Neutral Citation: 2015 ONFSCDRS 272

FSCO A04-002390

BETWEEN:

QUOC NGUYEN

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Alan Mervin

Heard: August 12, 13, 14, 15, 19, 20, 21, 22, September 11, 12, 13, 18, 19, 20, October 15, December 9, 10, 11, 12, 13, 2013, February 5, 7, and April 4, 2014

Appearances: Peter B. Cozzi for Mr. Nguyen Christopher A. Caston and Daniel Siu for TD Home and Auto Insurance Company

Issues

The Applicant, Quoc Nguyen, was injured in a motor vehicle accident on January 14, 2003. He applied for and received statutory accident benefits from TD Home and Auto Insurance Company (“TD Home”), payable under the Schedule.¹ TD Home terminated weekly income replacement benefits on February 3, 2004. The parties were unable to resolve their disputes through mediation, and Mr. Nguyen 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:

Has Mr. Nguyen suffered a catastrophic impairment as a result of the motor vehicle accident of January 14, 2003?
Is Mr. Nguyen entitled to Income Replacement Benefits from February 4, 2004, and ongoing? If so, what is the amount of the Income Replacement benefits?
Is Mr. Nguyen entitled to housekeeping and home maintenance benefits?
Is Mr. Nguyen entitled to attendant care benefits in the monthly amount of $487.62 from May 22, 2008, to date and ongoing?
Is Mr. Nguyen entitled to a Special Award with respect to the claim for Income Replacement Benefits, and if so, what is the quantum of the special award?

Result:

Mr. Nguyen has not suffered a catastrophic impairment as a result of the motor vehicle accident.
Mr. Nguyen is not entitled to Income Replacement Benefits from February 4, 2004, and ongoing.
Mr. Nguyen is not entitled to housekeeping and home maintenance benefits.
Mr. Nguyen is not entitled to Attendant Care Benefits.
Mr. Nguyen is not entitled to a special award.

Background

Mr. Nguyen is married and lives with his wife, their children and grandchildren. Mr. Nguyen’s wife and children testified at this hearing.

Mr. Nguyen was employed as a cleaner immediately prior to the motor vehicle accident. On January 14, 2003 he was driving his automobile when he was rear ended by a pick-up truck. He was taken to hospital by ambulance and released the same day. His automobile was a write-off. Mr. Nguyen claims to have sustained significant soft tissue injuries to his head, neck and back in the accident. He has not worked since the accident.

According to his family, Mr. Nguyen mostly stays in his room and watches television. He cannot speak intelligibly, and when he tries to speak it consists of uttering mumbling sounds. When he is hungry he points to his stomach for food, often requiring a family member to spoon feed him for fear he would otherwise starve. He requires toileting assistance and the family fears that he may soil himself. He cannot perform simple tasks and does not participate in family functions. According to his daughter Amy, her father has exhibited a similar presentation over the post- accident years to the health care practitioners who have treated and/or assessed him.

In contrast to Mr. Nguyen, TD Home presented several days of video surveillance evidence of Mr. Nguyen which were made between 2004 and 2008. The videos portray demeanour that is markedly different from how Mr. Nguyen presented at assessments and at the hearing.

Mr. Nguyen claims he has suffered a catastrophic impairment as a result of the motor vehicle accident.

For the reasons that follow, I find that Mr. Nguyen is not catastrophically impaired, nor is he entitled to the other benefits he has claimed in this hearing.

EVIDENCE AND ANALYSIS:

Surveillance Evidence

A large portion of this hearing was spent in dealing with the surveillance evidence that TD obtained between 2004 and 2008.

There were seven surveillance video discs and corresponding reports entered into evidence.² The discs contained surveillance conducted on August 20, 21, 23, 25, 2004; March 19, 2005; November 16, 2005; January 9, 2008; April 21, 22, 23,30, 2008; August 18, 26, 2008; October 7, 31, 2008 and November 11, and 12, 2008; and March 10, 2011. The last disc, although included in the evidence, so as to provide a complete history, contained little information of significance.

Mr. Nguyen and his family were made aware of the surveillance in November 2008, and copies of the video and accompanying materials were given to him in December 2008.

On the eighth day of hearing, after a great deal of time had been spent in viewing the surveillance videos and in the examination of witnesses as to the contents, Mr. Nguyen moved for an exclusion order of all the surveillance evidence and the testimony of any witnesses whose testimony referred to the surveillance, based on the insurer’s non-compliance with Rule 40 of the Dispute Resolution Practice Code (the “Code”).

Mr. Nguyen’s objection to the admission of the surveillance evidence is based on his allegation that he was unaware until recently that there had been some handwritten notes made by some of the investigators at the time the videos were taken, and these notes were not produced.

It appears that TD was surprised by Mr. Nguyen’s motion and was not aware that these notes had not been provided to him. I permitted TD to produce several of the investigators, which it could locate, to testify about the notes. Mr. Nguyen cross-examined those witnesses.

The thrust of Mr. Nguyen’s cross-examination focussed on the timing of TD’s request for the notes and whether, in the surveillance videos, Mr. Nguyen appeared to be working. The cross-examination revealed no discrepancy between the notes and the surveillance reports, which had already been tendered as evidence.

Mr. Nguyen argues that Sinnapu and Economical Mutual Insurance Company³ is arbitral authority on which I should base my decision to exclude the surveillance evidence. In the Sinnapu case, portions of the surveillance videos were edited out with Kingsway advising Mr. Sinnapu that it could not guarantee him that they could produce all of the surveillance evidence.

In the current case, there is no suggestion that anything has been edited out or held back from the video surveillance, and/or surveillance reports. The notes, or what portions of the notes the TD could locate or obtain, were produced to Mr. Nguyen at the hearing.

Rule 40 of the Code requires a party seeking to rely on surveillance evidence to produce all of the surveillance evidence or none of it.

This principle was enunciated in the case of Morgan,⁴ in which Director’s Delegate Evans refers to Puljic and Zurich Insurance Company.⁵

Puljic, in referring to Rule 37.1, (which was the governing rule with respect to surveillance at the time and which is essentially the same as the current Rule 40.1), indicated that the rule protects the integrity of the hearing process by denying the party seeking to rely on the surveillance to “cherry pick” from the surveillance evidence, and stated that surveillance should be complete, and all of the evidence, whether it supports the parties’ position or not, should be produced.

Rule 81.1 of the Code also gives an arbitrator authority to waive any rule. In circumstances where an arbitrator decides to exercise discretion and waive or not apply a rule, it is expected that he or she would provide good and cogent reasons for so doing. However, Rule 81 does not give an arbitrator carte blanche to simply ignore the rule.

In my view, it appears to me that TD unintentionally breached Rule 40, and it is appropriate under the circumstances to exercise my discretion under Rule 81.1 to admit the surveillance evidence. I find that this is not a case where TD is “cherry picking” the evidence. All of the surveillance videos and investigative reports were given to the Applicant well in advance of the hearing. The surveillance was done over a 4 year period, and involved many separate days of surveillance over the relevant time period. There is no evidence that TD edited or intentionally withheld materials to improve its case. Further, the notes added nothing of a substantive nature to the evidence.

There was no prejudice to Mr. Nguyen as he was given an opportunity to cross examine at least some of the investigators in this case. In addition, all of the video material and written reports were given to the Applicant years ago. There was also no suggestion that anything in the surveillance reports was inaccurate or differed from the notes. And, after having an opportunity to compare the notes to the reports, Mr. Nguyen asked no questions at the hearing to test the accuracy of the notes.

The Insurer submits that there is no demonstrable prejudice against the Applicant despite the lack of production of the notes. I agree. The surveillance evidence is admissible.

