Manjit Singh v. TD Home and Auto Insurance Company, 2013 ONFSCDRS 2

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 2

FSCO A10-001679

BETWEEN:

MANJIT SINGH

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Robert A. Kominar

Heard: December 5, 6, 7, 8 and 12, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Sal Guzzo for Mrs. Singh

Melisa Gust and Benjamin Sim-Tzung Lee for TD Home and Auto Insurance Company

Issues:

The Applicant, Manjit Singh, was injured in a motor vehicle accident on June 21, 2007. She applied for income replacement benefits from TD Home and Auto Insurance Company (“TD Home”), payable under the Schedule.¹ TD Home denied weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Singh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is Mrs. Singh entitled to income replacement benefits and interest as a result of this accident?

Result:

Mrs. Singh is not entitled to income replacement benefits or interest.

EVIDENCE AND ANALYSIS:

Mrs. Singh was involved in a motor vehicle accident on June 21, 2007, after which she claimed various statutory accident benefits from her insurer, TD Home. The only dispute in this arbitration is whether Mrs. Singh is entitled to income replacement benefits, both pre-104 weeks of disability, and then thereafter.

Mrs. Singh’s evidence was that, on the day of the accident, she was proceeding through a green light and another vehicle cut in front of her. She gripped the steering wheel and applied her brakes but was unable to avoid a collision. Her air bags deployed and she suffered a cut lip as well as heavy bleeding from her left hand. She also stated that she was in shock and that her whole body was shaking. Her first recollection after the accident was hearing an emergency service person repeatedly calling her name, and then being extracted from her vehicle. She was taken to hospital where she reports that she was treated in emergency for 2-3 hours. At hospital she states that she was given an undefined injection and then released with the advice to attend at her family physician. While in hospital Mrs. Singh says that she had bruised arms and severe pain in her shoulders, neck and back. Additionally both of her arms were painful.

Mrs. Singh attended on her family physician, Dr. Malhotra, shortly after the accident. She told the doctor that she was experiencing pain all over her body, but especially in her “right leg.” She was then referred for x-rays and Dr. Malhotra prescribed her Tylenol 3 for pain. She was also advised to start physiotherapy.

Approximately one week after the accident Mrs. Singh started therapy at Brampton Physiotherapy, where she testified she received various forms of passive treatment such as heat, as well as chiropractic adjustments and massage. This treatment, in her recollection, continued until about June 2008; initially she was attending 5 days weekly for treatments, but she stated that she would miss an appointment occasionally because her pain was too severe for her to get to the clinic and undergo the treatment. When Mrs. Singh was asked about the outcome of this treatment by her counsel, she advised that it helped temporarily, particularly she felt better after massage for a short while, but the effects quickly wore off once she returned home.

Prior to the motor vehicle accident, which is the subject of this arbitration, Mrs. Singh had two previous injuries of note: workplace injuries in 2004 and 2005.

Mrs. Singh testified that she regularly saw Dr. Malhotra every two weeks, until he referred her to Dr. Pinto, a rheumatologist, who specializes in chronic pain. She was not certain whether she had advised Dr. Malhotra about her workplace injuries, or that she continued to work and did not regard these incidents as significant enough to tell him about. She did testify, however, that she was seeing Dr. Malhotra during this time period for chronic problems related to pain and sleep.

Mrs. Singh next started to see Dr. Pinto for chronic pain treatment and had ongoing appointments with him monthly. Dr. Pinto prescribed her various pain medications, which she stated did not help her much. He then administered injections into her neck and shoulder areas which, she states, did help for 3-4 months, after which the pain returned. She last attended with Dr. Pinto in November 2011. Mrs. Singh noted in her evidence that at times her pain was severe enough to result in her vomiting.

Apart from the above noted treatments, Dr. Pinto advised Mrs. Singh to continue with physiotherapy, however she stated that she could not afford such treatment as TD Home refused to pay for it. When she was asked to describe her pain symptoms she stated that she gets sharp pains in the neck and the middle of her forehead whenever she tries to do anything. The pain seems to radiate into her shoulder areas. She takes the prescribed Tylenol for it but at times it gets so bad that this medication does not help. When that occurs, all she can do is lie down and apply ice packs to obtain relief. She was also prescribed the drug Alprazolam, which is better known by the trade name “Xanax”, used typically to treat anxiety, panic and nausea. Mrs. Singh did not indicate whether she actually took this medication or not, although she pulled a bottle of it out of her purse during her testimony, so clearly she filled the prescription.

