Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 105

FSCO A09-001294

BETWEEN:

GURPRIT KAUR CHEEMA

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Robert Bujold

Heard: June 13, 14, 15, 16, October 3, 4, 5, 6 and December 2, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Linda Wolanski for Ms. Cheema

Petros Yannakis for TD General Insurance Company

Overview:

The Applicant, Gurprit Kaur Cheema, was injured in a motor vehicle accident on January 19, 2008. She applied for and received statutory accident benefits from TD General Insurance Company (“TD General”), payable under the Regulations.¹ Disputes arose regarding her entitlement to and the quantum of various benefits. The parties were unable to resolve their disputes through mediation, and Ms. Cheema applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The principal disputes involve Ms. Cheema’s entitlement to post-104 week attendant care, housekeeping and caregiver benefits.

Entitlement to post-104 week attendant care and housekeeping benefits require a finding that Ms. Cheema sustained a catastrophic impairment as a result of the accident. Ms. Cheema maintains that she meets the definition of catastrophic impairment on the basis that, as a result of the accident, she suffers from a marked impairment due to mental or behavioural disorder as set out in subsection 2(1.2)(g) of the Old Regulation.

Entitlement to post-104 week caregiver benefits requires a finding that Ms. Cheema suffers from a complete inability to carrying on a normal life as a result of the accident.

Since the accident, Ms. Cheema has presented with a constellation of symptoms, and both the nature and severity of her complaints have worsened over time. Her clinical presentation has been described by one of her own assessors as a challenge to decipher, with florid and overly dramatic behaviours that approach parody. TD General’s assessors have described Ms. Cheema’s clinical presentation as atypical and bizarre. However described, there is general consensus that Ms. Cheema’s symptoms are not fully explained by the physical injuries she sustained in the accident and, as a result, she either suffers from one or more genuine mental disorders or she is intentionally fabricating her symptoms, or perhaps both.

As a result, the deeper issue in this hearing is Ms. Cheema’s credibility.

For the reasons that follow, I am satisfied that, while Ms. Cheema may continue to experience some measure of pain, anxiety and depression related to the accident, her current presentation is largely a product of significant and intentional symptom fabrication and exaggeration. I am not satisfied that her symptom magnification and other inconsistencies in her presentation can be fully explained as a “cry for help.”

As a result, I am unable to conclude, on a balance of probabilities, that any genuine, accident-related physical, mental or behavioural disorders that Ms. Cheema may be continuing to experience meet the thresholds of catastrophic impairment and/or a complete inability to carry on a normal life. Therefore, her claims for post-104 week attendant care, caregiver and housekeeping benefits, which depend on these disability thresholds, are dismissed.

Ms. Cheema’s claims to any further amounts for attendant care or caregiver benefits in the pre-104 week period are also dismissed because she failed to establish entitlement to any further benefits beyond those that have already been paid.

Notwithstanding the impact of my credibility findings on Ms. Cheema’s post-104 week claims, I find that she is entitled to be paid for housekeeping benefits up to 104 weeks post-accident because TD General’s own evidence fails to explain why housekeeping benefits were not paid for the period beyond June 2008.

As for Ms. Cheema’s claims for recommended treatment and assessments, these must be examined in terms of their reasonable necessity at the time they were recommended. For the reasons that follow, I find that Ms. Cheema meets with mixed success on these claims.

Ms. Cheema failed to establish that TD General unreasonably withheld or delayed benefits owing to her. As a result, her claim for a special award is dismissed.

Issues:

The issues in this hearing are:

1. Did Ms. Cheema sustain an impairment as a result of the accident within the meaning of section 2(1.2)(g) of the Old Regulation? Specifically, did Ms. Cheema sustain a class 4 (marked) impairment due to mental or behavioural disorder?

2. Is Ms. Cheema entitled to receive weekly caregiver benefits from October 2, 2010 and ongoing?

3. What is the amount of any weekly caregiver benefit to which Ms. Cheema may be entitled from May 12, 2008 and ongoing?

4. Is Ms. Cheema entitled to attendant care benefits at the rate of $6,000.00 per month from January 20, 2008 to date and ongoing, less $35,698.29 paid by TD General for the period March 2008 to April 2010?

5. Is Ms. Cheema entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from July 1, 2008 and ongoing?

6. Is Ms. Cheema entitled to receive a medical benefit for $1,040.97 for assistive devices recommended by First Choice Medical Assessments in a treatment plan dated September 9, 2008?

7. Is Ms. Cheema entitled to receive medical benefits for treatment recommended by Neuro-Rehab Services Inc., as follows:

(a) $3,711.25 for occupational therapy social skills intervention recommended in an OCF-18 dated January 27, 2009; and

(b) $6,243.32 for rehabilitation coaching recommended in an OCF-18 dated January 27, 2009?

8. Is Ms. Cheema entitled to payments for the cost of examinations, as follows:

(a) $1,183.30 for a functional abilities evaluation recommended by First Choice Medical Assessments in an OCF-22 dated August 29, 2008;

(b) $2,474.61 for an occupational therapy assessment recommended by Neuro-Rehab Services Inc. in an OCF-22 dated November 10, 2008;

(c) $2,795.25 for a speech language assessment recommended by Neuro-Rehab Services Inc. in an OCF-22 dated January 30, 2009; and

(d) $1,403.85 for a physiotherapy assessment recommended by Neuro-Rehab Services Inc. in an OCF-22 dated January 30, 2009;

9. Is TD General liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Cheema?

10. Is TD General liable to pay Ms. Cheema’s expenses in respect of the arbitration?

11. Is Ms. Cheema liable to pay TD General’s expenses in respect of the arbitration?

12. Is Ms. Cheema entitled to interest for the overdue payment of benefits?

Result:

1. Ms. Cheema did not sustain an impairment as a result of the accident within the meaning of section 2(1.2)(g) of the Old Regulation.

2. Ms. Cheema is not entitled to receive any further payments for weekly caregiver benefits.

3. Ms. Cheema is not entitled to receive any further payments for attendant care benefits.

4. Ms. Cheema is entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from July 1, 2008 to January 19, 2010.

5. Ms. Cheema is entitled to receive a medical benefit for $1,040.97 for assistive devices recommended by First Choice Medical Assessments in a treatment plan dated September 9, 2008, less the value of any assistive devices recommended therein that TD General has already provided to Ms. Cheema.

6. Ms. Cheema is not entitled to receive medical benefits for the treatment recommended by Neuro-Rehab Services Inc.

7. Ms. Cheema is not entitled to payments for the cost of examinations claimed.

8. TD General is not liable to pay a special award.

9. Ms. Cheema is entitled to interest on overdue benefits.

10. The issue of expenses is deferred pending an attempt by the parties to resolve the issue between themselves.

EVIDENCE AND ANALYSIS:

Issue 1: Ms. Cheema’s claims for post-104 week benefits

I have concluded that Ms. Cheema’s significant symptom fabrication and exaggeration has thwarted a finding that any genuine, accident-related impairments that she may be experiencing meet the disability thresholds necessary for accessing post-104 week attendant care, housekeeping and caregiver benefits. As a result, Ms. Cheema is not entitled to these benefits post-104 weeks.

Since my decision is based on the credibility of Ms. Cheema’s presentation, the following review and analysis of the pre- and post-accident medical evidence, lay evidence, surveillance evidence, and my own observations at the hearing, is directed at and focuses on the credibility issue.

Pre-accident history

My review of the evidence begins with Ms. Cheema’s significant pre-accident medical history. Although Ms. Cheema’s medical history may be seen as raising a causation issue, it is not reviewed for that purpose. Ms. Cheema’s report of her pre-accident history has been inconsistent, and is therefore relevant to her credibility. There have been assessments where she has been able to provide a relatively good history, but most post-accident assessors have been unable to elicit much, if any, pre-accident information from Ms. Cheema. At the hearing, she answered most questions related to her pre-accident medical history with “I don’t know” or “I don’t remember.” Given the extent of Ms. Cheema’s pre-accident complaints, her answers (or lack thereof) highlighted how important the veracity of her purported difficulties with memory and cognitive functioning is in this hearing.

Her history is also important because several assessors appear to have been unaware of her pre-accident complaints, and it is unclear how their assessments may have been affected by that information. Others appear to have downplayed its significance. The pre-accident medical history is therefore relevant to my analysis of the post-accident medical assessments.

Given Ms. Cheema’s inability or refusal to convey pre-accident information, the majority of her pre-accident medical, personal and vocational history had to be gathered from medical records. No health care professionals who treated or assessed Ms. Cheema pre-accident were called to give evidence at the hearing. Further, Ms. Cheema’s husband, Satwinder Singh, had little personal knowledge of Ms. Cheema’s pre-2006 history as, in accordance with their religious and cultural traditions, he had only met Ms. Cheema shortly before they were married in November 2005. Ms. Cheema moved from British Columbia to Ontario to marry Mr. Singh.

Pre-accident records from British Columbia

The earliest medical records are from British Columbia and indicate that Ms. Cheema had been seeing Dr. Fenton, a rheumatologist, since the fall of 2002 for diffuse back pain. Ms. Cheema was working as a bakery packer at the time. Dr. Fenton concluded “I am not sure of the reason [for her back pain], I can find no evidence of underlying disease.”

Ms. Cheema began seeing Dr. Mann, general practitioner, in January 2003. Dr. Mann referred Ms. Cheema to Dr. Bhachu, orthopaedic specialist, to further investigate her back pain. Dr. Bhachu could not find any abnormalities, and blood work and diagnostic imaging results were negative. In June 2003, he noted that Ms. Cheema “today complains of migrating pains. Sometimes the pains are in the right arm and at other times on the left side and at times she has headaches.”

In January 2004, Dr. Mann noted that Ms. Cheema’s back pain was persisting, and he made a finding of chronic pain and anxiety. His notes reveal that she was taking Paxil in February 2004 and Celexa in March. His March notes also confirm that Ms. Cheema “cannot work due to back pain,” although it is not clear how long she had been off work.

In April 2004, Ms. Cheema was involved in a motor vehicle accident in British Columbia. She was still off work at the time of this accident due to her prior persisting back pain and other physical and psychological issues. Between April 2004 and September 2004, Dr. Mann’s records reveal significant ongoing complaints, now including pain in her neck and right shoulder, facial pain and widespread severe head and neck pain. Dizziness is also noted, and a further anti-depressant medication, was prescribed. There appears to be fairly significant work-up during this time including imaging of her cervical spine, right shoulder, abdomen, upper gastrointestinal region and sinuses, although no abnormalities are noted.

Dr. Mann referred Ms. Cheema to Dr. Mehta, D.M.D., in May 2004, who found her symptoms consistent with temporomandibular disorder (TMJ) and “chronic headaches.” In his final report in September 2004, Dr. Mehta concluded that “there are no signs of obvious pathology to explain the nature or severity of her pain complaints.” He recommended that Ms. Cheema be referred to a pain clinic.

Dr. Mann also referred Ms. Cheema to Dr. Jaworski, physiatrist, in September 2004, who noted that “it appears that she has pains affecting most of her body.” He also noted that “Over time she had multiple medications for pain including NSAIDs, muscle relaxants, anticonvulsants and antidepressants.” Dr. Jaworski also noted that functional inquiry revealed “sleep disturbances” as well as “some trouble with agoraphobia since the MVA.” Dr. Jaworski concluded his report with the following remarks:

There is obvious discrepancy between her symptoms and signs. The only clear abnormality today is her mild (likely iron deficiency) anemia. That certainly warrants attention.

Otherwise, I sense that she has non-specific aches and pains which may represent a long-standing pain disorder (back pain for two years) as defined in the DSM-IV.

