Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 287 FSCO P12-00030

BETWEEN:

GURPRIT KAUR CHEEMA Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Robert Bujold Heard: November 26, 2015, by telephone conference call.

Appearances: Linda Wolanski for Ms. Cheema Asma Desai for TD General Insurance Company

On July 9, 2012, I issued my decision in the matter of Cheema and TD General Insurance Company (A09-001294). Apart from housekeeping and home maintenance services to the two-year mark, and one treatment plan for assistive devices, Ms. Cheema’s claims were dismissed. Specifically, I dismissed her claim for a determination of catastrophic impairment as a result of the accident. I also concluded that she was not entitled to any further payments for weekly caregiver benefits, attendant care benefits, the cost of examinations or treatment. I found that TD General was not liable to pay a special award, and the issue of expenses of the arbitration was deferred pending an attempt by the parties to resolve the issue between themselves.

Shortly after the release of my decision, Ms. Cheema applied to have several of my orders varied or revoked on the basis “that there had been a material change in the circumstances of the insured” (material change in circumstances) and on the basis “that evidence not available on the arbitration had become available” (new evidence).¹

For a period of approximately one month between late February and late March 2012,² Ms. Cheema underwent two involuntarily in-patient hospitalizations involving three hospitals, and a related arrest. There was also a hospitalization for a period of approximately two weeks in September 2013. Ms. Cheema maintains that these events evidenced a material change in her circumstances, specifically a deterioration in her psychological functioning. The new evidence is comprised mainly of updated clinical notes and hospital records from this period. Ms. Cheema submits that the material change in circumstances, as supported by the new evidence, should lead me to revoke or vary several of my orders of July 9, 2012. Specifically, Ms. Cheema submits that I should now issue orders concluding that, as a result of the accident, she did sustain a catastrophic impairment on the basis of a marked impairment due to mental or behavioural disorder, and a complete inability to carry on a normal life, and that she is entitled, retroactively, to payment of further caregiver, attendant care, housekeeping and home maintenance, and medical benefits.

Issues:

The issues in this hearing are:

1. Has there been a material change in circumstances that warrants varying or revoking any of the arbitration orders issued on July 9, 2012?

2. Is there any new evidence not available at the arbitration hearing that warrants varying or revoking any of the arbitration orders issued on July 9, 2012?

Result:

1. The Application for Variation or Revocation is dismissed.

2. The parties may apply, within 30 days, to have the expenses of both the arbitration and the application for variation/revocation determined should they be unable to resolve the issue between themselves.

EVIDENCE AND ANALYSIS:

The Arbitration Hearing

The arbitration hearing took place over a period of 9 days. I heard from several lay and expert witnesses, and reviewed extensive pre-and post-accident medical documentation. I also reviewed surveillance evidence.

The reasons for my decision of July 9, 2012 are 50 pages. I will not review the evidence or go over my analysis in any detail. My conclusions regarding Ms. Cheema’s claims for a determination of catastrophic impairment and post-104 week benefits are found at pages 37 to 39. In brief, I found Ms. Cheema’s evidence replete with inconsistencies,³ significant symptom magnification, and selective difficulties with memory and cognitive functioning that could not be explained by a traumatic head injury. While I accepted that Ms. Cheema may be suffering from some degree of psychological distress as a result of the accident, she failed to persuade me, on a balance of probabilities, that her highly dramatic and inconsistent presentation⁴ could be fully explained as a “cry for help”. I found it likely that her presentation involved a significant degree of frank malingering (where symptoms are feigned for secondary gain) or, even more likely in this case, a factitious disorder (where the individual is seeking to assume the sick role, and may not even be aware of the motivation behind their feigned behaviour).

The Post-Hearing Events

On February 25, 2012, the police were called to the Cheema residence. Ms. Cheema did not provide a statement to the police, so the account of what happened is from Mr. Cheema. According to Mr. Cheema’s statement, he was lying down in his living room with Ms. Cheema next to him when she started reciting religious chants. When he asked her to keep it down because there were people sleeping upstairs,⁵ she became agitated, grabbed his beard and would not let go. Mr. Cheema called for help. The Cheemas’ daughter awoke and was told by Mr. Cheema to open the door to the apartment. The landlord who lived upstairs came down and helped Mr. Cheema release Ms. Cheema’s grip from his beard. At Mr. Cheema’s request, the landlord called the police. Mr. Cheema’s statement to the police also makes reference to Ms. Cheema not sleeping for the past three days, and that she has not been “functioning properly” since the 2008 accident.⁶

Ms. Cheema was initially taken to Brampton Civic Hospital presenting with what is described in the emergency records as an “altered level of consciousness.” A Mental Health Consultation Report by Dr. Sasan dated February 25th accepts that Ms. Cheema had a history of traumatic brain injury,⁷ and arrives at a working diagnosis/symptoms of psychosis. The report also notes “some ongoing conflict at home, feels that her husband is not supportive, does not give her any access to money”, but also notes that Ms. Cheema was not willing to elaborate. Ms. Cheema was admitted on a Form 1 for a mental health assessment but, due to a shortage of beds, Ms. Cheema was transferred to Etobicoke General Hospital where the records also reflect an understanding that she had an acquired brain injury as a result of the 2008 accident. Ms. Cheema was discharged from Etobicoke General Hospital on February 27th to the care of a family friend who acted as surety.

