Tharmalingam v. TD Home and Auto Insurance Company, 2009 ONFSCDRS 13

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 13

FSCO A05-000372

BETWEEN:

THAVENDIRARAJAH THARMALINGAM

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

Before: Eban Bayefsky

Heard: May 5, 6, 7 and 8, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Stephen A. Young for Mr. Tharmalingam David Smagata for TD Home and Auto Insurance Company

Issues:

The Applicant, Thavendirarajah Tharmalingam, was injured in a motor vehicle accident on February 20, 2003. He applied for and received statutory accident benefits from TD Home and Auto Insurance Company (“TD Home”), payable under the Schedule.¹ TD Home terminated weekly income replacement benefits on August 3, 2005. The parties were unable to resolve their disputes through mediation, and Mr. Tharmalingam 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 Mr. Tharmalingam entitled to receive income replacement benefits from August 3, 2005, at a rate of $353 per week, with interest, pursuant to section 5 of the Schedule?
Is either party entitled to their expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

Mr. Tharmalingam is entitled to receive income replacement benefits from August 3, 2005, at a rate of $353 per week, with interest.
If required, the parties may make submissions on the issue of expenses in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Pursuant to section 5(2) of the Schedule, TD Home is not required to pay Mr. Tharmalingam an income replacement benefit for any period longer than 104 weeks of disability, unless as a result of the accident, Mr. Tharmalingam suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience. Mr. Tharmalingam maintained that, as a result of the accident, he suffered significant physical and psychological impairments and that, due to these impairments, he was rendered completely unable to engage in any employment for which he was reasonably suited by education, training or experience. TD Home maintained that Mr. Tharmalingam did not suffer significant injuries as a result of the accident and that he was, in fact, capable of doing a number of jobs after the accident. Mr. Tharmalingam bears the onus of demonstrating, on a balance of probabilities, that he suffered the requisite degree of disability.²

(i) The Accident

Mr. Tharmalingam was injured in a motor vehicle accident on February 20, 2003 when the car he was driving on Highway 400 was rear-ended as he exited onto Highway 401 in Toronto. Mr. Tharmalingam testified that his car was hit twice in the process, the first being a “heavy blow” and the second one only causing a “slight movement of his body.” He said that he was in “great shock,” was “nervous” and “shivering” after the accident. He said that he was “worried about [his] vehicle” because it was leased. He said that the police attended and that he told them he was “o.k.” The police told him to take his car to a collision reporting centre, which he did, and he then drove home. Mr. Tharmalingam testified that damage to the rear bumper of his car was $1,500. An insurance appraisal estimated the damage to be $1,353.73 (consisting of $690.95 in parts, and $484.20 in labour and taxes).

Mr. Tharmalingam testified that, the following day, he woke up with only a slight pain in his back and that he went to work. He said that he did his regular job (as a spot welder) and that his pain started slowly. He took his morning break, after which he could not get up from his seat. He said that he told his supervisor about his pain and that he would go to see his doctor if his pain worsened. He said that, by his lunch break, his pain was “very heavy” and that he told his supervisor, who said he should go to see the doctor. Mr. Tharmalingam testified that he had lower back and neck pain at work, and that he could not bend or straighten up properly, although he acknowledged his statement on February 7, 2006 to Dr. G.D. Gale, a pain specialist, that his neck pain, in fact, began 2 to 3 months after the accident. He said that while he could not finish work that day, he did not go to his family doctor, Dr. Elizabeth George, since she had left for the afternoon. He said that he saw Dr. George the following day. Dr. George referred Mr. Tharmalingam to a pain specialist, Dr. Charlebois.

Mr. Tharmalingam’s wife, Anoja Thiagarajah, testified that her husband complained of pain the morning after the accident and that he returned home that afternoon.

(ii) Mr. Tharmalingam’s pre- and post-accident medical condition

Mr. Tharmalingam testified that, prior to the accident, he was a happy and healthy man who enjoyed life, was hard working and could support his wife, children and mother. Mr. Tharmalingam has two children, a daughter who was 5 years old and a son who was 8 years old at the time of the accident. Mr. Tharmalingam’s son is autistic and has attention deficit hyperactivity disorder. Ms. Thiagarajah testified that, prior to the accident, her husband was an active, supportive and hard-working person, doing various household tasks and helping her with their son. Ms. Thiagarajah said that she had been overwhelmed with the stress of taking care of her son and that, on the advice of a doctor, her husband quit the part-time job he was doing at the same time as his full-time welding job in order to spend more time at home helping around the house.

Mr. Tharmalingam stated that, since the accident, he has suffered excruciating low back and neck pain, and has seen many doctors. He also said that his whole body has been painful, and that he has been unable to walk, stand or sit. He stated that he gets angry, is dizzy all the time, has troubling sleeping and cannot concentrate on anything. He said that the various medications he takes do not help him, and that he only receives relief for approximately 30-40 minutes. He said that he cannot help his wife and children, that he depends on his wife for everything and that he is very frustrated. He said that his wife has suffered a great deal since the accident because she has had to care for both himself and their son, who requires constant attention. He said that, following the accident, he had to sell his condominium and that he declared bankruptcy. He said that he can no longer feed his family.

Ms. Thiagarajah testified that her husband’s condition has gradually worsened since the accident and that he complains of lower back and neck pain, as well as pain in his knee, hand and right leg. She said that, since the accident, her husband has lost concentration and has been angry, unhappy and listless. She said that her husband no longer has the patience to help with their son. She said that she, herself, suffers from elbow and shoulder pain, and that she has trouble coping with this at the same time that she is required to care for her son, husband and daughter.

