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

Neutral Citation: 2013 ONFSCDRS 16

FSCO A10-002727

BETWEEN:

DEVI GAYATHRI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Robert Kominar

Heard: September 19, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Sharon Sodhi for Mrs. Gayathri Cary N. Schneider for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Devi Gayathri, was injured in a motor vehicle accident on June 23, 2007. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm denied caregiving and housekeeping and caregiving benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Gayathri applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended

The issues in this hearing are:

Is Mrs. Gayathri entitled to housekeeping or caregiving benefits?

Result:

Mrs. Gayathri is not entitled to housekeeping or caregiving benefits

EVIDENCE AND ANALYSIS:

Mrs. Gayathri was involved in a motor vehicle accident on June 23, 2007. At that time, she lived in Ontario, but she moved to the State of California in July of that year. She testified that, after the accident, she immediately felt dizzy and nauseous, but since she had to care for her children she adopted the attitude of “just let whatever happens happen.” Her injuries, as she described them, were to her head and neck, as she hit the car’s seat corner with her head in the collision. She denied experiencing any psychological symptoms until weeks later. Her neck and shoulder pain subsided after a couple of weeks, only to re-emerge after when she attempted to lift objects weighing in the range of 5-8 pounds.

Mrs. Gayathri’s evidence was that, after her family moved to California, she began to experience tingling and numbness in her left arm. Since she initially had no health insurance in the United States she relied on a friend who guided her in administering various natural home remedies to ease her pain. She specifically testified that she started to experience this shoulder pain while lifting heavy boxes during her move. Although she prefers to use “natural remedies,” Mrs. Gayathri acknowledged that she took Naproxen and Ibuprofen, and eventually the narcotic Vicodin, at various times for pain relief.

In addition to the pain in her left arm, which started after she moved to California, Mrs. Gayathri described almost daily headaches for the first two years following the accident. These headaches started shortly after the accident and were often accompanied by dizziness. She stated that the doctors she consulted about the problem told her that the headaches originated in her neck and that she should exercise, take Advil and drink a lot of water to deal with them. She was never treated for the dizziness according to her evidence.

Mrs. Gayathri began to experience psychological problems, notably depression, about one month after the accident. She stated that her physical pain was not being controlled and that led her to worry. As a result she became unable to work or talk to anyone else in her home. Eventually she obtained health insurance in California and stated that once she talked to a doctor there about treatment options for depression, her symptoms began to lessen. I note that Mrs. Gayathri did not testify that she ever was prescribed any antidepressant medications or that she took any psychotherapy treatment for her depression. She stated that she took prescription Naproxen, which is an anti-inflammatory, and Vicodin, which is a narcotic used to treat moderate to severe pain. Her American health care benefits, she stated, covered all her prescription medications and thus these were never submitted to State Farm. I note here that State Farm had requested a prescription summary for Mrs. Gayathri but that it was never provided.

Mrs. Gayathri stated that her American health care benefits started approximately a year after she moved to California. She did not see a doctor before that due to the costs involved. When her counsel asked her what she was able to do before the motor vehicle accident and not afterwards she responded that she could not vacuum, do laundry, go grocery shopping, and for some period she could not cut vegetables or do other kitchen work, primarily because her left arm hurt very badly. She also said that she was unable to take her children to school or help them with their studies. She engaged two women, Tanya and Manjairi, who helped her with caregiving and housekeeping. Each, she said, worked about 10 hours weekly and she paid them $10.00 hourly. Additionally her husband took on extra caregiving duties to supplement what her service providers did not do.

In dispute in this arbitration is the cause of Mrs. Gayathri’s pain and loss of functional capacity. When she was asked by her counsel what she told doctors in California about her situation, she responded that she told them that she believed that it resulted from an occasion when she was practising yoga. Apparently on that occasion Mrs. Gayathri asked her son to help her by “pushing her leg” while she was in a supine yoga pose. The son, she said, pushed too hard and hyperextended her leg. This event occurred shortly after her motor vehicle accident and was clearly a significant event as Mrs. Gayathri went on to describe its effects to various health care providers.

Initially, right after the accident, Mrs. Gayathri attended on her family physician, Dr. Van, whom she had seen for about 4 years. He sent her for an x-ray and told her to take over-the-counter pain medication. He asked her to return if the pain continued but she did not go back for any follow up. She stated that Dr. Van did not physically examine her during that visit; he only asked her what happened. She acknowledged that she did not mention to Dr. Van that she would be moving to California very shortly after that date.

Eventually Mrs. Gayathri consulted Dr. Erasmus, a neurologist, in California whom, she states, advised her that a yoga injury was not likely the cause of her pain and that it was more probable that her car accident was the source of it. Dr. Erasmus recommended she try acupuncture, but she preferred physiotherapy. He ultimately recommended that she consider surgery, but she declined this option. Eventually she underwent some further chiropractic treatment. She then started to see Dr. Vernon, a chiropractor, and stated that she felt less depressed and experienced a better range of motion while he was treating her. She wanted to continue to have him treat her as she disliked the notion of taking pain medications. Of note, State Farm paid for Dr. Vernon’s treatment and her California health benefits paid the rest of her medical expenses, subject to her co-pay.

Mrs. Gayathri also travelled to India in May of 2008. While there she consulted a Dr. Hussain who advised her to do more yoga and go to a chiropractor if necessary. The end result of all her post-accident medical treatment, she testified, was that she came to believe that she would likely be in pain for life.

On cross-examination, Mrs. Gayathri was asked about the disability certificate prepared by her family physician, Dr. Van, on June 28, 2007. That disability certificate notes that she experienced an injury to her cervical spine, but that she was not disabled from either caregiving or housekeeping. She acknowledged that this was what Dr. Van wrote and that she never questioned Dr. Van about it or asked that it be amended, or updated. Specifically, Mrs. Gayathri acknowledged that she had a return appointment at Dr. Van’s office in July of 2007 and did not express any concerns about the disability certificate on that occasion.

Mrs. Gayathri originally applied for accident benefits on September 29, 2007. Her evidence was that her husband completed the application form and that she had no recollection of its contents, although she admitted that she did sign the document but without reading it. In that application for benefits Mrs. Gayathri advised State Farm that she had returned to all her normal daily activities. She also claimed that she was not employed but was a primary caregiver. However, she did not disclose whom she cared for and the application form did not claim that she was unable to care for dependants as of that date.

Mrs. Gayathri submitted a second application for accident benefits to State Farm on April 14, 2009. By this time she had retained legal counsel in Ontario. Notwithstanding her having retained legal counsel she testified that the writing on this form was, once again, her husband’s, not hers, and that she was not aware of its contents. On this application for benefits there was a claim by Mrs. Gayathri that she was the primary caregiver for two children. It also recorded that she went to the hospital right after the accident. Mrs. Gayathri acknowledged that this information about going directly to hospital was not accurate. The application states that she was disabled from caregiving and housekeeping. She acknowledged that this information was inconsistent with her first application and that there was no disability certificate provided to State Farm to support this second application for benefits. Additionally, Mrs. Gayathri acknowledged that she has not submitted any claims for housekeeping or caregiving expenses to the Insurer, nor did she disclose the last name of at least one of the service providers to State Farm until the morning of the hearing, despite being asked to long before. Mrs. Gayathri also acknowledged that Dr. Van advised her that the result of her x-ray was that nothing was wrong, other than some evidence of cervical strain.

While in California Mrs. Gayathri went to a hospital on December 24, 2007 and advised them that she injured herself while doing yoga. At that time she told the doctors that she was experiencing shoulder and arm pain. There was no mention of any neck pain at the time. Her explanation for this was that she did not believe that she would be treated if she told them she was injured in an auto accident in Ontario. Mrs. Gayathri admitted that she lied to California health care providers in order to obtain treatment there. On November 13, 2008, she told a Dr. Chan that she was experiencing pain in her cervical spine which had “just started.” She also saw a Dr. Duggal on December 1, 2008 and once again advised the doctor that she was injured while doing yoga. She was referred for an MRI and when the doctor discussed the results with her, she disclosed the car accident history. Mrs. Gayathri testified that this doctor advised her to “come clean” about her medical history. She learned that she still might be able to claim accident benefits in Canada. This doctor then sent Mrs. Gayathri for more physiotherapy but she, inexplicably, went on once again to advise the physiotherapist that the yoga incident was the source of her problem with no mention of the auto accident.

Mrs. Gayathri was asked about who prescribed her Vicodin which she testified that she took regularly for almost two years. She was unable to identify the prescribing physician. Despite taking this drug for this length of time she advised Dr. Duggal that she was only taking Naproxen, an anti-inflammatory, and birth control medication.

Once Mrs. Gayathri learned that she may still be entitled to Ontario accident benefits, she began to advise her health care providers about the accident details. However, it is notable that she also contemporaneously stopped advising doctors about the yoga incident or problems which she started to experience after lifting heavy boxes while moving.

In effect, Mrs. Gayathri admitted during her cross-examination that she had, on numerous occasions, withheld information from various health care professionals and also misled them from time to time. Her explanation for this behaviour was that she was only doing this for “insurance reasons.” I infer from this admission that she told doctors whatever she thought would support her getting benefits that she believed were available to her from time to time.

Mrs. Gayathri submits that she was never notified by State Farm that her initial application for accident benefits was incomplete and that the Insurer had an obligation to assist her in completing the forms if it needed further information. I agree in general with this proposition. However, it is difficult to understand what State Farm was supposed to do when they received an application for benefits, accompanied by a disability certificate from her family doctor stating that she was not disabled at all, as a result of this accident. Had the disability certificate identified that she had some form of disability, then I agree that State Farm would have been expected to follow up more closely and assist her in providing any information that they required to adjust her claims. But effectively, State Farm received an application for benefits from Mrs. Gayathri stating that she was not in any way disabled. In these circumstances I find that State Farm acted appropriately on receiving that information. Certainly no one would expect an insurer to challenge information which an insured submits stating that the insured was not disabled. That is completely unreasonable in my view. I must emphasize that no further disability certificate was ever provided to State Farm in this matter, and so there was no reason for the Insurer to re-evaluate the situation. I further note that State Farm did pay for some medical treatment when requested to do so and so it cannot be plausibly claimed that they completely disregarded Mrs. Gayathri’s claim for accident benefits.

In response, State Farm submits that Mrs. Gayathri has not proven on a balance of probabilities that she had any disability resulting from this accident related to her ability to do caregiving or housekeeping. Her family physician, whom one “might” expect to be supportive of her claims, as family physicians at times take on an advocate role for their patients, did not say that she had any type of disability. Mrs. Gayathri did not at any point in time question her physician’s initial conclusions, nor did she ask for an update if symptoms appeared later. She also did not request any other health care provider fill out a new disability certificate. State Farm had no reason to request a new disability certificate based on the information which had been provided by Mrs. Gayathri. The onus was on her to let State Farm know if her circumstances changed; otherwise insurers would have to be contacting claimants, likely every few weeks, inquiring whether there was a decline in health or function that they should be aware of. Such a scenario is completely absurd and not contemplated by the SABS.

The evidence in this hearing was that Mrs. Gayathri did not seek professional medical treatment for her physical pains for approximately one year after the accident. During that year she experienced a yoga injury and also started experiencing shoulder and neck pain after lifting heavy boxes while moving. She stated that her failure to seek treatment was due to her concerns about paying for American health care. However, when she did access health care in California, she clearly told her health care providers that her problems were caused by yoga. She did not mention the car accident or the moving experience to them. State Farm submits that such behaviour must colour Mrs. Gayathri’s credibility. She clearly admitted that she told medical professionals only what she believed would benefit her and that she gave inconsistent histories to numerous providers.

On the specific issues of entitlement to caregiving and housekeeping benefits, State Farm argues that they were not provided with sufficient identification information about the service providers prior to the arbitration. The service providers did not testify or provide affidavits and Mrs. Gayathri did not request that they participate in the hearing by electronic medium such as Skype. There were no letters tendered from the service providers describing what they did for Mrs. Gayathri. She also did not produce any evidence, such as bank records, to demonstrate that she actually paid these individuals for services rendered, which she testified that she did do during her direct examination. Finally, no records provided to State Farm from her treating practitioners in California ever refer to her describing any problems with housekeeping or caregiving.

It is clear that the burden of proof, on a balance of probabilities, lies with Mrs. Gayathri in this arbitration. I find that her evidence in the hearing does not persuade me that she suffered any disability as a result of this automobile accident as related to caregiving or housekeeping. It is clear that Mrs. Gayathri was prepared to mislead health care providers if she thought it would benefit her. Even if she was not aware of her rights to claim certain accident benefits from State Farm after she moved to California, which must be qualified by the fact that State Farm was requested to and did pay for some medical treatment while she was there, I find that she was regularly less than honest with her health care providers. Particularly, I find it very difficult to reconcile why, after she was advised to “come clean” about her situation by an American physician, she would then go on to promptly mislead the physiotherapist she was referred to by that doctor. In my view, this is significantly illustrative of a pattern of deception that cannot be easily offset by any potential lack of understanding of her rights to accident benefits. Further, on that point, I am not satisfied that Mrs. Gayathri did not understand her Ontario rights. She did obtain an initial disability certificate and submitted an application for accident benefits. If she chose to sign this form and submit it without reading it, I find that to be a choice she voluntarily made as no evidence was tendered to in any way suggest that she was compelled by her husband to sign. Mrs. Gayathri would bear the burden of producing some evidence to support a claim that she was coerced, or misled, into signing forms her husband filled out. No such evidence was offered.

Further, I find it particularly problematic that Mrs. Gayathri gave different renditions of what prescription medications she was taking to different health care providers. Of note, she does not seem to have advised the providers identified in this arbitration of her regular use of Vicodin, a narcotic drug, for which she could not identify the prescriber. There was no evidence provided as to the reason she was taking Vicodin or what she told the prescriber of this medication about the cause of the injury which gave rise to the pain it was meant to alleviate. Given the nature of her claims in this arbitration, some explanation about how two years of Vicodin use figured into the picture would reasonably have been expected.

In conclusion, I am not satisfied that Mrs. Gayathri has proven on a civil burden that she was ever disabled from doing housekeeping or caregiving as a result of her auto accident. I find it at least equally possible that her yoga incident and her moving experience were the causes of her ongoing pains. Mrs. Gayathri described her depression symptoms in the hearing but did not testify that these were ever disabling and she never seems to have been actively treated for that condition either with psychotherapy or antidepressants.

Mrs. Gayathri’s claims for housekeeping and caregiving, interest and expenses are therefore dismissed.

EXPENSES:

If the parties cannot agree on expenses of this arbitration proceeding, they may request an expense hearing through the case administrator.

January 25, 2013

Robert A. Kominar Arbitrator

Date