REASONS FOR DECISION

Before: James Robinson

Heard: April 22-25, 2014, January 26-29, 2015, June 15, 26 & 18, 2015, July 6-8, 2016 & December 12, 2016, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David S. Wilson for Mr. Sanmugarajah

Darrell March for Nordic Insurance Company of Canada

Issues:

The Applicant, Ananth Sanmugarajah, was injured in a motor vehicle accident on November 9, 2006 (the “First Motor Vehicle Accident”) He applied for and received statutory accident benefits from Nordic Insurance Company of Canada (“Nordic”), payable under the Schedule.¹ Disputes arose concerning his entitlement to benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sanmugarajah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Applicant, Ananth Sanmugarajah, was thereafter injured in a motor vehicle accident on February 2, 2007 (the “Second Motor Vehicle Accident”). He applied for and received statutory accident benefits from Nordic Insurance Company of Canada (“Nordic”), payable under the Schedule.² Disputes arose concerning his entitlement to benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sanmugarajah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A. Procedural Issues:

Attendant Care Claims

Nordic claims that it has a section 32 defence with respect to the claim for attendant care benefits arising from the 2006 accident and the 2007 accident.

Housekeeping and Home Maintenance Claims

Nordic claims that it has a section 32 defence with respect to the claim for housekeeping and home maintenance benefits arising from the 2006 accident and the 2007 accident.

B. Substantive Issues:

The issues in this hearing are:

Did Mr. Sanmugarajah suffer a catastrophic impairment as a result of the accident which occurred on November 9, 2006?
Did Mr. Sanmugarajah suffer a catastrophic impairment as a result of the accident which occurred on February 2, 2007?
Is Mr. Sanmugarajah entitled to attendant care benefits in the following amounts:

(a) $2,567.00 per month from November 9, 2006 to February 1, 2007 – (First Motor Vehicle Accident);

(b) $4,026.57 per month from February 2, 2007 to April 14, 2008 – (Second Motor Vehicle Accident);

Is Mr. Sanmugarajah entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from February 2, 2009 to date and ongoing?
Is Mr. Sanmugarajah entitled to payments for medical benefits in the following amounts:

(a) $5,784.25 – Occupational therapy and assistive devices provided by Tru-Path Occupational Therapy, denied on March 8, 2013;

(b) $760.00 – TENS unit provided by ADL Home Health Care, denied on March 28, 2013;

Is Mr. Sanmugarajah entitled to payments for the cost of examinations as follows:

(a) $1,038.90 – Nutritional assessment provided by Tru-Path Occupational Therapy, denied on March 8, 2013.

Is Mr. Sanmugarajah entitled to a rehabilitation benefit as follows:

(a) $2,486.25 – Rehabilitation consulting provided by Tru-Path Occupational Therapy, denied on March 8, 2013.

Is Nordic liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Sanmugarajah?
Is Nordic liable to pay Mr. Sanmugarajah’s expenses in respect of the arbitration?
Is Mr. Sanmugarajah liable to pay Nordic’s expenses in respect of the arbitration?
Is Mr. Sanmugarajah entitled to interest for the overdue payment of benefits?

Result:

Mr. Sanmugarajah did not suffer a catastrophic impairment as a result of the accident which occurred on November 9, 2006.
Mr. Sanmugarajah did suffer a catastrophic impairment as a result of the accident which occurred on February 2, 2007.
Mr. Sanmugarajah is not entitled to attendant care benefits.
Mr. Sanmugarajah is not entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from February 2, 2009 to date and ongoing.
Mr. Sanmugarajah is entitled to payments for medical benefits as follows:

(a) $5,784.25 – Occupational therapy and assistive devices provided by Tru-Path Occupational Therapy, denied on March 8, 2013;

(b) $760.00 – TENS unit provided by ADL Home Health Care, denied on March 28, 2013;

Mr. Sanmugarajah is entitled to payments for the cost of examinations as follows:

(a) $1,038.90 – Nutritional assessment provided by Tru-Path Occupational Therapy denied on March 8, 2013.

Mr. Sanmugarajah is entitled to a rehabilitation benefit as follows:

(a) $2,486.25 – Rehabilitation consulting provided by Tru-Path Occupational Therapy, denied on March 8, 2013.