Further management is symptomatic with minimal use of pharmacological agents. Her psychological well-being needs to be monitored closely.

In October 2004, Dr. Mann’s notes record that a referral was made to a pain clinic to address “chronic back/neck/facial pains.” While it is clear from Dr. Mann’s records between October 2004 and March 2005 (his last entry) that Ms. Cheema had ongoing complaints, had not returned to work, and was “upset at ICBC/claim,” it is not clear that Ms. Cheema ever attended a pain program. I was not able to discern any further reference to the pain clinic referral.

There are no medical records from British Columbia after March 2005. As a result, it is not clear what happened to Ms. Cheema regarding the significant issues that had her off work for at least a year. What we do know is that Ms. Cheema moved to Ontario sometime before her wedding in November 2005. We also know from Mr. Singh’s evidence that Ms. Cheema apparently did not have any health issues when he met her, and that she worked as a cashier in Ontario for a few months leading up to the birth of their first child in September 2006.

Pre-accident records from Ontario

The first records in Ontario are those of Dr. Sandhu, general practitioner, beginning about one year after Ms. Cheema’s move to Ontario. While there are a couple of references to complaints of back pain and headaches, as well as one reference to generalized body ache and facial pain, these records between October 2006 and September 2007 consist of only two pages, and reference relatively infrequent visits. Most of those visits focus on post-natal issues. The final pre-accident records are those of Dr. Wahba, also a general practitioner, starting in September 2007, who Ms. Cheema was seeing in respect of her pregnancy with her second child.

The accident and related injuries

The accident at issue took place on January 19, 2008. Ms. Cheema was 35 years old and approximately 5 months pregnant with her second child. She had apparently just started a job at a Subway restaurant earlier that month and was still a trainee.

At the time of the accident, Ms. Cheema was a seat-belted passenger in a car driven by her husband. She was riding in the rear seat on the driver’s side. Her son, who was approximately 16 months old at the time, was in a car seat in the rear seat on the passenger side. Her husband made a left-hand turn into the path of an oncoming vehicle that t-boned the passenger side of their vehicle.²

There are differing accounts regarding the moments immediately following the accident. One account has Ms. Cheema being ejected from the vehicle.³ The Ambulance Call Report notes “pt found sitting in car.” Another account has Ms. Cheema being extricated from the vehicle by firemen at the scene.⁴ I was unable to locate confirmation for this assertion in the records.

Ms. Cheema was initially taken to William Osler Health Centre in Brampton, and shortly thereafter transferred to St. Michael’s Hospital. An x-ray of her right arm revealed a fracture of the right midshaft ulna (one of two large bones in the forearm). A cast was applied. Given other pain complaints, several other x-rays were taken; however, no other significant abnormalities were noted. A chest x-ray showed no rib fractures. X-rays of Ms. Cheema’s lumbar and thoracic spine were normal. An x-ray of her left knee was also normal.

There also was some concern that Ms. Cheema may have sustained a loss of consciousness, as she had a 2 inch hematoma (bruise) on the right side of her forehead and “[did] not remember what happened.” The ambulance attendants noted that Ms. Cheema was “conscious but confused” when they arrived on the scene, approximately 13 minutes after the time noted for the accident. As well, Ms. Cheema had a Glasgow Coma Scale score of 15, elicited by the attendants on two separate occasions, approximately 12 and 17 minutes thereafter. Still, given a possible brief loss of consciousness and the bruising, a CT scan of the head and cervical spine were also conducted to investigate any possible closed head injury or cervical spine involvement. The CT noted mild extracranial soft tissue swelling [my emphasis] over the left frontal bone, but concluded that there was “no definite evidence of intracranial [my emphasis] or cervical spine sequelae.”

Ms. Cheema was discharged after two days with instructions to follow up with St. Michael’s Ambulatory Clinics, i.e. its Fracture Clinic (for cast removal), and its Head Injury Clinic (apparently out of an abundance of caution).

Notwithstanding the above-noted investigations and findings, the medical records contain misinformation regarding the nature and extent of Ms. Cheema’s injuries. For example, notes in St. Michael’s in-patient chart reference to a rib fracture and a wrist fracture. In fact, the Discharge Summary only refers to the ribs and right wrist, and doesn’t even reference the right ulna fracture which, as noted, is the only fracture confirmed in any x-rays. A follow-up Ambulatory Record from St. Michael’s dated February 29, 2008 also suggests a cervical fracture, which is incorrect. Mr. Singh also reported that Ms. Cheema was unconscious when found by the ambulance attendants and taken to hospital.⁵ As noted, this is not supported by the evidence. In short, it is evident that, like the report that Ms. Cheema was ejected from the vehicle, some distorted facts and misinformation regarding the accident and Ms. Cheema’s physical injuries have been perpetuated in the medical records.

Ms. Cheema’s post-accident presentation and investigations

As noted, there is general consensus that Ms. Cheema’s current presentation is dramatic, atypical, and not fully explained by the physical injuries she sustained in the accident. Still, Ms. Cheema’s physical injuries were not insignificant, and at least one witness, Dr. Ouchterlony, who is the Director of the Head Injury Clinic at St. Michael’s, suggested that Ms. Cheema’s presentation may be the result, at least in part, of the ongoing effects of a traumatic brain injury.

I therefore begin my review of the evidence into Ms. Cheema’s post-accident presentation by examining her most significant physical injuries, particularly her head injury. This is followed by a review of the evidence that speaks to her presentation on the basis of possible mental or behavioural disorders.

Physical injuries

Ms. Cheema attended St. Michael’s Fracture Clinic between March and August 2008. Dr. Bogoch, orthopaedic specialist, saw Ms. Cheema on four occasions and, over this time, her ulna fracture healed.

On her first attendance, Dr. Bogoch noted that Ms. Cheema reported “pain out of keeping with her fracture and the healing which is present in her fracture.” However, these dramatic pain reports are not noted in subsequent visits. Rather, he noted that Ms. Cheema’s rib pain was “no longer bothering her” and neck pain had “improved substantially.” On the last attendance, he reported that Ms. Cheema “has regained full forearm rotation and wrist and elbow function, there is no need for her to follow up further here.”

I note and accept the evidence of other orthopaedic specialists who have also concluded that

Ms. Cheema enjoyed a good recovery from her orthopaedic injuries.⁶

With respect to a head injury, it is clear that Ms. Cheema hit her head in the accident (as evidenced by the bruise on her forehead and the mild extracranial soft tissue swelling) and may have even sustained a brief loss of consciousness. However, there is a significant distinction to be drawn between a mild uncomplicated head injury with transient symptoms and an intracranial traumatic brain injury with ongoing sequelae. I accept the evidence of Drs. Cancelliere, Zielinsky, Dost and Lin that Ms. Cheema’s current presentation is inconsistent with the sequelae of a traumatic brain injury.

Dr. Cancelliere is a neuropsychologist who saw Ms. Cheema in January 2009 on referral from Ms. Cheema’s previous counsel, Carranza Barristers. Dr. Cancelliere concluded that Ms. Cheema’s test results were “completely inconsistent with a mild head injury and therefore is not likely to be reflecting a traumatic brain injury sustained in the subject MVA.”

Dr. Zielinsky, psychiatrist, saw Ms. Cheema in connection with TD General’s post-104 week caregiver assessments. He agreed with Dr. Cancelliere that Ms. Cheema’s presentation was completely inconsistent with a traumatic brain injury.

Dr. Dost is a neurologist who assessed Ms. Cheema in connection with TD General’s multidisciplinary catastrophic impairment assessments. Dr. Dost noted that Ms. Cheema’s GSC score was consistently 15, there were no focal neurological deficits, her CT scan was normal, and the neuropsychological testing by Dr. Cancelliere revealed “a profile of complaints of diffuse severe impairment that is incompatible with the residua of traumatic brain injury in the context of validity concerns.”

As a result, Dr. Dost concluded that “Ms. Cheema’s current cognitive inefficiencies are not attributable to the effects of the mild concussive event.” He further concluded that “Ms. Cheema’s pain syndrome in its entirety is non-neurological. [my emphasis] The pain does not follow any known neuro-anatomical boundaries that (sic) and is incongruous with neurophysiology.” He found her neurological examination to be “entirely within normal limits.”

Dr. Lin, neurologist, assessed Ms. Cheema on referral from Dr. Ouchterlony. Dr. Lin reported that Ms. Cheema complained of significant pain, with her right arm symptoms being the most prominent, as well as pain-related weakness of her arms and legs with occasional numbness and tingling in her hands and feet. She also complained of a “constellation of additional symptoms including dizziness and a burning in the head.” However, Dr. Lin found that “The only reproducible weakness appeared to be mild weakness of left toe extension.” He further noted that “Her predominant symptom appears to be pain. This pain is fairly diffuse and patchy in nature and does not fit a particular nerve or nerve root distribution.”

Dr. Lin concluded that “Based on the available data, there is no electrophysiological evidence of a right carpal syndrome, ulnar neuropathy, brachial plexopathy, or cervical radiculopathy which could be contributing to this woman’s symptoms... In the final analysis, there is currently no convincing clinical or electrophysiologic evidence of a significant peripheral nerve lesion.”

To the extent that Dr. Ouchterlony suggests that Ms. Cheema’s current presentation is the result of ongoing traumatic brain injury or post-concussive symptomology, I find that her opinion is not supported by the bulk of the neurological or neuropsychiatric evidence.

Ms. Cheema first saw Dr. Ouchterlony in March 2008, and has seen her periodically since.⁷ Although she is the Director of the Head Injury Clinic at St. Michael’s, Dr. Ouchterlony has no specialty in neurosurgery or psychiatry. Dr. Ouchterlony testified that her focus is on treating the whole person, and putting together a team of professionals to ensure that the patient is getting the services they need. In that regard, she relies on the patient’s self-report of deficits, as well as assessments conducted by other health care professionals. She does not conduct any in-depth assessments herself.

After incorrectly noting that Ms. Cheema had been ejected from the vehicle, Dr. Ouchterlony’s initial note in March 2008 included a “probable head injury” in her list of diagnoses. This may have been simply a reference to the fact that Ms. Cheema obviously hit her head in the accident, and may have sustained a brief loss of consciousness. There is nothing in this first consult note to indicate that Dr. Ouchterlony had observed anything identified as ongoing sequelae from a head injury. There is no reference to the need for any follow-up assessments by a neurologist or neuropsychologist to investigate a probable head injury.

In addition, Dr. Ouchterlony’s OCF-19 of September 22, 2009 sought a determination of catastrophic impairment on the basis of a class 4 (marked impairment) due to mental or behavioural disorders. The OCF-19 makes no reference to a head injury or cognitive deficits.⁸ In the comments box of the OCF-19, Dr. Ouchterlony added “Pt has chronic pain & depression & needs assistance with activities on a daily basis – class 4 impairment.” This is the totality of the information contained in or provided with the OCF-19 in support of the determination of catastrophic impairment.

However, Dr. Ouchterlony does make reference to “cognitive impairment due to brain injury,” albeit quite a bit down the list of injuries and sequelae, in OCF-3s completed in December 2009 and April 2010, and Dr. Ouchterlony continued to support that conclusion at the hearing on the basis that Dr. Cancelliere did not rule it out. As noted, Dr. Cancelliere found Ms. Cheema’s presentation completely inconsistent with a mild head injury.

