Neutral Citation: 2009 ONFSCDRS 83

FSCO A07-002068

BETWEEN:

MANOKAR ARUNASALAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Jeffrey Rogers

Heard: June 23, December 15 and 16, 2008 and January 5, 6, 7, 8 and 15 and March 27, 2009, at the offices of the Financial Services Commission of Ontario in Toronto. By telephone conference calls on June 24 and 25, 2008. Written submissions were completed on May 8, 2009.

Appearances: Mr. David S. Wilson and Mr. Robert Zigler, solicitors for Mr. Arunasalam Mr. Robert S. Franklin, solicitor for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Manokar Arunasalam, was injured in a motor vehicle accident on August 31, 2006. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose regarding Mr. Arunasalam’s entitlement to certain further benefits. The parties were unable to resolve their disputes through mediation, and Mr. Arunasalam 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. Arunasalam entitled to receive a weekly income replacement benefit in the amount of $394.54, from July 25, 2007 to August 30, 2008, pursuant to section 4 of the Schedule?
Is Mr. Arunasalam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is either party liable to pay the other’s expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Note: During the course of the proceedings, the parties resolved Mr. Arunasalam’s claims for housekeeping, assessments and medical and rehabilitation benefits, which were originally part of the arbitration. Mr. Arunasalam did not pursue his claim for a special award.

The two year anniversary of the accident was August 31, 2008. That was after I started the hearing by dealing with several procedural issues, but before I started hearing the evidence. The parties agreed that Mr. Arunasalam’s claim for post-104 IRBs will be addressed, if necessary, in a separate hearing.

Result:

Mr. Arunasalam is entitled to receive a weekly income replacement benefit in the amount of $394.54, from July 25, 2007 to March 31, 2008, pursuant to section 4 of the Schedule.
Mr. Arunasalam is entitled to interest for the overdue payment of the above benefits pursuant to section 46(2) of the Schedule.
The decision on entitlement to expenses is reserved, to be determined in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

PROCEDURAL RULINGS:

State Farm brought a motion before the pre-hearing Arbitrator for an order adding the issues of quantum of IRBs and wilful misrepresentation to the arbitration. For reasons dated June 17, 2008, Arbitrator Bujold refused to grant the order. State Farm then argued before me that it was entitled to pursue the issue of wilful misrepresentation as a defence, without having it formally added as an issue. I ruled that State Farm would not be allowed to pursue the issue because, by renaming it, State Farm was simply attempting to revisit Arbitrator Bujold’s decision.

The parties filed 10 briefs containing several hundred documents. I marked the briefs for identification purposes but ruled that the only documents included in the record of the arbitration would be the ones I specifically marked as exhibits. Because the parties advised that there were no obvious issues of admissibility of documents, I ruled that exhibits could be introduced either by reference in the testimony of a witness, or by counsel in submissions. In the interest of fairness, counsel were instructed to give advance notice of which documents they intended to refer to in submissions, that had not yet been marked as exhibits. That process would allow me to supplement the list of marked exhibits and also allow counsel to raise any concerns about admissibility.

During the course of testimony I marked 26 exhibits. Although reminded to do so during the course of the hearing, counsel did not provide their lists of additional documents. In fairness, throughout the hearing, counsel were engaged in settlement discussions that resulted in resolution of most of the issues. They advised at the conclusion of the evidence that, because of the shifting scope of the dispute, they had not yet been able to identify which documents would remain relevant.

In their written submissions, counsel referred to many documents that were not marked as exhibits. The parties then advised that in its submissions, State Farm referred to a report by Dr. John Lee, dated November 14, 2008, that the parties had agreed would not be part of the evidence. No objection was raised to the other additional documents. In the circumstances, the additional documents counsel referred to in their written submissions, except for Dr. Lee’s report of November 14, 2008, will be considered part of the record.