Nordic is not liable to pay a Special Award.
Nordic is liable to pay Mr. Sanmugarajah’s expenses in respect of the arbitration.
Mr. Sanmugarajah is entitled to interest in accordance with the Schedule for the overdue payment of benefits.

EVIDENCE AND ANALYSIS

A. Procedural Issues

Attendant Care Claims

Pursuant to my written order dated December 3, 2015 and for reasons there given, I ruled that two Affidavits of Usha Ramayanam, each sworn June 17, 2015, would be admitted into evidence in this proceeding. The Applicant had closed his case, possibly in reliance upon counsel for the Insurer calling Ms. Ramayanam as a witness. In the event, Insurer’s counsel did not do so. The facts contained in Ms. Ramayanam’s Affidavits therefore went into evidence and were uncontradicted.

Counsel for the Insurer relied upon those facts in support of his argument that the Applicant’s claims for attendant care were statute-barred pursuant to section 32 of the Schedule, the relevant portions of which are as follows:

32.(1) A person shall notify the insurer of his or her intention to apply for a benefit under this Regulation.

(1.1) A person shall notify the insurer under subsection (1) no later than,

(b) the seventh day after the circumstances arose that give rise to the entitlement, or as soon as practicable after that day, if those circumstances arose as a result of an accident that occurred on or after October 1, 2003.

Section 39 of the Schedule, which is relevant to a claim for attendant care benefits, provides in part as follows:

39.(1) An application for attendant care benefits for an insured person must be in the form of an assessment of attendant care needs for the insured person that is prepared and submitted to the insurer by a member of a health profession who is authorized by law to treat the person’s impairment.

In the present case, I find upon the basis of the uncontradicted Affidavit evidence of Usha Ramayanam that the Insurer did not receive any claim for attendant care benefits from the Applicant with respect to either the 2006 accident or the 2007 accident at any time prior to receiving the Application for Mediation dated November 1, 2012. At no time prior to receiving such Application for Mediation did the Insurer receive an Assessment of Attendant Care Needs from the Applicant, as required under section 39(1) of the Schedule.

On the evidence before me, the Applicant at no time provided reasonable excuse for failing to comply with subsection 32(1.1) and section 39 of the Schedule.

I find that no jurisdiction existed under the Schedule to conduct a mediation on the issue of attendant care benefits. The purported mediation of the claims for attendant care benefits was a nullity. Because there was no mediation of the issue of attendant care benefits, the Applicant’s claims for such benefits could not proceed under either Application for Arbitration commenced by the Applicant. The Applicant’s claims for attendant care benefits must accordingly be dismissed.

Housekeeping and Home Maintenance Claims:

Subsections 32(1) and 32(1.1), as above-referenced, are also relevant to the applicant’s claim for Housekeeping and Home Maintenance benefits. The Affidavits of Usha Ramayanam sworn June 17, 2015 confirm that the applicant was formerly paid those benefits up to December 24, 2007 for both motor vehicle accidents. The evidence shows that, pursuant to an OCF-9 Explanation of Benefits dated December 3, 2007 delivered to applicant and his present counsel, such Housekeeping and Home Maintenance benefits were cancelled effective December 25, 2007. This was followed by a further OCF-9 dated February 27, 2008, also delivered to applicant and his counsel, confirming that such cancellation related to both motor vehicle accidents.

The evidence also confirms that the only Application for Mediation received from the applicant thereafter was dated November 1, 2012. In such application the applicant claimed entitlement to Housekeeping and Home Maintenance benefits from February 2, 2009 to date and ongoing, i.e. from the two-year date of the second motor vehicle and onwards.

It appears on the basis of the available evidence that the applicant failed to comply with subsections 32(1) and 32(1.1) of the Schedule. The purported mediation of the issue of Housekeeping and Home Maintenance benefits was therefore a nullity, insofar as it was conducted out-of-time and in the face of the applicant’s unexplained breach of subsections 32(1) and 32(1.1). Because the mediation was a nullity in this respect, it follows by operation of law that no valid arbitration could proceed on these claims.

The applicant’s claims for Housekeeping and Home Maintenance must accordingly be dismissed.

B. Substantive Issues

Applicant’s Background

The applicant was born in Sri Lanka on December 24, 1970. He completed high school and worked there for about four years before emigrating to Canada in 1992. After attending ESL classes for approximately six months he took employment as a restaurant worker. Except for a year he later spent as a deliveryman, the applicant worked in the food services industry in various capacities from the 1993 period until late 2006.