The Surveillance Video:

Over the course of four years when the videos were taken, Mr. Nguyen is seen driving a vehicle on complex routes, including 400 series highways, dialling what appeared to be complex long-distance telephone numbers from a pay phone, servicing his vehicle and talking and interacting with other people. On the video, he was seen entering the Pho Linh Vietnamese Restaurant on College Street on one occasion at lunch time, exiting some time later. He appeared to have been stopping for lunch. On other occasions, he is seen carrying coffees in a tray from Tim Horton’s. He visits multiple motor vehicle repair shops, particularly Imperial Auto and Royal Auto, where he is seen interacting with mechanics and participating in automobile maintenance.

There is no need to detail all of the routes depicted on the other days, other than to state that they were all complicated routes involving extensive driving. Below I summarized some of Mr. Nguyen’s activities that I observed in the surveillance videos.

August 20, 2004

Mr. Nguyen enters the driver’s seat of his vehicle unaccompanied, and leaves his residence at 14 Blevins Place. He drives to several locations, one of which appears to be a party or gathering. Mr. Nguyen spent approximately 12 hours driving to and visiting several locations. He did not arrive home until almost midnight. He travelled alone the entire trip.

August 23, 2004

Mr. Nguyen drives unaccompanied on the Gardiner Expressway, Highways 401, 410 and 427. He stops at two shopping malls on this trip. He goes to a restaurant. He spends a period of time at Imperial Auto. The duration of this trip was approximately 6-½ hours.

November 19, 2005

Mr. Nguyen drives to both Rona and Canadian Tire. He drives to Royal Auto where he stops for a period of time. He drives on the Gardiner Expressway, Highways 427 and 401. He makes stops at Century Tool, and a Petro Canada gas station. He again goes to Imperial Auto. This trip took about 7-½ hours.

THE WITNESSES:

The Applicant

Prior to testifying, Mr. Nguyen sat at the back of the hearing room, seemingly oblivious to his surroundings. During questioning, his counsel asked a series of reasonably simple questions. He interacted with his counsel to the extent that he appeared to try to answer the questions posed to him. He was asked where he lived, if he was married, who were the members of his family, and he gave responses – some of which appeared to be accurate, some of which were incorrect, and to many questions, he responded that he did not know or did not remember. For example, he did not know or remember his wife’s age, he did not know his own age, and he gave the age of his daughter incorrectly as 50 years. When asked if he had a job, he replied that he worked at home, and when asked what work he did do at home, he answered that he turned on the television, took a shower, walked around the house, ate rice and drank water. When asked what other work he did, his response was that he did not know. He was asked if he knew why he was at the hearing, he replied, “no”. In response to the question of how long since he had driven a car, his answer was “a long time ago”. He was asked if he had been in a car accident, he responded affirmatively, but he could not remember when or how it had happened, but that it was a long time ago. He could recall no details about the accident or its aftermath.

When asked who his doctor was, he responded that he did not know, but that the doctor had died. When further asked if he had a doctor by the name of Dr. Mamelak, his response was “He is Obama”, and could not recall the last time that he met Dr. Mamelak.

In general, the Applicant’s testimony added little to the evidence presented.

During the hearing Mr. Nguyen presented as a man with limited cognitive abilities and awareness. He appeared vacuous and uninvolved. The difficulty here is of course, the video surveillance, which clearly shows that Mr. Nguyen was capable of performing his activities of daily living as recently as 2008. The videos, taken over a four year period, show him engaging in social functioning, completing everyday tasks, and engaging in complex goal-directed behaviour.

In not one video over the entire four year period, in the many hours of video presented, did the Applicant appear, to the naked and untrained eye, to present any visible indications of physical or mental impairment. At no time did he appear to be a man who was incapable of asking for food, instead rubbing his stomach and pointing when hungry, in need of assistance when toileting and attending to personal care; unable to speak, negotiate stairs without assistance, or use a telephone.

Hoan Phan

Ms. Hoan Phan, the Applicant’s spouse, was asked a series of questions about the Applicant’s interactions and activities with the family before and after the accident. She presented a picture of a “normal” or a typical family unit before the accident. Mr. Nguyen used the phone, went shopping, attended church on Sundays, managed the finances, and shared in the housework when he was not working. He drove his wife and family to appointments and errands. She testified that Mr. Nguyen had never seen a psychiatrist prior the accident; and could not recall if he had seen a psychologist, but had never complained or appeared to be depressed.

Ms. Phan was asked about the circumstances of the accident. She recalled the date of the accident, and testified that after her husband had left for work, she received a call advising that her husband had been involved in an accident and that he was at the hospital. She and her daughter attended the hospital, but she could not recall which hospital it was. Upon arrival at the hospital, Ms. Phan saw her husband lying down, with his eyes closed. She waited for an hour because he had been given some medication. She then went to his room to help him prepare for discharge. Their daughter, Amy, drove them home.

At home, Mr. Nguyen was put in bed, where he slept for some time. Upon awaking, he went downstairs and Mrs. Phan prepared a meal for him, because he said he was hungry. She testified that when she mentioned the accident at that time, her husband seemed surprised, but she could not recall what, if anything, he said. After eating, Mr. Nguyen returned to his bed and stayed there for the rest of the day.

When she spoke to her husband the following day about the accident and the damage to the car, she testified that her husband complained about headache and pain in his neck and back. She could not recall his activities that day.

She testified that in the days following the accident, her husband began talking to himself, and did not do anything around the house. However, she also said that in the first week after the accident, her husband had gone to a nearby coffee shop and to a mall to exercise – and had driven himself on both occasions. He and the family continued to visit friends shortly after the accident, but Ms. Phan said that visits to friends had ceased soon after, because as time passed, she found that she had no time for social visits due to the care needs of her husband.

She described an average day for her husband currently. He gets up between 8 and 10 in the morning, goes to the washroom, goes downstairs to eat the breakfast she has prepared for the family, and then returns upstairs to watch television.

He talks to himself during the day, and when he is hungry, he tells her and points to his stomach. He does not go to bed until about 3 a.m. He sleeps in the large bed in their bedroom, and she sleeps on the floor, because he often awakes through the night and talks to himself or startles her. She does not understand what he says when he talks to himself at night. She also testified that she gives him his medication, as prescribed by Dr. Mamelak, his psychiatrist.

At the hearing, when shown the video surveillance of her husband driving to various addresses and helping people move, Ms. Phan appeared to know very little about his movements and the people and places he visited or the purpose of those visits. For example, although her husband was seen attending 2 Blackhills Drive on August 20, 2004 to help some friends move (as seen on the video), she said her husband did not tell her he was returning for the same purpose on August 23, 2004 (also as seen on the video).

In the August 23, 2004 video, Mr. Nguyen apparently was out driving and doing assorted tasks for some 6-½ hours. When asked if she remembered the day on which her husband was away for 6-½ hours, she responded at first that she did not. After viewing the video, she testified that she had merely thought her husband had gone for a walk, even though he was gone from 11:00 a.m. until at least 5:30 p.m. She testified that his walks usually were 1-½ hours or less.

Ms. Phan’s evidence on this is troubling. It is difficult to believe that Mrs. Phan would not be concerned about her husband’s whereabouts, the length of time he had gone, or the fact that he was driving, given the level of care she claimed her husband required. It appeared that she was attempting to rationalize the inconsistency. I found her answers were not credible.

Although she stated at first she did not remember that day, when questioned further, her memory improved. She then testified that she stayed home cooking. When her spouse returned she said he was talking to himself and went directly upstairs. There is no evidence that he told her – or that she asked him about - his whereabouts that day. She simply stayed home and continued with her household chores.

This is simply unbelievable. I have great difficulty accepting that the wife of a person impaired to the extent that she, her family, and the Applicant’s treating psychiatrist have stated Mr. Nguyen to be, would not take some action to make sure her husband was safe. To stay home and do nothing but continue cooking under these circumstances just does not make sense.

Having had the opportunity to observe Ms. Phan during her testimony, and even taking into account that her testimony was provided through an interpreter, it appeared to me that the witness only realized during her testimony that her explanations for her behaviour were at odds with what might be expected of a concerned spouse of a husband with such severe cognitive impairments. At times it appeared that her responses were being created as she testified.

