Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 93

FSCO A04-001702

BETWEEN:

VELUPILLAI YOGARAJAH

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

October 30, 31 and November 24, 2006, March 2, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Donata Di Iorio for Mr. Yogarajah

John D. Dean for RBC General Insurance Company

Issues:

The Applicant, Velupillai Yogarajah, was injured in a motor vehicle accident on June 8, 2003. He applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ RBC terminated weekly income replacement benefits on August 23, 2003. Benefits were reinstated on or about September 24, 2003 and then terminated again on November 10, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Yogarajah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Yogarajah entitled to income replacement benefit from August 24, 2003 to September 25, 2003 and from November 11, 2003 to date and ongoing, pursuant to section 4 of the Schedule?

2. Is Mr. Yogarajah entitled to payments of $100 per week for housekeeping and home maintenance from August 19, 2003 to December 19, 2003, pursuant to section 22 of the Schedule?

3. Is Mr. Yogarajah entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

1. Mr. Yogarajah is entitled to income replacement benefits from August 24, 2003 to September 25, 2003 and from November 11, 2003 to February 17, 2004, pursuant to section 4 of the Schedule.

2. Mr. Yogarajah is entitled to housekeeping and home maintenance in the amount of $20 per week, from August 19, 2003 to December 19, 2003, pursuant to section 22 of the Schedule.

3. Mr. Yogarajah is entitled to interest on these amounts found to be owing, calculated in accordance with section 46 of the Schedule.

EVIDENCE AND ANALYSIS:

Mr. Yogarajah was 35 years old at the time of the accident. A native of Sri Lanka he came to Canada as a refugee in 1995. His work has been largely physically-demanding manual labour of various kinds. In Canada he has been employed as a factory worker, dishwasher, food preparer, driver's helper and cleaner. He has limited facility with the English language and does not read or write it.

At the time of the accident he worked as a cleaner. The work was physical, from light to moderately heavy labour. His duties involved mopping, sweeping, vacuuming, emptying trash cans, etc.

Mr. Yogarajah lived alone at the time of the accident, or with his brother or a roommate (this is somewhat unclear) in a small one-bedroom apartment. He claims that he was responsible for all of the housekeeping and home maintenance tasks prior to the accident.

The accident giving rise to Mr. Yogarajah's injuries was not a very serious event. He suffered no lacerations, no part of his body struck the inside of the car and he did not lose consciousness. There is some controversy about whether he attended the hospital on the day of the accident. He claims that he did, but there is no record of it. I find that nothing much turns on whether he did or did not - it is not in the least unusual for persons suffering soft tissue injuries to not attend for medical attention immediately, however the lack of any corroboration of his attendance at the hospital that day does inform my concerns about Mr. Yogarajah's reliability as a historian.

As a result of the accident, Mr. Yogarajah suffered soft tissue injuries to his neck and lower back. In addition, he suffered headaches and shortly after the accident, began to experience a numbness in his anterior thighs. Most of these problems have resolved themselves except for the low back pain and the numbness in his lower extremities. He has not yet returned to work.

There are three distinct claim periods for income replacement benefits at issue here. The first is from August 24 to September 25, 2003 where Mr. Yogarajah was entitled to the benefit but, in RBC's submission, it is not required to pay it to him because Mr. Yogarajah allegedly failed to attend an insurer's assessment. In addition, he claims income replacement benefits from November 2003 to the 104 week mark. To be entitled to these benefits he must establish that he was substantially unable to perform the essential tasks of his pre-accident employment as a cleaner. Mr. Yogarajah also claims benefits beyond the 104 week mark with its more difficult test of a complete inability to perform the essential tasks of any occupation for which he is reasonably suited by education, training or experience.

Mr. Yogarajah was referred for physiotherapy by his family physician, Dr. Asirwatham, and attended until late October 2003. He was discharged from treatment by the treatment provider, Dr. Mallan, chiropractor, who wrote that "he had reached maximum therapeutic benefit for the musculoskeletal component of his injuries by that time." Dr. Mallan also noted that Mr. Yogarajah continued to suffer from "residual pain and functional limitations" associated with meralgia paresthetica for which he should receive treatment from his family doctor.