Mr. Tharmalingam said that, in a typical day, he sits in a special chair, takes medication and sleeps. He said that he sees his son off on the school bus each day and is able to drive his daughter to school, which is less than a kilometre from their home. He said that, during the night, he wakes up in pain, walks around and tries to go back to sleep either in his chair or on the floor. He says that he never feels rested upon waking the following day. Ms. Thiagarajah testified that her husband now does very little around the house and is “usually reclining.” She said that he sends their son to school, takes their daughter to school and goes to the doctor on his own. She said that she cooks for him, applies heat packs and cream to his back, and helps him put on his socks and shoes. She stated that he gets up frequently at night, and reclines in his chair or on the floor.

(iii) Mr. Tharmalingam’s pre- and post-accident education and employment situation

Mr. Tharmalingam immigrated to Canada in 1989 from Sri Lanka. He had a Grade 12 education in Sri Lanka. He stated that he has a limited ability to speak and read English, and cannot write in English. He gave his testimony through a Tamil interpreter. Prior to immigrating to Canada, Mr. Tharmalingam was a mathematics tutor for students in grades 6 to 10.

Approximately six months after arriving in Canada, Mr. Tharmalingam obtained a job as an “order packer” at Grote Manufacturing Ltd., where he worked until 1991. In this job, he would take automobile lights down from shelves, weigh them, wrap them and place them on a skid. He said he had to read invoices in this job.

Mr. Tharmalingam then held jobs at a gas station for a few months (pumping gas and working the cash register) and as a bus-boy at a restaurant for approximately 2 years.

Mr. Tharmalingam testified that, from 1993 to 1998, he worked full-time as a spot welder at William Brothers Company, where he stood in one place at a machine welding metal pieces. He said that, for approximately 7 to 8 months while working at William Brothers, he worked a second full-time job cutting wood sheets at a “wood tape” company. At another time during his employment with William Brothers, he worked part-time delivering newspapers.

Mr. Tharmalingam testified that, from 1998 to the time of the accident, he worked full-time as a “mig welder” at PSC Cleaning Systems Inc., where he welded steel pieces to build the bases of pressure washing machines. He said that he had to follow blue-prints precisely in doing this job. He testified that he and a co-worker would carry sheets of metal to a place in the shop where he would cut them and weld them. He said that it was very physical work, involving carrying large pieces of steel (weighing at least 50 pounds), moving and bending while cutting, grinding and welding the pieces, and transferring the finished bases to skids (the bases weighing from 40 to over 100 pounds). Mr. Tharmalingam testified that he thoroughly enjoyed this work, due in large part to the congenial and supportive environment provided by management.

Mr. Tharmalingam testified that he has not worked since the accident. He said that he has not looked for work since the accident because he is in constant pain, does not get enough sleep and can no longer concentrate. He said that he did not have the concentration and could not do the standing, lifting, carrying or bending required in the order packing or welding jobs he did prior to the accident. He said that he “even needs help putting on his socks and shoes” and, therefore, asked, “how can I work?” He said that he has “lost everything” and was a “useless person now.” He said that he likes to work, that he does not want this “lazy type of life” and that he would work if he could. When asked whether he thought he could be retrained to do another job, he said that he cannot teach math to his grade 5 daughter because he cannot concentrate, and, therefore, asked, “How can I be trained?”

(iv) Medical Assessments of Mr. Tharmalingam

Mr. Tharmalingam underwent numerous medical assessments following the accident. The following is a summary of the resulting reports, and of the testimony of the practitioners who testified at the hearing.

On April 21, 2003, at the request of the Insurer, Mr. Tharmalingam underwent a physiatry examination by Dr. F. Lipson, an internal medicine and rehabilitation specialist. Dr. Lipson stated that he could not “capture any physical impairment at this stage” but that there should be a “gradual return to duties…to prevent future problems with his back.”

On August 12, 2003, Dr. A. Kachooie, a physiatrist to whom Dr. Charlebois had referred Mr. Tharmalingam, diagnosed “right SI joint instability, ligamentous injury[,] symphysis pubis diastasis [and] mild residual whiplash.” Dr. Kachooie recommended a course of active rehabilitation, supportive devices, pain injections and medication.

Dr. Lipson re-examined Mr. Tharmalingam on January 26, 2004 and reported that Mr. Tharmalingam had suffered a soft-tissue injury to his cervical and lumbar spine as a result of the accident. Dr. Lipson stated there was “no organic basis for the majority of [Mr. Tharmalingam’s] symptoms” and that he was “capable of returning to work.”

On February 2, 2004, at the request of the Insurer, Mr. Tharmalingam underwent a functional abilities evaluation by Karen Start, a certified ARCON evaluator. Ms. Start reported that Mr. Tharmalingam “did not demonstrate the ability to perform all the tasks required for a Welder.” Ms. Start stated that Mr. Tharmalingam “provided some effort throughout the evaluation, although there were signs of self-limitation on specific validity measures” and that the assessment results were, therefore, considered to be a “somewhat accurate representation of his current abilities and limitations.”

On March 9, 2004, Dr. Rafaela Davila, a psychologist to whom Mr. Tharmalingam had been referred by Dr. A. Kachooie, reported that Mr. Tharmalingam met the “DSM-IV criteria for a Major Depressive Episode.” Dr. Davila stated that he had “no reason to doubt the credibility of the client’s self-report….”

On March 25, 2004, at the request of the Insurer, Mr. Tharmalingam was examined by Dr. R. Silverman, a psychologist. Dr. Silverman reported, in part, as follows:

Mr. Tharmalingam’s presenting symptoms and complaints were suggestive of a possible psychologically based Pain Disorder. However, within the context of the current assessment, he attained several invalid and marginally valid results on psychological testing that were suggestive of symptom embellishment and magnification. There was also a marked discrepancy between his self-reported symptoms and his manifest distress and observable symptomatology. The apparent presence of symptom embellishment obfuscates issues pertaining to clinical diagnosis. Although he has likely been upset and frustrated in connection with his persisting residual physical complaints, my opinion is that he has not developed an accident-related psychological impairment or a diagnosable mental disorder.