On the whole, I did not find Dr. Ouchterlony’s evidence persuasive. Throughout the time that she has seen Ms. Cheema, she has assumed the role of advocate. Her efforts have not been limited to coordinating medical support and setting up referrals. Her first consult note also remarked that Ms. Cheema needed a lot more services that would have been in place if she had an experienced personal injury lawyer.⁹ Dr. Ouchterlony provided a list of the top personal injury lawyers. As Dr. Ouchterlony testified, “it’s the lawyer that makes things happen.” Her notes also refer to putting together the right assessment team.¹⁰ Subsequent notes also refer to putting a new family doctor in place.¹¹ Other notes refer to team conferences with the lawyer and family doctor to get Ms. Cheema needed services.¹²

I also find that both Dr. Ouchterlony and Sasha Stewart (whose reports Dr. Ouchterlony relied on) did not have a good medical history for Ms. Cheema, accepted Ms. Cheema’s complaints at face value, and failed to keep a sufficiently critical eye on the possibility that at least some of Ms. Cheema’s symptomology may not be genuine.

With respect to Ms. Stewart, she is an occupational therapist with Neuro-Rehab Services Inc. (Neuro-Rehab). She initially applied for approval to conduct an occupational therapy assessment in November 2008 “to address cognitive-behavioural and other deficits resulting from the MVA.” The OCF-22 states that the assessment was needed “given the nature of the client’s injuries listed above.” The referenced list of injuries was provided to Ms. Stewart by Carranza Barristers, with “head injury” listed at the top.

Given Ms. Cheema’s self-report, as well as observations made on testing, Ms. Stewart concluded that Ms. Cheema was suffering from significant deficits in all areas of functioning. As a result, Ms. Stewart prepared a Form 1 recommending $6,593.09 per month for attendant care, largely due to 7855 minutes allocated to “ensures safety.” In short, Ms. Stewart concluded that Ms. Cheema needed someone available to her “at all times of the day or night, to ensure her safe evacuation of the premises.” Ms. Stewart also recommended caregiving and housekeeping support be provided to Ms. Cheema.

With respect to her recommendation for 24 hour attendant care, Ms. Stewart confirmed that her findings of dizziness and balance issues were based on Ms. Cheema’s self-report and observations of her stumbling and holding onto furniture. She agreed, though, that stumbling would be expected if someone were trying to fabricate or exaggerate these complaints. While she testified that Ms. Cheema was consistent in her presentation over the several months that she saw her, Ms. Stewart also admitted that consistent exaggeration would also generate consistency. She also offered that she is only trained to “report what I see.”

On the whole, I did not find Ms. Stewart to be a persuasive witness. She appears to have accepted, from the outset of her referral from Carranza Barristers, that Ms. Cheema had sustained a brain injury with related neurological and cognitive deficits. As she admitted, her assessments and recommendations were based largely on taking Ms. Cheema’s self-reports and test results at face value with little, if any, critical attention focussed on possible inconsistencies between formal testing and informal observation. Her focus was on “identifying deficits and providing strategies” based largely on the unsubstantiated assumption that Ms. Cheema’s presentation was due to the ongoing effects of a traumatic brain injury.

I note that Dr. Feinstein, a neuropsychiatrist who assessed Ms. Cheema on Ms. Wolanksi’s referral in April 2011, also found that Ms. Cheema’s injuries likely included a mild traumatic brain injury; however, this appears to be simply an historical reference to the hematoma and the possible brief loss of consciousness and amnesia noted in the hospital records. Dr. Feinstein did not testify at the hearing, but I do not read his report as providing the opinion that Ms. Cheema’s current presentation can be explained by the ongoing sequelae of a traumatic brain injury. If his report intended to communicate that opinion then, like the opinion of Dr. Ouchterlony, I am not persuaded by it. As stated, I prefer the opinions of Drs. Cancelliere, Zielinsky, Dost and Lin.

Psychological impairments

Since I find that Ms. Cheema’s physical injuries do not explain her presentation, the issue, from a credibility perspective, is whether her presentation is explained by genuine psychological impairments.

Ms. Cheema’s assessors have arrived at various diagnoses to try to explain her presentation. Most have concluded that she suffers, at least in part, from either an undifferentiated or specific form of somatoform disorder (including a pain disorder). A somatoform disorder is recognized in the DSM-IV-TR¹³ as the presence of physical symptoms that suggest a general medical condition that “are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder.”¹⁴ Other diagnoses to try to explain Ms. Cheema’s presentation have included major depressive disorder, anxiety disorder and a phobia of driving in an automobile.

TD General’s assessors disagree that Ms. Cheema’s presentation is consistent with these disorders or can be fully explained by them. They point to inconsistencies observed in her behaviour and concerns raised in validity testing, and note that differential diagnoses in cases of somatoform disorder include factitious disorder (where the individual is seeking to assume the sick role) or malingering (where secondary gain better explains the behaviour). Factitious disorder and malingering are both characterized by physical or psychological symptoms that are intentionally produced or feigned, whereas with somatoform disorders, the physical symptoms are not intentional, i.e. under voluntary control.¹⁵

However, the credibility question as it relates to Ms. Cheema’s psychological status is not as simple as whether Ms. Cheema’s presentation is genuine or not. As some assessors point out, an individual may engage in conscious or unconscious symptom magnification to draw attention to a genuine condition in what is sometimes called a “cry for help.” It may be part of the symptomology. At the same time, the existence of a genuine mental or behavioural disorder does not preclude the co-existence of factitious disorder,¹⁶ where the individual is likely to be not even aware of the motivation behind his or her feigned behaviour.¹⁷ Further, there is nothing that precludes an individual with a genuine mental or behavioural disorder from fabricating or exaggerating symptomology for secondary gain.

Therefore, the credibility question regarding Ms. Cheema’s psychological impairments involves the challenging task of sorting the true from the false, both of which are likely present in some degree. As one of TD General’s assessors put it, somatoform disorder, factitious disorder and malingering lie on a continuum. ¹⁸ As one of Ms. Cheema’s own assessors put it, the truth behind Ms. Cheema’s “extraordinary mental state” likely lies somewhere between the competing theories of malingering or factitious disorder, on the one hand, and a genuine mental or behavioural disorder, on the other. ¹⁹

I will now review some of the more salient medical evidence that examines Ms. Cheema’s presentation on the basis of possible mental or behavioural disorders.

The earliest psychological assessment appears to have been conducted by Dr. Lindal in July 2008. Dr. Lindal did not testify. Dr. Lindal’s report contains the opinion that Ms. Cheema was suffering from Major Depressive Disorder; driving/passenger phobia; and, was at risk of developing chronic pain. Notably, Dr. Lindal found that, while he was able to gather enough information from Ms. Cheema to reach this conclusion without an interpreter, he did not find her command of English adequate to conduct formal psychological testing. Also notable is Dr. Lindal’s remark that Ms. Cheema was a reliable historian and, despite her reports of cognitive difficulties, he observed nothing of significance in that regard. Dr. Lindal did not testify.

As noted above, Dr. Cancelliere also assessed Ms. Cheema. His assessment was conducted over two days in December 2008.

Dr. Cancelliere noted that Ms. Cheema gave a detailed account of her personal and work history.

In terms of her status, Ms. Cheema reported that there are days when she experiences 10 plus pain over 100% of her body. Dr. Cancelliere noted that her report of symptomology “tended to be to the extreme side” giving as an example, her report of memory problems as a “very, very big problem.” She also complained about headaches and dizziness.

Ms. Cheema’s formal testing produced results mostly in the severely impaired range. Specifically, intellectual testing indicated severe impairment on all five intellectual subtests. Non-verbal intelligence revealed severely impaired psycho-motor speed. Her visuospatial conceptualization was severely impaired. Her visual search and matching was very severely impaired. Other subtests showed severe impairment.

In terms of attention and concentration, Ms. Cheema tested as severely impaired. Memory subtests indicated functioning in the impaired to severely impaired range, although there was one intrusion within normal limits. Motor capacities fell in the severely impaired range, including manual dexterity and grip strength.

Ms. Cheema gave such a severely impaired performance on testing of concept formation and mental flexibility that the testing had to be discontinued.

Dr. Cancelliere noted that “Ms. Cheema gave a grossly atypical performance on a test of visual scanning and enumeration designed to assess the level of motivation (indicating that she may not have been fully engaged on this test). She made numerous errors on this very basic test…. After the fifth item she was asked to perform this task in Punjabi rather than English. Again, the nature of her performance did not change.”

In terms of the Personality Assessment Inventory of personal and emotional status, the validity profile “suggested that Ms. Cheema did not attend consistently or appropriately to item content.” However, an item analysis led Dr. Cancelliere to conclude that this was likely due to a misunderstanding of the word “never” which she seemed to interpret in the opposite. While recognizing that the “usual recommendation for such a validity scale is to assume the clinical profile invalid,” Dr. Cancelliere accepted the profile “because the profile indicated that Ms. Cheema was likely someone who presents with a wide variety of complaints many of which are vague and/or subjective. There is a general complaintiveness and dissatisfaction indicated.” He found this consistent with her current situation. He also found her profile “consistent with a somatoform disorder.” He noted that “Individuals involved in an MVA with a family member are more likely to demonstrate posttraumatic stress disorder symptomatology of greater severity and persistence according to clinical experience.”

Although Dr. Cancelliere identified a differential diagnosis of conscious exaggeration of her symptoms, he preferred the diagnosis of “pain disorder associated with psychological factors and a general medical condition (a type of somatoform disorder).” He noted that Ms. Cheema had “somatoform features” in her pre-accident history, but not in the four months before the accident. As a result, he suggested that she was vulnerable to a somatoform disorder, and the accident was the cause. However, Dr. Cancelliere offered no explanation as to how or why the somatoform features present in her pre-accident history would have suddenly resolved. This would seem to beg an explanation since, up until sometime between March and November 2005, Ms. Cheema’s complaints had been significant and chronic in nature, and had prevented her from working for at least a year. Her symptomology was worsening, not getting better. Dr. Cancelliere seemed to ignore this fact and downplayed the seriousness of her pre-accident complaints.

Dr. Cancelliere also testified that Ms. Cheema did not seem to have lost her memory of events prior to the accident. He did not observe the sort of unresponsiveness and total long term memory loss demonstrated during several other assessments (as discussed below). It is not clear how his diagnosis may have been affected had Ms. Cheema presented with little recall of her pre-accident medical, personal and vocational history.

As for the concerns arising from validity testing, Dr. Cancelliere concluded that “this appeared to be based in ESL factors” and, as mentioned above, he also accepted the results on the basis that “the clinical profile was consistent with her presentation/status.” I did not find Dr. Cancelliere’s explanations in this regard to be persuasive. With respect to “ESL factors,” I note that an interpreter was present throughout testing, and even when some testing was repeated with the interpreter, the results did not change. Also, I found rather specious the suggestion that validity concerns could be discounted because Ms. Cheema’s clinical profile suggested that she was someone “who presents with a wide variety of complaints many of which are vague and/or subjective.” The suggestion seems to be that someone with this type of profile is likely to generate invalid results; however, I was not persuaded that invalid results are not just as likely to be the result of someone who is intentionally feigning or exaggerating their symptomology.

In September 2009, Ms. Cheema’s family doctor at the time of the accident, Dr. Lewis, completed a Disability Certificate (OCF-3) stating that Ms. Cheema had made no progress in the 16 months that he had seen her.²⁰ The OCF-3 refers to a “myriad of symptoms” with injuries and sequelae from the accident identified as chronic pain, post-traumatic stress and post-concussive syndrome. Dr. Lewis concluded that Ms. Cheema suffered from a complete inability to carry on a normal life, and was substantially unable to engage in her caregiving and housekeeping activities. However, neither Dr. Lewis nor her current family doctor, Dr. Malhotra testified at the hearing, and there are no reports from these primary healthcare providers. The documentary brief does not contain a Disability Certificate from Dr. Malhotra, who Ms. Cheema has been seeing since May 2010, and Dr. Malhotra’s handwritten clinical notes consist of only two pages.

