Neutral Citation: 2016 ONFSCDRS 43

FSCO A11-002571

BETWEEN:

LAAVANYAN SANGARALINGAM

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

AMENDED REASONS FOR DECISION

Before: Arbitrator Isoken Osunde

Heard: February 18, 19, 20, and June 11 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on November 17, 2015.

Appearances: David S. Wilson for Mr. Sangaralingam Jonathan Barr and Teresa-Anne Martin for TD General Insurance Company

Issues:

The Applicant, Laavanyan Sangaralingam, was injured in a motor vehicle accident on June 15, 2007. He applied for and received statutory accident benefits from TD General Insurance Company ("TD General"), payable under the Schedule.¹ A dispute arose between the parties which they were unable to resolve through mediation, and Mr. Sangaralingam applied for arbitration at the Financial Services Commission of Ontario under the *Insurance Act*, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is the treatment plan dated December 14, 2009 for occupational therapy in the amount of $4,911.88 reasonable and necessary?
Is the treatment plan dated December 30, 2009 for occupational therapy in the amount of $4,554.40 payable?
Is the treatment plan dated December 14, 2009 for case management services in the amount of $4,705.10 payable?
Is the treatment plan dated July 20, 2010 for speech therapy in the amount of $4,528.42 reasonable and necessary?
Is the treatment plan dated February 15, 2010 for rehab coaching and gym membership in the amount of $3,272.24 reasonable and necessary?
Is the cost of a catastrophic assessment in the amount of $4,972.00 dated March 7, 2013 payable?
Is a special award payable because TD unreasonably withheld benefits from Mr. Sangaralingam?
Is Mr. Sangaralingam entitled to interest on any amounts owing?
Which party is entitled to expenses in this Arbitration?

Result:

The treatment plan dated December 14, 2009 for occupational therapy in the amount of $4,911.88 is reasonable and necessary.
The treatment plan dated December 30, 2009 for occupational therapy in the amount of $4,554.40 is not payable.
The treatment plan dated December 14, 2009 for case management services in the amount of $4,705.10 is not payable.
The treatment plan dated July 20, 2010 for speech therapy in the amount of $4,528.42 is reasonable and necessary.
The treatment plan dated February 15, 2010 for rehab coaching and gym membership in the amount of $3,272.24 is reasonable and necessary.
The cost of a catastrophic assessment in the amount of $4,972.00 dated March 7, 2013 is payable.
A special award is not payable.
Mr. Sangaralingam is entitled to interest for the overdue payment of benefits at the prescribed rate.
The issue of expenses will be dealt with in accordance with Rule 79 of the Dispute Resolution Practice Code, if necessary.

Procedural Matters:

Tamil Interpretation:

Mr. Sangaralingam gave some of his testimony through a Tamil interpreter. About half way through his direct evidence, he stated that he was concerned about the quality of some of the interpretation and opted to give the rest of his evidence in English. I offered to hear all of his evidence again but Mr. Sangaralingam's counsel stated that he would be comfortable continuing his evidence in English. I proceeded to hear the rest of his testimony in English.

Background:

The Applicant, Mr. Sangaralingam was involved in two motor vehicle accidents. The first accident occurred on March 5, 2005. As a result of the 2005 accident, Mr. Sangaralingam suffered a loss of consciousness at the scene of the accident and was hospitalised for several days following the accident. Upon his release, he was diagnosed with a closed head injury with a right subarachnoid hemorrhage, a right partial brain contusion, a skull fracture, a right scalp laceration, a major cognitive disorder, and an acquired language impairment secondary to his cognitive problems. With regard to his physical injuries, he was diagnosed with chronic pain disorder, right hip pain, myofascial temporomandibular joint syndrome and chronic post traumatic headaches.²

His symptoms as a result include memory loss, poor concentration, headaches, constant back, neck and right elbow pain.

Mr. Sangaralingam claimed and was paid statutory accident benefits by ING as a result of the 2005 accident. ING and Mr. Sanagralingham reached a full and final settlement of his 2005 accident benefits claim on November 13, 2012.³

The second accident, which is the subject of this arbitration, occurred on June 15, 2007.

Mr. Sangaralingam was driving with a friend when he got involved in the accident. He sat in the front passenger seat. His vehicle was proceeding through an intersection when the vehicle in front suddenly made a U–Turn and the front of his vehicle hit the driver's passenger side.