…To some extent, his psychological symptoms might be influenced by the recent death of his father in February 2004 and his estrangement from his family in Sri Lanka.

In my opinion, his psychological symptoms do not result in an impairment that would constitute a disability regarding his capacity to perform his essential work duties.

Psychological testing results coupled with the marked discrepancy between his self-report and manifest or observable symptomatology were strong [sic] suggestive of symptom magnification and embellishment.

On November 8, 2004, at the request of the Insurer, Mr. Tharmalingam underwent a second functional abilities evaluation, this time by Sandi Danilowitz, a certified ARCON evaluator. Ms. Danilowitz reported that Mr. Tharmalingam “did not demonstrate the ability to perform all the tasks required for a Welder; however, the results of the assessment are variable, suggesting he may be capable of performing at a higher function.” Ms. Danilowitz commented that Mr. Tharmalingam provided a “variable effort during the evaluation” and that there were “signs of self-limitations during the assessment…suggesting he may be capable of performing at a higher function.” Ms. Danilowitz, therefore, concluded that the results of the evaluation were considered to be “a sub-maximal representation of his current abilities and limitations.”

Dr. Silverman examined Mr. Tharmalingam again on November 19, 2004, at which time Dr. Silverman reported, in part, as follows:

The evidence from the current assessment suggests [Mr. Tharmalingam] exaggerated his psychological and cognitive symptoms and did not put forth an entirely candid effort, especially on the TOMM and Digit Memory Test. There was also evidence of symptom embellishment on the Personality Assessment Inventory. His exaggerated profile was consistent with previous assessment results….[His] apparent effort to present an inaccurate representation of his actual accident-related psychological problems has continued to raise questions about his credibility and has obfuscated his clinical diagnosis and prognosis.

Although [Mr. Tharmalingam] appears to have exaggerated his symptoms, the weight of the evidence suggests he has been highly pain-focused and concerned about his pain-related lifestyle disruptions….He has also been worried about the persistence of several post-accident stressors, including his somatic complaints, prognosis, and future work status. It seems evident that his depressive symptoms and anxiety have also been aggravated by the difficulties and challenges associated with managing the behavioral and emotional difficulties of his 10-year-old son who apparently suffers from Pervasive Developmental Disorder and Attention Deficit Disorder….

My impression is that [Mr. Tharmalingam] has been genuinely concerned about his somatic problems and functional limitations. The available evidence suggests a pre-existing history of physical problems that he believes were caused or exacerbated by the accident. With his concerns about his physical injuries and persistent pain, he appears to have become self-limiting and inactive, with ongoing ruminative worries about his physical condition….

Although [Mr. Tharmalingam] appears to have developed adjustment difficulties in relation to his motor vehicle accident, in my opinion, from a psychological perspective, he is not suffering a substantial inability to perform the essential tasks of his employment of [sic] his activities of daily living. Moreover, his psychological symptoms, which appear to have been perpetuated by his inactive lifestyle and maladaptive lifestyle patterns, will likely improve with his resumption of a more structured lifestyle and his successful negotiation of the transition to the workforce. With his return to work, [Mr. Tharmalingam] would also be less exposed to the ongoing behavioral and emotional problems of his son. [Mr. Tharmalingam’s] ongoing concerns about his physical functioning and possibly his son’s well being appear to represent the main barriers to his return to work. These concerns will need to be firmly addressed as part of his overall rehabilitation.

Dr. Silverman testified that because Mr. Tharmalingam put forward a “sub-optimal effort” and exhibited signs of exaggeration, he was unable to offer a diagnosis of Mr. Tharmalingam’s psychological condition. Dr. Silverman testified that Mr. Tharmalingam’s diagnosis was “complicated” and “not straightforward.” He stated that “magnification” did not mean that Mr. Tharmalingam’s symptoms were not legitimate or that he was not “suffering in his own way.” Dr. Silverman said that, “whether or not the pain was legitimate,” Mr. Tharmalingam was “reasonably concerned about his pain.” Dr. Silverman testified that he could not say “firmly” that Mr. Tharmalingam’s pain was the cause of his being away from work, and questioned whether it might be due to the need to stay home to assist his wife with his autistic son or to obtain compensation; Dr. Silverman said he did not know what the cause was.

Dr. Silverman noted that the tests administered by Dr. Davila had not contained “internal validity standards” and that the results were accepted at “face value.” Dr. Silverman said that Mr. Tharmalingam did not show signs of a major depression and was better considered to have suffered an adjustment disorder as a result of the accident. Dr. Silverman stated that although Mr. Tharmalingam described cognitive difficulties, he did not exhibit these upon being interviewed.