The applicant travelled to Sri Lanka for six months in 2003 and, while there, was married. His wife became pregnant and, after the applicant’s return to Canada, their first child was born in Sri Lanka in 2004. The couple now have three children.

The applicant’s mother and various other members of their extended families have lived with them throughout the marriage. The applicant and his wife both have very limited English language skills. The language of their home is Tamil. The applicant and his wife testified through a Tamil interpreter at the hearing.

Catastrophic Impairment

Two related applications proceeded before me. In the first, it is claimed that the applicant suffered a catastrophic impairment by virtue of a motor vehicle accident in which he was involved on November 9, 2006. In the second, it is claimed that the applicant suffered a catastrophic impairment by virtue of a motor vehicle accident in which he was involved on February 2, 2007. A third accident (which occurred on April 15, 2008 and for which another insurer was on risk) was not in issue before me although the Accident Benefits file of that insurer, Economical Mutual, was produced in evidence and occasionally referred to in testimony.

In these reasons I will first consider the available evidence with respect to the applicant’s physical and mental health prior to November 9, 2006, the date of the first accident (the “Pre-Accident Period”). I will next consider the available evidence with respect to his physical and mental health from November 9, 2006 through February 1, 2007 (the “First Accident Period”). Finally, I will consider the available evidence with respect to his physical health from February 2, 2007 and after (the “Second Accident Period”).

Pre-Accident Period

The applicant’s evidence was that in 2002 he began to suffer from depression and from issues with anger both in the workplace and at home. Eventually the Applicant’s family physician referred him to a Tamil-speaking psychiatrist, Dr. Sooriabalan, who saw the applicant over a period of years. Although Dr. Sooriabalan had himself passed away before he could give testimony in this matter, copies of his clinical notes and records were produced at the hearing. Dr. Sooriabalan prescribed Paxil to the applicant which, on the available evidence, the applicant took on a continuing basis from 2002 onward.

Insurer’s counsel suggested that the existence of this pre-existing psychological history cast significant doubt upon the applicant’s assertion that the motor vehicle accidents were the cause of a claim for catastrophic impairment, founded upon a disabling depression. I disagree with that submission. I find that the applicant was a fully functioning individual prior to the two motor vehicle accidents.

Insurer’s counsel conducted a lengthy cross-examination of the applicant, relying in part upon clinical notes and records of the applicant’s family physicians, first Dr. Tharmaratnam and later Dr. Jeyapragasan. Dr. Tharmaratnam’s notes disclose that in September 2002 the applicant had thrown a knife at a co-worker. (The applicant testified that he did not remember this incident.) Dr. Tharmaratnam’s notes from November 2002 disclose that the applicant reported being unhappy. Later his notes disclose that the applicant reported having quarrels with his mother. When questioned on that point the applicant’s matter-of-fact response was that he and his mother had their differences.

Dr. Tharmaratnam’s notes also disclose that the applicant had consulted him in March 2003 with complaints of backache. In August 2003 the same notes disclose that the applicant had been “crying.” In October 2003, the notes disclose that the applicant was reporting pain in his legs. In November 2003 the notes stated that the applicant’s back pain still persisted. In February 2004, the notes show complaints of “depression” and “back pain.”

Further entries in December 2004 disclose that a right wrist injury was treated with injections. In January 2005 and in November 2005 there were further reports of depression. In December 2005 the notes report that the applicant would “still get angry.” In January 2006 the notes refer to “back problems.” The applicant’s evidence was that he did not remember these various attendances.

The evidence shows that the applicant had a number of pre-existing physical and psychological problems during the years prior to the two motor vehicle accidents. In addition to occasional complaints of back pain, I find that the applicant had anger issues both at home and at work. The applicant suffered from depression to a degree that justified the supervision of a psychiatrist and a prescription for Paxil.

Nonetheless, I find on the balance of probabilities that the applicant was a functioning individual prior to November 2006. He was gainfully employed throughout the Pre-Accident Period. He was the sole driver in his family, contributed to the management of the household, and, from 2005 until the date of the first accident, operated a small home-based catering business. The available medical evidence, corroborated by the testimony of the applicant, his wife, and his mother-in-law, amply confirmed that the applicant was living an ordinary life, notwithstanding the fact that he suffered from depression throughout that period and was probably a rather disinterested husband and parent. His physical complaints were no impediment to his employment or to his activities of daily living. Throughout the period prior to November 2006 he was equal, in every material way, to meeting the life challenges of an ordinary adult male of his age and background.