At times, Ms. Phan had to be asked the same question several times, and was reluctant to give a response. Whether this was an issue with interpretation, cultural in nature, or whether she was simply being evasive, and not wanting to give a “wrong answer” or contradict herself or another witness was difficult to ascertain.

On a final note, Ms. Phan’s testimony was that her husband showed significant impairment immediately following the accident in January 2003, and has remained more or less the same since.

However, Dr. Eisen, who testified for the Insurer, reported that Ms. Phan told him that her husband had undergone a rapid deterioration in the three years prior to the February 2012 assessment, which would have been in 2009. This means that Ms. Phan’s testimony is inconsistent with what she is said to have told Dr. Eisen, and also inconsistent with her daughter’s testimony that her father has been in the same impaired state since the time of the accident.

Dr. Pravesh Jugnundan, a General Practitioner at Centric Health,⁶ wrote in his Assessment Report dated March 28, 2012, that he watched a DVD of Mr. Nguyen just prior to assessing him on March 10, 2011. The DVD was from 2004 and showed a man totally competent physically with full physical capabilities. Dr. Jugnundan then confirmed with Ms. Phan, who attended with her husband, that the person on the DVD was her husband, and asked her to explain the difference in his presentation on the DVD to that which she and others had reported, she stated that he fluctuates between his present state and what is seen on the DVD.

This meeting between Dr. Jugnundan and Ms. Phan is the first time I note that any of the family members admitted that on some days Mr. Nguyen presented normally, as seen on the DVD. This completely contradicts both Ms. Phan’s and her daughter’s previous descriptions of Mr. Nguyen’s presentation.

For these reasons, I find I am unable to reconcile Mrs. Phan’s testimony with what a rational, concerned wife or person would do in these circumstances. I find her testimony unreliable, inconsistent with both her previous statements and with the testimony and reports of other witnesses as has been shown, and I therefore give it little weight.

Thanh Quyen (Amy) Nguyen

Amy testified with the assistance of a Vietnamese interpreter. However, she speaks and understands English reasonably well. According to her testimony, she accompanied her father to all medical interviews and other medical appointments, and acted as interpreter for him. Generally speaking, answers given to assessors came from Amy on behalf of her father.

Her testimony focussed on her father’s behaviour before and after the accident. She described her father’s activities of daily living prior to the accident: he helped the family do chores, mopping, carrying shopping bags, grocery-shopping and banking. She said that both her parents did the shopping together, but since the accident, her mother did the banking and grocery shopping alone.

She stated that when she took her father to see Dr. Mamelak, the Applicant’s psychiatrist, it was always the three of them; herself, her father and her mother.

Amy testified that after the accident her father did not do any socializing activities at home, and when he spoke, he mumbled words that she did not understand. The only things she said she understood her father say, was, “you, you” in Vietnamese.

Amy testified that her mother told her that when her father wants to eat, he points to his stomach. She said that her father “didn’t know anything, “and agreed with the suggestion that he did not appear to be aware of anything, was not in touch, and had been that way right from the time of the accident and has remained that way to the present.

She stated that he began talking to himself shortly after the accident, and said he is still like that and that she has seen him talking to himself, as recently as a week before her testimony. She testified that prior to the accident her father participated in activities outside the home, such as movies, dinners out, attending coffee shops, visiting friends for meals, and going shopping. Her father drove prior to the accident – he went on fishing trips, drove to work, took his wife shopping and every Sunday, he went to church with his wife. He slept well and there was nothing unusual about his behaviour.

On the day of the accident, she said her mother called her and they both went to the hospital. Upon arrival, they spoke to the nurse. He had been given some medicine and after an hour of watching him lying in the bed with his eyes closed, they took him home. When he got home, he said he was hungry. The day following the accident, her father came downstairs, ate breakfast and did not recall the car accident at all. After eating, he went back upstairs and lay down. To this point, all of this is consistent with her mother’s testimony.

Amy described her father’s behaviour a week after the accident. Her father complained of back pain to her when she returned from work. He was not himself, and he was not like that before the accident. He did no activities with her, did not go to work, and no longer helped his wife with the household chores.

Around the house, he was unable to do much, but said that Dr. Mamelak had encouraged him to do things and had told her mother to teach him how to do simple things again, to try to prepare him for return to work. She said that Dr. Mamelak wanted her father to do whatever he could, such as laundry, mopping, and that her mother was showing her father how to do these things.

Amy did not know if her father still socialized with friends after the accident. At the hearing, she was asked what her father did at the present time – she said he sits in the bedroom talking to himself and watching television, mostly The Weather Network. She did not understand what he was saying when talking to himself and while she would speak to him and show him things (such as how to eat food and go down the stairs) he was not capable of having a normal conversation with her. Amy also said that her mother gives him his medicine and helps him get dressed.

She was asked if she or her mother had any contact with her father’s employer following the accident. She advised that the manager had called her, and she told the manager about the accident, and that her father could not work. She said the manager called again a month later, and again, a few months after that; each time, the manager was advised by Amy that her father was still unable to work. Amy said, after a year, the employer stopped calling.

She said that he did not drive a car now. She was aware that her father’s driver’s licence had been suspended, so that he no longer had a driver’s licence and that she could not recall when her father last drove a car.

However, after viewing the video surveillance of her father driving the car she commented that on several of these days, she was unaware that he actually had been driving. When it was suggested to her that she and her father attended at an appointment with Dr. Mamelak a few days after her father had been seen driving in a video, and Dr. Mamelak’s notes indicated that the Applicant was “getting better, talking more, he’s helping cleaning in the house, and even drove a car once by himself (told no one).”, she agreed with that suggestion.

Her comments regarding the description of her father’s abilities in 2012 came only after the family had been made aware of the surveillance video in which Mr. Nguyen was seen driving. They were very different from what she had reported on earlier occasions.

Amy’s testimony in chief and in cross-examination was that her father’s presentation following the accident was significantly different than before the accident, and that it remained that way until the present day. She said that prior to the accident, her father presented as a normal, socially involved, active man.

During cross-examination, however, further inconsistencies came to light in her testimony. For example, Amy maintained that her father started talking to himself about a week after the accident. When it was suggested to her that her mother’s testimony was that her father had gone upstairs on the day of the accident and immediately began talking to himself, she agreed with her mother’s version of events.

It appeared that when confronted with a contradiction between her testimony and her mother’s, Amy agreed with her mother’s version.

Amy also testified emphatically that her father, as far as she knew, had no memory of the accident at any time following the accident. In cross-examination, she was presented with two early medical reports, one by Dr. B. Raghunan, psychologist,⁷ and the other by Dr. S. Khoury.⁸ Both of these reports state that the Applicant was able to describe in great detail the circumstances of the accident.

When confronted again that her evidence was that her father was unaware of being in an accident and her response to that apparent contradiction of her prior testimony was that, on that day, he didn’t realize he had an accident, but after a while, he remembered. When questioned further, particularly with respect to her statement that her father did not ever remember having an accident, she contradicted herself by saying she did not remember saying that on the stand. When asked if her father recalled the accident one month later, she responded yes because her mother had told her father about the accident.

Mr. Nguyen’s counsel has submitted that in recent years, Mr. Nguyen’s condition, and particularly his depression, has significantly worsened and this is offered as a possible explanation of the difference in between Mr. Nguyen’s current presentation and the abilities he demonstrates in the surveillance videos.

However, Mr. Nguyen presented little or no reliable evidence to bolster this claim. The explanation also contradicts Amy’s own testimony that in 2012 when she was confronted with the knowledge that her father had been recorded driving on the videos in the past, she told Dr. Mamelak that her father was “getting better, helping around the house, and even drove once.”

I assign little weight to Amy’s testimony. I find her to be less than objective, perhaps because of potential financial gain, should her father be successful in this arbitration.

