Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 131
FSCO A06-002094
BETWEEN:
BAVANI THEVARANJAN
Applicant
and
THE PERSONAL INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
Fred Sampliner
Heard:
May 9, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
David S. Wilson for Ms. Thevaranjan
Michael Chadwick for the Personal Insurance Company of Canada
Issues:
The Applicant, Ms. Bavani Thevaranjan, was injured in a motor vehicle accident on April 22, 2004. She applied for and received statutory accident benefits from the Personal Insurance Company of Canada ("Personal"), payable under the Schedule.1 The Personal reinstated payment of Ms. Thevaranjan's income replacement benefits prior to the pre-hearing in this matter, while not conceding her entitlement to benefits after the first 104 weeks of her disability. Ms. Thevaranjan seeks an order that she is entitled to ongoing payment of income replacement benefits under paragraph 5(2)(b) of the Schedule.
The issues in this hearing are:
Is Ms. Thevaranjan entitled to ongoing payment of income replacement benefits2 after the first 104 weeks of her disability pursuant to paragraph 5(2)(b) of the Schedule?
Is Ms. Thevaranjan entitled to her expenses of the arbitration under subsection 282(11) of the Insurance Act?
Result:
Ms. Thevaranjan is entitled to ongoing payment of income replacement benefits after the first 104 weeks of her disability pursuant to subsection 5(2)(b) of the Schedule.
Ms. Thevaranjan is entitled to her expenses of this arbitration under subsection 282(11) of the Insurance Act.
EVIDENCE AND ANALYSIS:
Background:
Ms. Thevaranjan successfully established her claim for payment of income replacement benefits until April 22, 2006 in a previous arbitration. To be entitled to the weekly benefit after that date3, Ms. Thevaranjan must establish that she suffers a complete inability to engage in any suitable employment.
The Personal did not file any documents or expert reports, call any witnesses or cross-examine Ms. Thevaranjan's witnesses. No evidence challenges or undermines Ms. Thevaranjan's or her spouse's testimony and the reports of her health care experts.
The Personal maintains that its ability to test Ms. Thevaranjan's evidence is compromised by her refusal to attend an insurer's medical examination and Arbitrator Blackman's denial4 of its recent motion for an order that she attend the examination or to stay the arbitration hearing until she complies with the examination request.
Evidence:
The following evidence is unchallenged and I accept it.
Ms. Thevaranjan suffered neck and back injuries when her automobile was rear-ended by another car on April 22, 2004. Her testimony is that she has continued to suffer severe constant low back and neck pain which radiates down to her shoulders (particularly the right) as a result of this accident.
Ms. Thevaranjan's complaints of severe low back and neck pain are supported by the opinion of Dr. Joseph Wong. His reports refer to an MRI study that showed an L5/S1 herniated disc, which he stated explains that her pain likely results from a narrowing of the nerve root exit. Dr. Wong's examination reports of neck and back muscle stiffness along with the imaging studies support his findings that Ms. Thevaranjan has continued to suffer chronic neck/shoulder and low back pain as a result of the accident.
Ms. Thevaranjan testified that the pain limits her ability to stand or sit for longer than twenty minutes and she cannot rotate her head easily. She is unable to concentrate, suffers poor sleep with resulting fatigue and is depressed because she cannot help her family. The health care reports indicate that Ms. Thevaranjan has recently undergone psychological counselling for her anxiety/depression, and is now involved in yoga exercises.
Ms. Thevaranjan's evidence about her limitations is consistent with the 2006 functional capacity evaluation. In testing, the exercise physiologist, Mr. Atila Balaban, noted her decreased strength and endurance in her neck, shoulder and back muscles. He characterizes her performance as consistent and stated she was de-conditioned.
