Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 272 FSCO A14-009799

BETWEEN:

PIRASHANTHINI SHANMUGANATHAN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator M. J. Winer, Q.C.

Heard: In person at ADR Chambers on July 12-14, 2016 and August 4, 2016 and September 20, 2016

Appearances: Mr. David S. Wilson for Ms. Pirashanthini Shanmuganathan Mr. Michael P. Taylor for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Pirashanthini Shanmuganathan, was injured in a motor vehicle accident on January 10, 2009, and sought accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, 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:

1. Is the Applicant entitled to payment of $2,002.96 for a rehabilitation services plan, dated May 26, 2014?
2. Is the Applicant entitled to payment of $6,594.75 for an occupational therapy (OT) services plan, dated August 18, 2014?
3. Is the Applicant entitled to payment of $7,152.36 for a rehabilitation support worker (RSW) services plan, dated November 19, 2014?
4. Is the Applicant entitled to payment of $2,294.54 for a psychological services plan, dated October 6, 2014?
5. Is the Applicant entitled to payment of $1,619.05 for a rehabilitation services plan, dated May 25, 2015?
6. Is the Applicant entitled to payment of $1,557.29 for a rehabilitation services plan, dated January 22, 2016?
7. Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
8. Is the Applicant entitled to interest on any overdue benefits?
9. Is either party entitled to their expenses of the Arbitration?

Result:

1. The Applicant is entitled to payment of $2,002.96 for a rehabilitation services plan, dated May 26, 2014.
2. The Applicant is entitled to payment of $6,594.75 for an OT services plan, dated August 18, 2014.
3. The Applicant is entitled to payment of $7,152.36 for a rehabilitation support worker services plan, dated November 19, 2014.
4. The Applicant is entitled to payment of $2,294.54 for a psychological services plan, dated October 6, 2014.
5. The Applicant is entitled to payment of $1,619.05 for a RSW services plan, dated May 25, 2015.
6. The Applicant is entitled to payment of $1,557.29 for a rehabilitation services plan, dated January 22, 2016.
7. State Farm is not liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant.
8. The Applicant is entitled to interest on overdue benefits found to be due herein.
9. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

The Applicant, who is in her early 30s, has a husband and two boys, ages about 11 and 14 years. On January 10, 2009, she was a passenger with her boys in the family car, driven by her intoxicated husband, which collided with a police vehicle. The car was severely damaged and her husband lost his licence.

As a result of the accident, she suffered pain to her neck and upper, middle and lower back, spreading to the right arm and leg. She suffered from headaches, sleeplessness, anxiety and depression. All of these symptoms have persisted to the present. She has had limited movement and strength for household duties and work. She has since borne resentment against her husband for injuring her and jeopardizing the family's security. She became pregnant about a year and a half after the accident and had an abortion in December 2010.

Before the accident, she had none of the above physical and mental problems. She did almost all the cooking, cleaning and washing. She worked out regularly. She looked after the children and was a sociable person. She took the boys to athletic activities and showed interest in them. She enjoyed visiting with people and going to temple often. She was working as a cook, cleaner and server at a Sri Lankan restaurant. She had had other heavy work in a warehouse before. All of this changed because of the accident.

Her family doctors prescribed pain killers, anti-inflammatory medication and tranquilizers. Her husband took over the household duties and looked after the boys. She was unable to work. She was irritable and rude with the boys. She blamed the abortion on her husband. She felt that she wouldn't be able to take care of a child. She was less sociable. She said she was "dying of guilt" because of the abortion. She couldn't face her God at the temple.

She started rehabilitation treatments about two to three days per week and the Insurer paid for them until about July 2010, when the Insurer took the position that on the basis of medical information, she had recovered.² She also started psychological treatment sessions paid for by the Insurer. She saw Dr. Zachary Shnek in 2009, and then Dr. Oren Gozlan for 48 sessions until October 2014.³

In 2014, she attempted some activities. She increased helping with activities around the house. The boys could now look after themselves. She took an English as a second language (ESL) course for 3 hours per day, 5 days per week (her first language is Tamil). She tried working at an Adidas warehouse, but had to quit after 4 days because of pain. She took a High School equivalency course at Sheridan College to enable her to eventually pursue a diploma in Early Childhood Education. However, this course was difficult for her because of the pains, and she was absent a lot or left early. She received a warning from the school. She enrolled but did not start the Early Childhood Education course in 2016. She worked at displaying sauces at a Loblaws store, but had to quit again after 4 days because of pain. She then worked at the 2015 election for a day. She started rehabilitation again once a week in 2014 and paid for it, but she was still in much pain and depressed.