Contrasted against the video evidence, which is really the only consistent and objective evidence in this arbitration depicting her father’s true abilities, her portrayal of her father’s condition, activities and limitations is simply not believable.

THE MEDICAL EVIDENCE:

The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993,⁹ referred to in s. 1.1(g) of the Schedule, set out a three-stage process for evaluating catastrophic impairment based on a mental disorder. The process uses four categories of functional limitation and five levels of dysfunction.

In Pastore v. Aviva Canada Inc. et al, 2011 ONSC 2164, “the first stage is diagnosis of any mental disorders, followed by the second stage, where the impact of daily life is identified. The third stage is assessing the severity of limitations by assigning them into the four categories and determining their level of impairment”. The Court went on to note the four spheres of functioning:

a. Activities of Daily Life (ADL);

b. Social Functioning;

c. Concentration, persistence and pace; and

d. Deterioration or decompensation in work or work-like settings.

The Guides also delineates the five levels of impairment. In the present case, Dr. Raghunan has indicated that the Applicant falls into Class 4, marked impairment which “is a level of impairment that significantly impedes useful functioning”.( See Pastore, supra, at para 7)

At the present time, since Pastore, it is clear law that an insured can meet the definition of catastrophic impairment pursuant to the Schedule by demonstrating a marked impairment in any one of the four spheres of functioning. In the present case, Dr. Mamelak, the treating psychiatrist, has opined that Mr. Nguyen has at least a category 4 marked impairment all 4 spheres of functioning, while the Insurer’s psychiatrist, Dr. Eisen, found Mr. Nguyen not to be suffering any impairment in each of the 4 spheres.

None of the assessors reported a whole person impairment of 55% or greater, which is an alternative threshold for a finding of catastrophic assessment.

For the Applicant:

Dr. M. Mamelak

Dr. Mamelak, Mr. Nguyen’s treating psychiatrist, testified at the hearing. He was qualified as an expert in the field of psychiatry.

Dr. Mamelak first met Mr. Nguyen Oct 25, 2007, nearly 4 years after the accident. After March 2008, Dr. Mamelak next saw him on April 29, 2008 and then on eight additional occasions up until April 21, 2009. He has completed 4 medical reports. In his April 17, 2008 report,¹¹ Dr. Mamelak he opined that Mr. Nguyen met the CAT threshold, rating him as markedly or severely impaired in all 4 domains. He testified at the hearing that, “he is markedly impaired in all 4 domains, wouldn’t trust him with any task of any complexity.” Dr. Mamelak had read Dr. Raghunan’s earlier report from 2003 and stated that, although many years had passed since Dr. Raghunan's report, Mr. Nguyen was essentially unchanged. When examined at the hearing with respect to what the surveillance evidence showed, Dr. Mamelak stated that the surveillance tape provided no information as to whether Mr. Nguyen is employable or fully capable of living on his own.

However, during cross examination, Dr. Mamelak admitted that he only skimmed the tape with his wife at night, which suggests that he did not really watch the entire surveillance video evidence. Dr. Mamelak seemed less than objective in giving his testimony. It became evident that he had little use for surveillance evidence, and made several speeches about insurers wasting money on surveillance when they could put the money to use in getting people back to work.

Dr. Mamelak did this on several occasions when asked to comment on particular issues arising from the videos, and while he appeared to be advocating for his patient, his total disregard for this and any other surveillance evidence made his opinions suspect in light of what was clearly evident on the videos.

I do not and cannot accept Dr. Mamelak’s explanation, when faced under cross-examination about Mr. Nguyen’s driving, that driving is a learned response, and that mentally ill people can still drive. Perhaps so, but Mr. Nguyen presents as a man who could not competently perform the simplest tasks, such as asking for food when hungry. Dr. Mamelak’s explanation for the inconsistencies among his reports, Mr. Nguyen’s presentation and the surveillance evidence are not credible.

Dr. Mamelak did not offer any explanation for the differences in the appearance of the Applicant in the videos to that which he observed and stated in his reports. He had little use for surveillance evidence, and appeared to give little weight to its significance when writing his reports, and in his testimony.

Because of this inherent bias and the lack of a credible and reliable proper foundation for the information he obtained from the family, I give little weight to the evidence of Dr. Mamelak, particularly with respect to his opinion on the CAT determination.

Where there is a conflict in the medical evidence, I prefer the evidence of Dr. Joel Eisen.

Wayne De Ryck

Mr. De Ryck is a kinesiologist/rehab consultant, retained by the Applicant. He visited the family at their home on two occasions, once on September 27, 2007 and again on September 30, 2012. On the first visit, in 2007, the Applicant did not come downstairs so whatever information Mr. De Ryck obtained came from Amy. He wrote a report assessing Mr. Nguyen’s needs in the home. Part of his report spoke to personal care needs of the Applicant and in his report, he determined that the Applicant required $487.62 monthly for Attendant Care and which the Applicant later used as a basis for advancing his claim at the arbitration hearing for Attendant Care.¹²

On the second occasion, in 2012, the Applicant was in bed when Mr. De Ryck arrived, but was awoken and came downstairs. His presentation, according to Mr. De Ryck was dishevelled, and the Applicant sat in a chair and stared straight ahead during the interview. Mr. De Ryck could not tell for sure if Amy was interpreting her father’s mumbling, or was herself providing answers to the questions.

During cross examination, Mr. De Ryck stated that the Applicant mumbled unintelligible answers to his questions. Amy would then provide an answer. Mr. De Ryck stated that Amy told him that all she could understand that her father was saying was “you…you…” in Vietnamese. He also stated that it seemed like Mr. Nguyen was giving Amy a lot lot more information in his answers than “you…you…”, and Mr. De Ryck could not be certain whether the answer to the question came from the Applicant or from Amy.

It appears to me that Mr. De Ryck speculated that Amy Nguyen embellished the Applicant’s answers.

During Mr. De Ryck’s testimony, it became apparent that he had never seen the surveillance video material beforehand.

In fact, Mr. De Ryck admitted that he did not expect to see the Applicant engage in many of the activities that are observed on the surveillance video.¹³ When he tried to explain away the inconsistencies between his report and what was seen on the video, he again explained that his report was generated from the information he had received from the same historian, Amy.

In my view, as Mr. De Ryck’s recommendations and conclusions were based on the information he garnered from the Applicant’s family members, they are suspect and unreliable.

The Applicant asks me to find that since the information in the Future Care Cost Analysis Report of Mr. De Ryck, with respect to the Applicant’s home care needs is similar to that contained in a Form 1 with respect to the Applicant’s needs, and is evidence that the Insurer was put on notice of an attendant care claim at the time of this report.

However, Mr. De Ryck never personally assessed the Applicant’s attendant care needs and he was not retained for that purpose, nor was he in a position to do so. Further, even if the information in his report is accepted as sufficient to stand in place of a Form 1, the information in his report is not first hand and has proven to be unreliable.

For the Insurer:

An Impairment Determination Multidisciplinary Assessment Report of the Applicant was commissioned by the Insurer.

The Applicant was assessed by a team composed of: Dr. Christopher Gallimore, Orthopedic Surgeon, who performed an orthopedic assessment on February 23, 2012; an ADL Functional Assessment on January 18, 2011 and February 23, 2012 by Ms. Tazmeen Lalani, Occupational Therapist; a psychiatry assessment performed Dr Joel Eisen, Psychiatrist, on February 21, 2012 and a General Practitioner Assessment by Dr. Pravesh Jugnundan, GP, on January 13, 2011 and March 10, 2012.

Their findings were contained in the Centric Health Multidisciplinary Report dated March 28, 2012.¹⁴

Dr. Joel Eisen

Dr. Eisen is a psychiatrist who conducted an independent medical examination on February 21, 2012, as part of the Multidisciplinary Centric Health CAT Assessment Team. Dr. Eisen was qualified as an expert to give his opinion, from a psychiatric perspective.

At the hearing, Dr. Eisen described in detail the DSM-IV impairment ratings within the four functional domains: activities of daily living (e.g. cleaning, shopping, cooking, self-care), social function (e.g. the ability to get along with others), concentration, persistence and pace (e.g. driving a vehicle, watching or following a show), and adaptation (e.g. deterioration or decompression in work-like settings, or failure to adapt to stressful circumstances).

In his report dated March 28, 2012,¹⁵ Dr. Eisen concluded there was insufficient evidence that Mr. Nguyen had a psychiatric disorder attributable to his automobile accident. He concluded that no impairment ratings were applicable from a mental and behavioural perspective.

Much of the information obtained by Dr. Eisen at the assessment came from Ms. Phan.

Ms. Phan reported to Dr. Eisen that since the accident, and particularly over the previous three years, the Applicant has been unintelligible in his communication, does not attend to his daily needs independently, does not engage in any household chores or activities, does not carry things or shop, and requires assistance with dressing, feeding, and personal hygiene.

It is interesting to note that this description of Mr. Nguyen’s decline in the last three years preceding the assessment takes place after the existence of the surveillance was made known to the family. This is in sharp contrast to the testimony of Amy, his daughter, who said that her father’s state was basically the same from the time of the accident to the hearing; and in contrast to the descriptions of the Applicant’s presentation obtained from Ms. Phan during other medical interviews, some if not most, of which she attended and made no mention of further deterioration.

In the Summary and Formulation section of his report, Dr. Eisen states that Ms. Phan told him that for the last three years or so, Mr. Nguyen has been completely non-functional or “asleep”.

During the interview, Ms. Phan told Dr. Eisen that, when bathing, her husband does not participate in the bathing, but instead just plays with the water. He relieves himself in cans or other containers or on the floor, and she directs him to go to the bathroom to have a bowel movement every few days. Over the past three years, he has lost all contact with his social network.

On Page 13 of his report, Dr. Eisen notes that the surveillance records suggest that Mr. Nguyen was highly functional as late as November 2008,¹⁶ which covers the period of time over which surveillance video was taken, except for an insignificant brief clip showing the Applicant attending a medical appointment in March 2011.

Dr. Eisen reported that Ms. Phan’s description was consistent with his own observations during the assessment. Mr. Nguyen, according to Dr. Eisen, sat in the examination room, but did not participate and seemed oblivious.

Similarly, with respect to several of the other surveillance reports he reviewed, he noted that in each, Mr. Nguyen did not appear to be disabled.

While it is entirely possible that the Applicant, as late as 2008, could perform “normally” as he seemed to in the videos, and the experience of a rapid decline from that time until Dr. Eisen assessed him in 2012, as Ms. Phan had related to Dr. Eisen in what appears to be an apparent attempt to reconcile the video evidence with presentation of the Applicant. Even if this is the case, I found no objective evidence supporting this version of events, except for what was contained in Dr. Eisen’s report as related to him by Ms. Phan.

Further, even if I was to accept at face value that the Applicant’s presentation at the hearing and to Dr. Eisen in 2012 was his true presentation, there has been no evidence presented to support the explanation that the decline in the Applicant’s condition from his “normal” appearance in the 2008 video in the three years prior to his presentation at Dr. Eisen’s examination in 2012 and at the time of the hearing, is attributable or caused in any way by the 2003 motor vehicle accident.

He testified that he found no impairment in any of the four domains. He found that, from a psychiatric perspective, there was insufficient evidence that Mr. Nguyen has a psychiatric disorder attributable to the subject motor vehicle accident that accounts for his impairments. He found no impairment ratings were applicable.

Dr. Eisen was taken through the video surveillance in detail and asked to explain how the Applicant’s activities would fit within the four domains of impairment. For example, the video of October 7, 2008 shows the Applicant in a mall, carrying on a telephone conversation, after dialling what appeared to be three sets of numbers – a total of approximately 35-40 digits. This seemed to indicate the Applicant was using a calling card to make a long distance call.

Dr. Eisen’s evidence was that focus, concentration and organizational skills were all necessary to perform this task. There was evidence of cognitive ability, adaptive functioning and purposive activity, which were inconsistent with a Category 4 or 5 impairment.

The video also showed Mr. Nguyen repeating the dialling process. Dr. Eisen testified that this reinforced his finding that Mr. Nguyen’s abilities were inconsistent with any degree of impairment.

At another point, Mr. Nguyen is seen on video at an auto repair shop, crouched under the hoist of his vehicle. Dr. Eisen testified that this demonstrated a large degree of cognitive function in all domains, including, for example getting to the repair shop (activities of daily living); interaction with people at the repair shop (social interaction); awareness of safety issues, and that the car required service (concentration, persistence and pace).

Mr. Nguyen was also seen on video driving on 400-series highways. During cross-examination, Dr. Eisen disagreed with, amongst other things, Dr. Mamelak’s testimony that driving a car was an “over-learned task”. He opined that it required a high degree of cognitive ability and he did not agree that driving was a reflexive activity, in that it required navigating complex routes, obeying traffic laws, coping with the stress of other traffic, and being cognizant of safety issues – particularly when driving on Ontario 400-series highways.

Dr. Eisen was cross-examined about Ms. Tazmeen Lalani’s March 28, 2012 report.¹⁷ In her report, under the summary heading “evaluation behaviours” she stated that “Mr. Nguyen’s current presentation is also inconsistent with his behaviour during the psychiatry assessment of Dr. Eisen, in which he is described as seeming oblivious and made no eye contact.”

He further noted that there were “radical differences” between Ms. Lalani’s observations and what Mr. Nguyen’s wife had told Dr. Eisen with respect to her husband’s demeanour and behaviour. Dr. Eisen stated that Ms. Lalani’s assessment was at odds with his observations and what the Applicant’s wife had said to him. Dr. Eisen testified that at the assessment, the Applicant was oblivious, uncooperative, and unresponsive. Dr. Eisen testified that his observations were consistent with what the Applicant’s wife had reported to him, but were inconsistent with what Ms. Lalani had observed two days later.

In his report, Dr. Eisen stated: “clearly her observations and Mr. Nguyen’s behaviour were radically different than what I had observed and were at odds with what his wife had told me. It raises more questions about the etiology of Mr. Nguyen’s impairments, if any.”¹⁸ It raises more questions about the etiology of Mr. Nguyen’s impairments, if any. Again, I am not able to make any firm diagnosis or attribute and diagnosis to the motor vehicle accident.

When asked to resolve this discrepancy, Dr. Eisen responded that he suspected the wife’s information to be inaccurate and that the Applicant may have been feigning or exaggerating some symptoms. He suspected malingering, but was not sure.

In his report, Dr. Eisen found that there was no evidence that Mr. Nguyen suffered a brain impairment that resulted in a score of 9 or less on the Glasgow Coma Scale; and that there was insufficient evidence that Mr. Nguyen suffered a brain impairment as a result of the accident that resulted in a score of 2 or 3 on the Glasgow Outcome Scale. Dr. Eisen said that, given the gross level of inconsistencies, he could not determine if the Applicant had a psychiatric disorder, nor could he make a diagnosis.

I accept in totality the evidence of Dr. Eisen, on the basis that it is objective and factually sound, and where it differs from that of Dr. Mamelak, I prefer the evidence of Dr. Eisen.

Dr. Eisen’s opinion is that Mr. Nguyen has not suffered a Catastrophic Impairment under any criterion or combination of criteria as described in the Schedule. From a psychiatric perspective, there is insufficient evidence that Mr. Nguyen has a psychiatric disorder attributable to the subject motor vehicle accident that accounts for his current impairments.

Dr. Christopher Gallimore:

Dr. Christopher Gallimore is an orthopaedic surgeon, part of the Centric Health Team that conducted an orthopaedic assessment on Mr. Nguyen.

At the hearing, he was qualified as an expert and offered his opinion that he found a “zero per cent upper body impairment with a range of motion that was full and normal after testing” and that the Applicant’s neurological function was normal with no nerve deficits. He noted that the Applicant’s upper body showed no atrophy and that everything was symmetrical, suggesting there was nothing wrong. He observed that with respect to the Applicant’s lumbar spine, his observations show no pain or loss of motion and after testing, which included lateral bending and tilting, he found the range of motion was normal, and found there were no neurological problems with respect to his lower spine.

In his report forming part of the Centric Health Assessment, he stated that no impairment ratings are applicable from a musculoskeletal perspective.¹⁹

Dr. Gallimore had an opportunity to view some of the surveillance video at the hearing. He was shown the video depicting the Applicant on August 20, 2004. He commented that in the video, the Applicant was tilted and flexing his neck. He was reaching over his head and across his shoulder, he was driving his car, which he told Dr. Gallimore that he couldn’t do, and in reversing his vehicle, he was able to fully turn his head over his shoulder and look right and left, which showed that the Applicant had full extension of his neck muscles.

He commented that these movements contrasted significantly with what Dr. Khoury, a physiatrist who had assessed the Applicant on August 3, 2004 had noted, in that his motion was smooth and performed without difficulty in the video. Further, Dr. Gallimore had an opportunity to review the Functional Capacities Examination report of Saba Maftoun, a physiotherapist.²⁰

Ms. Maftoun had described the way that the Applicant had presented only two months prior – severely limited, with respect to his range of movement, strength and pain, and Dr. Gallimore suggested that the Applicant should not be able to perform as he did in the videos, as he would injure himself if, indeed, his presentation to Ms. Maftoun was accurate.

Dr. Gallimore observed in the video the Applicant lifting heavy objects from the ground to his car, bending smoothly, carrying large filled bags, without any balance or coordination issues, exhibiting nothing in body posture which would suggest that there is any impairment whatsoever, and commented that, given the limitations described by Dr. Khoury only two months prior, the Applicant would not have been able to do what he observed him doing in the video, if, indeed, his presentation to Dr. Khoury was accurate.

Dr. Gallimore was also shown a video from August 23, 2004, which at one point shows the Applicant using his neck to support a box he was carrying, and commented that this suggests that there were no neck problems, and that his lumbar spine seemed okay. His conclusion was that the Applicant exhibited good strength, good range of motion and no impairment.

Dr. Gallimore’s conclusion from those two days of video was that he saw no musculoskeletal impairment whatsoever on the Applicant’s neck, back or anywhere else on his body.

Dr. Gallimore was also shown video from March 19, 2005, which was twenty-seven months after the accident, in which he observed the Applicant reversing his car out of his driveway and commented the Applicant had no problem reversing his car.

Dr. Gallimore observed video from November 16, 2005 of the Applicant at a car repair shop. The Applicant was crouched under his car, looking up at the underside of the vehicle. He further observed the Applicant jogging down the street at one point. Dr. Gallimore stated that, given what was in the reports that he had read with respect to the Applicant’s limitations, he would not expect the Applicant to be crouching under a car or jogging.

In cross-examination, there was very little, if anything, asked of Dr. Gallimore as to how he could explain the apparent inconsistencies between what had been reported and what the doctor observed in the videos. Dr. Gallimore was questioned largely with respect to the guidelines that were incumbent on assessors doing assessments under the Designated Assessment Centre (DAC) system. The essence of Mr. Cozzi’s cross-examination focussed on whether Dr. Gallimore’s assessment was done in accordance with the DAC Guidelines for Catastrophic Assessments.

Mr. Cozzi suggested to Dr. Gallimore a number of examples of CAT DAC procedures, and asked whether or not Dr. Gallimore had included them in the assessment process. Dr. Gallimore conceded that he did not include these procedures, but testified that it did not affect the validity of his findings, because his assessment was performed in accordance with current practice.

The guidelines for DAC’s, used as a tool to discredit the conducting of the current assessments must be given very little weight, as this is simply no longer the law in Ontario. Notwithstanding Mr. Cozzi’s attempt to discredit the manner in which the assessment was performed, and given that Dr. Gallimore’s testimony is consistent with what he observed in the videos, I accept his opinion that from an orthopaedic perspective, the Applicant has no impairment.

Additional Medical Evidence:

There were several other health care professionals who assessed the Applicant over the years, and provided reports. Those reports were reviewed by the various health care professionals if they were available, to assist the treating and assessing practitioners. I note that both Dr. Eisen and Dr. Mamelak have reviewed these reports to assist in the preparation their own reports. I will summarize some of the highlights, as follows:

Dr. Khoi Nguyen

Dr. Khoi Nguyen (no relation) was the Applicant’s family doctor at the time of the accident and treated him initially. In June, 2005 he prepared an OCF 19 for CAT determination, on the basis that the Applicant had sustained a marked or severe impairment and noted severe cognitive dysfunction in the Applicant. He referred the Applicant to Dr. Tran, a Vietnamese psychiatrist.

Dr. R. Beharry

Dr. R. Beharry saw Mr. Nguyen on January 21, 2003, not long after his accident. Dr. Beharry treated him, prescribed pain relievers, muscle relaxants and an anti-depressant, and recommended diagnostic imaging. He completed a Disability Certificate stating that Mr. Nguyen’s impairment was a result of musculoskeletal pain as well as lower back pain, neck and shoulder, dizziness, as well as headaches.

Dr. B. Raghunan

Dr. Raghunan is a psychologist who had seen the Applicant in May 2003 and filed an intake report, dated May 27, 2003²¹ in which he reviewed the Applicant’s background history, and a further psychological report dated July 21, 2003²² in which he recommended a treatment plan which focussed on ongoing psychological sessions.

In a third report, dated May 14, 2004, Dr. Raghunan notes that there has been some improvement with respect to Mr. Nguyen’s pain management and psychiatric coping skills. He notes that Mr. Nguyen’s driving ability had improved, and that he had been successful in operating a motor vehicle. ²³

Dr. Raghunan diagnosed an adjustment disorder with mixed anxiety and depressed mood, and a pain disorder associated with psychological factors and recommended 12 psychological treatment sessions at that time. He also noted that Mr. Nguyen had started driving again, but was anxious behind the wheel. He diagnosed a moderate depressive disorder, a posttraumatic stress disorder in remission and a chronic pain disorder as well as malaise and fatigue and chronic posttraumatic headaches.

Ms. Saba Maftoun

Ms. Maftoun, a physiotherapist, performed a Functional Capacity Assessment on June 25, 2004, having been referred by his family doctor. She recommended a work conditioning programme and opined that Mr. Nguyen was not capable of tolerating the physical strength demands as a commercial office cleaner.²⁴

Dr. Shahira Khoury

Dr. Khoury is a psychiatrist, who, on August 3, 2004 examined Mr. Nguyen with the assistance of a Vietnamese interpreter. In her report dated August 3, 2004, she reported that he was still unable to drive because of fear and anxiety, and had stopped driving because he was too frightened behind the wheel, stating that his memory and concentration were poor.²⁵

This is three weeks prior to the August 20, 2004 surveillance video showing him driving on the highway for hours.

Dr. Khoury concluded that Mr. Nguyen sustained soft tissue injuries to his cervical spine, cervicogenic headaches and low back pain, and given the persistence of his reported symptoms, it was likely that he would continue to have ongoing symptoms for some time and perhaps indefinitely. She was of the opinion that he was substantially disabled from resuming his pre-accident employment and recommended a general conditioning exercise program and ongoing psychological counseling.

Dr. Rhonda Nemeth

Dr. Nemeth performed a psychological assessment on the Applicant.²⁶ In her report dated July 27, 2004, she opined that perhaps performing the assessment through an interpreter posed a barrier to communication, and recommended an assessment with a Vietnamese psychologist. In fact, she noted that the symptoms that Mr. Nguyen presented on the assessment did not appear consistent with the accident as he described it and has been documented in the notes.