First Accident Period

The applicant’s first motor vehicle accident occurred on November 9, 2006. As he drove home that day after work another vehicle made an unsafe left turn in front of him resulting in a collision. His testimony was that he departed the scene in a tow truck. He testified that he was frightened as a result of the accident and found himself shivering or shaking afterwards. However no one suggested to him that he receive medical attention and he did not do so. He was subsequently provided with a rental car by the insurer which he drove while his own car was being repaired.

The applicant testified that he recalled hitting the back of his head in the accident. An hour later he began to feel pain or aching. The following day he felt pain at the back of his head, in his lower back, in both shoulders, in both legs and in both arms up to the fingers. He began to suffer from frequent headaches. He testified that throughout the First Accident Period he continued to have headaches, lower back pain, and tightness in his neck which resulted in serious or severe pain that increased and decreased. He testified that he was unable to lift and that from the day following the accident he consistently felt pain in the lower back which spread to both sides of the spinal column at a point about four inches below the line of his belt.

The applicant attended physiotherapy four times a week to relieve his symptoms. The only pain medication he recalled receiving was Tylenol 3.

The applicant’s evidence was that his mental state was worse during this period. He testified that he was crying loudly, sobbing and yelling. He did not “feel happiness.” He “felt sad.” He “did not go out much.” He “yelled” at family members. He found himself “shouting” two or three times a day. He did not feel like going out. He stopped working. He slept poorly and his sleep was disturbed with dreams of the accident.

The applicant’s OHIP summary did not show consultations with his psychiatrist, Dr. Sooriabalan, at any time during the First Accident Period although the applicant testified that he had met with him.

Second Accident Period

The applicant’s second motor vehicle accident occurred on February 2, 2007. His evidence was that he was driving on Eglinton Avenue when an eastbound car suddenly made a u-turn in front of him. He testified that the accident was “more severe” than the 2006 accident. His body was propelled forward against his seatbelt and then back against his seat. At the scene the entire left side of his body felt “frozen” and he was unable to move his hand or turn his head. He left the scene in an ambulance, the attendants having applied icepacks to his injuries. He was at the hospital from 12:45 a.m. to 6:30 a.m.

In the days after the second accident he testified that his “entire body hurt more,” including the back of his head, his shoulders, and his left leg. Comparing the two accidents, he testified that his pain was more severe after the second accident, with more pain in his back and in the neck. When questioned by his counsel, the applicant did not comprehend the idea of a one-to-ten scale to describe the intensity of his pain.

The applicant seemed to qualify his testimony by reporting that he had “a little bit more pain” after the second accident and that his mental state became “a little bit worse” after the second. He described shouting, yelling and sleeplessness in this period. His evidence was that “I didn’t like hearing noises” and “I wanted to stay at home.” Again, he testified that “I tried to go but was afraid.” He lost interest in talking to others and “didn’t feel any happiness.” He then testified that his problems began “after the first accident.”

The applicant testified of his relationship with his wife and family that “I had a habit of getting angry with them” and that this started after the second accident. His evidence was that his symptoms after the second accident were more severe because of his inability to sleep. He testified that he underwent a course of physiotherapy for the year subsequent to the second accident and ultimately underwent treatment consisting of a series of injections at the back of his head to alleviate his headache symptoms.

The applicant was questioned broadly by insurer’s counsel with respect to the circumstances of his life after the first and second accidents. The testimony of the applicant was after the first accident in November, 2006 he never worked again and, in addition, that he immediately ceased operation of his home-based catering business by cancelling any unfulfilled orders.

He testified that he continued to drive after the first accident and was never advised by his doctor not to drive. After the second accident there was a two or three month period when he did not drive, during which time he used public transit.

Credibility of the Applicant

Insurer’s counsel, in his cross-examination of the applicant, referred to certain insurer medical reports for the purpose of impeaching the testimony of the applicant.

An insurer’s psychological assessment by Dr. G.B. Fiati dated April 28, 2007 reports as follows: “Mr. Sanmugarajah was asked whether he had any occasion to be evaluated by a psychologist or psychiatrist prior to his accident, he indicated that he has not seen a psychiatrist nor was he ever evaluated by a psychologist or a psychiatrist prior to his involvement in the accident.”