EVIDENCE AND ANALYSIS:

Introduction

Mr. Arunasalam alleges that his injuries from the accident have caused him to be unable to return to work, since the accident. He therefore claims entitlement to income replacement benefits beyond the termination date of July 24, 2007. A person qualifies for income replacement benefits if accident-related impairments cause a substantial inability to perform the essential tasks of employment and the person was employed at the time of the accident or, was unemployed at the time of the accident, but employed at least 26 weeks during the 52 weeks before the accident. The parties disagree on the extent of Mr. Arunasalam’s accident-related impairments. They also disagree on whether his entitlement to IRBs is based on the job he held at least 26 weeks during the 52 weeks before the accident, or the job he claims he had at the time of the accident.

Mr. Arunasalam was employed by Frisco’s Brasserie at least 26 weeks during the 52 weeks before the accident. He admits that he left that job several weeks before the accident, for health reasons. If that job is the basis of his entitlement to IRBs, the fact that Mr. Arunasalam quit because of health issues squarely impacts his claim that he is now unable to work because of accident related impairments.

Mr. Arunasalam testified that he left Frisco’s Brasserie only after finding a job with A&T Manpower Services Inc., a temporary placement agency. His position is that, although he was not at work on the day of the accident, he was employed by A&T as a shipper and receiver at the time of the accident. His evidence was that he was able to perform the essential tasks of that job, without health restrictions, in the weeks preceding the accident. State Farm’s position is that Mr. Arunasalam has not proven that he ever worked for A&T.

Mr. Arunasalam’s entitlement to IRBs cannot be determined without reference to the essential tasks of the employment upon which entitlement is based. The first question to be determined is therefore whether Mr. Arunasalam was employed at A&T at the time of the accident or whether he must rely on his employment at Frisco’s Brasserie to form the basis of his claim.

Pre-Accident Employment

Mr. Arunasalam testified that he came to Canada from Sri Lanka as a refugee in 1989. He completed some ESL training and started working in a restaurant as a dishwasher and preparation helper in 1991. Except for a period of unemployment of about a year, he continued to work in similar jobs until shortly before the accident. His last restaurant job was at “the Brasserie” where he worked for at least a year. The Record of Employment issued to him by Frisco’s Brasserie shows that he worked there from July 13, 2005 to August 11, 2006. It also notes that he quit for “health reasons”.²

Mr. Arunasalam admits that he quit “the Brasserie” because of health issues. He testified that he made enquires at A&T before quitting, was told that jobs were available and he got a job there right away as a shipper and receiver. His evidence was that he had worked for A&T about two weeks before the accident. A&T is a temporary placement agency. Mr. Arunasalam does not allege that he worked at its offices. His evidence was that he was sent as a shipper and receiver to at least two similar businesses which were involved in the manufacture of doors, windows and curtains. Until the day before the accident, he had worked at “Simcoe”, where he had been assigned for over a week. Mr. Arunasalam testified that a van supplied by A&T would pick him up in the morning along with other workers, and drop him off where he worked.

In her testimony Ms. Panneerselvy Ganeshan, Mr. Arunasalam’s common law wife, confirmed the information regarding his employment at A&T. Both Mr. Arunasalam and Ms. Ganeshan testified that Mr. Arunasalam did not go to work on the day of the accident because he planned to take their son to the doctor for treatment for symptoms of asthma.

Mr. Arunasalam signed an Application for Accident Benefits, dated September 1, 2006.³ In Part 5 of the Application, there is a check mark in the box for “unemployed”. Part 5 also contains the option to choose “[u]nemployed and, have worked 26 weeks in the last 52 weeks”. That option was not selected. Part 8 of the Application states that Mr. Arunasalam worked at “Brassery Restaurant” from the year 2000 to August 2006.

When he was shown the Application, Mr. Arunasalam acknowledged that he signed it, but he could not recall the exact day. He agreed that shortly after the accident, he went to the offices of his former solicitors Mazin and Rooz, where the Application was apparently signed. He acknowledged signing some documents there. He agreed that the description in the Application of how the accident happened is accurate. He recalled giving some information to someone who was not Tamil speaking. He testified that he had in fact worked at “the Brasserie” for about a year until shortly before the accident and that, before that, he had worked at “Papa Leoni’s”, a related restaurant, from around 2000. His evidence was that he was transferred to “the Brasserie” when “Papa Leoni’s” closed down. He said that, had he been asked, he would not have indicated that he was unemployed at the time of the accident. He understood that he was employed by A&T and he would have said so.