Much of the evidence and the most significant controversy in this case revolves around the pain and numbness in Mr. Yogarajah's lower extremities, diagnosed by some as meralgia paresthetica, and most particularly whether it is disabling. It is agreed by everyone including Dr. Asirwatham, that meralgia paresthetica is a benign condition that while unpleasant should not prevent Mr. Yogarajah from performing any of his pre-accident activities.

Mr. Yogarajah was sent for a functional capacity evaluation in July 2003 at the request of RBC. In a report dated July 22, 2003, David Morris, Michael Drinkwater and Brian LeDrew concluded that Mr. Yogarajah was pain focussed and an unreliable historian. In respect of the substantive issues, these assessors concluded that Mr. Yogarajah had suffered no injuries that would prevent him from returning to his pre-accident levels of function. An assessment conducted by someone chosen by Mr. Yogarajah in June 2003 concluded that Mr. Yogarajah was disabled and required a little more than 10 hours of housekeeping assistance per week. An in-home assessment for RBC, conducted by Ms Ainslie Somerville, concluded that Mr. Yogarajah was able to perform some but not all of his pre-accident housekeeping tasks. Ms Somerville noted functional limitations associated with the leg numbness and recommended two hours of assistance with the heavier tasks such as grocery shopping, sweeping, mopping, bathroom cleaning and bed changes, for a period of one month.

In a September 29, 2003 report, Dr. Rathbun, an orthopaedic surgeon retained by RBC, concluded that Mr. Yogarajah had not suffered an impairment as a result of the accident. Although noting that Mr. Yogarajah did not drive because of what is said to be numbness in his legs, Dr. Rathbun did not comment further on this issue. Mr. Yogarajah was also assessed by Dr. Ladowsky-Brooks, a psychologist, at the request of RBC. In a report dated October 7, 2003, Dr. Ladowsky-Brooks found mild to moderate symptoms of depression, insufficient to meet the DSM-IV criterion for a diagnosis of depression and concluded that he was not substantially disabled from returning to his pre-accident activities, but did recommend a graduated return to work over a period of four weeks.

Because of his concerns about the reported pain and numbness in Mr. Yogarajah's lower extremities, Dr. Asirwatham, referred him to a number of specialists beginning with Dr. Gilbert Yee, orthopaedic surgeon, who saw him in November 2003, but came to no clear conclusions. Dr. Asirwatham continued to seek an answer to Mr. Yogarajah's symptoms.

Despite his concerns however, Dr. Asirwatham in a note to himself in December 2003 indicates that he felt that Mr. Yogarajah might attempt to return to work in early 2004. However, in a letter from Dr. Asirwatham dated January 13, 2004, presumably intended to be provided to RBC, he indicated that Mr. Yogarajah would not be able to work until cleared by Dr. L. Corrin and Dr. V. Bril. I note that none of the treating specialists that Mr. Yogarajah saw subsequently ever comment directly on Mr. Yogarajah's objective ability to work.

Dr. Lesley Corrin, in a report dated November 26, 2003, noted "electrophysiological evidence of a more diffuse denervation" in both legs. In February 2004, he was seen by Dr. Vera Bril, a neurologist. Dr. Bril confirmed some level of numbness in the anterior thighs and because there "is some evidence of corticospinal tract impairment in the left leg and I wonder whether he had a minor trauma to the cervical spine producing these findings." Dr. Bril noted amongst other things that Mr. Yogarajah reported that he had not fallen since the accident. Dr. Bril recommended an MRI of the cervical spine and evoked potentials. The results of these tests revealed little.

In a June 4, 2004 report, Dr. Corrin summarized the investigation to that point:

He was seen by Dr. Bril, who found evidence of corticospinal tract impairment in the left leg. An MRI of the cervical spine (copy enclosed) revealed small central disc herniations at C4-5 and C5-6. These are causing mild compression on the cord, although, the spinal cord is preserved. Evoked potentials (copy enclosed) were normal. In view of his continued symptoms and inability to return to work, I have referred him to Dr. Massicotte for his opinion.

Meanwhile in July 2004, Dr. Asirwatham reported that Mr. Yogarajah was substantially unable to perform the essential tasks of his pre-accident employment because of his difficulty bending due to neck and back pains. There is no mention here of leg numbness and pain.