In January 2010, Dr. Hines conducted a psychiatric assessment of Ms. Cheema as part of TD General’s catastrophic impairment assessment. He did not find her to be cooperative and questioned the veracity of her presentation. He noted several concerns. For example, Ms. Cheema could not remember her date of birth which he found highly unusual “unless the person is severely, severely impaired and essentially non-functional.” He testified that some of Ms. Cheema’s responses were more in keeping with “someone who is schizophrenic or psychotic; someone who is severely depressed and catatonic, who just lies there and stares; someone hydrated and fed through intravenous; someone who doesn’t eat or speak.”

Dr. Hines also noted that there were many things that Ms. Cheema could not recall regarding her pre-accident history.²¹ However, as he pointed out, she appeared to demonstrate a good recollection of her history in the detailed statement she provided to the insurer in April 2008.²²

In addition to her responses, Dr. Hines noted that Ms. Cheema’s behaviour was also highly unusual. She frequently extended and flexed her hands and arms, and rubbed them. She also rubbed her legs, and complained of pain. These behaviours were writhing in nature and would immediately subside when answering questions about her injuries, and then recur.

Dr. Hines could not explain Ms. Cheema’s highly unusual responses or bizarre behaviours from a psychiatric perspective, but, “giving her the benefit of the doubt,” he concluded that she could possibly be suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood in the mild to moderate range.

Dr. Hines also provided his opinion with respect to the conclusions drawn by some of Ms. Cheema’s assessors. He disagreed with Dr. Lindal’s diagnosis of major depressive disorder noting that Ms. Cheema had demonstrated a reasonably good level of functioning by being able to conduct her clinical interview with Dr. Lindal in English. Dr. Lindal noted that Ms. Cheema was appropriately dressed and groomed; maintained appropriate eye contact; was a good historian; did not demonstrate a problem with concentration, persistence or pace; and, had a fluid affect. Dr. Hines maintained that Ms. Cheema may have been depressed, but he did not see a basis for a major depressive disorder. Dr. Hines also noted that Dr. Lindal’s conclusion was based almost entirely on Ms. Cheema’s self-report, as he did not conduct objective testing.

Dr. Hines also commented on Dr. Cancelliere’s assessment. He noted that Ms. Cheema was able to provide Dr. Cancelliere with considerable detail regarding her personal and work history, which was completely at odds with her presentation during his assessment. He testified that it is a discrepancy that could not be explained by any psychiatric disorder or illness. Dr. Hines disagreed that there was sufficient, reliable evidence for Dr. Cancelliere to arrive at a diagnosis of somatoform disorder, i.e. a pain disorder. He found the validity concerns raised in Dr. Cancelliere’s assessment to be significant, and he could not understand how Dr. Cancelliere could have arrived at his conclusions given those concerns.

In May 2010, Dr. Ouchterlony referred Ms. Cheema to Dr. Bhalerao, psychiatrist. Dr. Bhalerao did not testify. I note that Dr. Bhalerao’s report is rather cursory, with little narrative, and it is not clear what, if any, psychiatric testing was conducted. While there is an AXIS I²³ diagnosis of “cognitive disorder not otherwise specified,” the body of the report contains the opinion that Ms. Cheema’s problems with answering questions “could be either a language problem or a cognitive problem.” As well, immediately preceding the AXIS I diagnosis, the report provides that “[Ms. Cheema’s] cognition showed difficulties secondary to a language barrier…” Dr. Bhalerao’s report also contains an AXIS III²⁴ diagnosis of “head injury, postconcussive symptoms and again multiple pain symptoms,” but this appeared to be largely a reiteration of the section of her report entitled “history of presenting illness,” and based on Ms. Cheema’s self-report rather than the result of any tests administered.

The most telling and relevant psychiatric assessment was conducted by Dr. Zielinsky in connection with the post-104 week caregiver benefit.

Dr. Zielinsky saw Ms. Cheema on two occasions. In November 2010, the assessment had to be stopped and re-scheduled as a result of Ms. Cheema’s paroxysms (sudden motions/spasms), nausea, burping, gyrations and washroom breaks “every 5 minutes.” Essentially, she presented as not being well enough to complete the assessment.

Ms. Cheema was seen again on January 25, 2011. An interpreter and her husband were present. Ms. Cheema reported pain all over her body. She complained of headaches, shoulder pain, pain in her jaw, teeth, eyes, face and legs. She claimed the pain was unbearable and sometimes associated with dizziness. When she was asked about her vision, Ms. Cheema responded that she sometimes cannot see or hear anything, but she was not able to describe how long these episodes last or how frequently they occur, simply answering “I don’t know.” In fact, Dr. Zielinsky noted that Ms. Cheema answered most questions “I don’t know,” and much information had to be obtained through Mr. Singh.

In terms of her mental status examination, Dr. Zielinsky reported that Ms. Cheema’s behaviour was dramatic in her displays of unusual verbal and non-verbal pain behaviours. Ms. Cheema exhibited behaviours such as groaning, moaning, gasping, grimacing, posturing and constantly moving, wriggling her arms in a snake-like fashion. Her eyes remained closed. She alternated between sitting and standing, constantly wriggling her body. She interrupted every 2 minutes to grab her legs and her arms, asking her husband to give her sips of water which were followed often by retching, nausea and occasionally spitting of saliva.

As for her responses to questions, Dr. Zielinsky doubted her veracity and effort. Apart from answering most questions with “I don’t know,” Dr. Zielinsky noted that her answers did not appear valid or consistent with any known attentional, concentrational or memory dysfunction. For example, she could not recall the name of the city where she lives, the ages of her children, her date of birth or what she had for breakfast, but she was able to recall that her lawyer told her not to sign a consent that would permit him to consult with her treating health care physician. She could identify a Kleenex box and a pen, but could not identify a triangle, a circle or a square. She would not cooperate in a test that required her to draw the face of a clock. She was also unable to do simple calculations, such as 2 + 2, keeping her eyes closed, saying “I don’t know,” and deferring to her husband for an answer. At times, though, she would correct her husband’s answers to questions.

Dr. Zielinsky testified that, in trying to make sense of her presentation, he considered various diagnoses, including a somatoform disorder (including a pain disorder), depression, an anxiety disorder, psychosis, drug and/or alcohol abuse, and a medical condition. According to Dr. Zielinsky, none of these could explain Ms. Cheema’s presentation. He testified that her presentation was inconsistent with any known psychiatric or neuropsychiatric disorder. As Dr. Zielinsky put it, even a person with a tumor and a large part of their brain removed will know their date of birth, be oriented to location, and be able to recognize a triangle; even a person with dementia or Alzheimer’s will lose their immediate recall first, then long term memory. A person will never lose long-term memory before losing immediate recall or short-term memory. I found it significant that this evidence was not disputed.

Nor did Dr. Zielinsky find her presentation to be consistent with depression or a pain disorder. Dr. Zielinsky testified that a person with a pain disorder will “never not know 2+2, no matter how upset. Even a very depressed person knows 2+2.” Again, this evidence was not directly disputed.

With respect to a diagnosis, Dr. Zielinsky found very little objective, verifiable and intelligible information to support a somatoform disorder. On the contrary, he found much reason to doubt the veracity of Ms. Cheema’s complaints, and identified differential diagnoses of malingering and factitious disorder. In that regard, Dr. Zielinsky testified that somatoform disorder, factitious disorder and malingering are not necessarily discrete; they may exist along a continuum. While Dr. Zielinsky did not rule out that Ms. Cheema may have some genuine complaints and may be in some distress, the only legitimate psychiatric diagnosis that he felt he could make was a driving-related phobia.

Dr. Zielinsky also testified about Dr. Cancelliere’s diagnosis of a somatoform disorder, and noted an important difference between their respective assessments. Like Dr. Hines, Dr. Zielinsky noted that Ms. Cheema had given Dr. Cancelliere (and Dr. Lindal) a fairly good history, which she could not give him. This was significant because the sort of cognitive deficit dysfunction that Ms. Cheema displayed to him was not consistent with a somatoform disorder.

It is “not part of the picture.”

Dr. Zielinsky was also critical of Dr. Cancelliere’s willingness to overlook significant concerns arising from the validity measures. He testified that he would expect someone with a somatoform disorder to present consistently over several assessments. He would also expect them to present consistently during a single assessment, both inside and outside the assessment room. He noted that he could observe Ms. Cheema in the parking lot following the assessment, and found her presentation to be inconsistent with what he had observed in his office.

Although not psychological assessments, Dr. Prior’s orthopaedic assessment and Ms. Vinita Tandon’s occupational therapy assessment, both conducted in January 2011, highlight credibility concerns also worth noting. Both Ms. Tandon and Dr. Prior testified at the hearing.

Ms. Tandon noted several significant discrepancies between Ms. Cheema’s physical abilities upon casual observation versus direct examination. For example, Ms. Tandon noted that:

[Ms. Cheema] fluidly moved her arms to indicate sites of pain however was slow and guarded upon range of motion testing. She declined to complete lower extremity active range of motion testing however was observed to bring her legs up to her abdomen while curling up onto the sofa during the interview. She registered “0” pounds of force with Jamar Testing on the second position bilaterally on all three trials. However she was able to grip the Jamar in order to complete the test. She also was observed to grip a cup and used her right and left hand interchangeably during the assessment to assist her in transfers.²⁵

Ms. Cheema also demonstrated gripping during testing of lifting, pushing and pulling. She was also able to execute full neck rotation and neck flexion and, while “she reported pain with these movements and was guarded; she was observed to fluidly rotate her neck upon casual observation. She was unable to extend her neck due to pain upon direct examination however demonstrated full neck extension while attempting trunk extension.” Ms. Tandon cited several other examples of inconsistencies between Ms. Cheema’s movements upon direct testing and upon casual observation. I find the many discrepancies observed in Ms. Cheema’s physical function to be significant.

In terms of cognition and behaviour, Ms. Tandon reported that Ms. Cheema was unable to recall her date of birth, the ages of her children, any details of the accident, how long she lived at her current address and whether she was employed at the time of the accident. On casual observation, however, Ms. Tandon noted that Ms. Cheema was able to direct her husband to where her photo identification was located within the home, correct and interrupt her husband when her husband was asked about their son’s health, and was able to vividly describe and recall her own complaints post-accident. I find these discrepancies observed in Ms. Cheema’s cognitive function to also be significant.

Dr. Prior noted that Ms. Cheema’s examination was “fraught with difficulty in her co-operation.” He was particularly surprised by her very limited range of motion in both shoulders, especially the left. Ms. Cheema exhibited restrictions that were greater than one would expect of a serious shoulder injury. He did not attempt passive range of motion testing “as she cried out with even the slightest touch to her arms or neck.” Just placing his hand on her caused her to cry out. She was, as he put it, responding in an unusual manner.

Dr. Prior also noted that she voluntarily gave way in all muscle testing in the upper extremities. Even on her uninjured side, she would move her extremity in the opposite direction that she had been requested to do, as soon as he would exert force. Dr. Prior double-checked with the interpreter to ensure that she understood the instructions. He could find no neurological reason to explain her failure to move her upper extremities.

I will conclude my review of the medical evidence regarding Ms. Cheema’s purported psychological impairments with two assessments conducted at Ms. Wolanski’s request in April 2011, a couple of months before the commencement of this hearing.