Mr. Arunasalam produced two payroll slips, apparently filed by A&T with the Canada Revenue Agency, showing deductions from his income for the pay periods ending August 26, 2006 and September 9, 2006.⁴ He also provided an Employer’s Confirmation, dated October 6, 2006, purportedly signed by Sam Asokan of A&T and a T4 slip for 2006 issued to him by A&T.⁵ He declared this income in his 2006 taxes.

State Farm went to considerable effort to obtain any relevant documents in the records of A&T and Zimmcor (the real name of the company Mr. Arunasalam referred to as “Simcoe”). When these companies did not respond to Mr. Arunasalam’s request for production of records, State Farm brought a 3rd party motion. On May 29, 2008, Arbitrator Bujold ordered A&T and Zimmcor to produce any relevant records. When the hearing started on June 23, 2008, nothing had been produced. Representatives of the companies did not attend, despite being summoned. By the time the hearing was resumed in December 2008, State Farm had brought a motion in Superior Court and the companies had been found in contempt. The contempt order provided that the companies could purge their contempt by producing the relevant documents.

In May 2008, Zimmcor had responded to a request by Mr. Arunasalam for production of all records of his employment through A&T with a note that “Mr. Manokar Arunasalam is not our employee…”. Zimmcor responded to the contempt order by confirming that it had no records. A&T did not respond to the contempt order and a representative did not attend the hearing.

Brad Mitchell, a representative of State Farm attended at the offices of A&T in February 2008. His notes⁶ indicate that he found its small office empty, with a sign on the door indicating that a person would be back shortly. He called the telephone number on the sign. A woman answered the phone. She confirmed that Mr. Arunasalam had worked for A&T but she could not give details of what he did. She said that she had only been with the company for a short while and told Mr. Mitchell to speak with Sam Asokan, the owner. Mr. Mitchell later spoke to Mr. Asokan who indicated that Mr. Arunasalam had worked at a few different factories through A&T, provided a copy of Mr. Arunasalam’s T4 slip, told him that Mr. Arunasalam had worked for Zimmcor, and provided Zimmcor’s address.

There was a discrepancy between the amount earned on the T4 and the Record of Employment that Mr. Asokan had signed. Mr. Asokan could not explain the discrepancy. Mr. Mitchell called Zimmcor and was able to confirm that it employed temporary staff through A&T, but he could not get confirmation that Mr. Arunasalam worked there. He was told that any records would be difficult to access and that A&T should have timecards that Mr. Arunasalam would have had stamped if he worked there. Mr. Mitchell’s efforts to obtain these timecards from Mr. Asokan apparently met with a hostile response. Mr. Mitchell’s notes indicate that Mr. Asokan told him Zimmcor had called and complained about being contacted. He threatened legal action for having his time wasted.

State Farm submits that Mr. Arunasalam has not proven that he worked at A&T. It submits that the information in Part 5 of the Application for Accident Benefits to the effect that he was unemployed is likely accurate. It points to the discrepancy between the T4 and the Record of Employment on the amount of income earned at A&T and submits that an adverse inference should be drawn from the hostility and lack of cooperation by A&T and Zimmcor. It submits that Zimmcor’s note that “Mr. Manokar Arunasalam is not our employee…” is proof that he never worked there.

I do not accept State Farm’s submissions. I accept Mr. Arunasalam’s evidence and find that he was employed in shipping and receiving through A&T at the time of the accident. His testimony was straightforward and consistent. As one would expect in the circumstances, his recall of his relationship with A&T was clear. His recall of the places A&T sent him to work was not clear. Indeed, Mr. Arunasalam consistently referred to Zimmcor as “Simcoe” in his testimony and could not confirm the proper name. That is a detail one would expect to have been pinned down, if there was rehearsal or fabrication. Ms. Ganeshan confirmed his evidence in a way that dispels collaboration. She recalled the general circumstances. As one would expect, she could not provide details.