Dr. Massicotte, a neurosurgeon, after seeing him in October 2004,² concluded that Mr. Yogarajah was not a candidate for surgery and was asymptomatic at the time. He offers the following description of Mr. Yogarajah's circumstances:

He was involved in a motor vehicle accident in June 2003 and he believes his symptoms began at that time. He does not have any complaints of neck or arm pain. His main complaint is that of numbness in his anterior thighs which seems to be persistent and not really relieved or aggravated by any particular factors. He denies any weakness in his thighs. His other complaint which has been coming on over the last two or three months is pain in his anterior shin region which occurs mainly when he walks quickly or when he dorsiflexes his feet. Otherwise he does not really have any leg pain...

Our impression is that Mr. Yogarajah has radiographic evidence of mild degenerative disc disease changes however he is completely asymptomatic from these. His main symptoms are referred to his lower back and legs and his MRI of the lumbar spine is completely normal. I understand that he has seen several neurologists for investigations into his leg symptoms but that EMG studies have been unremarkable. He is not a candidate for surgery but we would be happy to re-evaluate him in the future if at some point he were to become symptomatic.

Dr. P. Ashby, a neurologist, saw Mr. Yogarajah in August 2005 on referral from Dr. Asirwatham. Dr. Ashby concluded that Mr. Yogarajah suffered from meralgia paresthetica, which "can produce painful numbness over the lateral thighs, worse on standing and walking." Dr. Ashby reported that he explained to Mr. Yogarajah that there was no serious pathology.

In July 2006, Dr. K. Prutis, a physiatrist, assessed Mr. Yogarajah at the request of his representative. In her report, Dr. Prutis diagnosed chronic pain and reported that Mr. Yogarajah stated that he could not work because of "diffuse musculoskeletal pain."

Mr. Yogarajah's representatives also sent Mr. Yogarajah to see Dr. J.D. Salmon, a neuropsychologist. In a report dated September 15, 2006, Dr. Salmon offers the view that Mr. Yogarajah was disabled primarily as a consequence of pain in lower back and legs. Dr. Salmon reported that Mr. Yogarajah had made one unsuccessful attempt to return to work, but found that his pain increased and he was unable to continue and that his family doctor advised him to discontinue the effort. However, Mr. Yogarajah confirmed in his evidence that he has never attempted a return to his pre-accident work activities.

Dr. Salmon also noted subclinical features of adjustment disorder with mixed anxiety and depressed mood. Dr. Salmon diagnosed a pain disorder associated with a general medical condition as supported minimally by the consistent diagnosis of chronic myofascial lumbar strain.

In the end for Dr. Asirwatham, Mr. Yogarajah's case is something of a mystery, but because he accepts what is being said to him by his patient he continues to search for a definitive answer.

Dr. Asirwatham disagrees with the diagnosis of meralgia paresthetica. Although not a precise diagnosis, Dr. Asirwatham testified that he believed Mr. Yogarajah to be suffering from some kind of nerve denervation for which there was some, limited objective support. Although the nerve conduction tests and imaging of his spine were described as essentially normal, Dr. Asirwatham cites the imaging which indicates a disc herniation, some mild impression on the spinal cord as well some mild sensory loss, reflex changes and reports of muscle weakness.

Dr. Asirwatham testified that he was concerned about an alleged susceptibility to falling possibly attributable to Mr. Yogarajah's symptoms of lower extremity numbness and pain. This might have been a significant factor as even if able to function most of the time, if susceptible to falls this might have supported a claim that Mr. Yogarajah was unable to return to his pre-accident work. However, the evidence respecting falls, with the inference that they are connected to the thigh numbness, is very sketchy. Dr. Asirwatham believes that he fell on a number of occasions, but his notes do not reflect him having been told this. Dr. Bril noted in her February 2004 report that Mr. Yogarajah had not fallen. Mr. Yogarajah himself only claimed to have fallen in the first three or four months after the accident. The only more or less clear documentation of a fall is in a July 2004 note of Dr. Asirwatham, but it is not clear what caused this fall, as Mr. Yogarajah was unable to recall it in any detail.

Even if I were prepared to accept Dr. Asirwatham's concerns about the diagnoses offered by others whose expertise ought to trump his views, that does not necessarily mean that Mr. Yogarajah is prevented by his condition from engaging in his pre-accident activities. Ultimately, the resolution of the issues in dispute turns, as it often does in cases such as this, on the strength of the evidence of the injured person, Mr. Yogarajah.