The first is a psycho-vocational assessment conducted by Dr. Doxey, psychologist, on April 6, 2011. Dr. Doxey did not testify, but Ms. Cheema relied on his report.

Dr. Doxey noted that Ms. Cheema could not remember her date of birth or where in India she was born. She was, however, able to remember that she was the youngest of seven children, but unable to remember anything about her parents or her upbringing. Ms. Cheema was also able to provide some sporadic information about her past, such as the fact that she completed grade 10, but unable to remember most of her personal and work history, such as when she came to Canada or when she got married.

Ms. Cheema reported severe pain in her neck, back and arms. She stated that “it feels like everything is broken in my arms and legs.” Dr. Doxey reported that:

In terms of pain behaviour she shifted around frequently in her chair, breathing very heavily and often covering her eyes with her hands. Sometimes she pulled at her arms to “stretch” them out. As well she burped frequently and loudly. Throughout the assessment she made repeated trips to the washroom and stated that she had vomited.

In testing, she worked at a very slow pace and often did not appear to be paying attention…. During the first exercise on an aptitude test she stated that she was having trouble with her vision, was developing a severe headache and could not do more. In view of these difficulties and her inability to engage in the testing, it was decided to discontinue the assessment.²⁶

Notwithstanding the reported difficulties with testing, there is reference to some testing having been completed. This testing showed her intellectual functioning at an “extremely low” level, her vocational aptitudes as “significantly depressed,” and the impairment of her psychological functioning as “severe.”

The “Assessment and Recommendations” section of Dr. Doxey’s report largely repeats Ms. Cheema’s self-report of her symptoms and summarizes information from other reports and certificates contained in his file review. In that regard, I note that it appears that he may have had only a portion of Ms. Cheema’s file for review, i.e. reports from Drs. Lindal and Cancelliere; an MRI of the right hand; a Disability Certificate from Dr. Lewis; and two Disability Certificates and an Application for Determination of Catastrophic Impairment from Dr. Ouchterlony.

Dr. Doxey concluded that Ms. Cheema is suffering from “a Somatization Disorder²⁷ as defined in the DSM-IV-TR as well as with a Major Depressive Disorder, Single Episode, Moderate to Severe, Chronic, and a Specific Phobia, situational Type (motor vehicle travel).”

Dr. Doxey went on to note that “when assessed by us, Ms. Cheema was so distracted by her pain and emotional distress that she was unable to put forth a meaningful effort throughout the assessment. While this lack of engagement resulted in a submaximal effort on Ms. Cheema’s part, this would appear to be due to functional reasons rather than any conscious desire on the part of Ms. Cheema to undermine the assessment process.”

Of course, whether Ms. Cheema’s performance was representative of her real capacities is a central issue in this case. Dr. Doxey does explain how he arrived at the conclusion that Ms. Cheema’s presentation was likely genuine, and not the result of conscious exaggeration or fabrication of her symptoms. As well, I note that, apart from having limited records, and somewhat limited interview and testing information, Dr. Doxey’s assessment does not appear to include any validity data. Dr. Zielinsky identified this as a notable omission; especially given Ms. Cheema’s highly unusual presentation. I also note that Dr. Doxey’s report provides no explanation as to why Ms. Cheema would have been able to remember some past events, such as completing grade 10, but not other items, such as her date of birth.

The last medical report I will review is the report of Dr. Feinstein, neuropsychiatrist, dated April 25, 2011. As with Dr. Doxey, Dr. Feinstein also did not testify.

An interpreter was present during Dr. Feinstein’s assessment. He noted that she was a very poor historian. Although she could give an account of her symptomatology, there were significant aspects of her personal and work history that she was unable to recall, including whether her marriage was arranged or not.

In terms of Ms. Cheema’s presentation, Dr. Feinstein observed that:

[Ms. Cheema] appeared to be in an extraordinary amount of physical and emotional distress during the interview. Throughout much of the time she clasped her head in a forceful fashion. This alternated with periods in which she rubbed her head intensely. On other occasions she would stretch extravagantly. When not stretching, she would rub her hands and her wrists and pull her fingers in a vigorous manner. These gyrations were accompanied by paroxysms of loud burping which gave way to dry heaves. Many questions went unanswered and I could only extract a response with multiple attempts at the same question. On occasion, the questioning had to be suspended while Ms. Cheema, on the cusp of vomiting, lurched towards a waste paper basket. Of note is that no actual vomiting took place. These were periods when Ms. Cheema appeared overcome by emotion and cried profusely. Once more the interview had to be suspended while she dabbed at her eyes and gained a measure of self-control. Adding to the fractured nature of the interview, Ms. Cheema also went through what I can only describe as some remarkable contortions in which she would arch her back into an opisthotonous-type posture, these movements accompanied by groaning, sighing, gasping and forced expiration. Such behaviour continued for the duration of the interview.²⁸

In trying to understand her presentation, Dr. Feinstein postulated:

Ms. Cheema’s current presentation is a challenge to decipher. The floridness of her mental state characterized by pain-related behaviours that approach parody coupled with florid features of pseudodementia and given graphic voice in the outpouring of groans, moans, gasps, spits and dry heaves can be interpreted in one of two ways. The first is that this presentation is essentially unbelievable and points towards either a diagnosis of frank Malingering or else a Factitious Disorder, where the prime purpose of this type of behaviour is the deliberate simulation to adopt the sick role and play the patient. A second, alternative interpretation is that these dramatic signs are evidence of a woman in (sic) whose emotional distress is of such a magnitude that she cannot give articulate voice to what she is experiencing. A third possibility is that the “truth” lies somewhere between these two competing theories, namely that we have here a woman in distress who for reasons that are either conscious or unconscious is magnifying her difficulties. On a balance of probabilities, it is this middle road that I favor.²⁹

Dr. Feinstein does not opine on whether Ms. Cheema sustained a catastrophic impairment or whether she suffers from a complete inability to carry on a normal life, but he did arrive at “likely diagnoses” of “Pain Disorder Associated with Psychological Factors and a General Medical condition, and Major Depression.”

Dr. Zielinsky testified that he disagreed with Dr. Feinstein’s diagnoses of both a Pain Disorder and a Major Depressive Disorder. He noted that Dr. Feinstein did not conduct as detailed an interview of Ms. Cheema as he did. Further, while Dr. Zielinsky did not dispute that Ms. Cheema may be in some distress, he did dispute that Ms. Cheema’s clinical presentation could be explained by a somatoform pain disorder and depression, as diagnosed by Dr. Feinstein.

As noted above, Dr. Zielinsky testified that Ms. Cheema’s inconsistent and unexplainable behaviours “were not valid or consistent with any known psychiatric or neuropsychiatric disorder,” defied a diagnosis, and raised issues about her credibility.

Dr. Feinstein explained Ms. Cheema’s symptom magnification on the basis that she is likely trying to “draw attention” with her florid displays. Even though a true somatic disorder does not, by definition, involve conscious or intentional feigning or exaggeration of physical or psychological symptoms, I agree with both Dr. Feinstein and Dr. Zielinsky that persons may not be so neatly compartmentalized. I am prepared to accept that someone in genuine distress could also consciously or unconsciously exaggerate symptoms for reasons that could include a “cry for help.” Nevertheless, I do not find Dr. Feinstein’s conclusions persuasive for several reasons.

First, Dr. Feinstein does not really help me to understand how he is able to measure

Ms. Cheema’s genuine symptomology (separate from her admitted symptom magnification) in arriving at a diagnosis that accurately appraises both the nature and severity of her current condition. I do not find the statement that one must look past Ms. Cheema’s “overly dramatic manifestations” or “other disordered behaviours” to find a “deep emotional malaise” to be particularly helpful.

Second, much of what is problematic about Ms. Cheema’s presentation isn’t simply that it exceeds what one would expect given her physical and psychological injuries. This is not just an exaggeration of symptomology or, as Dr. Feinstein puts it, a question of Ms. Cheema “magnifying her difficulties.” This is not a case where, for example, pain is claimed to be a 9 or 10 on a scale from 1 to 10, when 6 or 7 is more likely the true experience. Ms. Cheema demonstrated behaviours and gave responses that simply make no sense and for which Dr. Zielinsky and others could find no known psychiatric cause, like her almost total loss of long-term memory.

Third, Dr. Feinstein does not directly address Ms. Cheema’s significant and unexplained cognitive issues, especially her loss of long term memory, although I presume that this would be part of what he describes as her “florid features of pseudodementia” and therefore just another manifestation of her “cry for help.” Part of the difficulty, though, is that even if I accept Ms. Cheema’s extreme cognitive difficulties as just another means of “drawing attention” to genuine complaints, I find that her cognitive presentation is so misrepresentative of her true abilities that it undermines any attempt to fairly determine just how much any other aspect of her presentation is representative, or even approaches, her true physical or psychological condition.

Fourth, I discount the conclusions of Dr. Feinstein on the basis that, in arriving at his diagnoses, he gave “particular credence” to the observations of Drs. Ouchterlony, Bhalerao and Bogoch. I have already noted my reservations with the evidence of Dr. Ouchterlony and Dr. Bhalerao. As for Dr. Bogoch, his orthopaedic consultations are not really helpful to understanding Ms. Cheema’s current complex behaviours.

Finally, I note that, while Dr. Feinstein had a five volume medical brief for his review, it appears that he may not have had records relating to Ms. Cheema’s pre-accident medical history in British Columbia. If he did, they are not referred to in his report. It is unclear what impact, if any, these records may have had on his conclusions.

Evidence of Ms. Cheema and lay witnesses

Although the effort to discern the truth of Ms. Cheema’s current condition was drawn mainly from the medical evidence, I will remark briefly on the lay evidence which I did not find persuasive in countering the credibility concerns raised in the medical evidence.

Ms. Cheema

Ms. Cheema’s presentation as a witness did not differ significantly from the presentation reported by several assessors. She answered “I don’t know” or “I don’t remember” to most questions, especially those related to her medical, personal and work history. On extensive cross-examination on her medical history, Ms. Cheema repeatedly denied any recollection of disabling back pain, anxiety, neck and right shoulder pain, facial pain, foot pain, headaches, depression, sleep disturbances, agoraphobia, dizziness or any other symptoms for which she sought extensive medical treatment in British Columbia between 2002 and 2005. She claimed not to recall the motor vehicle accident in April 2004, or being off work as a result of her disabilities, both prior to and after the April 2004 accident.

When it came to her current condition, however, she was able to describe a myriad of complaints, including severe pain throughout most areas of her body, debilitating headaches, dizziness, depression, serious cognitive issues, and a fear of driving. She claimed almost complete dependence on her husband for the care of their children and household tasks. She also claimed significant dependence on her husband for her own self-care, mentioning that, sometimes, she even forgets to pull up her pants after using the washroom.

I note that Ms. Cheema was present throughout the entire hearing, including the last day that was reserved for closing submissions only. Although she exhibited grimacing and writhing motions in the early stages of the hearing, especially during the giving of her own evidence, these behaviours settled down. For the last few days of the hearing, Ms. Cheema sat quite motionless, hour after hour. Although she kept her eyes closed throughout most of the hearing, she seemed well aware of the proceeding, and she did not appear to be in any significant physical discomfort, especially after the first day or two. She appeared to be well-kempt. She would stretch when she would rise from her chair, but she did not seem to require any assistance rising or ambulating, and her husband remained in the reception area throughout the hearing.

I also note that Ms. Cheema burped frequently and loudly during the first couple of days of the hearing. Upon inquiry as to the reason for the burping, which had become quite distracting and disturbing to the proceeding, it was explained that Ms. Cheema had digestive issues and felt nauseous, and effectively could not help herself. Interestingly, though, the burping ceased for the remainder of the hearing following my inquiry.