State Farm submits that Mr. Arunasalam fabricated the story of his employment at A&T. But why would he do that? Without A&T, he would qualify for income replacement benefits based on his job at the Brasserie. To appreciate the need for the A&T job, he would have had to realize the potential effect of his reason for leaving the Brasserie on his claim for income replacement benefits, some time between August 31, 2006, when the accident happened, and no later than October 6, 2006, the date of the Employer’s Confirmation from A&T. He would also have had to enlist co-conspirators at A&T and Zimmcor and create a paper trail that includes current filings with Revenue Canada and a T4 slip. I find that highly unlikely.

I find nothing sinister in the conduct of A&T and Zimmcor and there is no suggestion that Mr. Arunasalam himself failed to co-operate in State Farm’s quest for documents it believed should be readily available. By Mr. Mitchell’s description, A&T was a very small operation. Neither A&T nor Zimmcor had a long relationship with Mr. Arunasalam and neither had an ongoing relationship with him. Their reluctance to use their resources to further document his claim is not surprising.

The information that Mr. Mitchell did receive from them was consistent with Mr. Arunasalam’s evidence and it contains several hallmarks that dispel State Farm’s claim of fabrication. First, as in fact happened, a recent employee of A&T would be expected to be able to retrieve Mr. Arunasalam’s name, and nothing more. Second, the documents produced are the ones one would expect to be readily available. Third, if fabricated, the documents would have been created at the same time, reducing the chance of a discrepancy between the T4 and the Record of Employment. Fourth, Mr. Arunasalam was not Zimmcor’s employee. Zimmcor did not hire him. The information it provided to Mr. Arunasalam’s solicitor was therefore accurate.

I do not accept State Farm’s submission that the information in the Application for Accident Benefits is likely accurate. In fact, the Application contains several errors that indicate that it was not carefully prepared, or that there was not clear communication, or both. It refers to Mr. Arunasalam’s employment at “Brassery Restaurant” from the year 2000 to August 2006. A careful preparer could easily have ascertained the proper name of Mr. Arunasalam’s employer. The period of employment at the Brasserie is not consistent with the records of the Brasserie and Mr. Arunasalam’ evidence. There was no reason for Mr. Arunasalam to be inaccurate about that.

He likely informed the preparer about his employment at Papa Leoni’s in 2000 and subsequent transfer to the Brasserie. Based on the information allegedly provided, a careful preparer would have selected the option “unemployed and, have worked 26 weeks in the last 52 weeks” in Part 5. That option was not selected. I find that Mr. Arunasalam probably told the preparer, as he testified, that he was not working on the day of the accident, and that led to the notation of “unemployed”.

I note that State Farm also submits that, even if Mr. Arunasalam’s evidence about his work with A&T is accepted, the nature of his relationship with A&T would not support a finding that he was working there, because he was contracted on a daily basis and was not working on the day of the accident. In my view, the nature of the relationship is relevant only to the question of whether Mr. Arunasalam was employed by A&T, or self-employed as an independent contractor through A&T. That issue is not relevant to this arbitration. I find that at the time of the accident, Mr. Arunasalam had an ongoing relationship with A&T. The exact nature of that relationship does not affect essential tasks of his employment on the day of the accident.

Essential tasks of Pre-Accident Employment

Mr. Arunasalam described his job as a shipper and receiver as a “heavy job” that he did on a full-time basis. He worked from 8:00 a.m. to 4:30 p.m. He was on his feet all day, except for three sitting breaks. He filled skids with items such as doors, window frames and curtain rods, to be loaded onto trucks. Heavier of bulkier items were loaded directly onto trucks. He also unloaded sheets of aluminum, rolls of fabric and boxes of door accessories. He had to lift weights from twenty pounds to fifty pounds or more. He got help with items that were heaver than this, and also had the use of a dolly.

There is no evidence to the contrary and I accept Mr. Arunasalam’s evidence. I find that the essential tasks of his pre-accident job include prolonged standing, repetitive lifting and carrying of weights between twenty and fifty pounds.