Mr. Yogarajah is not a very good historian. His testimony included a number of contradictions, but more significantly it was exceedingly vague on many of the key questions. After considering all of the evidence led by Mr. Yogarajah, it is not at all clear why it is that he still feels unable to return to his pre-accident activities almost four years after the accident.

In some sense, this is understandable in that he and his family physician have been most concerned about the numbness in his lower extremities. While many of the experts who have assessed him have concluded that it is meralgia paresthetica, Dr. Asirwatham is firmly convinced that this diagnosis is incorrect. Dr. Asirwatham may be right. However, as regards the issue before me - Mr. Yogarajah's inability to work or perform his pre-accident housekeeping - it is not clear what role this numbness and pain play. At its best, his evidence was that if he does certain things such as run or climb stairs he will occasionally experience pain that will momentarily prevent him from continuing. When asked what this phenomenon prevented him from doing, he responded that it prevented him from running. He also stated that he was reluctant to drive because of this problem, but he admitted to driving regularly if not for long distances. He is able to use public transportation.

When asked directly by his counsel why he could not work, Mr. Yogarajah responded that it was his low back pain. He had to be prompted to add that the numbness also prevented him from returning to work. He testified that bending caused him pain and that he was unable to lift the 40 lbs of weight he was sometimes required to carry as a cleaner. He was unclear about whether he still suffered the same disabilities as he might have immediately after the accident. He also testified that he cannot use a mop. Beyond these examples there is very little detail about what Mr. Yogarajah is prevented from doing by his injuries. Again, while I accept that he might not have been able to lift substantial weights or wield a mop in the weeks and months immediately after the accident, it is unclear from his evidence how long these impairments would have lasted.

Income Replacement Benefits:

RBC submits that Mr. Yogarajah failed to attend an insurer's examination on July 17, 2003 and is therefore not entitled to an income replacement benefit until he did so. It is true that Mr. Yogarajah did not attend assessments scheduled to take place on July 17, however I find that it was not unreasonable for him to have done so. Accordingly, RBC is not entitled to refuse to pay the benefit for the period August 24 to September 25, 2003.

It is clear that Mr. Yogarajah has some difficulty with the English language. Although he can understand and speak English with obvious limitations, he can neither read nor write it. I accept his evidence that the flurry of duplicative and contradictory appointment letters he received from the Insurer respecting the various appointments on July 17 would have been extremely confusing even for a fluent reader of English. I also note in this regard that Mr. Yogarajah's credibility on this point at least, is enhanced by his generally compliant response to requests for assessments by RBC.

It is also clear that Mr. Yogarajah would have been entitled to an income replacement benefit during this period. In this regard, I accept the evidence of Mr. Yogarajah and his family physician that through this period he would have been unable to return to his pre-accident activities. Indeed, there is no evidence to contradict this view. His work as a cleaner was moderately heavy. He was required to be on his feet for extended periods of time. His low back pain, and lower extremity numbness and occasional pain would have limited his ability to perform these duties.

For the second period of entitlement, from November 2003 to the so-called two year mark, the evidence of entitlement is very much less clear. After considering all of the evidence, I have concluded that Mr. Yogarajah has established an entitlement to income replacement benefits only to February 17, 2004. I make this finding for the following reasons.

I find that Dr. Asirwatham, while clearly an advocate on behalf of his patient and a victim to some degree of a level of unreliable reporting from Mr. Yogarajah, did have a reasonable basis for his concern about the reported symptoms and the need to investigate them. He believed, as he indicated in his January 13, 2004 note, that Mr. Yogarajah should not return to work until the issue was explored further. This view must be considered in light of Dr. Asirwatham's note to himself, contained in his clinical notes that Mr. Yogarajah ought to (and could presumably) safely attempt a return to work by February 2004.

I have also considered that both Dr. Mallan in November 2003, and Ms Somerville somewhat earlier, noted some limitation in function related to the condition Dr. Mallan said was meralgia paresthetica.

