwani's evidence to be persuasive. He was fair and impartial. He demonstrated a more comprehensive grasp of the WAD II Guideline and how to apply it, and a better appreciation of the limits of "reasonable and necessary" treatment than did Dr. Huang. Although he agreed with Dr. Huang that "treatment is always beneficial," unlike Dr. Huang, who stated he would treat Ms. Shanmugalingam for as long as there were findings and appeared to be of the view that treatment should be provided until the injured person is symptom-free, which is not the test for what is reasonable or necessary, Dr. Rajwani considered Ms. Shanmugalingam's circumstances as a whole, including her complaints of pain, and concluded she could manage her recovery and her symptoms without the assistance of further passive modalities. This approach is consistent with that promoted in the WAD II Guideline, which emphasizes that the insured person is responsible for her recovery and return to normal activities, and that the frequency of goods and services should diminish as the insured person progresses.¹¹

Despite the criticism that Dr. Rajwani only examined Ms. Shanmugalingam once and his clinical notes were brief, Dr. Rajwani certainly appeared to have been thorough, accurate and observant; for example, he noted Ms. Shanmugalingam's complaints of leg pain, (not noted anywhere by Dr. Huang) and determined it was actually due to a tight hamstring muscle resulting from her lumbosacral strain.

Dr. Rajwani also provided reasonable explanations for his findings and conclusions; for example, that Ms. Shanmugalingam's back symptoms were "non-radicular" because there were no neurological symptoms such as numbness and tingling. This finding is consistent with Dr. Huang s, but unlike Dr. Huang, Dr. Rajwani went one step further and testified that the non-radicular nature of Ms. Shanmugalingam's low back pain would not take her out of the WAD II Guideline.

Ms. Shanmugalingam presented no compelling evidence to persuade me that any part of Dr. Rajwani’s diagnosis, recommendations or conclusions was wrong.

To the contrary, in fact. Ms. Shanmugalingam's own evidence¹² confirmed that continued treatment was neither necessary nor reasonable. Her testimony that although the massage and exercises helped her shoulder and lower back pain, they only helped "a little bit" and she did not fully recover from her injuries, and still had pain whenever she "tried to work a little harder" is hardly a positive endorsement of the four months of therapy she received, nor do I find it accurate. It is commendable that she made efforts to gradually resume her daily activities. But that is precisely what is supposed to happen after a whiplash-type injury, and that is one of the key recommendations in the WAD II Guideline and of responsible health care practitioners.

And the fact of the matter is, a month after her last treatment, she began work as a server at a Tim Horton’s coffee shop, working seven-hour shifts three and four days a week until mid-October. Contrary to her testimony that she could not stand for long periods at work, surveillance evidence obtained by RBC on October 11, 2005, (the last day she worked, coincidentally) includes a videotape of her working a 4:00 p.m. to 11:00 p.m. shift at Tim Horton s, serving customers behind the counter, standing, reaching for coffee pots at shoulder height, bending, twisting — in short, all activities she claimed she could not do — without any outward sign of disability or discomfort. She did not explain the apparent discrepancy between this visual record of her abilities, her testimony, and what she told Dr. Huang, Dr. Rajwani, and others about her abilities. In fact, she never told either Dr. Huang or Dr. Rajwani about this job, or why she quit, although Dr. Rajwani assessed her a week later and Dr. Huang that November.

Equally perplexing, Ms. Shanmugalingam didn't tell RBC she was working at Tim Horton's until a month after she quit, when she was examined under oath by RBC on November 15, 2005.

There were other unexplained discrepancies in Ms. Shanmugalingam's evidence that indicate she had resumed more of her daily activities than she chose to admit when asked. Contrary to her claims that she was afraid to drive after the accident and that she mostly relied on friends, or a friend in particular, to drive her to school, to work and on errands, the surveillance shows her not only driving herself to work and home again but also driving herself and a male passenger to a mall, where she did some banking and some shopping. The tape also shows her driving a woman from her home to a location, dropping her off, waiting for her in the car in the parking lot, and then driving her back home again.

Ms. Shanmugalingam also testified that she began a one-year accounting programme at Centennial College in September 2005, taking four two-hour classes per week, during the same period she worked at Tim Horton's.

These discrepancies lead me to several conclusions: one, Ms. Shanmugalingam was not accurate or consistent in reporting her activities or her level of impairment and her evidence cannot be relied upon; two, this in turn would affect the reliability of assessments based on her subjective reporting; and three, further treatment was not necessary in order for her to resume normal daily activities.