On cross-examination, Dr. Silverman acknowledged that Mr. Tharmalingam had described suicidal thoughts, sitting in the dark (as well as sleep disturbance and cognitive problems), which were clear signs of depression. Dr. Silverman further acknowledged that the manner in which Mr. Tharmalingam perceived himself would affect the results in the “Pain Patient Profile” or “P- 3” test (an instrument to evaluate emotional distress associated with primary complaints of pain, and which yielded an invalid profile for Mr. Tharmalingam). Dr. Silverman noted that Mr. Tharmalingam obtained a valid score on the P3 test in the second assessment. Dr. Silverman also stated that, although Mr. Tharmalingam obtained very low scores on at least two of the validity tests (the Trauma Symptom Inventory and Miller Forensic Assessment of Symptoms Test), the results nevertheless fell in the valid category. Dr. Silverman testified that the fact he could not render a diagnosis did not mean that Mr. Tharmalingam was “fine psychologically” and that even the invalid test results had to be interpreted in the context of all of the information. Dr. Silverman testified that, if Mr. Tharmalingam had, in fact, been depressed, he would have been seeing a psychiatrist and taking antidepressant medication; Dr. Silverman stated that he was not aware that Mr. Tharmalingam had later begun to see a psychiatrist and to take antidepressant medication. Dr. Silverman acknowledged that depression and anxiety could “definitely affect” a person’s cognitive functioning, concentration, memory and energy level. Dr. Silverman stated that, in order to deal with a chronic pain condition, it was best to return to a structured routine, since it distracts a person from their pain and is, therefore, rehabilitative.

Dr. Lipson saw Mr. Tharmalingam a third time on November 19, 2004, at which time Dr. Lipson stated that Mr. Tharmalingam “provided a variable effort during the evaluation,” that there were “signs of self limitations during the assessment also suggesting he may be capable of performing at a higher function” and that the “results of the evaluation [were] considered to be [a] sub-maximal representation of his current abilities and limitations.” Dr. Lipson stated that Mr. Tharmalingam “has been getting progressive problems involving his lower extremities and his urinary tract that are not accident related” and that “if there is no evidence of cord compression present [then] there is no physical abnormality and this pain and limitation that he is experiencing does not have an underlying organic cause.”

Dr. Lipson testified that he thought that Mr. Tharmalingam “had pain,” but that he “should be functioning at a higher level.” Dr. Lipson stated that Mr. Tharmalingam had pre-existing abnormalities in his spine that would have “little problem absorbing a minor impact.” However, Dr. Lipson acknowledged that Mr. Tharmalingam was asymptomatic before the accident. Dr. Lipson also acknowledged that pain and limitations could arise from non-organic problems, that pain can continue after soft-tissue injuries have resolved and that one can be both pain-focussed and in pain.

In April 2005, Mr. Tharmalingam underwent a multidisciplinary post-104 week disability DAC assessment. The primary evaluator, Dr. H. Platnick, reported that Mr. Tharmalingam sustained “uncomplicated soft tissue injuries to his neck…and back” as a result of the accident, that the mechanism of the accident did not support a “fracture to the sacrum” and that there was no evidence of musculoskeletal or neurological accident-related injury. Dr. Platnick stated that he did “not identify any accident-related injury that would restrict standing, walking, bending, stooping, crouching, reaching, gripping, lifting, carrying or pushing/pulling.” Dr. Platnick concluded that Mr. Tharmalingam did not suffer a complete inability to engage in any occupation for which he was reasonably suited by education, training or experience.

The psychiatric DAC assessor, Dr. L. Reznek, reported that Mr. Tharmalingam was not suffering from a Major Depressive Episode, an Adjustment Disorder with Depression and/or Anxious Mood, Post-Traumatic Stress Disorder, Pain Disorder or a mild traumatic brain injury. Dr. Reznek stated that, from a psychiatric perspective, Mr. Tharmalingam was not disabled from returning to work as a spot welder or other job for which he was reasonably suited.

The psychological DAC assessor, Dr. N.E. Morris, reported that Mr. Tharmalingam was “suffering from psychological or emotional impairments consequent to his motor vehicle accident but that his emotional difficulties do not appear to meet the disability test to render him completely disabled from engaging in any employment for which is suited by education, training, or experience” (emphasis in original). Dr. Morris reported that Mr. Tharmalingam met the criteria for a “Pain Disorder Associated with Psychological Factors, as well as an Adjustment Disorder with Mixed Anxiety and Depressed Mood.” Dr. Morris stated that the pain disorder was “reflected in reduced general activity and social involvement, firm adherence to belief in a purely medical solution to his pain, and avoidance of return to work until cleared by physical assessors.” Dr. Morris further stated that the adjustment disorder seemed to be “associated with multiple stressors with ongoing consequences, including a slow recovery from soft tissue injury after the motor vehicle accident, coping with behavioral problems in his son, and periodic spousal depressed mood.” Dr. Morris did not feel that these impairments were “sufficiently pronounced as to preclude a return to reasonable and competitive employment on a purely psychological basis.” Dr. Morris prepared an “integrated vocational profile” in which he recommended the following occupations as “guardedly offered as potentially suited” for Mr. Tharmalingam (given the likelihood that his vocational aptitudes were higher than indicated in his test results): Food Service Counter Attendant and Food Preparer, Gas Bar Attendant, Parking Lot Attendant. Dr. Morris indicated that it would still need to be determined whether these positions were comparable in remuneration to Mr. Tharmalingam’s pre-accident employment. Dr. Morris suggested that, “from a psychovocational perspective,” Mr. Tharmalingam was capable of returning to the positions in which he had previously had experience.

The DAC occupational therapist, Roberta Saunders, set out the following NOC “occupational cluster summary” based on Mr. Tharmalingam’s education, training and experience: Tutor (sedentary), Self-Serve Gas Station Cashier (sedentary), Bus Boy (light), Spot Welder (light-medium) and Order Packer (light medium).

Finally, Mr. Tharmalingam underwent a functional abilities evaluation as part of the DAC assessment. The assessor, Pearl Mark, a certified kinesiologist, reported that Mr. Tharmalingam presented with “overt pain behaviours,” that “[o]verall, results of functional testing may not be an accurate reflection of maximum capabilities” and that Mr. Tharmalingam was considered to be “self-limiting by his ongoing pain symptoms.” The general finding of the assessment was that Mr. Tharmalingam was “not disabled.”