The surety’s family found that they could not manage Ms. Cheema due to her unpredictable behaviour. She was talking nonsensical, not sleeping, and trying to leave the house. She was also apparently not taking her medications as prescribed. On March 1, 2012, Ms. Cheema was admitted to Credit Valley Hospital on a Form 1 for in-patient psychiatry treatment. Her medications were adjusted and having made improvements, Ms. Cheema was discharged on March 27th with a discharge diagnosis of “depression with psychotic features and multiple somatic complaints of unknown etiology.”

A further two-week hospitalization at Brampton Civic Hospital took place approximately 18 months later, in September 2013. On that occasion, it appears the events leading to admission were “wandering the streets, seeing things, wasn’t taking meds.” She was admitted with a diagnosis of psychosis. During her admission, her medications were adjusted and “[o]ver time, her psychotic symptoms subsided completely and also her depressive symptoms started to improve.” The final summary by Dr. Banik dated September 20th concluded a diagnosis of “major depressive disorder with psychotic symptoms.”

In addition to the evidence of hospitalizations, Ms. Cheema relied on updated clinical notes and records from health care providers whose evidence was before me at the initial hearing. Specifically, Ms. Cheema relies on notes from Dr. Bhalerao, the psychiatrist at St. Michael’s Hospital who started seeing Ms. Cheema in May 2010 on referral from Dr. Ouchterlony. Ms. Cheema maintains that Dr. Bhalerao’s post-hearing notes are significant in that they show a consistency of complaints, including an inability to cope, low mood, feelings of worthlessness and unremitting pain.

As stated, Ms. Cheema maintains that, collectively, the above-noted post-hearing evidence should lead me to revoke or vary several of my orders of July 9, 2012, and conclude, in their stead, that she did sustain a catastrophic impairment, and a complete inability to carry on a normal life, as a result of the accident, and that she is entitled to the benefits claimed. Ms. Cheema focuses her argument on my conclusion that I was not satisfied that her bizarre and inconsistent behaviour could be adequately explained as a “cry for help” related to an otherwise genuine, accident-related somatoform disorder. Ms. Cheema maintains that the post-hearing evidence should now lead me to the opposite conclusion, and result in a finding of catastrophic impairment, and a complete inability to carry on a normal life.

Analysis

Whether Ms. Cheema’s application is characterized as being based on new evidence not available at the hearing or evidence of a material change of circumstances, Ms. Cheema maintains that the evidence on this application is sufficiently strong to undermine the correctness of the factual findings in my original decision.⁸ For the reasons that follow, I am not satisfied that is the case.

As stated above, I do not intend to go over the evidence or analysis contained in my original decision in any detail. The decision is lengthy and speaks for itself. I do wish to be clear, though, that, while Ms. Cheema’s claims were largely dismissed, I did recognize that “Ms. Cheema was involved in a serious accident and her injuries were not insignificant”.⁹ I also did not deny that “Ms. Cheema may continue to suffer some degree of psychological distress as a direct result of the accident, including some measure of pain, anxiety and depression.”¹⁰ I even accepted that there could be “some truth”¹¹ to the proposition that Ms. Cheema’s inconsistencies, florid behaviours and dramatic test results were, in part, an attempt to draw attention toward genuine complaints (a “cry for help”).

The difficulty was sorting the true from the false. As I noted in my original decision:

“… the credibility question regarding Ms. Cheema’s psychological impairments involves the challenging task of sorting the true from the false, both of which are likely present in some degree. As one of TD General’s assessors put it, somatoform disorder, factitious disorder and malingering lie on a continuum. As one of Ms. Cheema’s own assessors [Dr. Feinstein] put it, the truth behind Ms. Cheema’s “extraordinary mental state” likely lies somewhere between the competing theories of malingering or factitious disorder, on the one hand, and a genuine mental or behavioural disorder, on the other.”¹²

The medical evidence in this case not only contained examples of marked exaggeration of (what could be) genuine complaints, but was replete with outright inconsistencies and medically unexplainable results regarding her purported cognitive deficits and functional limitations.