On the other hand, Dr. Fiati also reports: “English was his second language. In spite of this Mr. Sanmugarajah’s English was sufficiently clear for me to understand him.” Having observed Mr. Sanmugarajah over a period of many days in the hearing room, I cannot credit this observation. I find it extremely improbable that the applicant would have told Dr. Giati that he had never seen a psychologist or psychiatrist before, had he actually understood the question.

An insurer’s functional abilities assessment of the applicant was conducted by Dr. Rick Tavares, a chiropractor, on March 2, 2009. With respect to Past Medical History, the report states as follows:

No previous medical history to note. The patient reported to be in fairly good physical health prior to the accident. The patient denied having any previous conditions that may have been aggravated by the accident. The patient denied having any psychological, respiratory, cardiac, gastrointestinal or genitourinary conditions prior to the motor vehicle accident. The patient does admit to two previouis motor vehicle accients in 2006 and 2007 for which he was receiving physical therapy for. At the time of the patient’s most recent accident, he admits that neither of his previous two accidents had been settled.

Insofar as the examiner’s obligation was to assess the applicant’s function, the latter’s denial of prior “psychological, respiratory, cardiac, gastrointestinal or genitourinary conditions” is unexceptionable. If the applicant had understood this omnibus question at all – a matter that is open to question, given his general level of ability — the fact is that the assessor was not a psychologist. Similarly a general acknowledgement of his previous good physical health and his denial that any previous conditions had been aggravated were not, in my opinion, indicative of any conscious intention to mislead. I am satisfied that the requisite level of disclosure to this assessor was met when the applicant acknowledged his two motor vehicle accidents and that he had received physical therapy. In other words, a pro forma intake interview should not be constituted a trap for the unwary.

An In-home assessment of the applicant was conducted on January 21, 2009 by Dr. G. C. Lyn, chiropractor. This report was prepared with respect to the applicant’s third motor vehicle accident of June, 2008 which was not a matter before me at the hearing.

Insurer’s counsel challenged the applicant to explain why Dr. Lyn’s report consistently noted that the applicant’s pre-accident function was “independent.” The applicant specifically denied that he had said any such thing to the assessor. Upon a review of the report, there are a number of inconsistencies that trouble me. Under the notation “Post-MVA Treatment Plan” the assessor notes MRI results from December 14, 2007 showing degenerative changes. He details the eight medications the applicant was taking. The text continues: “He currently goes to see Dr. E. Silver at the Centres for Pain Management every Wednesday for injections for his neck, low back and wrist. Mr. Sanmugarajah does not know the name of the medication he is being injected with. He has been getting these injections since 2007.”

It is difficult to accept that a conscientious assessor could observe that the applicant reported “No limitations” with respect to his subjective pre-injury condition in every activity noted in the Physical Demands Summary portion of the report. On a common-sense basis the details of his pre-accident condition actually disclosed by the applicant and noted by the assessor would surely have required that at least some of those activities be recorded as “limited.” I find it more likely than not that there was inattentiveness on the part of the assessor with respect to this portion of his report rather than any omission or untruthfulness on the part of the applicant.

On the issue of the applicant’s credibility, I find that the difficulties and inconsistencies that occasionally issued in his testimony proceeded from challenges issuing from his poor memory rather than from any conscious intention to mislead. It is beyond serious dispute that for several years prior to the first motor vehicle accident he suffered from a depressive disorder, for which he was prescribed medication. In subsequent years he has been prescribed a virtual cocktail of other medications. I also give due weight to the fact that the earliest of the events upon which the applicant was called upon to testify occurred some nine years prior to the hearing.

Ordinary prudence militates in favour of a conservative approach to the testimony of the applicant. There was, however, nothing in the testimony of the applicant to suggest that he was engaged in deliberate falsehood or maintaining a façade in order to obtain some economic benefit. On the material points of his testimony, corroborating evidence was available from the notes and reports of treating professionals and from the testimony of his wife and family.

Applicant’s Catastrophic Impairment Reports

The applicant relied upon the Catastrophic Impairment report of Dr. H. Rosenblat, psychiatrist, dated April 14, 2010. The documentation reviewed by Dr. Rosenblat included, but was not limited to, the following:

(a) clinical notes and records of the applicant’s psychiatrist from 2002 onward;

(b) psychological evaluation of Dr. Rod Day dated November 26, 2007;

(d) In-home assessment of Dr. Antonio Ventrella, chiropractor, dated December 21, 2006;

(e) psychological evaluation of Dr. T. Kulbatski dated January 2, 2007 (incorrectly cited as November 9, 2006);

(f) psychological report of Dr. G.B. Fiati dated April 28, 2007;

(g) report of Dr. Agostino Bellissimo, pain specialist, dated August 17, 2007;

(h) psychological report of Dr. Joseph Garber dated March 11, 2008;

(i) reports of Dr. Sooriabalan dated July 22, 2008 and August 26, 2008;

(j) In-home assessment report of Dr. G.C. Lyn dated January 21, 2009;

(k) report of Dr. S. Esmail, orthopedic surgeon, dated November 19, 2009.

The foregoing reports were quoted, discussed and commented upon by Dr. Rosenblat, with particular emphasis upon the various psychiatric and psychological evaluations.

Dr. Rosenblat conducted an in-person assessment of the applicant which involved a lengthy interview process and some additional testing. He concluded as follows:

“The client’s diagnosis based on the DSM-IV-TR axial system is as follows:

Axis I

Major depressive disorder, partially treated

Posttraumatic stress disorder

Pain disorder associated with both psychological factors and a general medical condition (index accidents)

Axis II

No diagnosis

Axis III

Sequelae of motor vehicle accidents

Axis IV

Psychosocial stressors including financial difficulties social isolation and inability to work

Axis V

GAF 48-50”

Dr. Rosenblat found that the applicant suffered a Class 3 Moderate impairment with respect to Activities of Daily Living, a Class 3 Moderate impairment with respect to Social Functioning, a Class 4 Marked impairment with respect to Work Adaptation, and a Class 3 Moderate impairment with respect to Concentration, Persistence and Pace.

Dr. Rosenblat gave the following summary opinion:

“Overall this client’s impairment is Class 3 Moderate impairment (impairment levels compatible with some but not all useful functioning) from a psychiatric perspective. This client is catastrophically impaired from a purely psychiatric point of view based on his rating of Class 4 Marked impairment (impairment levels significantly impede most useful function) in the domain of work adaptation.”

Insurer’s Catastrophic Impairment Assessment

The Insurer relied upon two sets of Catastrophic Impairment Assessments prepared by Riverfront Medical Services with respect to the first and second motor vehicle accidents, respectively. For present purposes, the Psychiatry Assessments prepared by Dr. Brian Hines is salient. The notes, reports and evaluations which he considered and commented upon were substantially the same as those relied upon by Dr. Rosenblat.

Although Dr. Hines purported to prepare a separate assessment for each of the two accidents before me – a matter to which I will return later in these reasons – the fact is that the diagnosis for each accident was identical, the material portions of which are as follows:

“The following would represent the diagnoses according to DSM-IV:

Axis I: Major Depressive Disorder – exacerbation of chronic depression.

Axis II: Deferred.

Axis III: Deferred to physical medicine.

Axis IV: None

Axis V: GAF= 65 – retrospective estimate. [our emphasis]

This axis is for the evaluation of an individual’s overall level of functioning. This is assessed by using the Global Assessment of Functioning (GAF) scale. According to the instructions for the use of this scale, impairment due to physical and environmental limitations should not be included in the assessment. The GAF Scale is rated with respect only to psychological, social, and occupational functioning. Ratings are done for the current period (i.e., the level of functioning at time of the evaluation). [our emphasis]”

Dr. Hines offered his opinion regarding Catastrophic Impairment. Dr. Hines found that the applicant suffered a Mild impairment with respect to Activities of Daily Living, a Mild impairment with respect to Social Functioning, a Mild impairment with respect to Concentration, Persistence and Pace and a Mild Impairment with respect to Adaptation.

Applicant’s Catastrophic Impairment Rebuttal Report

Dr. Harold Becker, in his rebuttal report dated August 31, 2010, made the following observations:

‘…Dr. Hines somehow concluded almost four years after the fact that, in retrospect, under AMA Guides Chapter 14 protocols, Mr. Sanmugarajah suffered only a mild psychiatric impairment from the first accident representing 10%WPI. He noted a GAF score of “65 –retrospective estimate”. However, he added further, “Ratings are done for the current period (i.e., the level of functioning at time of the evaluation”. I am not sure how to interpret that comment.’

Dr. Becker also commented as follows:

“To identify the effects of a single accident four years after the fact on an individual is difficult enough; to parse out the effect of injuries in two subsequent accidents is even more challenging; to fail to acknowledge or attempt to determine the contribution/attribution of these separate incidents is clearly problematic; to have in front of you the opinion of Dr. Rosenblat that [Mr.] Sanmugarajah was Markedly impaired in Adaptation while at the same time having Dr. Hines’ opinion that [he] was only Mildly impaired is somewhat beyond the typical variance in opinion that one would like to see in these cases.” [typos corrected]

Catastrophic Rebuttal Report - Addendum

By letter dated May 2, 2011 Dr. Hines and his colleague Dr. Dost, a neurologist, delivered a reply to Dr. Becker’s rebuttal report. Much of this report is, I think, argumentative and possibly repetitive. That said, Dr. Hines offers the following observation:

“Based upon Mr. Sanmugarajah’s report that he had improved emotionally by 50% by the time of the second motor vehicle accident and that there was minimal change to his psychiatric medication after the second accident, I would assume that if there was any decline in his mood as a result of the second accident, it was not significant enough for his treatment providers to make any major changes to his medications.” [Our emphasis]

Analysis

My review of Dr. Hines’ Catastrophic Impairment Assessment Reports and the addendum of May 2, 2011 raises two immediate concerns. First, Dr. Hines purported to prepare two different retrospective reports, one with respect to the 2006 accident and one with respect to the 2007 accident. This is methodologically unorthodox and, in fact, impossible to do, years after the events. Dr. Hines concedes as much when he notes in his report, as noted supra, that “Ratings are done for the current period (i.e., the level of functioning at time of the evaluation.”) In effect, he purports to do the very thing he acknowledges he should not be doing. This is problematic.

Second, Dr. Hines’ addendum of May 2, 2011, co-signed by Dr. Dost, while in itself also highly unorthodox, raises as many questions as it strives to answer. As I have noted, Dr. Hines attributes to the applicant the statement that “…he had improved emotionally by 50% by the time of the second motor vehicle accident.”

Nowhere else in the evidence, including the testimony of the applicant or the reports and clinical notes and records of any other practitioner, does such an observation appear. It appears to come from nowhere, especially insofar as it is not expressly recorded or relied upon in Dr. Hines’ original reports.

The Catastrophic Impairment Report submitted by the applicant, and in particular the opinion of Dr. Rosenblat, is more persuasive. This is especially the case because the observations of Dr. Rosenblat are consistent with the behaviour and demeanour of the applicant who appeared before me. The applicant was phlegmatic, often glowered, struggled with concentration and occasionally struggled with simple reasoning. Dr. Rosenblat’s findings were a Class 3 Moderate impairment with respect to Activities of Daily Living, a Class 3 Moderate impairment with respect to Social Functioning, a Class 4 Marked impairment with respect to Work Adaptation, and a Class 3 Moderate impairment with respect to Concentration, Persistence and Pace. I find on the balance of probabilities and on the basis of the available evidence that this individual suffers those degrees of impairment and that they were caused by the second motor vehicle accident, the accident of February 2, 2007. Whatever contribution the first motor vehicle accident may have made to the applicant’s overall condition, I find that the second motor vehicle accident was the “tipping point” into his state of catastrophic impairment.

Certain assessors were of the view that there was no objective physical basis for the applicant’s complaints of physical pain. This view was challenged by the applicant’s experts on the basis that the applicant’s psychological condition could very well cause symptoms of pain or chronic pain in any event. Again, I am persuaded on the basis of the evidence available to me, including the medical reports, clinical notes and records of medical practitioners consulted by him, and the testimony of the applicant and his wife, that the applicant does in fact experience ongoing pain as a result of the accident. I am also satisfied on the basis of such evidence that the pain is alleviated by treatment modalities available to him including but not limited to physiotherapy, exercise and medical injections.

Medical Benefits

The applicant has requested certain medical benefits from the insurer and those benefits have been denied. Pursuant to section 14 of the Schedule, I must determine whether or not each benefit claimed is “reasonable and necessary” as a result of the accident.

(a) $5,784.25 – Occupational therapy and assistive devices provided by Tru-Path Occupational Therapy, denied on March 8, 2013;

(b) $760.00 – TENS unit provided by ADL Home Health Care, denied on March 28, 2013;

Insofar as I have found that the applicant’s subjective experience of pain is a consequence of his catastrophic impairment, and that his symptoms are in fact alleviated by treatment, I am satisfied that the above treatment plans, in the respective amounts of $5,784.25 and $760.00 are reasonable and necessary within the meaning of the Schedule. Because I have found that his catastrophic impairment chiefly manifests in his psychological symptoms, I am also satisfied that the plan submitted in the amount of $3,259.74 for psychological treatment is reasonable and necessary for the care and support of the applicant. I therefore find in the applicant’s favour on these issues.

Costs of Examination

The applicant requests payment for the costs of examination in the amount of $1,038.90 for a Nutritional Assessment provided by Tru-Path Occupational Therapy, denied on March 8, 2013. I am satisfied on the basis of the available evidence that this treatment plan was reasonable and necessary. I do not believe that any strong objection was raised by the insurer at the hearing with respect to this matter. In any event, it was not argued that this was eccentric or experimental treatment modality and, in the circumstances, it was reasonable to consider whether improved diet could restore or improve the applicant’s level of function. I therefore find in the applicant’s favour on this issue.

Rehabilitation Benefits

The applicant requests payment in the amount of $2,486.25 for rehabilitation consulting provided by Tru-Path Occupational Therapy, denied on March 8, 2013. Pursuant to section 15 of the Schedule I must consider whether this treatment plan was reasonable and necessary. In view of the applicant’s personal and vocational circumstances, and in particular his psychological condition, I am satisfied on the basis of the available evidence that the recommended occupational therapy had potential to benefit the applicant’s improvement or recovery. I am therefore satisfied that it is reasonable and necessary and accordingly order that it be paid.

Special Award

The applicant claimed a Special Award pursuant to subsection 282(10) of the Insurance Act on the basis that the insurer had unreasonably withheld or delayed payments to him. I decline to make such an award in this case. The matters in issue in this application were unusually complex and credibility was also an issue. Every issue in this application was justiciable and I find that the insurer acted reasonably in adjudicating the matter.

EXPENSES:

The applicant enjoyed substantial success in this proceeding. He shall accordingly have his costs of the hearing in an amount to be agreed or assessed.

September 20, 2017

James Robinson

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 246

FSCO A11-003586

FSCO A11-003590

BETWEEN:

ANANTH SANMUGARAJAH

Applicant

and

NORDIC INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

Mr. Sanmugarajah’s claim for a determination of catastrophic impairment as a result of the accident which occurred on November 9, 2006 is dismissed.
Mr. Sanmugarajah’s claim for a determination of catastrophic impairment as a result of the accident which occurred on February 2, 2007 is granted.
Mr. Sanmugarajah’s claims for attendant care benefits are dismissed in their entirety.
Mr. Sanmugarajah’s claim for housekeeping and home maintenance services in the amount of $100.00 per week from February 2, 2009 to date and ongoing is dismissed in its entirety.
Mr. Sanmugarajah is entitled to payments for medical benefits as follows:

(a) $5,784.25 – Occupational therapy and assistive devices provided by Tru-Path Occupational Therapy, denied on March 8, 2013;

(b) $760.00 – TENS unit provided by ADL Home Health Care, denied on March 28, 2013;

Mr. Sanmugarajah is entitled to payments for the cost of examinations as follows:

(a) $1,038.90 – Nutritional assessment provided by Tru-Path Occupational Therapy denied on March 8, 2013;

Mr. Sanmugarajah is entitled to a rehabilitation benefit as follows:

(a) $2,486.25 – Rehabilitation consulting provided by Tru-Path Occupational Therapy, denied on March 8, 2013.

Mr. Sanmugarajah shall be paid his expenses of this hearing in an amount to be agreed or assessed.
Mr. Sanmugarajah shall be paid interest in accordance with the Schedule for overdue payments and the parties may make submissions with respect to the calculation of interest, if they cannot otherwise agree.

September 20, 2017

James Robinson

Arbitrator

Date

Footnotes

The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.

Sanmugarajah v. Nordic Insurance Company of Canada, 2017 ONFSCDRS 246

Case Summary

REASONS FOR DECISION

ARBITRATION ORDER

Footnotes