On January 4, 2006, Dr. T. Sooriabalan, a psychiatrist to whom Mr. Tharmalingam’s family doctor had referred him, diagnosed “major depressive disorder and chronic pain syndrome.” He prescribed medication, as well as regular sessions for “cognitive behaviour therapy.” Dr. Sooriabalan commented that “Tharma was dressed appropriately [and] answered questions relevantly.”

On February 8, 2006, Dr. G.D. Gale, a pain specialist to whom Mr. Tharmalingam’s previous counsel had referred him, reported that Mr. Tharmalingam was suffering from “biomechanical disorder of the spine,” “severe pelvic injuries,” “radiculopathy of the right leg,” “chronic pain disorder” and “depression, anxiety and post-traumatic stress disorder.” Dr. Gale reported that “the sum-total of his injuries of the spine and the sacrum all appeared to relate to the motor vehicle accident and in my opinion were caused by it.” Dr. Gale stated that “these problems will render [Mr. Tharmalingam] disabled permanently.” Dr. Gale concluded that Mr. Tharmalingam was incapable of returning to his pre-accident employment and to any employment for which he was reasonably suited by education, training or experience. Dr. Gale noted that Mr. Tharmalingam had “no transferable skills, a limited knowledge of English” and, due as well to his “severe degree of pain,” could “not be retrained, even for a job that is less physically demanding.”

On February 16, 2006, Dr. Davila, who had been treating Mr. Tharmalingam since January 2004, reported that Mr. Tharmalingam “continue[d] to meet the DSM-IV criteria for Major Depression Episode and Generalized Anxiety Disorder.” Dr. Davila also reported that Mr. Tharmalingam currently met the “DSM-IV criteria for a Somatoform Disorder, Pain Disorder Associated with Both Psychological Factors and General Medical Condition.” Dr. Davila stated that Mr. Tharmalingam’s condition appeared to be “of a chronic nature.”

At the request of Mr. Tharmalingam’s family doctor as of 2004, Dr. R.I. Asirwatham,³ Mr. Tharmalingam saw Dr. L. Picard, a neurologist, on March 31, 2006. On April 19, 2006, Dr. Picard reported that Mr. Tharmalingam had stenosis at the L4-L5 level of his spine, but that this likely did not explain Mr. Tharmalingam’s chronic pain. Dr. Picard suggested that Mr. Tharmalingam be treated “along the lines of [a] ‘chronic pain model.’” Dr. Picard saw Mr. Tharmalingam again in July 2007 and suggested that the objective findings did not seem to explain Mr. Tharmalingam’s condition; Dr. Picard stated that “once again, I think this man largely needs pain management.”

On April 20, 2006, on the referral of his previous counsel, Mr. Tharmalingam was examined by Dr. B. Alpert, an orthopaedic surgeon. On May 26, 2008, Dr. Alpert reported that Mr. Tharmalingam suffered “permanent and severe residual musculoskeletal impairments in his lumbar spine, right sacroiliac joint, and cervical spine, as a result of the injuries sustained during the motor vehicle accident on February 20, 2003.” Dr. Alpert stated that the accident “likely aggravated Mr. Tharmalingam’s pre-existing [asymptomatic] lumbar degenerative discs….” Dr. Alpert concluded that Mr. Tharmalingam “remain[ed] disabled on a long-term basis and is unable to perform his pre-accident essential employment duties as a welder or any other type of gainful employment….” Dr. Alpert recommended a “multi-disciplinary chronic pain management intervention.”

Dr. Alpert testified that he found a number of indications of the veracity of Mr. Tharmalingam’s complaints of chronic muskulo-skeletal pain, including the absence of pre-accident back problems (despite pre-existing degenerative disc disease), the various medications Mr. Tharmalingam had taken since the accident, his inability to sit in one position, the objective presence of muscle spasm, and limited range of movement upon testing. Dr. Alpert testified that Mr. Tharmalingam gave a full effort during the examination and that his subjective complaints were consistent with the objective findings. Dr. Alpert noted that the accident involved a significant impact and that Mr. Tharmalingam’s spine was more susceptible to injury. In cross-examination, Dr. Alpert testified that it “might be a concern” if straight-leg testing produced different results.

On September 1, 2006, Dr. Asirwatham reported that Mr. Tharmalingam was “probably permanently disabled” and would “never be able to do any gainful employment.” Dr. Asirwatham testified that he saw Mr. Tharmalingam approximately 40 times from August 2003 to the present. Dr. Asirwatham stated that he administered tests to assess Mr. Tharmalingam’s back pain and that he had “no doubt” that Mr. Tharmalingam had a back problem that needed attention. He stated that he had had the advantage of seeing Mr. Tharmalingam numerous times. Dr. Asirwatham testified that he did not believe Mr. Tharmalingam was exaggerating his problems, that Mr. Tharmalingam could not return to work in any capacity and that he would likely have these problems for a very long time.

On September 8, 2006, Dr. Sooriabalan reported that Mr. Tharmalingam was suffering from “major depressive episode and chronic pain syndrome.” Dr. Sooriabalan stated that Mr. Tharmalingam’s “symptoms are continuous” and that he did not “see any relief of the pain both physically and emotionally due to the lack of response of all the treatments provided to him by various specialists.”

On September 28, 2006, Dr. Davila reiterated these diagnoses and stated that “the pain is not considered feigned.” He also reported as follows:

These conditions are considered of a severe nature and prevent him from resuming competitive employment. [Mr. Tharmalingam’s] condition appears to be of a chronic nature and has been resistant to appropriate traditional interventions.