In summary, Mrs. Singh noted that she has experienced continuing neck, back and jaw pain. She also has headaches 2 or 3 times weekly. She saw Dr. Goldberg for TMJ related problems. He prescribed her a dental appliance to wear while sleeping, however she testified that she could not get used to wearing it as it kept her awake at night. Her jaw problems primarily surfaced when she chewed “hard food.”

Headaches have been an ongoing concern for Mrs. Singh. She stated that she does not feel like doing anything when she has them, and they come at least 2 or 3 times weekly. She cries regularly when she has these headaches, as she does not know what to do for the pain, and she fears that she will not get better. Her specific evidence was “everything is hard for me now.”

In addition to her physical symptoms, Mrs. Singh testified that she has developed serious and disabling psychological problems since this motor vehicle accident, symptoms which she never experienced prior to the accident. She was referred by her family physician to Dr. Panjwani in June 2011 for mental health assessment and treatment. Although this evidence came through the testimony of Dr. Malhotra, I note that Dr. Panjwani is described as a psychiatrist who speaks Punjabi and understands the cultural context which Mrs. Singh and her family live within.

Mrs. Singh stated that Dr. Panjwani treated her for depression, which she described as her inability to take care of herself or her children after the motor vehicle accident. Depression, she said, caused her to feel scared and sad all of the time. It affected her function by limiting her ability to attend at her temple as regularly as she used to and to take her children shopping. She noted that she often gets very frustrated with her husband and children and that this causes serious problems within her family. Of note is that Mrs. Singh did not testify that depression prevented her from working.

During the insurance adjusting process, Mrs. Singh was sent for an independent neuro-psychological assessment by Dr. Zakzanis. She recalled attending at his office twice; the first time she said that the interpreter which he had arranged for took sick and so she had to reschedule. She did meet Dr. Zakzanis on this occasion however and she described him giving her many pictures to look at. The appointment lasted 2-3 hours in her recollection before the interpreter had to leave. During the appointment Dr. Zakzanis turned the session over to a psychometrist, who administered the actual psychometric testing.

Mrs. Singh testified that the first test she was asked to do for Dr. Zakzanis was a “personality inventory.” She recalled doing it with the interpreter. However, her evidence was that she did not understand some of the questions and the interpreter advised her to answer “like this and not like this.” Basically, Mrs. Singh’s evidence is that the interpreter completed the whole form for her and thus she disavows the answers recorded on it.

Mrs. Singh was shown what was identified to be a score sheet for the TOMM (Test Of Memory Malingering) test, which psychologists and psychiatrists often employ as part of their assessment process. Mrs. Singh denied remembering taking the test and further denied that the handwriting on the test was her own. This test was administered on her second visit to Dr. Zakzanis’ office. On this occasion she did not meet personally with Dr. Zakzanis, only the psychometrist. There was an interpreter present.

Mrs. Singh was working as a packer of empty plastic bottles into boxes for shipping at the time of this motor vehicle accident. In this capacity she stated that she had to fold out cardboard boxes, put plastic bags in them and then transfer the plastic bottles into the boxes. There was no significant lifting involved, but she stated that she had to push the filled boxes down the assembly line. Most of these boxes, she stated, were approximately 1.5 feet by 2 feet by 3 feet in dimension. Although she worked on a number of different assembly line machines, they all did basically the same thing and it was the only job Mrs. Singh did in this position. Prior to the motor vehicle accident she worked a regular 5 day, 8 hour, shift. According to her evidence, she enjoyed her work and had no problems with it prior to this accident.

After the accident Mrs. Singh was off work, on her physician’s recommendation. She did attempt a return to work in November 2008. She stated that she enjoyed working and wanted to try to return, despite her doctor’s recommendation that she was not ready. Her doctor ultimately approved her to try light duty work. Her return to work lasted 4 days: one full day, 4 hours on the next day, a day off, and then another 4 hours on the last day. Light duty meant working on the “slower” machines according to Mrs. Singh, as the machines at her workplace moved at varying rates depending on what they were processing. Mrs. Singh went back to her physician on the second day of this attempted return to work and the doctor provided her with a letter saying that she could only do light duty work. It is unclear to me from the evidence whether this letter referred to something different than Mrs. Singh described as what she tried to do, i.e. work on slower machines. Her evidence was that there was not much else that could be modified in her workplace than the speed of the machine she was working on.