Relying on this uncontradicted and consistent evidence, I find that Ms. Thevaranjan suffered an L5/S1 herniated disc and soft tissue neck, shoulder and back injuries as a result of the April 22, 2004 motor vehicle accident. I further find that Ms. Thevarnajan suffers relatively constant, moderate to severe low back pain, bilateral shoulder and neck pain as a result of her accident injuries. I am persuaded that Ms. Thevaranjan's reduced endurance and strength are a result of the accident-related injuries.
Ms. Thevaranjan has not returned to any employment since the accident. She lives in a home with her mother, her husband and their two school-age children.
Ms. Thevaranjan's admission that she is able to help with light housework and childcare is documented by a 2006 in-home assessment and substantiated by her spouse. The evidence indicates that her daily routine involves dressing, doing her personal hygiene, driving the children to and from school, sweeping, washing dishes, heating up food, chopping vegetables, resting and watching television. Her husband cooks the evening meal and helps with tidying up as well as childcare. They have a housekeeper for cleaning.
Ms. Thevaranjan related her work history. She first worked for 12 years in assembly at an automobile plant upon arrival in Canada. Ms. Thevaranjan then completed a six month course in office procedures/computers, and received on-the-job training as a data entry clerk at Canadian Tire. She did the same type of work for six years at UPS, following by another six years at TD bank and over a year with Royal Bank, her employer at the time of the accident. There is no evidence that Ms. Thevaranjan had any other type of work experience prior to or in this country.
Although Ms. Thevaranjan stated she has a bachelor of commerce degree from a Sri Lankan university, almost her entire relevant work training and experience involves data entry in Canada. On this evidence, I find that data entry/computer work is realistically suitable to Ms. Thevaranjan's education, training and employment history.
I also accept the 2007 reported opinion of a vocational evaluation specialist, Mr. David Antlick, who indicates that Ms. Thevaranjan could be qualified as a general office clerk, computer operator, bank clerk, or accounting clerk with appropriate job training. However, Ms. Thevaranjan's evidence that she has already received training in office procedures leads me to conclude that the general office clerk position is immediately suitable. Otherwise, the remaining jobs require some level of modest retraining.
Ms. Thevaranjan testified that she cannot sustain holding her hands over a keyboard and maintain her concentration to quickly make computer entries for 62 hours a day as a data entry clerk. Her neck, shoulder and low back pain also prevent her from sitting or standing for the long time periods required for clerical and office positions. There is also Ms. Thevaranjan's problem that she must lie down 2 to 3 times per day for 20 minutes for pain relief, and she has been unable to use the computer for longer than 10 minutes at a time since the accident.
Conclusions:
Relying on Dr. Wong's reports, the testimony of Ms. Thevaranjan and her spouse, I am persuaded that as a result of her accident injuries she could not sustain full-time work at any of the identified suitable jobs due to her dramatically reduced endurance and inability to sit, stand or keyboard for any significant time period. I find that Ms. Thevaranjan suffers a complete inability to engage in any suitable employment, and that she is entitled to ongoing income replacement benefits under subsection 5(2)(b) of the Schedule.
EXPENSES:
I find that Ms. Thevaranjan is entitled to her expenses of this arbitration pursuant to subsection 282(11) of the Insurance Act. The parties can contact the caseworker to request an assessment of expenses if they are unable to resolve the amount.
June 26, 2007
Fred Sampliner
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 131
FSCO A06-002094
BETWEEN:
BAVANI THEVARANJAN
Applicant
and
THE PERSONAL INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The Personal shall continue to pay Ms. Thevaranjan $263.51 per week as ongoing income replacement benefits under Part II of the Schedule.
The Personal shall pay Ms. Thevaranjan's expenses of this arbitration in accordance with subsection 282(11) of the Insurance Act.
June 26, 2007
Fred Sampliner
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- The parties agree that the quantum of her benefit is $263.51 per week under Part II of the Schedule.
- Subsection 5(2)(b) of the Schedule
- Bavani Thevaranjan and The Personal Insurance Company of Canada (FSCO A06-002094, May 4, 2007)