Regarding the relationship of these disorders to the motor vehicle accident of February 20, 2003; [Mr. Tharmalingam’s] self report and the review of the medical brief provided no indications that he had endured depression, anxiety, or a pain condition prior to the motor vehicle accident of February 2003. Pain conditions as the one presented by [Mr. Tharmalingam] are common after motor vehicle accidents like the one [Mr. Tharmalingam] experienced, rear-ended with considerable forces involved. In my opinion the pain condition presented by [Mr. Tharmalingam] is a result of the motor vehicle accident of February 20, 2003. The Major depression Episode and the Generalized Anxiety Disorder are related to the pain condition, the limitations associated with it, and all the negative changes in his life style. Although stressful life conditions and personality variables are factors in his clinical presentation; in my opinion the motor vehicle accident of February 2003 played the major role in the development of this condition.

On January 25, 2007, Corinne McAuley, a psycho-vocational consultant, and Joel Kumove, a rehabilitation counsellor, to whom Mr. Tharmalingam’s previous counsel had referred him, interviewed Mr. Tharmalingam. On Februaruy 7, 2007 Ms. McCauley reported as follows:

…Tharma’s accident has had a profound effect on his ability to reintegrate in the workforce. He can no longer return to manual labour, and it appears by the medical documentation that he could not perform a more sedentary level occupation due to his chronic pain and functional limitations. Retraining does not seem a realistic option for Tharma. Even if he were able to handle the demands of returning to school, training to become a math teacher would take years of education. He is already 45 and he would need to take academic upgrading prior to university studies. He would also need to be up for the cognitive demands of concentrating on his studies, and to be able to sit in a classroom for long periods. He also faces barriers of limited English language skills and educational attainment, as well as limited transferrable skills related to physical work. Therefore, I am of the opinion that Tharma is substantially unemployable.

On February 13, 2007, Mr. Kumove reported that he could not “envisage any form of alternate employment that would be suitable or attainable, given [Mr. Tharmalingam’s] current level of pain experience and mental distress.”

Mr. Kumove testified that Mr. Tharmalingam’s presentation during the clinical interview was of someone who was “quite sad, anxious and in pain.” Mr. Kumove stated that, in his view, Mr. Tharmalingam had a long and consistent history of complaints. Mr. Kumove stated that Mr. Tharmalingam’s presentation and test results were consistent with the complaints noted in the previous medical reports. Mr. Kumove testified that Mr. Tharmalingam appeared to be genuine, not exaggerating. Mr. Kumove stated that Mr. Tharmalingam’s results on the P-3 test suggested that he was suffering from depression and anxiety. Mr. Kumove testified that pain and emotional distress can result in lower test scores. In cross-examination, Mr. Kumove stated that the tests he and Ms. McAuley administered did not have validity measures; he added that it was, therefore, necessary to observe the person and that, despite his pain, Mr. Tharmalingam persevered during the day. Mr. Kumove testified that he assessed Mr. Tharmalingam based on a combination of his self-reports, the consistency of his complaints, his test results and his presentation. Mr. Kumove testified that Mr. Tharmalingam had a good pre-accident work history and that there was no reason to believe his symptoms were untrue.

FINDINGS

I find that Mr. Tharmalingam is entitled to income replacement benefits from August 3, 2005 on the basis that, as a result of the February 20, 2003 motor vehicle accident, he suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.

As a general matter, I found Mr. Tharmalingam to be a credible witness, testifying in a straightforward and reliable manner. In both his oral and written evidence, Mr. Tharmalingam consistently described the circumstances of the accident, the development of his symptoms following the accident and the general extent of his disability. Mr. Tharmalingam’s wife also testified in a consistent and straightforward manner, corroborating his testimony concerning the onset of his symptoms and his daily routine following the accident. I find significant (and see no reason to doubt) that Mr. Tharmalingam’s life deteriorated to such an extent following the accident that he had to sell his house and declare bankruptcy.

While Mr. Tharmalingam’s evidence contained some discrepancies, I find that these were relatively minor and did not affect the overall veracity of his testimony. For example, Mr. Tharmalingam testified that he had not worked since the day following the accident (Friday, February 21, 2003), whereas the Employer’s Confirmation of Income form (the “OCF-2”) indicates that the last date on which Mr. Tharmalingam worked was February 25, 2003 (the following Tuesday). Mr. Tharmalingam was not questioned on this point and the employer was not called to explain whether the date recorded on the OCF-2 was, in fact, the last day on which Mr. Tharmalingam worked or whether that date was used for administrative purposes. Similarly, at the hearing, Mr. Tharmalingam denied Dr. Lipson’s January 2004 report that, unlike the April 2003 visit, he could no longer touch his toes. However, this was a minor discrepancy, it did not affect Dr. Lipson’s diagnosis of soft-tissue injuries and it does not detract from (and may well be a function of) the psycho-emotional nature of Mr. Tharmalingam’s condition. I find that Mr. Tharmalingam gave a generally consistent and reliable account of his accident-related injuries.

The medical evidence supports the view that Mr. Tharmalingam credibly reported the nature and extent of his impairment. Only a few of the medical practitioners who examined Mr. Tharmalingam questioned the veracity of his complaints, and of these, their opinions either failed to consider the non-organic nature of Mr. Tharmalingam’s condition or acknowledged the legitimacy of Mr. Tharmalingam’s pain and limitations.

For example, Dr. Lipson initially reported that he could not “capture any physical impairment” and then reported that Mr. Tharmalingam had suffered a “soft-tissue injury” with no “organic basis” for the “majority” of his symptoms. At the hearing, Dr. Lipson acknowledged that Mr. Tharmalingam had pain and that, despite potentially being pain-focussed, he could suffer pain and limitations as a result of non-organic problems.