Mrs. Singh testified that she experienced sharp neck pains in the attempt to return to work and so discontinued her efforts. When she was asked what kept her from working now, she stated that her neck and lower back pain made it impossible for her to work in any capacity, as she cannot lift or load boxes. She also cannot sit without getting pain in her shoulders and back. I note that she did not state that her psychological condition precluded her from working.

During her cross-examination Mrs. Singh was asked about her health history prior to the accident. She acknowledged that she had a workplace accident in 2004 and that she was referred to Dr. Pinto. A box fell on her neck at that time and she complained of shoulder and neck pain. She admitted this but noted that she continued to work through that period, unlike after this accident. However, Mrs. Singh admitted that she was still having back pain after this 2004 accident and was still seeing Dr. Pinto for it in 2007.

Mrs. Singh also acknowledged that although Dr. Malhotra was her family physician, she attended at walk-in clinics after this accident. When asked why she did this, she stated that sometimes Dr. Malhotra was not available so she went to the clinic. She was then asked whether she reported to the clinic doctor that she had experienced back pain for several years. Her answer was that she did, but she meant that it only occurred after particularly hard days at work. She was diagnosed with chronic back pain on March 21, 2007, some three months before the motor vehicle accident.

Mrs. Singh also had a bone scan during this period of time which reported no unusual results, other than she might be pregnant. Contemporaneous x-rays revealed no problems in her skull or facial areas and no disc herniations.

Mrs. Singh acknowledged that she could stand and sit at work stations. She could reach at shoulder level for bottles and that she was fully able to tidy up her work area. She was asked whether she could sit for a length of time at home and answered that she could, but only because she has “no other option.” She is able to walk, raise her arms above her shoulders when necessary. She can bend and lift objects up to ten pounds when necessary but only “with pain.” She can kneel and pick objects up off the floor, again only “with pain.” She can sweep lightly and dust “a little bit.” She can ride in the front seat of a vehicle but advises that she is still fearful when doing so. She testified that she has not driven a car since the accident. She was asked about a report from her psychiatrist, Dr. Panjwani, which notes that she now is “hyper-vigilant and keeps her foot on the brakes” and she responded that the doctor did not understand that she was referring only to situations where she was a passenger but yet felt like she was the driver and reacted accordingly. Mrs. Singh is certain that she told Dr. Panjwani that she does not drive any longer and she has no explanation as to why he recorded these comments from her.

Mrs. Singh was asked about her attendances at Dr. Zakzanis’ office. She stated that she went twice, and knew that he was a neuropsychologist. She admitted that she did not express any translation concerns about this experience at the time, however she noted that the interpreter circled all the answers which she gave and she never filled out any forms personally due to language issues.

Mrs. Singh acknowledged that she has received short-term disability benefits and further that she applied for long-term disability and was denied. However, she now has received those benefits as well.

Dr. Malhotra

Dr. Malhotra has been Mrs. Singh’s family physician since 1993. He noted that he is a very busy treating primary care physician and does not have time to do many medico-legal reports. His clinical notes filed in this arbitration indicate that he saw Mrs. Singh three times between 2005 and 2007 for chest pain, neck pain and gastrointestinal concerns. He does not recall sending her to any specialists during this period. He saw her for a total of 19 times from June 22, 2007 through August 8, 2007.

Dr. Malhotra prescribed Prozac to Mrs. Singh after the motor vehicle accident and noted that she was not on any other antidepressant as far as he knew in the prior 10 year period. He also gave her Tylenol 3 for pain and asked her to have x-rays taken.

Dr. Malhotra saw Mrs. Singh 25 times from September 2007 through May 2011, mostly for complaints of neck, back and shoulder pain, and depression. He referred her to Dr. Panjwani as he believed that his treatments were not helping her improve and that this psychiatrist would understand her cultural milieu. Dr. Malhotra noted that Mrs. Singh was experiencing significant trouble with her husband during this time due to financial worries. He tried to counsel them both but the husband was not happy with the situation and that Mrs. Singh was not doing much work around the home. According to Dr. Malhotra, “money” was a big issue in this situation for the couple. Thus, when Mrs. Singh wanted to try to go back to work, he was not initially supportive, but ultimately conceded that she could try to return to modified or light duties.

Dr. Malhotra stated that he concluded that Mrs. Singh has chronic pain only after he tried all the options he knew of to help her and that she did not respond positively. He referred her to the psychiatrist once he believed that he had nothing more to offer her therapeutically.