Pre-Accident Health

Mr. Arunasalam testified that he has suffered from asthma for a long time. His evidence was that he spent most of his day at the Brasserie close to the grill and deep fryer which gave off fumes that aggravated his asthma. He found it difficult to breathe. The fact that the kitchen was on three levels and he had to go up and down the stairs at least 40 times a day, created another health issue. The climbing caused a problem with his right knee. He said that the knee problem did not last long and did not cause him to lose time at work. The climbing also caused a problem with his right ankle around the time he quit. He said that he saw his family doctor about both problems. He testified that the doctor suggested that he change his shoes and the problem with his ankle was resolved by following that suggestion. Mr. Arunasalam testified that the standing, lifting and carrying demands of his job with A&T were similar to those of the Brasserie, but he was able to meet them because there was no issue with his asthma and he did not have to climb stairs.

Dr. Ravi Murthy was Mr. Arunasalam’s family doctor at the time of the accident. He noted in March 2006 that Mr. Arunasalam complained of pain in the outer side of his right leg, caused by bending to one side at work. Mr. Arunasalam also complained of worsening asthma on the same day.⁷ It appears from his notes that Dr. Murthy diagnosed tendonitis of the leg, but prescribed no treatment. He did prescribe medication for asthma. Dr. Murthy’s notes show that Mr. Arunasalam saw him again on July 17, 2006, complaining that his asthma was a lot worse. His notes say: “He does not want to work anymore. He is unable to do any lifting and walking.” There is no reference to a problem with the leg on that date. Dr. Murthy again prescribed asthma medication.

On July 25, 2006, Dr. Murthy wrote a note as follows:

TO WHOM IT MAY CONCERN

Dear Sir/Madam,

This is to inform you that the above patient of mine, has a long standing history of injury to his right ankle, as well as asthma. This information is being given to you at the patient’s request.

His main concern is, his inability to climb the stairs at work, which renders him breathless and also he starts getting shooting pains in the leg.

If possible kindly change his kind of work, which may be most suitable, taking into consideration his previous long-standing problem.

Mr. Arunasalam testified that he had asked his chef at the Brasserie to transfer him to another restaurant and was told to get a letter from a doctor. He therefore asked Dr. Murthy to write this letter.

Dr. Murthy apparently diagnosed a sprained right ankle and ordered an X-ray. He saw Mr. Arunasalam with the same complaint on August 9, 2006. He notes that the X-ray showed plantar and Achilles osteophytes (bone spurs) in the right ankle. He prescribed pain killers. That was the last time he saw Mr. Arunasalam before the accident.

Ms. Ganeshan confirmed Mr. Arunasalam’s evidence about his pre-accident health in general terms, as she did with his evidence about his employment. She was able to confirm that he had asthma before the accident and used a puffer. She remembered that he complained about knee pain and then ankle pain when he worked at the Brasserie. She confirmed that he got a special shoe for the ankle and then quit the job at the Brasserie and there were no further complaints about ankle pain.

Dr. Murthy had been Mr. Arunasalam’s family doctor for several years before the accident and there are no references in his records to problems with his right leg, except for the ones mentioned above. His statement that the problem was “long-standing” must therefore refer to its commencement in March 2006. There is no evidence that Mr. Arunasalam missed any time at work because of right leg problems before the accident and there is nothing in the extensive medical file after the accident to suggest that Mr. Arunasalam suffered disabling leg problems after the accident. Dr. Murthy’s note suggests that Mr. Arunasalam was seeking alternate employment, not that he wanted to stop working altogether. Mr. Arunasalam’s employment at A&T after leaving the Brasserie bears out his evidence that his pre-accident problems with asthma and his leg were specific to his employment at the Brasserie. I find that Mr. Arunasalam was capable of engaging in the essential tasks of his employment with A&T before the accident.

Post-Accident Health

Mr. Arunasalam claims that injuries he suffered in the accident have rendered him incapable of returning to his job at A&T. His principal complaints are pain and stiffness in his neck, back and right shoulder, accompanied by frequent debilitating headaches. He was diagnosed to be suffering from depression in September 2007.⁸ However, no one has expressed the opinion that Mr. Arunasalam is disabled from work solely as a result of psychological illness and he does not claim that he is.