Dr. Silverman found strong indications of “symptom magnification and embellishment” but then reported that Mr. Tharmalingam suffered from “physical injuries and persistent pain,” “depressive symptoms and anxiety,” “adjustment difficulties in relation to his motor vehicle accident” and was “genuinely concerned about his somatic problems and functional limitations.” Dr. Silverman also testified that Mr. Tharmalingam was “reasonably concerned about his pain” and that a finding of symptom magnification did not mean that Mr. Tharmalingam’s symptoms were not legitimate or that he was not “suffering in his own way.”

Of the ARCON evaluators and kinesiologists who examined Mr. Tharmalingam, Ms. Start, Ms. Danilowitz and Ms. Mark all reported that Mr. Tharmalingam had “self-limited” during physical testing, but did not comment on the potentially psychological/non-organic nature of his problems (although this might well have been related to the particular expertise of these assessors).

In contrast, various assessors directly addressed Mr. Tharmalingam’s psycho-emotional condition and found that he credibly suffered certain impairments. Dr. Davila found that Mr. Tharmalingam honestly reported his symptoms and that he initially suffered a major depressive episode. Dr. Davila later stated that Mr. Tharmalingam’s pain was not feigned and that he suffered from Generalized Anxiety Disorder, Somatoform Disorder, Pain Disorder Associated with Psychological Factors and General Medical Condition. While Dr. Silverman disputed Dr. Davila’s findings on the basis that his tests had not contained internal validity standards, Dr. Silverman allowed that Mr. Tharmalingam had suffered an adjustment disorder in relation to the motor vehicle accident, that he had described symptoms and undergone treatment reflective of depression, and that the tests on which Mr. Tharmalingam obtained invalid scores could very well have been affected by his psycho-emotional state.

Dr. Sooriabalan reported that Mr. Tharmalingam answered questions relevantly and that he suffered a major depressive episode and chronic pain syndrome. Dr. Gale found that, as a result of the accident, Mr. Tharmalingam suffered chronic pain disorder, depression, anxiety and post-traumatic stress disorder. Dr. Picard reported that the objective neurological findings did not explain Mr. Tharmalingam’s ongoing pain and that he ought to receive pain management in accordance with a chronic pain model. I find significant that, while Dr. Reznek, the psychiatric DAC assessor, found that Mr. Tharmalingam had not suffered from a major depressive episode, adjustment disorder with depression, anxious mood, post-traumatic stress disorder or pain disorder, Dr. Morris, the psychological DAC assessor, found that Mr. Tharmalingam suffered from pain disorder associated with psychological factors, adjustment disorder with mixed anxiety and depressed mood.

Finally, in respect of the credibility of Mr. Tharmalingam’s physical complaints, I find the comments of Dr. Asirwatham, Dr. Alpert and Mr. Kumove to be helpful. Dr. Asirwatham based his acceptance of the legitimacy of Mr. Tharmalingam’s symptoms, in part, on the fact that he had had the advantage of seeing Mr. Tharmalingam on a number of occasions. Dr. Alpert noted various indicia of the veracity of Mr. Tharmalingam’s complaints, for example, pre-existing but asymptomatic degenerative disc disease, extensive post-accident use of medication, and objective muscle spasm, limited range of motion and the inability to sit in one position. I note that Mr. Tharmalingam got up from his chair on a regular basis during the hearing. Mr. Kumove observed that Mr. Tharmalingam appeared to be sad, anxious and in pain, and noted that, despite the absence of validity measures in the tests he administered, Mr. Tharmalingam’s overall presentation supported the veracity of this complaints. As noted, Mr. Tharmalingam appeared to be in considerable discomfort at the hearing, and became visibly distraught in discussing his inability to help his wife at home and with their son as a result of the accident.

There is some disagreement in the medical opinions about the severity of the impact, with Drs. Lipson and Platnick suggesting it was relatively minor, and with Drs. Alpert and Davila indicating it was quite significant. While the accident did not involve significant property damage to Mr. Tharmalingam’s vehicle, and while he did not suffer pain immediately, I find that Mr. Tharmalingam was subjected to considerable force in the initial impact and that he was emotionally shaken as a result of the accident. I accept that he began to experience pain the following morning, as both he and his wife testified. I do not attribute any significance to the apparent discrepancy in Mr. Tharmalingam’s evidence regarding the onset of his neck pain following the accident. I am satisfied that, at the very least, he suffered sufficient back pain to require him to stop work the day following the accident.

I, therefore, find that Mr. Tharmalingam genuinely suffered significant physical, psychological and emotional injuries as a result of the motor vehicle accident, specifically, soft-tissue injuries to his neck and back, as well as emotional trauma, which developed into chronic pain syndrome, depression and adjustment disorder. I find significant, as observed by a number of the health practitioners, that Mr. Tharmalingam had no pre-existing history of neck or back pain, or of psycho-emotional problems, and that he had a solid pre-accident employment history. I, therefore, agree with those who, like Dr. Alpert, found that, in light of the nature of Mr. Tharmalingam’s symptoms, as well as his pre-accident medical history, the accident was sufficiently serious to have aggravated his underlying degenerative condition to the point of developing a widespread and debilitating chronic pain syndrome (along with depression and adjustment disorder). I acknowledge that Mr. Tharmalingam had other stressors in his life, notably, the need to assist his wife in caring for their son. I nevertheless find that the accident materially contributed to Mr. Tharmalingam’s physical and emotional impairments and that his personal situation was simply compounded by his accident-related difficulties.

Mr. Tharmalingam’s Disability

I find that, as a result of his accident-related injuries, Mr. Tharmalingam was rendered completely incapable of engaging in any employment for which he was reasonably suited by education, training or experience.