The unreliabilty of Ms. Shanmugalingam's self-reporting would appear to be the only reasonable explanation for the findings of a functional capacity assessment undertaken by Century Assessment and Diagnostic Centre on June 23, 2005¹³, which rated her "remarkably impaired" in several areas, only two weeks after Dr. Huang, in his June 8 follow-up progress report, reported more moderate restrictions of 10%, 15% and 20% in Ms. Shanmugalingam's ranges of motion.¹⁴I place no weight on this assessment.

3. Entitlement to IRBs

Under subsection 5(2)(e) of the Schedule, an insurer is not required to pay an IRB "for any period longer than 16 weeks after the accident, in the case of an insured person whose impairment comes within the Grade II Whiplash Guideline." As I have found Ms. Shanmugaligam's impairment fell within this guideline, she is not entitled to an IRB beyond June 13, 2005.

Even had I not made this finding, I find Ms. Shanmugalingam did not prove she was substantially unable to perform the essential tasks of her pre-accident employment at ITW as required by s. 4(1) of the Schedule, because she did not describe her tasks in sufficient detail for me to determine what they actually were, and so to determine if she could perform them. Her testimony on this point was so vague, and the descriptions of her tasks varied so greatly from one to the other¹⁵, I find she did not estblish, on a balance of probabilities, that she met the test for entitlement to IRBs.

4. Entitlement to Housekeeping Expenses

Ms. Shanmugalingam claims entitlement to housekeeping expenses of $100 per week from April 11, 2005 until May 9, 2005. She submitted invoices to RBC for 10 hours per week of housekeeping at $12.00 per hour; RBC paid up until April 19, 2005 at $8.00 per hour, the rate it pays for non-professional service providers. It based its refusal to pay further benefits on an In-Home Assessment conducted April 20, 2005.

At the time of the accident, Ms. Shanmugalingam rented a room in the basement of a house and was responsible for cleaning her own space (dusting, vacuuming, taking out the garbage, cleaning tub and toilet), shopping for and cooking her own meals, washing up by hand afterwards and doing her own laundry. She testified that after the accident she hired her landlady to do this work, and then a friend, neither of whom could testify at the hearing.

An In-Home Assessment was also conducted on Ms. Shanmugalingam's behalf on April 27, 2005 by Dr. Marissa Heisel, a chiropractor, who prepared a report recommending 18.75 hours of housekeeping assistance, 8.75 hours more than what Ms. Shanmugalingam was actually claiming. This in itself leads me to believe the report has little basis in reality. It is very difficult for me to believe that any single person living in a rented room could possibly need to spend 18.75 hours a week, the equivalent of a part-time job, keeping it clean.

Dr. Heisel's reasons for recommending this amount of housekeeping are even harder to accept, given the quick return to pre-accident activity emphasized in the WAD II Guideline and advised by enlightened health practitioners:

Ms. Shanmugalingam has moderate difficulty with many tasks and is unable to perform many of the physical tasks in order to minimize pain. She is concerned that if she increases her pain she will be unable to work. She remains partially functional in her physical capacities but refrains from housekeeping responsibilities. Performing these tasks would hinder her healing and set her up for chronic neck and back strain, leading to much more costly rehabilitation.¹⁶

Contrast this opinion with that of Susanna Au, the occupational therapist who conducted RBC's in-home assessment:

Further external assistance would not be considered therapeutic as it would foster dependency, contribute to self-limiting behaviours and prolong recovery. Participation in homemaking duties should be viewed as a therapeutic means to improve/maintain functional tolerance, mobility, range of motion and muscle strength. Therefore no further external assistance is recommended by this therapist.¹⁷

As between these two reports, and given the ample evidence of Ms. Shanmugalingam's willingness and ability to get on with her life, Ms. Au's is the more sensible. Dr. Huang also recommended housekeeping assistance but as he admitted he did not know any of the specifics of Ms Shanmugalingam's living arrangements or duties, I place little weight on his recommendations. Ms. Shanmugalingam is not entitled to further housekeeping expenses.

5. Repayment

RBC claims a repayment of IRBs in the amount of $114.30, representing the difference between the $83.10 per week it paid initially and the amount of $75.48 per week it recalculated after it received further information from the Applicant. As I heard no evidence that the revised amount was incorrect or that RBC failed to comply with the notice requirements under section 47 of the Schedule, or that RBC was not entitled to claim the repayment for any other reason, I find that Ms. Shanmugalingam is required to repay this amount to RBC. As I received no evidence or submissions about the precise amount of interest payable, I make no finding or order in that regard.

6. Special Award

There was no evidence presented that would support a finding that RBC failed in any way to follow any of the requirements of the Schedule in adjusting or handling Ms. Shanmugalingam's claim, wilfully or otherwise.

EXPENSES:

If the parties are unable to agree on the matter of expenses I may be spoken to.

June 22, 2007

Susan Sapin Arbitrator

Date