A disability certificate⁴ dated October 31, 2007 and completed by Dr. Lambotharan, Mr. Sangaralingam's family doctor, suggests that Mr. Sangaralingam suffered from whiplash grade II injuries as a result of the accident.

In this arbitration Mr. Sangaralingam claims statutory accident benefits from a different insurer, TD General. He claims payment for various treatment plans. He submits that he requires these treatments because the second accident exacerbated his injuries from the first accident and materially contributed to his impairments. He submits that TD General is therefore responsible for payment of these benefits. TD General submits that the injuries for which Mr. Sangaralingam seeks treatment were not caused by the second accident, but were as a result of the result of the first accident. For the reasons that follow, I find that Mr. Sangaralingam's injuries were exacerbated by the 2007 accident.

Applicable test for causation:

I find that the applicable test for causation in this case is the material contribution test.

TD's submission that the applicable test in this case is the "but for" test has necessitated a finding on this issue.

It has been established by case law, that the test for causation in accident benefits cases is whether the accident has materially contributed to an individual's injuries⁵. Therefore, in this case, Mr. Sangaralingam need not prove that the accident was the sole cause of his injuries but that there has been a material contribution to his injuries.

Against this backdrop, I now turn to the issue of material contribution as it relates to Mr. Sangaralingam's impairments. Although, I am persuaded that Mr. Sangaralingam's physical injuries were exacerbated by the 2007 accident, I have narrowed down the issue of material contribution to Mr. Sangaralingam's cognitive and executive function because the treatment plans in dispute propose goods and services to assist Mr. Sangaralingam because of his cognitive and executive function deficit. TD takes the position that Mr. Sangaralingam's cognitive and executive function deficits arose out of the 2005 accident and that these deficits were not exacerbated by the 2007 accident. Therefore, the treatment plans are not reasonable and necessary. Therefore, in making a determination on whether Mr. Sangaralingam's cognitive and executive function deficits were exacerbated by the second accident, I find it necessary to answer the following questions:

What was Mr. Sangaralingam's executive and cognitive functionality before the accident?
Did his executive and cognitive functionality worsen after the accident?
If so, was it as a result of the second accident?

What was Mr. Sangaralingam's executive and cognitive functionality before the accident?

Lay Witnesses:

Mr. Sangaralingam and his sister, Yalini, with whom he resided with at the time of the accident, both testified at the hearing. The general theme in their testimony was that Mr. Sangaralingam had somewhat improved functionally in the few months before the accident and that his condition worsened after the accident. Given Mr. Sangaralingam's undisputed memory problems which were apparent during the hearing and Yalini's inability to put timelines to the period when she felt Mr. Sangaralingam's condition had worsened after the accident, I give weight to their testimony only to the extent that it is corroborated by the documentary evidence.

Medical Evidence:

In the few months before the accident, Mr. Sangaralingam appeared to be experiencing worsening symptoms and a downward turn in his functionality. This is evident in the reports of several assessors from his treating facility, Neuro-Rehab Services. Some of these assessors include Elaine Lowe, a social worker, who notes in a report dated April 23, 2007⁶, that Mr. Sangaralingam complained of ongoing difficulty with anxiety, mood swings, frustration, tolerance, pain, nightmares and sleep disturbance. Ms. Lowe goes on to express concerns that the disruption of his treatment could lead to a poor prognosis in the future. She notes further that increased emotional stress with respect to the lack of planned rehabilitation led Mr. Sangaralingam into a downward spiral thereby likely increasing his symptoms and decreasing his coping skills.

Also, Lisa Duffus, an Occupational Therapist, in another report dated May 9, 2007⁷ notes that Mr. Sangaralingam was registered for one course at Centennial College and was receiving speech language therapy and rehabilitation coaching once every week. She notes further that due to lack of sufficient support for motivation, initiative, organisation and problem solving skills, Mr. Sangaralingam's attendance was somewhat chequered and that he required one on one support to attend classes and complete course work.

Ms. Duffus concludes that:

He continues to have severe cognitive, physical and psychosocial deficits. He has notably become more dependent on repeated cueing and support to initiate and complete all home, community and school tasks/activities, which is highly attributable to his impaired executive functioning, memory and existing psychosocial issues.

Ms. Duffus goes on to recommend rehab coaching twice a week and occupational therapy one to two times a month. She notes further:

Failing which, Mr. Sangaralingam risks further regression in the above areas along with other areas of his pre–accident functional abilities.

Based on these opinions, I find it reasonable to conclude that Mr. Sangaralingam's cognitive and executive impairments had not fully resolved at the time of the second accident and that they were at a worsening state just prior to the 2007, accident and this worsening state was attributable in part to a lack or reduction of rehabilitation support.

Did his executive and cognitive functionality worsen after the accident?

Subsequent to the accident, the evidence suggests that Mr. Sangaralingam's complaints persisted and his executive and cognitive function did not improve. I have drawn this inference because, several assessors noted that his symptoms persisted either through his reporting or objective testing. For example, Dr. Miller noted in her report dated September 2, 2008⁸ that Mr. Sangaralingam's continued to complain of pain to his neck, right ankle, foot and right leg and that his memory problems had worsened. Dr. Somerville, a Physiatrist, also noted in a report dated June 24, 2008⁹ that Mr. Sangaralingam complained of aggravated symptoms of headaches, neck, low back and left shoulder. Susanne Evanitski, an Occupational Therapist from Neuro-Rehab, in her report dated October 21, 2009,¹⁰ noted a decline in Mr. Sangaralingam's cognitive test scores following the second accident. In addition, Mr. Sangaralingam reported ongoing difficulties with expressive and repetitive language skills. Janna Adler, a speech pathologist from Neuro-Rehab Services, notes in a report dated July 27, 2010,¹¹ that Mr. Sangaralingam presented with several trauma–related, cognitive communication deficits and that the specific areas involved included attention, concentration, short term memory, auditory comprehension slow information processing, word finding difficulties, pragmatic and executive function.

Based on the opinion of these assessors, I find that there is sufficient evidence to establish that Mr. Sangaralingam's symptoms worsened after the second accident.

Were Mr. Sangaralingam's cognitive and executive function impairments exacerbated by the second accident?

I find that Mr. Sangaralingam's cognitive and executive function impairments were exacerbated by the second accident.

This in my view was the more contentious issue between the parties. TD's position is that Mr. Sangaralingam was already suffering from severe cognitive and executive function deficits prior to the 2007 accident and that the second accident did not affect his cognitive and executive function. Mr. Sangaralingam on the other hands posits that his impairments were affected by the second accident.

In support of its position, Dr. Lawrence Freedman, a Clinical Neuropsychologist, testified on TD's behalf. At the hearing, he was qualified as an expert in the area of neuropsychology¹².

Dr. Freedman testified that the focus of his practice is primarily to assess cognitive function in adults who have acquired an injury to the brain. It was undisputed at the hearing that Mr. Sangaralingam suffered an injury to his brain as a result of the 2005 accident. Dr. Freedman assessed Mr. Sangaralingam on September 25, 2007 on behalf of ING (Mr. Sangaralingam's Insurer for the first accident) with regard to entitlement to post 104 income replacement benefits. At the time of the assessment, Dr. Freedman was not aware that Mr. Sangaralingam had been involved in a second accident. At the assessment, Mr. Sangaralingam reportedly complained of an ongoing impairment in his short term memory function mainly involving delayed recall.

Mr. Sangaralingam also admitted to occasional difficulties in expressive speech although there was no reported reading, writing or auditory comprehension impairment. Dr. Freedman opined that Mr. Sangaralingam had sustained a moderate traumatic brain injury as a result of the 2005 accident and that there was an overall mild to moderate impairment with regard to his cognitive ability.

Subsequent to the assessment of September 25, 2007, Dr. Freedman authored two addendum reports dated May 15, 2008 and September 17, 2008 after reviewing additional medical materials and becoming aware that Mr. Sangaralingam had been involved in the second accident.

Dr. Freedman's opinion remained unchanged. He testified that following a motor vehicle accident, if an individual did not present with a diminished GCS score¹³ or loss of consciousness, it would be untenable to conclude that the person could develop cognitive deficits on the basis of neuro trauma. While I accept that there is no evidence to suggest that Mr. Sangaralingam did sustain a brain injury in the second accident, I view this opinion with caution for two reasons.

First, at the time of the initial assessment of September 25, 2007, Dr. Freedman was not aware that Mr. Sangaralingam had been involved in a second accident. His assessment was conducted for ING Insurance, Mr. Sangaralingam's previous insurer, with two mandates: to determine whether Mr. Sangaralingam sustained a traumatic brain injury as a result of the first accident; and second, whether he was exhibiting any symptomatic neurocognitive impairment related to the accident.

Second, upon becoming aware that Mr. Sangaralingam had now been involved in a second accident, Dr. Freedman only conducted a paper review of Mr. Sangaralingam's medical file. There was no in person assessment conducted. Although an in person assessment is not warranted in all cases, I find that in a complex case such as this, the opinion of assessors who have monitored the insured's condition from the earlier accident to the present time, will be more convincing than that of an assessor who only conducted a paper review.

On this note, I prefer the opinions of the assessors from Mr. Sangaralingam's treating facility, Susanne Evanitski¹⁴, Janna Adler¹⁵, Harriette Brown¹⁶, all of which opined that Mr. Sangaralingam's cognitive and executive function worsened as a result of the second accident. I have given more weight to their opinions because, in my view, as Mr. Sangaralingam's treating assessors, they are more familiar with Mr. Sangaralingam's condition from the first accident and monitored his progress and test results after the second accident.

TD appears to place a great deal of emphasis on the fact that Mr. Sangaralingam did not report the second accident to many of his assessors on time despite visits to them. While I agree that this is not a commendable action, I find the objective opinions of his treating professionals convincing in reaching a conclusion that Mr. Sangaralingam's executive function and cognitive impairments were exacerbated by a number of factors including the 2007 accident. As stated above, an insured need not prove that an accident was the sole cause of his or her impairment but that there has been a material contribution. In this case, I find on a balance, that this burden had been discharged by Mr. Sangaralingam.

Having established that Mr. Sangaralingam has met the material contribution test, I now turn to the treatment plans at issue.

Is the treatment plan dated December 30, 2009 for occupational therapy in the amount of $4,911.88 reasonable and necessary?

I find that the above treatment plan is reasonable and necessary.

Section 14 of the Schedule states that an insurer shall pay a medical benefit for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident related impairment.

Susanne Evanitski, an Occupational Therapist at Neuro-Rehab Services, submitted the above treatment plan on behalf of Mr. Sangaralingam¹⁷. She did not testify at the hearing. A review of the treatment plan indicates that the purpose of the plan was to provide occupational therapy to assist with cognitive strategies to improve functioning and the need for a rehab coach. Particularly, the plan notes that Mr. Sangaralingam's cognitive impairments had worsened as a result of the 2007 accident and this was impacting on his ability to manage some of his self-care and housekeeping needs and his educational and vocational pursuits. The plan further states that a rehab coach working under the direction of an occupational therapist would help Mr. Sangaralingam develop more structure and purpose to his daily routines and work towards progressive goal attainment such as increasing his activity in leisure, household and general life management services. In response to this, TD sent Mr. Sangaralingam for an Insurer Examination on February 19, 2010. This Insurer Examination was conducted by Ms. Faye Perreras, an Occupational Therapist who concluded that although Mr. Sangaralingam would benefit from the proposed goods and services of the treatment plan, however, since the treatment plan was being proposed to address problems arising out of the 2005 accident, they were not reasonable and necessary¹⁸.

In a rebuttal report dated May 3, 2010¹⁹, Ms. Harriette Brown of Neuro-Rehab Services stated that because of a decline in Mr. Sangaralingam's neurocognitive test scores, his pre–accident condition was worsened by the 2007 accident and occupational therapy was necessitated to address, remediate and teach compensatory strategies to improve Mr. Sangaralingam's day-to-day function. In a further assessment conducted in 2012²⁰, Mrs. Brown notes no difference between the 2009 and 2012 test results but remarks that the decline from the 2005 results could be as a result of the 2007 accident or other factors. TD submits that these other factors could be anxiety, financial trouble and withdrawal of rehabilitation support prior to the 2007 accident.

While I accept that all these issues might have contributed to Ms. Sangaralingam's cognitive issues, there is no evidence to rule out the fact that the 2007 accident materially contributed to Mr. Sangaralingam's cognitive impairments. As stated earlier, an applicant need not prove that an accident is the sole cause of their injuries. Proof of material contribution is sufficient. Therefore, having found that the 2007 accident materially contributed to Mr. Sangaralingam's cognitive and executive impairments, I conclude that the treatment plan dated December 30, 2009 for occupational therapy in the amount of $4,911.88 is reasonable and necessary.

Is the treatment plan dated December 14, 2009 for occupational therapy in the amount of $4,554.40 reasonable and necessary?

This treatment plan is much like the one above. There is no evidence to support the fact that it was proposed for different services than the one above. Therefore, I find that the treatment plan dated December 14, 2009 for occupational therapy in the amount of $4,554.40 is not reasonable and necessary.

Is the treatment plan dated December 14, 2009 for case management services in the amount of $4,705.10 payable?

I find that this treatment plan is not reasonable and necessary.

Section 17 of the Schedule states that an Insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by a qualified case manager in accordance with a treatment plan if the insured person sustains a catastrophic impairment as a result of the accident. In this regard, I accept TD's submission that the case management services being proposed by this treatment plan are for the coordination of medical and rehabilitation benefits and is therefore not payable because Mr. Sangaralingam has not been found to be catastrophically impaired as a result of the 2007 accident. Therefore, in the absence of any evidence that Mr. Sangaralingam sustained a catastrophic impairment as a result of the 2007 accident, I find that the treatment plan dated December 14, 2009, for case management services in the amount of $4,705.10 is not payable.

Is the treatment plan dated July 20, 2010 for speech therapy in the amount of $4,528.42 reasonable and necessary?

Janna Adler, a Speech and Language Pathologist, submitted this treatment plan²¹ on behalf of Mr. Sangaralingam. The goal of the treatment plan was to improve Mr. Sangaralingam's cognitive communication skills. In response, Jeff Lear, a Speech and Language Pathologist conducted an Insurer Examination to review the proposed treatment plan. Mr. Lear concluded that the treatment plan was not reasonable and necessary because Mr. Sangaralingam's speech impairments were not as a result of the 2007 accident.²² Having found that the 2007 accident materially contributed to Mr. Sangaralingam's cognitive impairment, I find that an improvement of Mr. Sangaralingam's cognitive communication skills is a reasonable rehabilitative goal for which the treatment plan is necessary. Therefore, I find that the treatment plan dated July 20, 2010 for speech therapy in the amount of $4,528.42 is reasonable and necessary.

Is the treatment plan dated February 15, 2010 for rehab coaching and gym membership in the amount of $3,272.24 reasonable and necessary?

I find that this treatment plan is reasonable and necessary.

This treatment plan proposed by Neuro-Rehab Services states that Mr. Sangaralingam would benefit from a course of active physiotherapy programming conducted mainly in a local fitness facility.

This treatment plan was denied by TD on the basis of a report by Alison Cocking dated April 14, 2010²³ in which Ms. Cocking stated that no impairments were identified and that since almost three years had passed with regard to the duration of symptomology, it was unlikely that physiotherapy would be beneficial to Mr. Sangaralingam. In a report dated April 28, 2010²⁴, Ms. Hana Tasic, a rehabilitation specialist of Neuro-Rehab Services opined that due to Mr. Sangaralingam's brain injury from the 2005 accident, his recovery from the 2007 accident was affected as he did not have the ability to execute the prescribed physical program independently hence the need for a rehabilitation coach to guide him.

Having found that Mr. Sangaralingam suffered an exacerbation of cognitive impairments as a result of the 2007 accident, I accept this opinion and I find that the treatment plan dated February 15, 2010 for rehab coaching and gym membership in the amount of $3,272.24 is reasonable and necessary.

Is the cost of a catastrophic assessment in the amount of $4,972.00 dated March 7, 2013 reasonable and necessary?

Dr. Harold Becker of Omega Medical Assessments submitted this treatment plan²⁵ on behalf of Mr. Sangaralingam requesting funding for a catastrophic assessment. In the treatment plan, Dr. Becker indicated that the proposed goods and services were for a review of medical records to determine catastrophic impairment and if applicable complete an OCF 19. Dr. Becker submitted this treatment plan prior to the submission of an OCF 19. Subsequently, on June 4, 2014, Dr. Becker submitted an OCF 19 to TD and in response, TD sent Mr. Sangaralingam to numerous assessments. TD submits that the treatment plan is not reasonable and necessary because the treatment plan was proposed essentially for funding for an OCF 19 to be submitted and this is not covered under the Schedule. While I agree with this position, I find that by sending Mr. Sangaralingam to further assessments, as a result of Dr. Becker's request, Mr. Sangaralingam is well within his right to conduct his own assessment. Therefore, I find that the treatment plan dated March 7, 2013 is reasonable and necessary.

Special Award

No evidence was presented to convince me that a special award is payable.

Interest

Mr Sangaralingam is entitled to interest for the overdue payments of benefits at the prescribed rate.

EXPENSES:

This item will be dealt with in accordance with Rule 79 of the Dispute Resolution Practice Code, if necessary.

February 4, 2016

Isoken Osunde Arbitrator

Financial Services Commission of Ontario