She applied for the 6 treatment plans in dispute,⁴ and all were denied by the Insurer following assessments on its behalf. The 3 rehabilitation plans for 2014, 2015 and 2016 were authored by chiropractor Dr. Peter Bassit.⁵ Dr. Joseph Wong testified and reported in support of those plans. He examined the Applicant at least 4 times during 2013 and 2014.⁶ Dr. Gozlan has examined and treated the Applicant since 2012, and has written reports in support of his treatment plan. Dr. Wong has suggested psychotherapy. The OT plan of Natalie Zaraska, O.T., is supported by the report of Carol Kelly, O.T. The RSW plan is authored by Dr. A. Bawangoanwala, M.D., Ms. Shanmuganathan's long-time family doctor and is supported by the reports of Dr. Wong and Ms. Cynthia Sprigings. Her many attendances and complaints to both Dr. Wong and Dr. Gozlan supply proof of continuity and consistency of symptoms of pain, depression and disability over the years. Three functional evaluations were made by exercise physiologist Atila Balaban in 2011, 2012 and 2013. He concluded that she could not perform the majority of household tasks or sedentary work on a sustained basis.

Arrayed against the above plans are the reports and evidence of Dr. Shawn Kavanaugh, D.C, and of Dr. Michael Caterer, D.C., concerning the rehabilitation plans, and Dr. Jeffrey Goodman (psychologist) with regard to the plan of Dr. Oren Gozlan. Melanie Robbins, O.T., provided reports and was cross-examined with regard to the OT plan and the RSW plan. All of these witnesses were retained on behalf of the Insurer through a company by the name of Assess Med.⁷

I find that the Applicant gave her evidence in a straightforward and sincere manner without any apparent contradictions. There was nothing in her demeanor which would lead me to the conclusion that her evidence is not truthful.

The Rehabilitation Plans

Dr. Wong testified and reported that the Applicant's pain condition had developed into a permanent chronic pain syndrome. Dr. Wong further stated the 3 rehabilitation plans at issue are reasonable and necessary to control the pain, reduce muscle tension and increase function, even though the relief is temporary.⁸ He withstood cross-examination without any problems. He notes that the reports of the Insurer's appointed chiropractors do not consider chronic pain. Dr. Wong has examined the Applicant on at least 4 occasions over the years since 2010. I believe he is more qualified than the chiropractors Drs. Kavanaugh and Caterer to give an opinion on the condition and remedies for the Applicant. He has a clinical practice for 80% of his time. He has assessed injuries for many tribunals such as DAC Centres, CPP and WSIB. It has been held that relief of pain alone is a legitimate disability to merit a plan for treatment.⁹ I prefer his evidence over that of Drs. Kavanaugh and Caterer.

Drs. Kavanaugh and Caterer provided reports following their assessments. They also gave evidence. A large part of their income is derived from insurance company assessments. Both do not treat for pain alone. They look for "objective" signs of impairment and try to improve function. Dr. Caterer says that chiropractors who treat pain alone without any "objective" signs of injury are not behaving properly. Treatment for pain alone is not reasonable and necessary. Dr. Kavanaugh says that you don't get stronger by rubbing body parts, suggesting that massage and physiotherapy are not of much value. These reports do not yield much assistance to the diagnosis of chronic pain by Dr. Wong.¹⁰ I believe the 3 rehabilitation plans are reasonable and necessary.

In Nova Scotia v. Martin, a decision of the Supreme Court of Canada, Gonthier J., writing for the Court, stated:¹¹

Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers' compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.

The OT and RSW Plans

Melanie Robbins derives her income from insurance assessments. She performed 2 in-home assessments on the Applicant. Her evidence was strongly influenced by the report of Dr. Kavanaugh. She believed based on the Kavanaugh Report that the Applicant had recovered.

She concluded that the OT plan was "not appropriate for or consistent with the severity of..." the Applicant's injuries. She reported that the Applicant should "incorporate using upper extremities into activities to prevent risk of deconditioning associated with disuse and to increase range of motion." She also recommends "use of pacing strategies with gradual increases in repetitive motions to regain endurance range of motion and stamina."¹² This suggests a need for some therapy. To Ms. Robbins, pain is but a symptom and people function with pain. I believe the Applicant is entitled to the plan for OT services which I find to be reasonable and necessary.

Then Ms. Robbins provided an opinion regarding the RSW plan, stating the RSW plan was not appropriate for or consistent with the severity of the Applicant's injuries. She was produced for cross-examination. She stated the Applicant's "subjective" report continues to appear disproportionate to the documented injuries. This can only be true if she ignores the documented opinion of Dr. Wong that the Applicant is suffering from chronic pain. Ms. Robbins says the Applicant told her that in the past she had been provided with education on adaptive strategies for pacing and energy conservation techniques. The Applicant denied in her evidence ever being given any such OT and nothing is shown in the record. I believe the Applicant is entitled as reasonable and necessary to the proposed services of a Tamil speaking RSW as recommended by Dr. Wong.

The Psychological Treatment Plan

The evidence in favor of the psychological treatment plan was provided within the many reports by Dr. Gozlan. He treated the Applicant through 48 sessions in 2012 to 2014. He was not cross-examined, and the failure to cross-examine this important witness entitles me to draw an inference that cross-examination would not have been helpful to the Insurer. He diagnosed severe depression and anxiety. There was nothing in his reports that would lead me to question his credibility. He concluded the abortion was directly linked to the accident. The deep resentment against her inebriated driving husband is related to the accident. Dr. Gozlan says the failure to approve the plan has resulted in regression of her rehabilitation. He conducted psychometric testing, including the SIMS test which tests the possibility of malingering, and no evidence of malingering was disclosed.