Dr. Peter (Phoung) Tran

Dr. Peter (Phuong )Tran is a Vietnamese speaking psychiatrist. He assessed Mr. Nguyen in Vietnamese a result of a referral by Dr. K. B. Nguyen, G.P., on January 31, 2005, about 6 months after Dr. Nemeth, and issued a consultation report. He indicated in his report of that date,²⁷ he was concerned about a major depression and pain syndrome. He noted the development of severe cognitive deficits following the accident. He recommended treatments with Effexor and did not indicate that the Applicant required further psychological or psychiatric treatment.

On October 15, 2007, the Applicant met with Dr. S. Scherer, a rehabilitation psychologist and educational specialist. While this report was not entered into evidence, it was referred to in the interim report of Dr. Mamelak dated April 17. 2008. Dr. Scherer apparently wrote that Mr. Nguyen attended the appointment with 2 family members but was totally unresponsive to the point of not opening his eyes, and seemed unaware of the presence of those around him. The family members advised Dr. Scherer that this was his normal behaviour. Again, note that the Applicant was surveilled less than 3 months later (January 9, 2008), driving around the city and on the highway for hours.

There are several other reports, clinical notes and records and other documents that were presented or referred to. I do not intend to list them, but have added these highlights primarily to highlight the contrast in the presentation of the Applicant to the various assessors at times to that which is shown on the surveillance videos during similar time periods.

CONCLUSION:

It is exceedingly difficult to reconcile the appearance, demeanour, and capabilities of Mr. Nguyen as he appears in videos over a 4-year time period, with that of the testimony of family, and various experts’ testimony and reports. The surveillance videos present a man who appears to be functionally normal in the way he goes about his activities, over a period of several days spanning 4 years post-accident.

The documentary evidence presented by the Applicant, and the presentation of the Applicant as described in the various reports of health care professionals is completely at odds with what is seen in the videos. I can find no way to reconcile these differences in the evidence as it has been presented.

Some of the insurer’s medical witnesses who testified at the hearing and who were shown the video footage for the first time appeared to be surprised at the Applicant’s level of functioning that was apparent in the surveillance video.

Dr. Gallimore, an orthopedic surgeon, and Dr. Eisen, a psychiatrist, who were part of the Insurer’s expert CAT assessment team at Centric Health, both gave opinions (within the parameters of their respective fields of expertise). They both indicated that from their perspective, a person who suffered a category 4 impairment could not perform as the Applicant appeared to perform on the videos.

The Applicant has urged me to look past the surveillance videos and find on the other evidence, that the Applicant is entitled to the benefits he is seeking. He has characterized the surveillance evidence as “nitpicking inconsistencies” and has submitted that the Insurer has “placed all its eggs in one surveillance basket”.

The videos show the Applicant conversing with associates, and performing a host of other activities depicted on multiple days of video footage that I simply cannot reconcile in any way with the man who has been described in the medical reports or by his family as unable to perform toileting functions without soiling himself and when he is hungry, he points to his stomach because he is unable to ask for food.

Far from “nitpicking inconsistencies”, the surveillance videos paint an entirely different picture than that of a man who has been described by his doctor as having at least a marked (category 4) impairment in all 4 domains of functioning. Try as I might, I cannot look past the video evidence which clearly depicts the Applicant performing in a manner over a four year period that appears to be “normal” in the everyday sense of the word. Without some cogent explanation for these inconsistencies, I cannot simply ignore or dismiss the video evidence as nitpicking, as the Applicant suggests I should do.

Bearing in mind that the Applicant did not speak English, much of the information given at many of the medical interviews, examinations and assessments relied upon by the Applicant came from Amy or another family member. To a lesser extent, this is true even with respect to the Insurer’s medical evidence, as for much of it, especially the Centric Health CAT assessment, an interpreter was present and assisted when necessary.

Having seen the surveillance videos, in my view, most if not all of the Applicant’s significant medical evidence in my mind is unreliable, as it is not based on objective criteria, but rather observations of the Applicant’s presentation at the assessments, and as described by the family member translating and providing information to the assessor.

The surveillance evidence is objective evidence; one cannot question the veracity of what one views. The evidence with respect to the Applicant’s condition and presentation was obtained from Amy or another family member, and given the lack of an independent interpreter during the medical interviews, especially with respect to Dr. Mamelak and Wayne De Ryck, their evidence is suspect. It is impossible to determine how much of what has been said is direct interpretation as opposed to a narrative as presented by the family member.

As a result, while I am not suggesting that either of these witnesses had any intention to present anything less than the truth, when coming to conclusions about what this evidence means and when contrasting the viva voce and documentary evidence presented by the Applicant with the Insurer’s surveillance evidence, the Applicant’s evidence in my view is tainted, and simply cannot be relied upon as the foundation on which the reports and opinions are based.

The evidence given by the Insurer’s medical witnesses at the hearing was consistent with what was shown in the surveillance videos. Dr. Gallimore, who did not see the video evidence prior to his assessment, found no impairment, which was consistent with the presentation of the Applicant in the videos he later viewed.

Because of the many inconsistencies in the evidence on which the Applicant’s assessors relied in forming their opinions, and considering the great disparity in the presentation given by the Applicant to his assessors over a similar period as the video evidence, all of the Applicant’s medical evidence is suspect and unreliable. The possibility that the Applicant is providing a false presentation in light of what has been reported by the assessors as opposed to how he appears on the videos also must be considered in deciding what weight to give to the evidence.

Under all of the circumstances, I find that the Applicant’s medical evidence is unreliable and of little assistance as it is not based on a solid foundation, and where it conflicts with the medical evidence of the Insurer, I prefer that of the Insurer.

Having carefully reviewed all of the evidence provided to me, I am not satisfied that the Applicant has proven, on a balance of probabilities, that he has suffered a catastrophic impairment.

Entitlement to and Quantum of Income Replacement Benefits:

The Applicant is seeking pre and post 104 Income Replacement Benefits, from February 4, 2004 to January 14, 2005, which is two years post-accident, and ongoing thereafter.

The Applicant had been receiving income replacement benefits of $97.85 weekly until February 3, 2004, the date when the Insurer terminated this benefit. The Applicant now claims entitlement to this benefit in that amount until the 2 year mark, and from thereafter, adjustment of the quantum payable in accordance with sections 6(1) and 9(1) of the Schedule.

In the report of Dr. Reuven Lexier, orthopaedic surgeon, dated November 5, 2003,²⁸ based on his assessment of the Applicant on October 27, 2003, he found that there was no evidence of an impairment which would constitute a disability as a result of the motor vehicle accident.

He concluded that the Applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment, and that no further treatment was warranted.

In addition, the Insurer has submitted in its closing argument, that Dr. Lexier’s conclusions in respect of pre-104 Income Replacement Benefits are supported by Dr. Gallimore’s extensive evidence regarding the Applicant’s activities as observed in surveillance conducted in August 2004, as well as what can be seen on the video itself.

The Applicant has submitted that at the time of the termination, he had already developed an anxiety disorder and a depressive psychological condition, which compromised his ability to function at home and in his workplace.

The Applicant had submitted a Disability Certificate from Dr. R. Beharry, dated January 22, 2003 listing musculoskeletal pain to the lower back, left shoulder, headaches, and dizziness which stated that the Applicant was impaired and was substantially unable to perform housekeeping and activities of daily life.

As has been stated earlier, because of the inherent difficulties with the factual basis on which the Applicant’s medical evidence is based, and taking into account what has been observed with respect to the Applicant’s capabilities in the video surveillance, I am not prepared to find that the Applicant has been able to prove, on a balance of probabilities, that he is entitled to any further income replacement benefits in the two years following the accident.

With respect to any post-104 IRB’s, the test as to entitlement to IRB’s changes from a substantial inability to perform the essential tasks of pre-accident employment, to the much more stringent test of complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.²⁹

This was not addressed by the Applicant during the hearing, and I find no evidence which would enable a finding that the Applicant is entitled to any post 104 IRBs. Having said that, there is no need to determine the amount.

Housekeeping and Home Maintenance

The Applicant initially claimed entitlement to Housekeeping and Home Maintenance benefits of $100.00 per week, on an ongoing basis, under section 22 of the old Schedule.The Applicant led no evidence to show any incurred expenses for housekeeping.

As I have found the Applicant not to have sustained a catastrophic impairment, he is not entitled to any housekeeping and home maintenance benefits beyond 104 weeks.

Because of the conflicting presentations as reported to the assessors, as well as the difficulty in ascertaining the Applicant’s true presentation, I am unable to rely on any of the medical evidence that on its face might otherwise suggest entitlement to ongoing benefits, at least to the 2 year mark.

The Applicant is therefore not entitled to any further pre-104 week housekeeping benefits payments. I see nothing else in the evidence to indicate that the Applicant is entitled to any further benefits in this regard.

Attendant Care

As I have found the Applicant not to be catastrophically impaired, there is no entitlement to this benefit beyond 104 weeks post-accident, which would be January 14.

The Applicant has requested that the Application for Arbitration be amended to include a claim for attendant care benefits, in the monthly amount of $487.62 from May 22, 2008, to date and ongoing. This issue was not in the Application for Arbitration, nor was it ever mediated. No Form 1 was ever completed or submitted to the Insurer. It was first raised at the hearing.

The Applicant relies on the Future Care Cost Analysis Report dated May 22, 2008, prepared by Mr. Wayne De Ryck in establishing this claim, and claims entitlement from that date, submitting that this report puts the Insurer on notice that the Applicant is claiming this benefit. The Applicant suggests that this report stands in place of a Form 1 and is sufficient to claim the benefit in the absence of a formal Form 1.

That report outlined the Applicant’s attendant care needs, further to an in-home assessment, relating to the cost of a personal support care worker to assist the Applicant with household chores, dressing and undressing, bathing, meal preparation and medical management at a cost of $18.90 per hour, for 6 hours a week.

The Applicant submits that this report essentially contained the information which would be reported on a Form 1; that past arbitration decisions confirm that an attendant care claim can be added as an arbitration issue at the hearing and an award can follow if it is just to do so, despite the fact that a claim for attendant care was not formally made or mediated.

The Applicant has cited Knechtel v. Royal & Sun Alliance Insurance Company of Canada,³⁰ as authority to amend the application to add attendant care benefits at the hearing notwithstanding the fact that a claim for attendant care benefits was not formally made and mediated earlier in the accident benefit adjustment process.

I do not agree that Knechtel is authority to add a claim of Attendant Care at the hearing. In Knechtel, a claim for Attendant Care benefits, which was before the arbitrator, was amended at the hearing in some way, perhaps quantum or duration, but it appears that the claim itself had been made and was before the arbitrator at the commencement of the hearing.

The Insurer has submitted that Section 281 of the Insurance Act stipulates that no person can refer an issue to an arbitrator, unless it is mediated and the mediation has failed. The Insurer also submitted that this claim should fail as it never received a Form 1, and further, that there was no reason put forward as to why this claim was not made years ago.

Whether or not the claim was advanced on a formal Form 1 is a separate issue from whether or not this claim can proceed in the absence of a denial by the Insurer followed by mediation.

Knechtel stands for the proposition that a defect in a technical form should not prevent a valid substantive claim from proceeding. There is nothing in Knechtel that speaks to the adding of a claim in the absence of it being mediated.

Similarly, the Applicant has submitted that in Buccelato Estate and Allstate Insurance Company of Canada,³¹ the Arbitrator found that the absence of a Form 1 should not be fatal to a claim for attendant care provided there is fairly detailed evidence of what services were provided, by whom and for what period of time.

In my view, Knechtel is distinguishable. In Knechtel, the Insurer had done multiple attendant care assessments of the Applicant, despite not having received a formal Form 1. There is also a question as to whether the issue was added on consent of the parties.

In the current case, the Applicant submits that the report of Wayne De Ryck contains essentially the information that would be contained in the Form 1 had it been submitted.

In any event, the real issue is whether or not I have jurisdiction to add this claim at the hearing despite it never having been mediated. Section 281(2) of the Insurance Act states,

No person may bring a proceeding in any court, refer the issues in dispute to an arbitrator under section 282 or agree to submit an issue for arbitration in accordance with the Arbitration Act., 1991 unless mediation was sought, mediation failed, and if the issues in dispute were referred for an evaluation under section 280.1, the report of the person who performed the evaluation has been given to the parties.

There is no evidence led by the Applicant that this issue was ever mediated. In the absence of such evidence, I find I have no jurisdiction to add this issue at the hearing.

Special Award

Section 282(10) of the Insurance Act provides that if an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured.

The Applicant has submitted that a special award should be granted in this case because the insurer made the decision to terminate IRBs when the Applicant had begun to develop a condition meriting further psychological intervention.The submission is that the Insurer failed to adjust the file in good faith, and, with respect to entitlement to IRB’s, failed to evaluate information relating to the Applicant’s education training or work experience, and did not analyze whether those personal qualifications could be transferred into employment or vocational opportunities that suited the Applicant. The Applicant has submitted that no vocational assessment or work trial program was implemented by the insurer, despite the insurer’s duty to rehabilitate its insured and the Applicant’s need for same. The Applicant then reviews some of the medical evidence and submits that the Insurer did not heed the recommendations in the medical evidence and provide further treatment funding, instead refusing to fund the proposed psychological assessments and elected to invest the financial resources toward surveillance.

Further, the Applicant submits that the insurer’s decision to terminate this benefit, based on the single opinion of Dr. Lexier, the orthopedic surgeon, whose opinion the Applicant described as outdated, insufficient and glaringly non–comprehensive was unreasonable given the significance of the worsening psychological problems of the Applicant.

The Applicant has also submitted that Dr. Nemeth, a psychologist on whose report of July 27, 2004 the Applicant has relied upon, and Dr. Raghunan, both agreed that the Applicant needed further psychological counselling.

Neither doctor testified at the hearing. The Applicant submits that these opinions were disregarded by the Insurer in its decision to deny attendant care and home maintenance benefits.

However, the Insurer submits that Dr. Nemeth’s report, on page 2, states, “Given that it was not possible to distinguish between malingering and seriously impaired functioning, and because Mr. Nguyen has not been able to absorb any of what has happened in his psychological therapy to date, further therapy of this nature is not warranted. Thus, the treatment plan dated May 13, 2004 proposed by Dr. Raghunan is not necessary at this time.”

Further, Dr. Nemeth in her report, disagrees with the suggestion made earlier by Dr. Raghunan, that the Applicant required more counselling by a Vietnamese speaking psychologist. Instead, she recommends that the Applicant undergo a psychological assessment by a Vietnamese speaking psychologist to investigate whether the language barrier is playing a role in the difficulty in understanding of the Applicant’s symptoms.³²

In reviewing the evidence and submissions of both parties with respect to entitlement to a special award, I find that the Insurer terminated benefits based on sound medical opinions and reports. Although I agree that there is medical evidence, which, viewed in the absence of the surveillance video material, might suggest that some of the findings made by the medical practitioners were ignored, under the circumstances of this case, bearing in mind what was so clearly evident on the videos, and taking into account the unreliability of the foundations of the medical evidence in this case, there is insufficient evidence for a finding that the file was not adjusted in good faith. I do not find the actions of the Insurer to be unreasonable. I find that the IRB benefits were terminated based on medical evidence, which was borne out by what was seen on the videos.

I find no special award is warranted in this case.

EXPENSES:

If the parties are unable to resolve the issue of the amount of the expenses, either party may request an appointment with me, within 30 days of the date of this order, for me to determine the matter in accordance with Rules 75 – 79 of the Dispute Resolution Practice Code.

December 24, 2015

Alan Mervin Arbitrator

Date

Financial Services Commission of Ontario