In short, Ms. Cheema presented inconsistently, and did not come across as a particularly credible witness in her own cause.

Mr. Singh

Mr. Singh’s testimony supported his wife’s evidence that she was essentially fully functioning before the accident and completely disabled following the accident. Mr. Singh answered most questions in a generally straightforward manner, although there were a couple of areas where I found his answers to be unclear or even evasive. One line of questioning involved his work history and income pre-accident, where I found his evidence to be vague about the kind of work he did as a “priest” at his temple, the hours he worked at that job, and the remuneration he received. As well, he made no reference to working in construction doing basement work, as reported by Dr. Feinstein.

Another important line of questioning where Mr. Singh’s evidence seemed not just vague, but evasive, involved his pre-accident caregiving responsibilities. While I accept that the use of an interpreter may have resulted in some misunderstanding, Mr. Singh vacillated between Ms. Cheema doing all of the caregiving, to him helping at times, to the upstairs neighbour helping at times, back to Ms. Cheema doing everything, and finally back to him helping out at times. This ultimate admission was finally made when counsel for TD General read a passage from Ms. Cheema’s signed statement to the insurer. ³⁰ The passage reads: “My husband looked after the baby when I was at work.”

Mr. Singh testified that it did not matter to him whether Ms. Cheema won her case or not.

I found this remark disingenuous. In addition to the indirect, if not direct, benefits he would derive, I note that Mr. Singh has been seeking permanent resident status in Canada, so that, in part, he can sponsor his mother to come to Canada. Mr. Singh maintained that his mother is needed in Canada to look after the children, as Ms. Cheema is completely unable to do so.

I expect that a favourable result for Ms. Cheema in this case could bolster Mr. Singh’s efforts to sponsor his mother. I note that Dr. Ouchterlony has also advocated on behalf of Mr. Singh by apparently sending a letter to Citizenship and Immigration Canada to the effect that Ms. Cheema requires 24 hour care.

Apart from the fact that Mr. Singh is not an arm’s length witness who would benefit from a favourable result for his wife, the fact that he knew nothing of his wife’s pre-accident complaints in British Columbia, and the fact that his evidence raised some doubts about his veracity and motives, I also note that, in any event, Mr. Singh’s evidence was not inconsistent with Ms. Cheema having a factitious disorder. In the event that Ms. Cheema is playing the sick role, it is a role she would play for her family and friends, not just the health care professionals she has seen. For all of these reasons, I did not find Mr. Singh’s evidence to be particularly persuasive.

Ms. Malhi

Ms. Ranjeet Malhi also testified on Ms. Cheema’s behalf. Again, I did not find this evidence to be particularly persuasive.

Ms. Malhi has known Ms. Cheema since shortly following Ms. Cheema’s move to Ontario. She met Ms. Cheema through going to temple. Ms. Cheema taught her how to sew, and they did volunteer work together at the temple. Ms. Malhi testified that, prior to the accident, Ms. Cheema was responsible for all of the housekeeping and child care.

Ms. Malhi testified that, since the accident, Ms. Cheema seemed barely able to take care of herself, and unable to do any housekeeping and caregiving. She believed there was a lady in the house that helped Ms. Cheema with the kids.

I would not characterize Ms. Malhi as a close friend. She has spent a limited amount of time with Ms. Cheema and, while time periods were not always clear from the evidence, Ms. Malhi’s personal account appeared to focus mainly on the weeks or months immediately following the accident when, by any assessment, Ms. Cheema’s injuries would have been most acute. It seems that Ms. Malhi’s visits have decreased over time. In any event, I did not find Ms. Malhi’s evidence to be particularly helpful to understanding whether Ms. Cheema’s current presentation is genuine, or better explained, at least in part, by malingering or factitious disorder.

Surveillance evidence

Although I did not place significant weight on the video surveillance, and do not intend to review the footage in detail, I note that Ms. Cheema was observed holding her baby in her arms for a period of at least ten minutes in September 2008; reading through documents that she had just picked up from Canada Post in November 2009 (without the assistance of her husband who was by her side); and, talking on her cell phone on multiple occasions. More generally, I note that Ms. Cheema appeared to move without any significant restriction, hesitation or distress, and appeared to function at a higher level than she presented at her assessments and the hearing.

In surveillance conducted by TD General on September 29 and 30, 2010, I observed Ms. Cheema walking across John Street in Brampton on her way to a medical appointment. As she crossed the street, Ms. Cheema is seen walking at a good pace, without any apparent difficulty, while talking on her cell phone, carrying her purse, and with her older child in hand. It did not appear that she crossed at a crosswalk. Apart from her physical appearance, I was struck by the level of attention and concentration that would be required for her to engage in this multitasking. I also observed Ms. Cheema help to put her older child into a vehicle. She was seen to lean fully into the car, as she appeared to reach through the vehicle to its far side. Ms. Cheema was also observed getting in and out of the vehicle without any notable hesitation or restrictions.

I note that the surveillance of September 30, 2010 also captured Ms. Cheema at the airport, as she left that day for a two month trip to India. Dr. Ouchterlony testified that she understood

Ms. Cheema went to India to seek treatment and that Mr. Singh and the two children stayed behind in Canada. Ms. Tandon also testified that she had been told by Ms. Cheema that the children did not travel with her to India. At the hearing, and presumably as a result of the surveillance evidence, Ms. Cheema and Mr. Singh conceded that Ms. Cheema had travelled to India with her two children. In chief, Ms. Cheema did not refer to anyone else travelling with her and the children. On cross-examination, however, she countered the suggestion that travelling with her children would be taxing by suggesting that a friend may have flown with her, but “she couldn’t recall all of the details.”

Conclusions regarding Ms. Cheema’s claims for post‑104 week benefits

Ms. Cheema has failed to persuade me, on a balance of probabilities, that any genuine, accident-related physical or psychological impairments that she may continue to suffer have resulted in either a complete inability to carry on a normal life or a marked impairment due to mental or behavioural disorder as required for a catastrophic impairment determination pursuant to subsection 2(1.2)(g) of the Old Regulation.

While I accept that Ms. Cheema may continue to suffer some degree of psychological distress as a direct result of the accident, including some measure of pain, anxiety and depression, I am also satisfied on the totality of the evidence that she is considerably more capable from both a cognitive and functional perspective than she represents.

The medical evidence is replete with inconsistencies in Ms. Cheema’s presentation, such as inconsistencies noted between formal testing and informal observation of her functional abilities. She presented in bizarre and highly dramatic ways, and tested as “severely impaired” on various measures of function. I accept the evidence of several assessors, including Ms. Cheema’s own assessor, Dr. Feinstein, that Ms. Cheema is “magnifying her difficulties,” both in terms of cognitive and physical function.

I find that the inconsistencies, florid behaviours and dramatic test results were not convincingly or fully explained as the workings of depression or a “cry for help” or on any other basis that I found persuasive or supported by the evidence as a whole. While Dr. Feinstein attempted to explain what he recognized as Ms. Cheema’s “conscious or unconscious exaggeration,” I did not find that he adequately or persuasively accounted for Ms. Cheema’s cognitive deficits or “florid pseudodementia.” I am not convinced that Ms. Cheema’s presentation of severe cognitive impairment (which I find to be feigned) is best explained as a “cry for help” to draw attention toward any genuine complaints that may exist. There could be some truth to this, but I am not persuaded that it approaches a complete answer.

More likely, I find that Ms. Cheema’s presentation regarding her cognitive abilities simply reflects her (mistaken) understanding of how someone with a “brain injury” should present, while also serving as a convenient means of drawing attention away from difficult areas of inquiry regarding her pre-accident medical history. In that regard, I do not accept that Ms. Cheema has no recollection of her many disabling conditions and related medical attendances from the time she was living in British Columbia between 2002 and 2005. Nor do I accept that she does not recall the motor vehicle accident in April 2004, or that she is unable to provide an account of how (sometime between March and November 2005) she apparently came to recover from her longstanding and disabling conditions. Her almost total lack of recall of her pre-accident medical, personal and vocational history is not supported by the neurological or neuropsychological evidence.

In addition to the medical evidence, I find that the surveillance evidence, and my own observations of Ms. Cheema made throughout the hearing, also support a finding that Ms. Cheema’s cognitive and functional abilities significantly exceed her presentation.

In summary, I do not accept that Ms. Cheema suffers from the cognitive deficits and functional limitations presented. I find it likely that a significant degree of malingering or factitious behaviour is involved in her presentation, undermining any attempt to accurately appraise the nature and extent of any genuine symptomology and related impairments.

I wish to make clear that I recognize that a somatoform disorder, almost by definition, defies a clear understanding of the person’s mental or behavioural state. It is, after all, a diagnosis that is “not made when the symptoms are better accounted for by another mental disorder.”³¹ As such, I accept that a diagnosis of somatoform disorder implies that the person’s genuine complaints are likely enigmatic and difficult to diagnose. The emphasis, however, is on “genuine.” The confounding, if not prominent, feature of this case has been the existence of significant inconsistencies and other validity concerns, including highly unusual behaviours, that have reflected poorly on Ms. Cheema’s credibility. These concerns have arisen both within the context of single assessments and across multiple assessments. When any was offered, I found the explanations trying to account for the inconsistencies and other validity concerns to be inadequate. The result is that I did not find Ms. Cheema to be credible, and her claims for post-104 week benefits are dismissed.

Issue 2: Ms. Cheema’s claims for further pre-104 week benefits

For the pre-104 week period, the situation is different. First, the post-104 disability thresholds do not apply. Further, there is no disputing that Ms. Cheema was involved in a serious accident and her injuries were not insignificant. Therefore, despite the credibility concerns, it is clear that Ms. Cheema would have required some attendant care, caregiver and housekeeping assistance for a period of time, possibly as long as 104 weeks. The issue is whether Ms. Cheema has established entitlement to these benefits in the pre-104 week period beyond those she has already received, particularly given the credibility concerns.

Attendant care and caregiver benefits

In respect of attendant care benefits, TD General paid a total of $35,968.29 in varying monthly amounts up to April 2010. Although it appears that no payments were made for certain periods (i.e. September 2008 to March 2009), I note that attendant care benefits were reinstated at the non-catastrophic maximum of $3,000.00 per month for April to November 2009, even though an occupational therapy assessment conducted for TD General on May 25, 2009 resulted in the conclusion that “Based on multiple discrepancies, this OT is unable to formalize an opinion regarding client’s current abilities and limitations with respect to her personal care, housekeeping and caregiving.”³² It appears that the occupational therapist, and TD General, took a cautious approach at that time, on the basis that Ms. Cheema may have been suffering from a brain injury and therefore more disabled than previously believed. The attendant care benefits then continued at a reduced rate of $1,028.28 per month from December 2009 to April 2010 (3 months beyond 104 weeks), when they were terminated on the basis of the multidisciplinary catastrophic impairments assessments.

Given my findings regarding Ms. Cheema’s “brain injury” and the overriding credibility concerns, and given the amount of benefits already paid for attendant care, I find that Ms. Cheema has failed to establish that any further attendant care benefits were reasonably required beyond those that she has already received.

In respect of caregiver benefits, TD General paid a total of $30,500.00 up to and including October 2, 2010 (approximately 3 months short of 3 years). This is the equivalent of 122 weeks at $250.00 per week. For the preceding reasons, I find that Ms. Cheema has been more than adequately compensated for pre-104 week caregiver benefits.