On cross-examination, Dr. Malhotra was asked why Mrs. Singh was only referred to a psychiatrist in 2011 if she was suffering from these mental health symptoms since 2007. He did not clearly answer this question, only noting that he was trying various medications as a family physician. He was also asked why he did not refer her to a physiatrist. His answer was that there are no physiatrists in Brampton who would see her without a fracture being involved and her condition was soft tissue related only. From Dr. Malhotra’s recollection Mrs. Singh did not complain of problems with her neck, shoulders or back between 1996 and 2007. He was unaware that she was attending at walk-in clinics during this period and complaining of such symptoms, observing that such clinics do not send their notes to family physicians.

Dr. Zakzanis

Dr. Zakzanis is a neuropsychologist to whom Mrs. Singh was referred by TD Home for an assessment. He testified that he had interpreters at each of her sessions and, in addition, since she did not speak English well, he used pictorial as opposed to linguistic based testing. According to Dr. Zakzanis this method of testing is regarded as scientifically most reliable in such situations. Further, he agreed with Mrs. Singh that he only met her on the initial visit and then turned the actual testing over to his psychometrist. He advised that this is standard practice in his profession and that all of the interpretation of the test data was done by him.

As Mrs. Singh testified that she did not fill out the scoring sheets on the test herself, Dr. Zakzanis noted that this is always the way testing is done − the psychometrist always records the answers. When he was questioned about the TOMM test, he testified that on each of 3 trials, Mrs. Singh scored far below the threshold for a conclusion of malingering. According to the doctor, this test for malingering is incredibly resilient to both injury and pathology; even Alzheimer’s patients can remember certain things for a long period of time. His conclusion was that Mrs. Singh’s scores were so low that the only reasonable conclusion was that she was choosing the wrong answers. In fact, Dr. Zakzanis stated that people who were asked to feign cognitive disorders in controlled studies scored higher than did Mrs. Singh. The result of his testing was that, either, Mrs. Singh was suffering from a serious cognitive disorder or she was feigning results. Given the evidence he had, his conclusion was that a serious cognitive disorder was not probable and therefore she logically must be feigning.

On cross-examination, Dr. Zakzanis was asked about the language barrier which Mrs. Singh may have encountered during testing. His response was that, because of her limited ability to speak English, and even with an interpreter present, he chose to use visually oriented questions as opposed to language based ones. His professional opinion was that these questions eliminate distorted results due to language issues. He further noted that his conclusions were based on an analysis of all the testing he had conducted and not one specific test. He reaffirmed his findings, allowing for the possibility that some further evidence could change his mind, but that none had been presented to him up to that point in time. Particularly, the doctor stated that no cognitive impairment which Mrs. Singh might plausibly have could possibly account for the lack of validity on her testing. Nothing, in his view, in her neuropsychological profile would suggest that she was incapable of doing any job.

ANALYSIS

The only question before me is whether Mrs. Singh has proved, on a balance of probabilities, that she was unable to work. For the first two years she would have been substantially unable to do the job of a bottle packer. After that, to be successful in her claim, she would have had to be unable to do any job which she was reasonably suited for due to her education, training and experience.

The evidence in this arbitration presents a choice, between the views expressed by Mrs. Singh and Dr. Malhotra and those expressed by Dr. Lang and Dr. Zakzanis. Mrs. Singh’s evidence can be summarized by saying that this accident, at a minimum, exacerbated her pre-existing medical condition which she had as a result of her workplace accidents or her general health condition to the point that she was unable to work in her previous job and, ultimately, in any meaningful capacity. Dr. Malhotra’s evidence was that she had been his patient for a long time and that prior to this accident Mrs. Singh consulted him about her workplace accident in 2004. He said that these injuries resolved promptly and she returned to work. After this motor vehicle accident Mrs. Singh saw him more frequently, complaining of various physical pains and, more significantly, ongoing depression and anxiety. He tried to treat her with various antidepressant medications without noticeable success and ultimately referred her to a psychiatrist in 2011 who could speak her language and understand her cultural milieu. Her psychiatrist prescribed different antidepressants. Dr. Malhotra did not refer Mrs. Singh to an orthopaedic specialist or a physiatrist due, as he said, to the relative unavailability of those professionals in the Brampton area. He did acknowledge that specialists were available in Toronto but that he elected not to refer her there. Finally, Dr. Malhotra was unaware that Mrs. Singh saw various physicians at walk-in clinics and apparently described symptoms to them that she had not to him. Ultimately, Dr. Malhotra’s conclusion was that Mrs. Singh was unable to work in any capacity due to a diagnosis of chronic pain and he participated in her application for disability benefits on that basis. Of note Dr. Malhotra testified that: “If she is frustrated then medically I am too. She cries all the time and can’t walk, so I diagnose ‘chronic pain.’”