Dr. Jeffrey Goodman reported and gave evidence on behalf of the Insurer in opposition to the psychological services plan. His practice since 2007 has consisted of providing psychological assessments for insurance examination purposes. He was asked to assess whether there was "objective" evidence of psychological impairment to necessitate the plan for services. He saw the Applicant for only 1 hour and 5 minutes. She had taken psychometric tests including the SIMS test earlier, and he said they had shown a tendency to exaggerate.

He said that he was an astute assessor. He dropped some names of prominent psychologists with whom he said was in communication. He said he was so diligent in reading all the source material sent to him such that his friends make fun of him. He told me he was impartial and would not deny treatment to a claimant if it was warranted, regardless of being hired by Assess Med. He was argumentative to some specific questions that required a "yes" or a "no."

This "astute assessor" discussed a question on the SIMS test as an example of how it works: "At times I am so depressed I welcome going to bed early to sleep it off." The answer which supposedly shows that the patient may not be malingering is "F" for false, because depressed people cannot sleep well. Dr. Goodman testified in chief that the Applicant answered "Y" for yes, which would indicate malingering. However, on cross-examination it was revealed that her answer was actually "F", which tends to show supposedly that she is not malingering. He admitted he made a mistake, but attributed the error to a long day; but the error was made early in the day in the examination in chief. He also said that 48 sessions are too excessive, and 16 sessions are sufficient. I am not comfortable with this evidence. Dr. Gozlan says that "so-called malingering" and depression can co-exist. He says a concept such as "objectivity" when dealing with the mind is difficult. I prefer the evidence in the Gozlan Reports and I allow the plan as being reasonable and necessary.

I believe that all of the 6 plans are reasonable and necessary as per the Schedule.

Special Award

The Applicant asks me to levy a special award pursuant to s. 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, which provides as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator shall...award a lump sum of up to 50% of the amount to which the person was entitled...together with interest...

The last rehabilitation treatment was in 2010. There was a long gap in Ms. Shanmuganathan's claims for rehabilitation treatment. There was the abortion in December 2010, which could have been an intervening cause. The Insurer had reports stating the Applicant had reached pre-accident status. In addition, the Applicant's sons were now older and did not require the same level of care and attention as at the time following the accident. She attempted work, was performing more housework and attempted education for self-improvement. In connection with the rehabilitation plans and the OT and RSW plans, the Insurer acted reasonably in requiring the Applicant to undergo Insurer Examinations. These matters had to be checked out. It would not be accurate to conclude that because the Insurer's assessors all came from Assess Med that there had been a tacit understanding the plans would not be approved. The Insurers' assessors all had impressive resumes. I believe the Insurer was entitled to request an assessment following the Applicant's completing 48 sessions of treatment. There must be something more than the fact that the Insurer was wrong in denying the claim. It may have eventually been correct. I am not prepared to give a special award in this case. The Insurer has paid for many plans over the years in this case. It hasn't arbitrarily denied claims. I do not find that in denying the claims in dispute that the behaviour of the Insurer was, as Arbitrator Palmer stated, "excessive, imprudent, stubborn, inflexible, unyielding or immoderate."¹³

Conclusion

For the above reasons, I allow the plans but do not allow a special award.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 17, 2016

M. J. Winer, Q.C. Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant is entitled to payment of $2,002.96 for a rehabilitation services plan, dated May 26, 2014.
2. The Applicant is entitled to payment of $6,594.75 for an OT services plan, dated August 18, 2014.
3. The Applicant is entitled to payment of $7,152.36 for a rehabilitation support worker services plan, dated November 19, 2014.
4. The Applicant is entitled to payment of $2,294.54 for a psychological services plan, dated October 6, 2014.
5. The Applicant is entitled to payment of $1,619.05 for a RSW services plan, dated May 25, 2015.
6. The Applicant is entitled to payment of $1,557.29 for a rehabilitation services plan, dated January 22, 2016.
7. State Farm is not liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant.
8. The Applicant is entitled to interest on overdue benefits found to be due herein.
9. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 17, 2016

M. J. Winer, Q.C. Arbitrator

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "new SABS") came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the "old SABS") shall be paid under the new SABS, but in amounts determined under the old SABS.
2. 2Ex. 4, Tab 16, Medical Brief of the Insured.
3. 3Ex. 4, especially Tab 38.
4. 4Ex. 1 & 2, All Treatment Plans.
5. 5Ex. 1 & 2.
6. 6Ex. 4, especially Tab 32.
7. 7Ex. 3, Insurer Medical Reports.
8. 8Ex. 4, Tab 40.
9. 9Federico and State Farm Mutual Automobile Insurance Company, FSCO A12-005384, January 6, 2015, p. 7.
10. 10Ruqia Rahim et al and Certas Direct Insurance Company, FSCO A13-002459 and A13-002460, March 23, 2016, p. 7.
11. 112003 SCC 54, [2003] 2 S.C.R. 504 at para. 1.
12. 12Ex. 3, Tab 19.
13. 13Plowright and Wellington Insurance Company, OIC A-003985, p. 17.