As with any claim of disability as a result of soft tissue injuries, a decision as to the accuracy of Mr. Arunasalam’s reported symptoms is critical to the finding of whether he is entitled to the claimed IRBs. State Farm submits that Mr. Arunasalam’s reports are not credible. It relies on alleged inconsistencies in the numerous medical histories. It also relies on the opinions of those who assessed Mr. Arunasalam on its behalf and concluded that he either fabricated or exaggerated his reports. I do not accept State Farm’s submission. I find that the existence of objective evidence to support significant, accident-related injury to Mr. Arunasalam’s right shoulder, completely undercuts State Farm’s suggestion of fabrication and exaggeration.

Upon referral by Dr. William Chan, Mr. Arunasalam’s family doctor, an ultrasound of Mr. Arunasalam’s right shoulder was conducted on April 21, 2008. The report⁹ states as follows: “A large almost complete tear is seen in the right supraspinatus tendon, measuring 1.3 cm in length x 0.4 cm in transverse diameter. It is situated in the insertion. Fluid is seen in the shoulder joint visible in the bicepital synovial sheath.”

Upon reviewing the ultrasound report, Dr. Chan wrote the following on May 8, 2008: “This finding is significant as it explains why his right shoulder disability failed to resolve since August 31, 2006.”¹⁰ Dr. Chan therefore referred Mr. Arunasalam to an orthopaedic surgeon, for possible surgical repair of the torn tendon.

Faced with this evidence, State Farm submits that the tear was not caused by the accident. It submits that Mr. Arunasalam’s history of complaints does not support that finding and, had it been caused by the accident, it would have been diagnosed in earlier examinations. I do not accept that submission. The history is replete with Mr. Arunasalam’s immediate and persistent complaints of right shoulder pain to both those who treated Mr. Arunasalam and those who assessed him on State Farm’s behalf.

The following is a list of some of the instances: In the Disability Certificate that Dr. Dimitrios Lianos completed on August 31, 2006, he noted right shoulder sprain as one of the injuries.¹¹ In his clinical notes, Dr. Chan notes right shoulder pain on November 17, 2006, neck pain with radiation down the right side on January 24, 2007, pain worse in the right shoulder on May 5, 2007, and pain in the right shoulder on May 28, and June 20., 2007.¹² In his report of February 28, 2007, Dr. Bernard Woolford notes pain across the top of the right shoulder.¹³ Dr. Joseph Wong diagnosed right shoulder tendonitis when he examined Mr. Arunasalam on September 17, 2007.¹⁴ Dr. Brent Souter reported continued symptoms in the right shoulder when he examined Mr. Arunasalam on December 19, 2006¹⁵ and Dr. John Zeldin reported complaints of right shoulder pain and numbness in the right arm, upon his examination on May 1, 2007.¹⁶

I find that the tear in the tendon in Mr. Arunasalam’s shoulder was caused by the accident. I see no inconsistency between this finding and the late diagnosis. It appears from the medical records that the focus for the cause of Mr. Arunasalam’s shoulder pain was initially his cervical spine. Although Dr. Chan repeatedly noted shoulder pain, he repeatedly diagnosed cervical spine sprain. Although noting problems with shoulder pain, Dr. Woolford sent Mr. Arunasalam for an MRI of the cervical spine in May 2007.¹⁷ Mr. Arunasalam testified that, by the summer of 2007, he had experienced some improvement in the symptoms in his neck and back, but no improvement in his shoulder. If anything, the pain in his right shoulder and arm were getting worse. Although not explicit in the records, it appears that Dr. Chan decided to investigate the shoulder only after Mr. Arunasalam’s reports of worsening symptoms in the right shoulder brought his shoulder complaints to the forefront.

Given the seriousness of the injury, it may well be that the tear in the tendon in his shoulder alone, would prevent Mr. Arunasalam from engaging in the lifting and carrying tasks of his pre-accident employment. In any event, I find that the subsequent objective verification of Mr. Arunasalam’s complaints regarding his right shoulder serves to bolster the credibility of his complaints about other symptoms. I accept his evidence and find that in addition to right shoulder and arm pain, he continued to suffer significant lumbar and cervical pain and stiffness and frequent debilitating headaches, when IRBs were terminated in July 2007. I share none of the concerns about exaggerated presentation, expressed by those who assessed Mr. Arunasalam for State Farm. His presentation in testifying was straightforward, spontaneous and appropriate.