Quantum of caregiver benefits: en ventre sa mère argument

Ms. Cheema raised an issue with respect to the quantum of her caregiver benefits. She maintained that caregiver benefits should have been increased to $300.00 per month following the birth of her second child on May 12, 2008, approximately 4 months post-accident.

Ms. Cheema referred me to the cases of Christo and Royal Insurance Company of Canada³³ and Virk and Liberty Mutual Insurance Company,³⁴ although neither case was directly on point.

However, the issue was dealt with directly in Princz and State Farm Mutual Automobile Insurance Company.³⁵ Like Ms. Cheema, the applicant in Princz claimed caregiver benefits for a child born 4 months after the accident. The arbitrator in that case concluded that caregiver benefits are not a right of the child and did not justify a principled extension of the en ventre sa mère fiction applied in Virk.³⁶ The arbitrator also found that the specific language of the legislation establishes qualifications for entitlement to caregiver benefits that Mrs. Princz could not meet: “Simply put, Mrs. Princz cannot show that she can no longer do what she did for the unborn child at the time of the accident.”

I agree with the arbitrator in Princz. Ms. Cheema is not entitled to caregiver benefits in respect of her second child that was unborn at the time of the accident.

Housekeeping benefits

Unlike attendant care and caregiver benefits, TD General only paid a very limited amount of housekeeping benefits for a very limited period of time. Specifically, it paid $1,460.00 on May 29, 2008 and $800.00 on July 10, 2008, for a total of $2,260.00.³⁷ The payments are stated to be for the period up to June 30, 2008, just over 5 months post-accident.

Occupational therapy assessments conducted on behalf of TD General on April 29 and July 30, 2008³⁸ address attendant care, but not housekeeping needs. The only occupational therapy assessments contained in the materials filed that specifically address housekeeping are not until nearly a year later on May 25 and November 10, 2009.³⁹

As noted above in the section on attendant care, Vijay Sachdeva, who conducted the May 25, 2009 assessment, was unable to formalize an opinion due to multiple discrepancies. As a result, he made no finding with respect to Ms. Cheema’s need for housekeeping assistance, although he did recommend that “an OT dealing with head injury cases should follow up with this lady to provide appropriate rehabilitation measures.”

Kristine Roth, the occupational therapist who saw Ms. Cheema on November 10, 2009, concluded that Ms. Cheema was substantially unable to perform her pre-accident housekeeping tasks and recommended assistance in the amount of 9.5 hours per week.

Finally, I note that I was unable to find an OCF-9 in the materials filed that terminate entitlement to housekeeping benefits.

Given that TD General did not file any documents to establish that housekeeping benefits were properly terminated and, in fact, conducted an assessment as late as November 2009 that supported a claim for nearly 10 hours per week of housekeeping assistance, I find it difficult not to recognize Ms. Cheema’s claim to housekeeping benefits to the 104 week mark.

As noted, the concerns regarding Ms. Cheema’s credibility, though troubling, and sufficient to undermine her claims based on the post-104 week thresholds, do not erase the fact that she was involved in a serious accident that, for a period of time, would have resulted in the need for attendant care, caregiver and housekeeping assistance. In that regard, I note that TD General’s concerns with Ms. Cheema’s credibility did not stop it from paying her both attendant care and caregiver benefits beyond 104 weeks. In respect of housekeeping, however, no explanation was proffered as to why TD General stopped paying benefits beyond 5 ½ months, even when an assessment in November 2009 quantified the need for housekeeping at nearly 10 hours per week.

I am satisfied that the evidence available to me supports a finding that Ms. Cheema was substantially unable to perform her pre-accident housekeeping tasks, and that she is entitled to receive those benefits at the rate of $100.00 per week to the 104 week mark.

Issue 3: Ms. Cheema’s claims for treatment and the cost of examinations

A claim for treatment or the cost of an examination requires a finding that the disputed treatment or examination was reasonably necessary at the time it was recommended. I will review Ms. Cheema’s claims for treatment and the cost of examinations on that basis.

$1,040.97 for assistive devices recommended by First Choice

First Choice Medical Assessments (First Choice) recommended various assistive devices in the amount of $1,040.97 in a treatment plan (OCF-18) dated September 9, 2008.⁴⁰ The OCF-18 was prepared after a follow up in-home assessment conducted by First Choice earlier that month.⁴¹ The assessment concluded that certain devices, such as a long-handled tub scrub, would optimize Ms. Cheema’s level of functional independence with respect to housekeeping tasks.

In denying the claim for assistive devices, TD General relied on the paper review of Edward Crowther, chiropractor.⁴² Dr. Crowther concluded that the recommended assistive devices were not reasonable and necessary because an earlier in-home assessment conducted for TD General by Jill Sorenson, occupational therapist, on August 7, 2008⁴³ had concluded that Ms. Cheema was not substantially unable to perform her self-care activities.

I find that Dr. Crowther misunderstood the primary purpose for which the assistive devices were recommended. They were not recommended primarily to assist Ms. Cheema with self-care tasks. They were recommended to optimize her level of functional independence with respect to housekeeping tasks. On its face, I find the assistive devices to be reasonably necessary.

However, there are references in the filed materials to assistive devices having been provided by TD General to Ms. Cheema. For example, Vijay Sachdeva’s occupational therapy report of June 6, 2009 notes “[Ms. Cheema] stated that she got [a] few devices when she was at the other home and did not have them here. She was not able to provide [a] list of devices received.”⁴⁴ Dr. Holland’s functional abilities evaluation report dated November 24, 2009 also states “[Ms. Cheema] reports she received a back rest and other assistive devices, however she reports she is not certain of all the items.”⁴⁵

I conclude, therefore, that Ms. Cheema is entitled to receive a medical benefit for $1,040.97 for the assistive devices recommended by First Choice in the treatment plan dated September 9, 2008, less the value of any assistive devices recommended therein that TD General has already provided to Ms. Cheema. I trust the parties will be able to ascertain which, if any, of the recommended devices have been provided.

$3,711.25 for OT social skills intervention recommended by Neuro-Rehab

Neuro-Rehab recommended occupational therapy social skills intervention in the amount of $3,711.25 in a treatment plan dated January 27, 2009.⁴⁶ Christine Delahunty, occupational therapist, conducted an in-person assessment on behalf of TD General to consider the reasonableness and necessity of the proposed treatment.

Ms. Delahunty concluded that the proposed treatment was reasonably necessary pending a neuropsychological assessment of Ms. Cheema regarding her cognitive issues. However, the 7 sessions was considered excessive, given the rehabilitation coaching sessions that were also being sought (see next issue below). She also challenged the reasonableness of other goods and services claimed in the treatment plan, such as “indirect therapy,” “research” and “data analysis.” Ms. Delahunty concluded that 2-3 sessions of occupational therapy intervention would be reasonable in a total amount of $1,459.05.

As noted, Ms. Stewart of Neuro-Rehab testified at the hearing. However, her evidence did not address Ms. Delahunty’s findings, and Ms. Cheema led no other evidence on this issue.

I find that Ms. Cheema has failed to establish that occupational therapy social skills intervention in the amount of $3,711.25, as recommend by Neuro-Rehab in its treatment plan dated January 27, 2009, was reasonably necessary. This claim is dismissed.

$6,243.32 for rehabilitation coaching recommended by Neuro-Rehab

Ms. Delahunty also considered the reasonableness and necessity of rehabilitation coaching in the amount of $6,243.32, as recommended by Neuro-Rehab in another treatment plan also dated January 27, 2009. Again, Ms. Delahunty concluded that the proposed treatment was reasonably necessary pending a neuropsychological assessment of Ms. Cheema; but, again, concluded that the number of sessions was excessive. Neuro-Rehab had proposed 28 sessions of two hours each. Ms. Delahunty concluded that 16 sessions (2 sessions per week for 8 weeks pending the neuropsychological evaluation) should be sufficient. She also noted that her assessment of Ms. Cheema had to be discontinued after 1 hour and 25 minutes due, at least in part, to Ms. Cheema’s report of pain and fatigue. As a result, Ms. Delahunty concluded that the rehabilitation coaching sessions should be reduced from two hours to one hour each. The total amount for the 16 rehabilitation coaching sessions approved by Ms. Delahunty was calculated at $2,638.68.

On its face, Ms. Delahunty’s assessment seems reasonable. As Ms. Cheema led no evidence to counter Ms. Delahunty’s assessment, I find that she failed to establish that rehabilitation coaching sessions in the amount of $6,243.32, as recommend by Neuro-Rehab in its treatment plan dated January 27, 2009, was reasonably necessary. This claim is dismissed.

$1,183.30 for a FAE recommended by First Choice

First Choice apparently recommended a functional abilities evaluation (FAE) in the amount of $1,183.30 in an OCF-22 dated August 29, 2008.⁴⁷ In his paper review, Dr. Tester, chiropractor, found that Ms. Cheema’s limitations and abilities regarding her activities of daily living and housekeeping had been adequately assessed in multiple in-home assessments already performed. With respect to her ability to work, he noted that, while Ms. Cheema’s statement indicates that she had been employed for a short time prior to the accident, her Application for Accident Benefits states that she was not employed, and there is no Employer’s Confirmation Form (OCF‑2) to support any lost time from employment. As a result, he found the proposed FAE not reasonably necessary.

I do not find Dr. Tester’s analysis particularly persuasive, at least as it relates to the absence of an OCF-2. Ms. Cheema elected to claim caregiver benefits, not income replacement benefits. This does not mean that an assessment aimed at examining her abilities and limitations in respect of a return to work would be unreasonable or unnecessary. However, I accept that it was unclear from Dr. Tester’s file review whether or not Ms. Cheema was working at the time of the accident. More importantly, from my perspective, I do not have the OCF-22 from First Choice that would presumably set out the basis for the recommended assessment. Further, I note that the materials filed contains a functional capacities evaluation by Supermed Rehabilitation Centre, conducted just 3 weeks before First Choice submitted its OCF-22.⁴⁸ Although neither Dr. Tester nor TD General raised the Supermed assessment, I find that, on its face, this alone would render the First Choice assessment not reasonably necessary. As Ms. Cheema led no evidence in support of the FAE by First Choice, this claim is dismissed.

$2,474.61 for an OT assessment recommended by Neuro-Rehab

Neuro-Rehab recommended an occupational therapy assessment in the amount of $2,474.61 in an OCF-22 dated November 10, 2008.⁴⁹ The rather large amount claimed for an occupational therapy assessment was predicated on Ms. Stewart’s information that Ms. Cheema had sustained a head injury that resulted in cognitive-behavioural and other deficits. As a result, Ms. Stewart concluded that a “comprehensive occupational therapy assessment is needed.”

A paper assessment of Ms. Stewart’s occupational therapy recommendation was conducted on behalf of TD General by Kristine Roth, occupational therapist.⁵⁰ Ms. Roth found the proposed assessment not reasonable and necessary for several reasons. She noted that the assessment was stated to be necessary to address cognitive-behavioural issues, although no Disability Certificate (OCF-3) prepared by that time had identified a head injury or cognitive issues. She also noted that the rates used by Ms. Stewart apply to clients with catastrophic injuries, although there was nothing in the file materials indicating that Ms. Cheema’s injuries were catastrophic in nature.

Ms. Roth also noted that an in-home assessment on September 4, 2008 had recently examined Ms. Cheema’s need for housekeeping, assistive devices and intervention. While Ms. Roth noted that a follow up assessment may be warranted in the future, the assessment proposed by Neuro-Rehab exceeded what would be expected.