I find that the medical reports that found that Mr. Tharmalingam was capable of returning either to his previous job as a welder or to an alternative position did not give sufficient weight to the non-organic nature of Mr. Tharmalingam’s disability and to the general credibility of his complaints. For example, Dr. Lipson found that Mr. Tharmalingam was capable of returning to his pre-accident job, but on the basis that there was no organic explanation for the majority of his symptoms. Dr. Silverman questioned Mr. Tharmalingam’s credibility, but acknowledged the general veracity of his pain complaints and suggested a diagnosis of adjustment disorder as a result of the accident. Dr. Silverman did not clearly conclude that Mr. Tharmalingam could return to employment; he merely suggested that Mr. Tharmalingam should return to work as part of his rehabilitation. Dr. Platnick’s findings regarding Mr. Tharmalingam’s employability were based on a purely organic assessment of his injuries. Dr. Reznek found that, from a psychiatric perspective, Mr. Tharmalingam could return to his previous work or a reasonable alternative, but this was on the basis that Mr. Tharmalingam had not suffered a significant psycho-emotional disability as a result of the accident, a conclusion I have rejected.

Dr. Morris found that Mr. Tharmalingam suffered significant psychological injuries as a result of the accident, but concluded that these did not “completely” disable Mr. Tharmalingam from returning to suitable employment. However, Dr. Morris only reached this conclusion “on a purely psychological basis.” Given the legitimacy of Mr. Tharmalingam’s pain complaints, I accept Mr. Tharmalingam’s claim that the combination of his physical and psychological injuries rendered him completely unable to engage in his pre-accident employment or a suitable alternative.

The Insurer relied on medical and vocational evidence that suggested that Mr. Tharmalingam could return to his pre-accident job as a mig welder or to the following alternatives: Food Service Counter Attendant and Food Preparer, Gas Bar Attendant/Self-Serve Gas Station Cashier, Parking Lot Attendant, Tutor, Bus Boy, Spot Welder and Order Packer. While I accept that Mr. Tharmalingam’s education, training and experience would render the noted positions suitable from a general vocational perspective, I do not find that they would be appropriate from a medical perspective. I found Mr. and Mrs. Tharmalingam to be credible witnesses and I accept their evidence that Mr. Tharmalingam is severely disabled as a result of the accident, living a very limited and unproductive life. Based on their evidence, as well as the preponderance of medical evidence, I accept that Mr. Tharmalingam suffers significant physical and psychological symptoms as a result of the accident. As noted, these problems are compounded by the difficulties he and his wife have in caring for their son. In this context, I find that Mr. Tharmalingam would be incapable of performing the suggested positions.

Specifically, his previous job as a mig welder was a heavy job which Mr. Tharmalingam’s current injuries would prevent him from doing. Even if the mig welding job were lighter in nature (as the suggested alternative positions appear to be), I find that Mr. Tharmalingam’s physical pain, psycho-emotional problems, fatigue, dizziness and lack of concentration would preclude him from fulfilling the physical and intellectual demands of the job on a competitive, full-time basis. I find that he would be similarly incapable of performing the tasks of the other positions suggested, given the severity and multi-faceted nature of his disability. For example, in respect of the position of tutor, I note and accept Mr. Tharmalingam’s evidence that he is incapable of teaching his grade 5 daughter mathematics. I also accept Mr. Tharmalingam’s evidence that his pain would preclude him from performing the physical tasks of the spot welding and order packing jobs. In light of his physical and psychological problems, I find that he would also be unable to do the food service, parking lot, gas station and bus boy positions.

While some of the positions noted are lighter in nature, I prefer to rely on the evidence that fully appreciates the severity of Mr. Tharmalingam’s problems and that conclude that he could neither retrain for nor perform these other positions. I note, in this regard, Dr. Gale’s comprehensive opinion concerning the extent of Mr. Tharmalingam’s disability and his view that due to Mr. Tharmalingam’s limited vocational attributes, as well as his severe pain, he could “not be retrained, even for a job that is less physically demanding.” Similarly, I was persuaded by Dr. Alpert’s evidence to the effect that Mr. Tharmalingam credibly described his problems and displayed objective signs of significant impairment. I note that Dr. Alpert’s evidence was not significantly challenged on cross-examination. I agree with his assessment that Mr. Tharmalingam required a multi-disciplinary chronic pain management intervention and was otherwise disabled from his pre-accident position or other gainful employment. While Dr. Asirwatham is not an expert in the area of chronic pain or psycho-emotional disorders, his evidence was consistent with that of Drs. Gale and Alpert. I accept Dr. Asirwatham’s evidence to the effect that he treated Mr. Tharmalingam over an extended period of time and felt that he was likely permanently disabled from gainful employment.

Similarly, the vocational evidence of Ms. McAuley and Mr. Kumove was consistent with the medical evidence of the nature and degree of Mr. Tharmalingam’s problems and the view that Mr. Tharmalingam is incapable of returning to his pre-accident job or a suitable alternative. I note and accept, in particular, Ms. McAuley’s evidence to the effect that Mr. Tharmalingam’s accident had a “profound effect on his ability to reintegrate in the workforce” and that his chronic pain, functional limitations, cognitive problems and limited English skills, education level and transferrable skills would essentially render him unemployable.

I, therefore, conclude that, due to the accident, Mr. Tharmalingam was rendered completely incapable of returning to any employment for which he was reasonably suited by education, training or experience. The Insurer shall pay to Mr. Tharmalingam income replacement benefits from August 3, 2005, at a rate of $353 per week, with interest.

EXPENSES:

The parties did not address the issue of expenses. I urge them to attempt to resolve this matter. If required, they may make submissions on this issue in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

February 3, 2009

Eban Bayefsky Arbitrator

Date