To try to sort the true from the false, and the extent to which the false could be adequately explained as merely a “cry for help” to draw attention to genuine, accident-related impairments, I assessed Ms. Cheema’s medical evidence in relation to the evidence as a whole. In that regard, I took into account surveillance evidence, Ms. Cheema’s significant pre-accident medical history, and my observations made of her throughout the hearing. I concluded that a “cry for help” could be at play to some extent (much as Ms. Cheema’s own assessor, Dr. Feinstein, had found¹³), but, given the evidence as a whole, I found it “likely that a significant degree of malingering or factitious behaviour is involved in her presentation, undermining any attempt to accurately appraise the nature and extent of any genuine symptomology and related impairments.”¹⁴ In the result, I concluded that “Ms. Cheema ha[d] failed to persuade me, on a balance of probabilities, that any genuine, accident-related physical or psychological impairments she may continue to suffer have resulted in either a complete inability to carry on a normal life or a marked impairment due to a mental or behavioural disorder as required for a catastrophic impairment determination…”.¹⁵

While the new evidence of post-hearing hospitalizations leaves me less likely to believe that this is a case of frank malingering, I remain unpersuaded that a significant factitious disorder does not account for much of Ms. Cheema’s bizarre, inconsistent and medically unexplainable behaviours. A factitious disorder is still a mental disorder, but one where the symptoms are created or exaggerated by the individual in response to a need to assume the sick role. It is a disorder that may be associated with other severe emotional difficulties and personality disorders, and, as noted, the individual may not even be aware of the motivation behind their feigned or exaggerated behaviour.

It is not clear from the new evidence what consideration a possible factitious disorder received from the doctors who treated Ms. Cheema post-hearing. However, the hospital records suggest that reports from Ms. Cheema, her husband and/or past medical records that her issues stemmed from a traumatic or acquired “brain injury” were largely accepted. This is contrary to the finding I made at the hearing based on a full review of the medical evidence, which was significant on this point. I also found on the medical evidence that many, if not most, of Ms. Cheema’s reported memory and other cognitive impairments were wholly inconsistent with a brain injury, even if there were evidence of same. I see nothing in the new evidence to disturb these findings.

I also note that Dr. Bhalerao, who treated Ms. Cheema both pre- and post-hearing, found no significant change in Ms. Cheema’s medical condition, including no psychosis, when she saw her in December 2012.¹⁶

Of course, it is not my position to arrive at a medical diagnosis. As the hearing arbitrator, it is my responsibility to weigh all of the evidence with a view to determining whether Ms. Cheema has met her legal onus of establishing, on a balance of probabilities, that her genuine, accident-related impairments meet the threshold of catastrophic impairment and/or have resulted in her suffering from a complete inability to carry on a normal life.

While this Application provides me with new evidence to consider in the mix, it is important to remember that the impact, if any, of the new evidence must not simply be considered on its own, but also weighed against all of the evidence adduced at the original hearing. As stated, this included many inconsistencies and unexplained behaviours (that went beyond exaggeration and constituted fabrication), surveillance evidence, observations made of Ms. Cheema during the hearing, and a significant pre-accident medical history.

In conclusion, I am not persuaded that the evidence presented on this Application is sufficient, when considered with the evidence as a whole, to warrant disturbing the findings in my original decision or the orders issued therein. The Application for Variation or Revocation is therefore dismissed.

EXPENSES:

The parties are encouraged to work out expenses of the main hearing and this application as between themselves. If they are unable to do so, either party may request a determination of expenses in accordance with the Dispute Resolution Practice Code.

October 28, 2016

Robert Bujold Arbitrator

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 287 FSCO A09-001294

BETWEEN:

GURPRIT KAUR CHEEMA Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Application for Variation or Revocation is dismissed.

2. The parties may apply, within 30 days, to have the expenses of both the arbitration and the application for variation/revocation determined should they be unable to resolve the issue between themselves.

October 28, 2016

Robert Bujold Arbitrator

Footnotes

1. 1Insurance Act, R.S.O. 1990, c.I.8, s. 284 (3)
2. 2Occurring after the last day of hearing on December 2, 2011, but before I issued my decision on July 9, 2012. At the time of the hearing of this Application, further evidence was tendered from later time periods.
3. 3The inconsistencies were evident both within the context of single assessments and across multiple assessments. Credibility concerns also arose from Mrs. Cheema’s oral testimony, the pre-accident medical history, and the surveillance evidence.
4. 4Her own assessor, Dr. Feinstein, described Mrs. Cheema’s presentation as “characterized by pain-related behaviours that approach parody coupled with florid features of pseudodementia”.
5. 5They were living at the time in a basement apartment.
6. 6Mrs. Cheema was charged with assault as a result of the incident.
7. 7Apparently based on a self-report from Mrs. Cheema.
8. 8See, for example, Lanctot and Zurich Insurance Company (FSCO P02-00033, October 30, 2003)
9. 9Decision of July 9, 2012, page 40
10. 10Ibid. page 38
11. 11Ibid. page 38
12. 12Ibid., page 18
13. 13Ibid., pages 30-33 for my review of Dr. Feinstein’s evidence, including my several concerns with it.
14. 14Ibid., page 39
15. 15Ibid., pages 37, 38
16. 16See “Head Injury Office Progress Summary” dated December 11, 2012 in Joint Document Brief, Tab 14