Ms. Roth’s assessment seems reasonable on its face. Ms. Stewart did not address Ms. Roth’s assessment when she testified, and Ms. Cheema did not lead any evidence on this issue. As a result, Ms. Cheema’s claim for the cost of an occupational therapy assessment in the amount of $2,474.61, as recommended by Neuro-Rehab in its OCF-22 dated November 10, 2008, is dismissed.

$2,795.25 for a speech language assessment recommended by Neuro-Rehab

Neuro-Rehab recommended a speech language assessment in the amount of $2,795.25 in an OCF-22 dated January 30, 2009.⁵¹

A paper assessment of the recommendation for a speech language assessment was conducted on behalf of TD General by Susana Rovillard, speech language pathologist.⁵² Ms. Rovillard concluded that there was not enough evidence to warrant a speech language assessment. In particular, Ms. Rovillard noted that Ms. Cheema had scored 15/15 on her GSC testing; there was no conclusive evidence of a traumatic brain injury, including no MRI or CT scans; the Disability Certificates on file (at that time) did not identify a head injury; Ms. Cheema had demonstrated during an in-home assessment on August 7, 2008 that she could follow multiple step instructions and respond appropriately to questions; Ms. Cheema’s statement gave a long and detailed verbal description of the MVA and her current health status, accident information, etc.; and, there was generally an absence of medical documentation to support the need for a speech language pathology assessment.

Ms. Rovillard’s raised several legitimate concerns, and her assessment appears reasonable on its face. Ms. Stewart did not address Ms. Rovillard’s assessment when she testified, and Ms. Cheema did not lead any evidence on this issue. As a result, Ms. Cheema’s claim for the cost of a speech language assessment in the amount of $2,795.25, as recommended by Neuro-Rehab in its OCF-22 dated January 30, 2009, is dismissed.

$1,403.85 for a physiotherapy assessment recommended by Neuro-Rehab

Neuro-Rehab recommended a physiotherapy assessment in the amount of $1,403.85 in an OCF-22 dated January 30, 2009.⁵³

A paper assessment of the recommendation for a physiotherapy assessment was conducted on behalf of TD General by Micheline Lancia, physiotherapist.⁵⁴ Ms. Lancia noted that Ms. Cheema was apparently already enrolled in a course of physiotherapy at Progressive Rehabilitation Clinic at the time Neuro-Rehab prepared its OCF-22. She further noted that there was nothing from Ms. Cheema’s family physician or attending medical specialists to indicate that she was not receiving adequate physiotherapy from Progressive or that she was not responding to her rehabilitation. As a result, Ms. Lancia concluded that the physiotherapy assessment proposed by Neuro-Rehab was not reasonable and necessary.

Ms. Lancia’s assessment appears reasonable on its face. Again, Ms. Stewart did not address Ms. Lancia’s assessment when she testified, and Ms. Cheema did not lead any evidence on this issue. As a result, Ms. Cheema’s claim for the cost of a physiotherapy assessment in the amount of $1,403.85, as recommended by Neuro-Rehab in its OCF-22 dated January 30, 2009, is dismissed.

Issue 4: Special Award

A special award is mandated where an insurer has unreasonably withheld or delayed payment of a benefit. It is not enough that the insurer has failed to comply with its obligations under the Regulations. There must be evidence that the insurer’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”⁵⁵ While I have significant concerns about TD General’s failure to pay pre-104 week housekeeping benefits, I am not satisfied that I have a sufficient evidentiary basis to conclude that its conduct fell to the standard necessary to attract a special award. Not surprisingly, both parties focused their evidence and submissions on the post-104 week disability thresholds. Neither party led much evidence or made substantial submissions specific to either pre-104 week housekeeping benefits or a special award.

The claim for a special award is dismissed.

EXPENSES:

The parties are encouraged to attempt to resolve the issue of expenses between themselves. If they are unable to do so, either party may request a determination of entitlement to or the amount of expenses in accordance with Rule 79 of the Dispute Resolution Practice Code.

July 9, 2012

Robert Bujold Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 105

FSCO A09-001294

BETWEEN:

GURPRIT KAUR CHEEMA

Applicant

and

TD 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. Ms. Cheema did not sustain an impairment as a result of the accident within the meaning of section 2(1.2)(g) of the Old Regulation.

2. Ms. Cheema is not entitled to receive any further payments for weekly caregiver benefits.

3. Ms. Cheema is not entitled to receive any further payments for attendant care benefits.

4. Ms. Cheema is entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from July 1, 2008 to January 19, 2010.

5. Ms. Cheema is entitled to receive a medical benefit for $1,040.97 for assistive devices recommended by First Choice Medical Assessments in a treatment plan dated September 9, 2008, less the value of any assistive devices recommended therein that TD General has already provided to Ms. Cheema.

6. Ms. Cheema is not entitled to receive the medical benefits claimed for treatment recommended by Neuro-Rehab Services Inc.

7. Ms. Cheema is not entitled to payments for the cost of examinations claimed.

8. TD General is not liable to pay a special award.

9. Ms. Cheema is entitled to interest on overdue benefits.

10. The issue of expenses is deferred pending an attempt by the parties to resolve the issue between themselves.

July 9, 2012

Robert Bujold Arbitrator

Date

Footnotes

1. 1At the time of this accident, accident benefits were available pursuant to the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996 (the “Old Regulation”). Effective September 1, 2010, the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “New Regulation”) came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been paid under the Old Regulation are to be paid under the New Regulation, but in amounts determined under the Old Regulation. The transition rules also provide that, subject to certain exceptions, the procedures for claiming benefits after August 31, 2010 are governed by the New Regulation.
2. 2The injuries sustained by Mr. Singh and their son were not explored to any degree, although Ms. Cheema maintains that her son was slow to develop his communication skills, which she attributes to the accident. There was no evidence that the accident affected her pregnancy with their second child.
3. 3Initial Trauma Assessment Records from St. Michael’s Hospital dated January 20, 2008, as well as consult note of Dr. Ouchterlony dated March 25, 2008
4. 4Report of Sasha Stewart dated January 27, 2009
5. 5Report of Dr. Feinstein
6. 6See report of Dr. Jaroszynski from December 2009 (Ex.11, Tab 25). See also the report of Dr. Prior January 2011 (Ex. 11, Tab 28).
7. 7At times, Ms. Cheema saw Dr. Ouchterlony monthly; at other times, there appears to have been as much as 6 months between visits. It is not clear how frequently she still sees Ms. Cheema.
8. 8I also note that, prior to completing the OCF-19, Dr. Ouchterlony’s records indicate that she had seen Ms. Cheema twice in 2009, once in February and once in March. As such, it had been six months since she had last seen Ms. Cheema when she completed the OCF-19. There is no Consult Note from that day nor is there any report that accompanies the OCF-19.
9. 9Ms. Cheema did already have a lawyer at this time, but there is reference to dissatisfaction with her lawyer.
10. 10It is not clear that Dr. Ouchterlony knew that Ms. Cheema was being assessed by Supermed Rehabilitation Centre, Progressive Rehab Clinic, and First Choice Medical Assessments, starting as early as February 2008. Various in-home assessments, Form 1s, OCF-3s and treatment plans were already being generated through these facilities. In fact, claims for assistive devices and an FAE recommended by First Choice are two of the issues in dispute.
11. 11Ms. Cheema started seeing Dr. Lewis, general practitioner, shortly after the accident. Dr. Ouchterlony referenced getting Ms. Cheema switched to Dr. Malhotra, general practitioner, as early as September 2008. Dr. Malhotra did finally become Ms. Cheema’s family doctor in May 2010.
12. 12This seems to be a recurring theme in Dr. Ouchterlony’s notes. While there were periods when benefits were not being paid or were reduced, it appears that Dr. Ouchterlony did not always have a clear understanding of what benefits were being provided. For example, her note of October 21, 2009 refers to support services having been largely withdrawn. It is not clear whether any therapy was being provided at that time, but TD General was paying attendant care at $3,000.00 per month at the time this note was made.
13. 13Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR)
14. 14Ibid., page 485
15. 15Ibid.
16. 16Ibid, page 513, para. 1
17. 17Ibid, page 516, para. 3
18. 18Dr. Zielinsky, in testimony
19. 19See Dr. Feinstein’s report, Ex. 1, page 171
20. 20Ex. 1, page 92
21. 21Interestingly, Dr. Holland, a chiropractor who assessed Ms. Cheema for TD General shortly prior to Dr. Hines’ assessment, suggests that Ms. Cheema did have some recollection of her pre-accident history. Specifically, he noted in his report (Ex. 11 Tab 24) that “Client reports that she was involved in a motor vehicle accident in 2004. She reports she still had low back pain as related to that motor vehicle accident at the time of the subject MVA.”
22. 22Ex. 11, Tab 29
23. 23The DSM-IV-TR organizes each psychiatric diagnosis into five dimensions (axes) relating to different aspects of disorder or disability. AXIS I refers to clinical disorders, including major mental disorders, learning disorders, and substance use disorders.
24. 24AXIS III is used for acute medical conditions and physical disorders.
25. 25See report of Vinita Tandon, January 14, 2011 (Ex. 11, Tab 26, page 8)
26. 26See report dated April 25, 2011, (Ex. 1, page 132)
27. 27Other witnesses confirmed that a “Somatization Disorder” is quite different from a “Somatoform Disorder.” Somatization Disorder is a rather unusual type of somatoform disorder that requires very specific symptomology that no assessor (including Dr. Doxey) identified. As a result, it was suggested that Dr. Doxey may have meant a somatoform, rather than somatization, disorder. As stated, however, Dr. Doxey did not testify.
28. 28See report at Exhibit 1, pages 140-141
29. 29Ibid., page 171
30. 30Supra, footnote 22
31. 31See the chapter in the DSM-IV on Somatoform Disorders.
32. 32See report of Vijay Sachdeva dated June 6, 2009. Ex. 11, Tab 22, page 4
33. 33(OIC A-015318, April 23, 1996); Affirmed on appeal (OIC P96-00049, September 11, 1996)
34. 34(FSCO A03-000023, August 4, 2004); Affirmed on appeal (P04-00027, July 5, 2005)
35. 35(FSCO A06-002122, March 26, 2007)
36. 36In Virk, the issue was a mother’s entitlement to a death benefit for her child who was born the day after the accident and died fifteen days later. For the purpose of the death benefit, the unborn child was found to be an insured person and a dependant at the time of the accident.
37. 37See Ex. 21
38. 38See Ex. 11, Tabs 9 and 10, respectively
39. 39See Ex. 11, Tabs 22 and 23, respectively
40. 40Ex. 2, Tab E
41. 41Ibid
42. 42Ex. 11, Tab 12
43. 43Ex. 11, Tab 10
44. 44Ex. 11, Tab 22, page 23
45. 45Ex. 11, Tab 24, page 8
46. 46This issue, as well as Neuro-Rehab’s recommendation for rehabilitation coaching, were incorrectly identified by the parties as cost of examination disputes. It appears that they were, in fact, partially approved treatment plans. While the treatment plans do not appear in the documentary briefs, the examination by Christine Delahunty on behalf of TD General that partially approved the treatment plans appears at Ex. 11, Tab 20.
47. 47Again, the source document, the OCF-22, is not contained in the materials filed. However, the paper assessment conducted on behalf of TD General by Vincent Tester, chiropractor, can be found at Ex. 11, Tab 11.
48. 48See Supermed’s report dated August 8, 2008 at Ex. 2, Tab A
49. 49Ex. 17
50. 50Ex. 11, Tab 13
51. 51Ex. 15
52. 52Ex. 11, Tab 19
53. 53Ex. 16
54. 54Ex. 11, Tab 17
55. 55Plowright and Wellington Insurance Company (OIC A-003985, October 29, 1993)