In my view, the inconsistencies and alleged omissions that State Farm points out in the various medical histories and between Mr. Arunasalam’s testimony and some histories have no bearing on his credibility. He was consistent in his testimony with the relevant aspects of the history. There was no divergence on any matter of significance.

The history that a healthcare practitioner takes is always important in assessing the weight to be given to that practitioner’s opinion. Unless there is an apparent pattern of withholding relevant and prejudicial information, discrepancies between various histories or between histories and proven facts are of little use in assessing credibility. In any event, when used for this purpose, it is unfair to assume that all information the patient provided was recorded or that the information given was accurately recorded. An approach that simply relies on what various practitioners note is tantamount to subjecting the applicant to multiple examinations for discovery and then attacking credibility, without proof of the accuracy of the transcripts.

Unless critical to diagnosis, healthcare practitioners have no interest in precisely recording details such as how an accident happened, a patient’s work history or other details of the patient’s life experience. A language barrier, the use of an interpreter and cultural overlay add further filters that increase the likelihood of inaccuracy of the record.

For example, a great deal of time was spent in cross-examining Mr. Arunasalam on why a notation was made in only some histories that he was tortured or a victim of violence in Sri Lanka. However, knowing whether or not Mr. Arunasalam was tortured or a victim of violence was not critical to any diagnosis and proof of that fact was not relevant to the arbitration. In addition, there was no evidence that the information given was accurately recorded and no evidence as to what Mr. Arunasalam was asked. Further, it is not clear that Mr. Arunasalam would have ever said that he was the victim of violence or torture. He testified that, although he was apprehended and assaulted during the civil upheaval in Sri Lanka, he did not consider himself a victim because his experience was similar to that of all Tamil men. In addition, the interpreter who assisted at the hearing had a great deal of difficulty translating “torture”. He indicated that there is no precise equivalent in the Tamil language.

Turning now to the specific opinions upon which State Farm relies. Monica Hingorani, a kinesiologist, conducted a Functional Abilities Evaluation on State Farm’s behalf on April 30, 2007.¹⁸ Mr. Arunasalam was unable to complete any of the lifting and carrying tests that approximated the requirements of his job with A&T. The results indicated that Mr. Arunasalam was functioning within the “light” strength levels according to the Dictionary of Occupational Titles. Although 30 out of 42 consistency measures were within expected limits, Ms. Hingorani declared her test results invalid. She concluded that Mr. Arunasalam “demonstrated sub-maximal effort”, “seemed “fearful” of increasing his pain levels and may have self-restricted his performance during testing.”

Ms. Hingorani was unaware of the tear in the tendon in Mr. Arunasalam’s shoulder. Her opinion does not take it into account. She discounts the real symptoms I have found Mr. Arunasalam to be experiencing. I reject her conclusion that her test results were not valid. I prefer the opinion of Atila Balaban, an exercise physiologist, who conducted Functional Capacity Evaluations on September 20, 2007¹⁹ and March 20, 2008.²⁰ Mr. Arunasalam was unable to demonstrate the ability to meet the demands of his pre-accident job on both occasions and Mr. Balaban found no evidence of sub-maximal effort. His opinion in this regard is reinforced by the fact that Mr. Arunasalam’s results were generally consistent between the two tests. One would not expect that, if Mr. Arunasalam was intentionally restricting his effort.