By mid-February, however, Dr. Bril had reported as set out above and while the investigation continued, the doctors came to no firm conclusions about what it is that causes Mr. Yogarajah's symptoms. More to the point, the presence of inexplicable symptomatology which merits exploration does not establish disability. I have given little weight to Dr. Asirwatham's view that he remains disabled to date. It is troubling that there is no concrete diagnosis for what ails Mr. Yogarajah, however a mystery does not equate with disability.

Dr. Salmon's report contains a major factual error concerning Mr. Yogarajah's attempt to return to work which calls into question the conclusions of an already weak report. Dr. Prutis' report adds little to our understanding of Mr. Yogarajah's condition and functional abilities. It may be that Mr. Yogarajah is suffering from chronic pain, but chronic pain does not of necessity require the conclusion that the individual is unable to return to pre-accident activities.

At the end of the day, Mr. Yogarajah has simply not persuaded me that he remained substantially unable to perform his pre-accident activities much beyond the end of 2003. In the absence of any compelling and credible evidence of a substantial inability to perform his pre-accident activities, it is not enough to support this claim that Mr. Yogarajah suffered some level of pain, or that his family physician disagreed with the neurological experts and felt that his symptoms required further exploration. I find that it is more likely than not that the leg numbness and pain Mr. Yogarajah is experiencing is meralgia paresthetic, a benign condition that should not affect his ability to function in a significant way. It follows from these findings that there is nothing preventing Mr. Yogarajah from returning to his pre-accident work, that there is no entitlement to an income replacement benefit beyond 104 weeks.

Housekeeping:

The housekeeping claim of $100 per week runs only from August 19 to December 19, 2003. There is some evidence of impairment until the end of 2003. The difficulty with this claim flows from the vagueness of the evidence respecting his pre-accident housekeeping activities and what was done for him after the accident. The service provider was not called. Mr. Yogarajah admitted that he had never seen the invoices submitted on his behalf, and it is quite clear based on the evidence that they were fabricated after the fact to support a claim for entitlement rather than an accurate reflection of what work was done.

Mr. Yogarajah testified that he lived in a one-bedroom apartment which at most material times he shared with either his brother or a roommate. He testified that after the accident he could not do any housework or cooking. He further testified that "Kula" the service provider would come in several days per week to cook and clean for him for 2 to 4 hours per day.

It is not clear on the basis of Mr. Yogarajah's evidence what housekeeping and homemaking tasks he was unable to perform and for how long he was prevented from doing them. Unlike his out-of-home work, much of what constitutes housekeeping would not be considered heavy work. His evidence that he required for some period of time 10 to 15 hours of work to maintain a one-bedroom apartment stretches credulity. He also stated, for example, that he needed help with grocery shopping because he could not drive, when in fact he did drive, albeit for short distances.

In the end, I can come to no firm conclusions about what housekeeping tasks Mr. Yogarajah's injuries prevented him from doing. However, it would be reasonable to conclude that he would have required some further assistance than that funded by RBC. Ainslie Somerville, who assessed Mr. Yogarajah for RBC, agreed that Mr. Yogarajah's complaints of numbness were impacting his ability to perform some of his pre-accident housekeeping activities. Dr. Mallan still noted some limitations in November 2003. I find that the minimal level of assistance recommended by Ms. Somerville because of the functional limitations Mr. Yogarajah was experiencing, two hours per week at $10 per hour, would have been required until December 19, 2003, the date the claim ends.

EXPENSES:

The parties agreed that the issue of expenses be deferred pending the release of my Order. In the event that the parties are unable to resolve this issue themselves, they may speak to it in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 9, 2007

David Muir

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 93

FSCO A04-001702

BETWEEN:

VELUPILLAI YOGARAJAH

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. RBC General Insurance Company shall pay Mr. Yogarajah income replacement benefits from August 24, 2003 to September 25, 2003 and from November 11, 2003 to February 17, 2004, pursuant to section 4 of the Schedule.

2. RBC General Insurance Company shall pay Mr. Yogarajah housekeeping and home maintenance in the amount of $20 per week, from August 19, 2003 to December 19, 2003, pursuant to section 22 of the Schedule.

3. Mr. Yogarajah is entitled to interest on these amounts found to be owing, calculated in accordance with section 46 of the Schedule.

May 9, 2007

David Muir

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Although the referral was to Dr. Massicotte, it may be that Mr. Yogarajah was actually seen by an associate of Dr. Massicotte's, Dr. Richard Perrin.