Contrasting to the position of Mrs. Singh supported by Dr. Malhotra, Drs. Zakzanis and Lang examined and evaluated her and found no cognitive or physical evidence to support her disability claims.

Dr. Zakzanis found that Mrs. Singh’s scores on testing were so far outside the statistically expected norm that he concluded that she was most likely intentionally giving wrong answers to questions, with the proviso that she may have a mild brain injury, but if that were the case she should have sufficiently recovered from it long before his testing. He noted that language issues caused him to administer tests that were pictorial and thus insensitive to what language a person spoke, basically asking her to recall whether she had seen certain images before or not. His conclusions, he noted, were drawn from all of the testing he conducted, not just one instrument. After acknowledging that he conducted a neuropsychological evaluation, not a psychological one, his conclusion was that there were no cognitive limitations to Mrs. Singh working in a job such as packing bottles, characterized primarily by repetitive action on the worker’s part.

Dr. Lang conducted a physiatry examination and concluded that Mrs. Singh had no significant functional limitations resulting from what were only soft tissue injuries that she likely sustained in this accident. He concluded that she had normal tendenosis in her rotator cuffs, adding that most people who do repetitive physical work get this condition. She was able to demonstrate almost full, normal range of motion, although at times only when she was distracted and unaware of what he was testing. In general Mrs. Singh showed a global restriction of movement and this is what was problematic for Dr. Lang as there was no physical cause that he could locate that would explain such an overall bodily weakness and restriction of functional ability. When he was asked about chronic pain he noted that it is not a diagnosis but a description of the experience of certain people. His task as a physiatrist was to determine if there was any evidence of a physical source that could account for her pain and then address that if located. He found no such source of pain in Mrs. Singh.

So, there are two different narratives of Mrs. Singh’s condition following this accident. Hers is that she was disabled from working due to physical pain coupled with ongoing depression and anxiety. The Insurer’s view is that she has not provided any reliable evidence that her pain and depression were significant enough to stop her from working as a bottle packer or that any disability which she may have arises from the motor vehicle accident.

There is always a challenge in weighing scientific medical evidence against subjective reports of pain and loss of function. Both Dr. Lang and Dr. Zakzanis found no evidence of a physical or cognitive inability to work. Both doctors found that Mrs. Singh did not provide maximum effort on testing. Dr. Zakzanis found that she was so far out of the expected range on scoring that feigning was the most likely reason for it. One can challenge Dr. Zakzanis’ evidence by noting that he is only talking about statistical norms and it is possible that Mrs. Singh is just a statistical anomaly that is not captured by current interpretations of the testing he conducted. However, Mrs. Singh “failed” three attempts at the TOMM test, which is expressly designed to detect malingering and generally accepted by mental health professionals to be reliable. I accept Dr. Zakzanis’ evidence that he used pictorial based testing in order to control for language concerns and also that it is normal practice to have a psychometrist administer the actual testing. Even though it is possible that Mrs. Singh may have been an anomaly, it is much more probable that the conclusions which Dr. Zakzanis drew are more reliable. No evidence was presented during the hearing to persuade me that the particular tests conducted were invalid and not the norm in neuropsychological evaluations. I take note of the fact that these tests are very frequently conducted in these evaluations and result in the reports routinely prepared for arbitration and court purposes.

Related to this I find that Dr. Lang’s evidence that he could find no physical source of her pain, that her complaints were “global” in nature and that she did demonstrate normal range of motion on distraction supportive of the conclusion that Mrs. Singh was not demonstrating her full ability to these assessors. Following from that I find it reasonable to conclude that the assessors were able to rationally conclude that she was substantially able to return to her job as a bottle packer after this accident. There was no evidence presented that suggested that pain alone was disabling in Mrs. Singh’s case. In fact Mrs. Singh herself did not testify to this. Dr. Lang’s view was that a gradual return to daily functioning and employment would have best helped Mrs. Singh recover.

Effectively this case comes down to an assessment of the reliability and persuasiveness of Dr. Malhotra’s evidence. On the one hand he has known Mrs. Singh for many years. His records show that he saw her on numerous occasions after the accident. A fair reading of those notes and the doctor’s evidence was that he was primarily treating her symptoms and sequelae of depression, noting that patients often come in complaining of other physical and emotional symptoms and in reality are suffering from depression. He found that she was not improving over his course of treatment and ultimately sent her to Dr. Panjwani approximately four years after the accident. I note that Dr. Malhotra found it very significant that Mrs. Singh was having marital problems and that those were associated with the family finances. He noted that within his culture, physicians often play the role of mediator in family conflicts, encouraging people to work through their problems rather than separate and divorce. From that, I infer that Dr. Malhotra views himself as an advocate to some degree for Mrs. Singh and her family. I don’t find this to be problematic from a family physician’s point of view, but my task is to tease out the “advocacy” from the objective evidence of impairment and its likely cause.

Dr. Malhotra’s view of chronic pain appears to be that any patient who consistently complains of pain without responding to treatment is suffering from “chronic pain.” He quite candidly noted: when the patient gets frustrated the physician also gets frustrated. All the evidence in the hearing converged on the conclusion that chronic pain, although at times disabling, can also be managed to the point where someone can work while suffering it. Dr. Zakzanis noted that people experience pain subjectively and some people can function more easily while in pain than others. The question is where Mrs. Singh lies on this spectrum?

I find that there is no evidence before me that Mrs. Singh suffered from anything other than soft tissue injuries in this accident. Clearly Dr. Malhotra was not actively treating her for any significant physical pain after the accident, other than prescribing her pain killers right afterwards. I also find it difficult to explain why Mrs. Singh attended at walk-in clinics and reported a different set of symptoms than she did to Dr. Malhotra. I appreciate that she may have needed to go to a doctor when Dr. Malhotra was not available, but that does not adequately explain the differing medical histories she provided to different providers. Those records seem to suggest that Mrs. Singh may have had ongoing physical pain for years. I accept that Dr. Malhotra believed that Mrs. Singh was suffering primarily from psychological disabilities and the physical symptoms were really aspects of this problem.

I further find that if Dr. Malhotra had serious concerns about Mrs. Singh’s physical limitations, he would have referred her to an orthopaedic specialist or physiatrist. It may be that it is challenging to get in to see specialists in Brampton, but if the problem was serious enough to warrant a referral, then I don’t find that sending her to Toronto would have created a significant barrier to such a referral. My inference was that Dr. Malhotra did not regard the situation as warranting such a referral in Mrs. Singh’s case.

When Mrs. Singh was referred to the psychiatrist, Dr. Malhotra testified that he put significant emphasis on her marital and financial problems. It was at this time Mrs. Singh attempted to return to work but Dr. Malhotra advised her against it. As noted above, the return to work was not successful and Dr. Malhotra thereafter concluded that Mrs. Singh could not return to any type of employment.

Dr. Malhotra acknowledged that he is not a disability specialist, although he has had some training in that field. He acknowledged also that when he as a family physician believes there is nothing more he can do for a patient, he refers them to specialists. Mrs. Singh reached that condition in his opinion.

Thus, I find that Mrs. Singh did start to complain of medical symptoms after this motor vehicle accident, and for the previous 10 years did not really complain of any ongoing effects of previous accidents. I therefore find it probable that she had completely recovered from any effects of those previous accidents and there is no reliable evidence before me that this accident, with any degree of probability, exacerbated any previous condition Mrs. Singh had.

I accept Dr. Lang’s conclusion that this was at most a soft tissue injury. Dr. Malhotra’s investigations revealed nothing inconsistent with this conclusion. I further accept the evidence of both Dr. Lang and Dr. Zakzanis, that Mrs. Singh did not provide the type of effort necessary for them to conduct a proper independent examination. Particularly, I accept that Mrs. Singh showed significant range of motion on distraction which she declined to do when asked. Additionally, her consistently very low scores on the neuropsychological testing are significant. As Dr. Zakzanis stated, even Alzheimer’s patients perform much better on these tests than did Mrs. Singh and further that they are insensitive to brain injury and psychopathology. It takes a significant degree of cognitive ability to be able to consistently give the wrong answers to all these questions. I find that the conclusions reached by Dr. Lang and Dr. Zakzanis are generally reliable.

Mrs. Singh has the burden of proof in this case to persuade me on a balance of probabilities that she was substantially unable to return to her job as a bottle packer for the first two years after the accident, and thereafter that she was completely unable to return to any job she was reasonably suited to do.

I find that Mrs. Singh has not demonstrated that she lacked the strength or range of motion to work as a bottle packer, as that position was described in this arbitration, for anything but a short time after the motor vehicle accident. I also find that Mrs. Singh did manifest ongoing symptoms of depression after the accident that Dr. Malhotra treated for approximately four years before sending her to a psychiatrist. Was this psychological condition so debilitating that it prevented Mrs. Singh from working? There was no evidence directly on this point from Dr. Malhotra. He had concluded that she had a chronic pain disorder. I accept that Dr. Malhotra supported Mrs. Singh’s claim for disability benefits but this still is a grey area as it is unclear what the source of the condition was. To be successful here Mrs. Singh has the burden of proof to demonstrate it was directly a result of the motor vehicle accident.

If it were not for the evidence of Dr. Lang and Dr. Zakzanis, the views of Dr. Malhotra would have been persuasive enough to meet the burden of proof in my view. I found Dr. Malhotra to be candid about Mrs. Singh, and although he was very supportive of her claims, he did have reasons to back up his views. However, it is important to weigh the evidence presented by TD Home against the conclusions of Dr. Malhotra. Taking the Insurer’s evidence in its totality, there are serious questions raised about the reliability of Mrs. Singh’s evidence in this arbitration. In order to continue to work as a bottle packer she needed the physical strength and endurance to do the job. Dr. Lang’s testing satisfies me that she could muster that strength. To be able to work on any regular basis, and to do a satisfactory job, she also would need to be psychologically healthy enough that her depression and anxiety did not significantly interfere with her job performance. Dr. Malhotra is of the view that her mental health coupled with physical pain did preclude her from working. However Dr. Zakzanis found that Mrs. Singh most likely was feigning cognitive disability based on her very low test scores. I accept Dr. Zakzanis’ conclusions about the test scores, and I specifically find that the language issue was not a factor in this testing environment and also that Mrs. Singh did not complain of language problems during the testing process, only afterwards. Even if there were translation issues, I accept Dr. Zakzanis’ evidence that the use of pictorial material gets around this concern and validates his conclusions.

Thus, I am left with Mrs. Singh’s subjective evidence of her inability to work and Dr. Malhotra’s general support for her on this point, including his participation in her claims for disability insurance and CPP benefits. Against this I have to weigh Dr. Lang’s conclusion that she had a larger range of motion than she was willing to reveal to him and Dr. Zakzanis’ conclusions that she most likely was intentionally trying to fail the testing he was administering. Since the test is the balance of probabilities, my conclusion is that Mrs. Singh does not meet that standard. Although there was “some” evidence to support Mrs. Singh’s claims I find that the evidence of Dr. Lang and Dr. Zakzanis challenge the reliability of Mrs. Singh’s position sufficiently to make it slightly more probable that she was not substantially disabled from working as a bottle packer as a result of this accident. I prefer the evidence of Dr. Lang and Dr. Zakzanis to that of Mrs. Singh and Dr. Malhotra. This conclusion is supported by her previous history of workplace accidents and her providing inconsistent medical information to walk-in clinic physicians than she did to Dr. Malhotra. I also find it significant that, at some point in time, Mrs. Singh’s problems were likely more related to her marital and financial problems than anything else according to Dr. Malhotra. If what Mrs. Singh reported to the walk-in clinic physicians is accurate there is good reason to conclude that she had been in physical pain for years before the accident, yet she did not report this to her long-time family physician.

Weighing all these factors against each other I find that Mrs. Singh has not demonstrated on a balance of probabilities that she was substantially unable to do her job during the first two years after this accident. I agree with TD Home’s submission that if she does not meet the test of substantial disability, she logically cannot meet the complete inability test either.

On a final note, there were submissions made by counsel related to the interpretation of Mrs. Singh’s settlement of her disability benefit lawsuit and whether any portion of that settlement should be set off against income replacement benefits. Given my decision, there is no reason to address that issue in this arbitration.

Mrs. Singh’s claim for income replacement benefits is therefore dismissed.

EXPENSES:

If the parties cannot agree on expenses an expense hearing may be arranged through the case administrator.

January 8, 2013

Robert A. Kominar

Arbitrator

Date