Dr. Souter, a chiropractor, examined Mr. Arunasalam on State Farm’s behalf on December 19, 2006²¹ and December 7, 2007.²² Dr. Zeldin, an orthopaedic surgeon, examined him on May 1, 2007.²³ Neither found any evidence of ongoing accident related impairment. Dr. Souter concluded that self-limitation was the explanation for any dysfunction he observed. Dr. Zeldin wrote as follows: “He is slow of movement. His manner during the interview and physical examination suggested overreaction and exaggeration of response.” To be fair to Dr. Zeldin, he specifically limited his opinion to a finding that there was no physical explanation for Mr. Arunasalam’s continuing complaints. He did not rule out the possibility that Mr. Arunasalam continued to experience pain. The opinions of Dr. Souter and Dr. Zeldin are nevertheless not consistent with my finding that Mr. Arunasalam had a tear in the tendon in his shoulder when they examined him. I reject them for that reason.

Dr. Zeldin’s opinion is devalued by two further factors: First, his report contained reference to several documents and opinions that had nothing to do with Mr. Arunasalam. Dr. Zeldin could not explain how these references got into his report. He speculated that they must have related to another individual he assessed on the same day. He testified that they had no influence on his opinion but, even if that were so, his failure to notice these references when he signed his report calls into question his attention to detail in both the conduct of his assessment and the preparation of his report. Second, in reaching his opinion that Mr. Arunasalam’s presentation did not reflect actual injury, Dr. Zeldin relied in part on what he considered excessive grimacing. Assuming that Dr. Zeldin is able to determine a level of grimacing, appropriate to a particular injury, exceeding that level does not necessarily mean that the person being assessed is attempting to exaggerate the extent of injury. There are other plausible explanations. A cultural difference is one explanation. Another is that the person is simply attempting to communicate by way of facial expression. When there is a language barrier, the possibility of the latter increases. In arriving at his conclusion, Dr. Zeldin did not consider these alternate possibilities.

Dr. Lee, a psychologist, assessed Mr. Arunasalam for State Farm on July 17, 2007.²⁴ Because Mr. Arunasalam does not claim that he is unable to work due to psychological illness, I will not address Dr. Lee’s conclusions in this regard. However, I will address State Farm’s endorsement of Dr. Lee’s conclusion that Mr. Arunasalam engaged in “volitional symptom magnification.” First, this conclusion is at odds with my finding that Mr. Arunasalam continued to suffer disabling symptoms, when Dr. Lee examined him. Second, in arriving at that conclusion, Dr. Lee ignored his own valid test results that supported diagnosis of psychological impairment and instead relied on a single failed validity measure.

I find Dr. Lee’s approach to be overly simplistic. It is absurd to suggest that something that is magnified simply does not exist. It is even more absurd to suggest that magnification of one symptom disproves the existence of other apparently valid symptoms. A much more textured analysis is required.

In summary, I accept Mr. Arunasalam’s evidence and the expert opinion to the effect that he continued to be substantially unable to perform the essential tasks of his employment at A&T, when State Farm terminated IRBs on July 24, 2007. I reject the expert opinion to the contrary.

Period of Entitlement to Further IRBs

Since the accident, Mr. Arunasalam has been diagnosed to be diabetic and suffering from high blood pressure and an unspecified heart condition. There is no evidence that any of these conditions or Mr. Arunasalam’s reaction to being diagnosed with them, have any foundation in his accident-related injuries. Mr. Arunasalam testified that Dr. Chan has advised him to be cautious about his activities because of his heart condition. He testified that he avoids moving his right arm because he knows that this might cause him to have a stroke, given his heart condition. I did not receive evidence as to exactly when these diagnoses were made. The record does show that Mr. Arunasalam reported them to Dr. Joseph Garber, who assessed him at his counsel’s request in January 2008.²⁵ He also reported that he had been “advised by his physician to refrain from excessive activity”.

Given the extent of Mr. Arunasalam’s perceived limitations as a result of his ailments that are unrelated to the accident, it is difficult to imagine that he would have continued to be able to meet the heavy demands of his job at A&T beyond the date of their diagnosis, even if the accident had not happened. Without a precise date of diagnosis, I find it reasonable to limit his entitlement to further IRBs to March 31, 2008, which is shortly before he reported his limitations to Dr. Garber. I have therefore ordered State Farm to pay further IRBs from July 25, 2007 to March 31, 2008. Given this finding, I have cancelled the further hearing, scheduled to determine entitlement to post-104 IRBs.

EXPENSES:

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

June 25, 2009

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario