Neutral Citation: 2017 ONFSCDRS 305

FSCO A16-001597

BETWEEN:

SURESH GAWRI

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: David Snider

Heard: April 24, 25, 26 and July 14, 2017, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Shenthuran Subramaniam for Mr. Gawri Chris Dearden for Dominion of Canada General Insurance Company

Issues:

The Applicant, Suresh Gawri, was injured in a motor vehicle accident on February 1, 2014. He applied for and received statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ A dispute arose between the parties concerning weekly income replacement benefits and one denied medical treatment plan. The parties were unable to resolve their disputes through mediation, and Mr. Gawri 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 Mr. Gawri entitled to receive a weekly income replacement benefit from November 26, 2014 to present and ongoing?
If Mr. Gawri is entitled to receive a weekly income replacement benefit, what quantum of weekly payment is he entitled to?
Is Mr. Gawri entitled to receive a medical benefit in the amount of $2,402.28 for chiropractic treatment set out in a treatment plan dated June 26, 2016 provided by Synergy Rehab?
Is Dominion liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Gawri?
Is Dominion liable to pay Mr. Gawri’s expenses in respect of the arbitration?
Is Mr. Gawri liable to pay Dominion’s expenses in respect of the arbitration?
Is Mr. Gawri entitled to interest for the overdue payment of benefits?

Result:

Mr. Gawri is not entitled to receive a weekly income replacement benefit from November 26, 2014 to present and ongoing.
Mr. Gawri is not entitled to receive a medical benefit in the amount of $2,402.28 for chiropractic treatment set out in a treatment plan dated June 26, 2016 provided by Synergy Rehab.
Dominion is not liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Gawri.
Dominion is not liable to pay Mr. Gawri’s expenses in respect of the arbitration.
Mr. Gawri is liable to pay Dominion’s expenses in respect of the arbitration.
Mr. Gawri is not entitled to interest.

EVIDENCE AND ANALYSIS:

There are, effectively, just two issues in dispute before me in this arbitration. The first is Mr. Gawri’s entitlement to income replacement benefits (IRBs) and the second is whether one specific chiropractic treatment plan is reasonable and necessary. All subsequent issues flow from my first determinations concerning the IRBs. I note that the IRB entitlement date being claimed is November 26, 2014, which is some 10 months after the date of loss.

The Applicant and his wife, Moureshka Gawri, testified personally at the hearing. He also called Dr. Marino, a psychologist; Dr. Charko, a chiropractor; Ms. Teline Sethian, a vocational evaluator; Dr. Benjamin, his family doctor; and Dr. Wong, a chronic pain specialist, as witnesses in this matter. The Insurer called Dr. Ratti, a psychologist; and Dr. Marchuk, a physiatrist. The Insurer also submitted surveillance evidence at the hearing.

According to the testimony he gave at the hearing, the collision Mr. Gawri was involved in on February 1, 2014 occurred when he “t-boned” an approaching vehicle in an intersection when it turned left in front of him. The air bags in Mr. Gawri’s vehicle deployed. He stated that he passed out at the time of the collision, but subsequently refused to go in the ambulance or to attend at the hospital. He testified that he felt pain the next morning and went to see his family doctor the same week. The family doctor prescribed a pain medication, an anti-inflammatory and a muscle relaxant. She booked him for an MRI and a CT scan and referred him for physiotherapy. He reported that he received physical therapy for about 6 months but then discontinued after Dominion stopped paying for it. There is no evidence that he received any further physical treatment of any sort since that time.

Dominion eventually removed Mr. Gawri, for psychological reasons only, from the Minor Injury Guideline (MIG) limitations on medical treatment and approved a psychological treatment plan submitted by Dr. Marino on April 8, 2015, a bit over one year post-accident. The approval of this treatment plan did not come to the attention of Dr. Marino until September 2015. Mr. Gawri attended for the first of four visits in February 2016 and discontinued the psychological treatment in April 2016. The discontinuance was caused by Dr. Marino’s own health problems and the doctor did offer to refer Mr. Gawri to another psychologist to continue his treatment but Mr. Gawri refused the referral and chose to wait for Dr. Marino. The result of this situation was that Mr. Gawri was last treated by Dr. Marino in April 2016 and has received no other psychological treatment since that time. There is no evidence that he has sought out any additional or other psychological treatment since the end of his brief treatment period with Dr. Marino.

Turning to the testimony and clinical notes and records (CNRs) of Dr. Benjamin, a general practitioner who has been Mr. Gawri’s family physician since 2007, I was forced to conclude that she testified as an advocate for Mr. Gawri. Her testimony did not match her CNRs and she could not explain the discrepancies on cross-examination. She testified that since the accident he has suffered from anxiety, irritability, poor sleep, sluggishness and chronic pain. She also testified that he needs ongoing psychological help. In stark contrast, she had to admit on cross examination that her CNRs, which she first confirmed as being accurate, contemporaneously prepared and complete as to her findings, referrals and medications prescribed, show no mention of symptoms pertaining to the accident on his first visit to her post accident. She found high blood pressure and a report of dizziness. She sent him for a CT scan and subsequently notes that it showed normal results. In September 2015, at his annual physical, her recorded notes show no pain medications, no problems with musculoskeletal issues and no psychological issues or referrals pertaining to any of the above. She gave him advice and medication concerning his blood pressure and referred him to an ear specialist. She also did not refer him to a pain clinic. With all of these admissions on cross examination, I cannot find any probative value whatsoever in her actual testimony that since the accident he has suffered from anxiety, irritability, poor sleep, sluggishness and chronic pain. This evidence is not persuasive in any way.

The next medical report and testimony that I have assessed is that of Dr. Marino, the psychologist who submitted the April 2015 psychological assessment and treatment plan that caused Dominion to remove Mr. Gawri from the MIG. Unfortunately, I have also concluded that Dr. Marino testified as an advocate for Mr. Gawri. On cross examination Dr. Marino admitted that he had only his initial interview and testing of Mr. Gawri available to him. He did not have the physical demands analysis provided by Synergy, the orthopaedic report provided by Dr. Marchi, the notes from Dr. Esmail and no CNRs from Dr. Benjamin, the family doctor. He did not know what treatment Mr. Gawri had undergone since the accident other than his own four visits and he did not have Mr. Gawri’s pre-accident medical records. He conceded that the major source of his opinion was Mr. Gawri’s self-reporting and he admitted that this could be significantly unreliable. I therefore cannot find sufficient probative value in his evidence.

The vocational evaluator, Ms. Taline Sethian, also did not fair well under cross-examination. She assessed Mr. Gawri on March 15, 2017, which is very late in this process. She described her assessment as being based upon a three hour interview with Mr. Gawri, and that she had “no reason to disbelieve” Mr. Gawri. She did examine some medical documentation and stated that his complaints were consistent with the reports she read although she admitted that she is not a medical professional. She had no knowledge of Mr. Gawri’s pre-accident employment other than the limited information he provided to her in the interview. She testified that she would need a labour market analysis to answer the question of what type of work Mr. Gawri might be able to do, but that she did not have such an analysis available to her. She considered him unemployable based upon the results of her vocational testing and cognitive assessment. The reasons she gave for his lack of employability were: low literacy skills, tinnitus, irritability and low clerical perception and numerical ability results. She did not attribute these to the accident, however. On cross-examination she admitted that she relied upon Mr. Gawri to provide accurate information. When she was presented with the results set out in other assessments and with accurate information regarding his actual income she began to admit that her results could have been very different. She had not seen any actual employment records for Mr. Gawri and she did not know that he had worked with a computer to read and record inventory and other data. She also did not know that he had been assessed as having normal strength by the Insurer’s assessors. The net result of all of this from an evidentiary perspective is that her opinions were not solid or reliable and that they were subject to change when she was given additional information which contradicted what Mr. Gawri had reported to her. Accordingly, I give very little weight to her evidence.

I turn now to the evidence given by Dr. Wong. He was called by the Applicant as an expert on chronic pain. His report, however, was not delivered to the parties until March 23, 2017 and due to this late receipt and Dr. Wong’s unavailability during the original hearing dates in April the parties agreed that the other experts who would testify during the hearing would be able to comment on Dr. Wong’s report. Additionally, the hearing was adjourned to July 14, 2017 to allow Dr. Wong to testify and for closing arguments to be submitted thereafter.

I have found problems with Dr. Wong’s testimony as well. Firstly, in his testimony Dr. Wong deferred to the evidence of Dr. Esmail concerning his diagnosis of Mr. Gawri experiencing ongoing headaches. However, on cross-examination he had to admit that Dr. Esmail had reported that the headaches had been reduced to zero prior to the date of his assessment of Mr. Gawri. Secondly, he placed great weight on Mr. Gawri’s report of insomnia and attributed significant causation of his diagnosed chronic pain syndrome on this “critical” factor. Yet he relied only upon Mr. Gawri’s self-report of insomnia to reach this conclusion. He suggested that a sleep aid should be prescribed for Mr. Gawri. It was demonstrated on cross-examination that Dr. Wong had not seen the family doctor’s (Dr. Benjamin) CNRs and had not reviewed Mr. Gawri’s OHIP summary and that he was therefore not aware that insomnia had never been raised as a medical issue by Mr. Gawri either pre or post accident. In his own testing Dr. Wong did not find any nerve damage or Waddell’s signs. He stated that he relied upon his findings of “organic damage” to muscles and that this was sufficient regardless of any false, incomplete or misleading information that the patient might self-report. On the other hand, he also admitted, earlier in the cross-examination, that if the history he is given is untrue, it could affect his diagnosis. He also admitted that it could affect his opinion and projections about the patient’s ability to work. Finally, Dr. Wong admitted that he had no knowledge of any of the treatment plans which were provided for Mr. Gawri, his MIG status and changes thereto or the psychological treatment history that Mr. Gawri experienced post accident. Most importantly, he admitted that psychological factors are of major importance to a diagnosis of chronic pain syndrome, yet he had admittedly “made a mistake” by not knowing the details of Mr. Gawri’s psychological treatment history when he made his diagnosis. He said that he had simply made assumptions based upon Dr. Ratti’s medical report.

It must be noted that Dr. Wong’s assessment and report was not produced until over three years post-accident. Any number of other intervening factors could be involved in that course of time, but this was not considered a factor in his testimony. Dr. Wong made the diagnosis based upon his own brief physical examination and Mr. Gawri’s self-reporting along with some perusal of a small portion of the previous medical reports and assessments available to him. He stated quite emphatically in direct examination that Mr. Gawri suffers from chronic pain syndrome and that this can be traced to psychological factors and insomnia which causes “brain chemicals to change”. He testified that chronic pain syndrome must be diagnosed based upon three prerequisite factors, namely the general spread of pain, associated psychological problems and insomnia. Yet he did no objective testing of neurotransmitters despite emphasizing in his testimony that it is serotonin levels which are affected by insomnia and the other factors. Without objective proof of any actual change in serotonin levels, he still concluded that these had occurred and stated that his diagnosis was “up to him”. When presented with the fact that there is no proof that Mr. Gawri experiences insomnia and that his psychological factors were vaguely evidenced at best he stuck with his opinion and, unfortunately, also appeared to become an advocate for the Applicant rather than an objective expert witness. I also found it interesting that he did not link his diagnosis of chronic pain syndrome to a lack of functionality, so there was not much in his evidence to cause me to conclude that Mr. Gawri had ever been “unable to work” as he had diagnosed.

I now turn to the contrast between Mr. Gawri’s testimony about his condition and activities and what can be derived from other medical evidence and from what could be seen in the surveillance. Firstly, based upon the medical records provided by Dr. Benjamin I note that he had surgery for varicose veins in his calf and that in May 2016 she received a note from Dr. Sadiya Kukaswadia concerning Mr. Gawri which reads as follows:

“A 47 year old gentleman with a provoked calf DVT post varicose vein surgery I could certainly send off thrombophilia workup. However, it will impact his disability and life insurance that he is applying for currently if those tests are positive. He has a meeting with an insurance broker next week with a prescheduled appointment.”

What comes from the above are two significant factors. Firstly, it suggests that he must be working if he is applying for disability benefit coverage, although this is by no means conclusive. Secondly, though, it shows that he did not report his varicose vein problems and surgical history to the medical assessors involved in this hearing. There is no way for me to determine to what extent this medical problem may have affected his ability to work post accident, and this creates another causation question.

The surveillance is very revealing. Firstly, Mr. Gawri and his wife both testified that he cannot drive since the accident and he has reported both driving and passenger phobias to his medical assessors pertaining to this accident. However, it is indisputably clear that Mr. Gawri drives a great deal since the date of loss. It is also unequivocal that he drives very aggressively. This a major blow to his credibility in this matter. Secondly, he was clearly involved in commercial activity in 2015 despite his testimony that he has not been able to work since the accident. This may all be part of a family business enterprise involving his wife and brother, but I have no doubt that Mr. Gawri is actively contributing to this enterprise and I find it highly unlikely that he is not being compensated for this work. This is secondary major damage to his credibility.

I now turn to a brief comment on Mr. Gawri’s income tax submissions and his claims to pre-accident income based upon the OCF-2 he submitted to qualify for benefits. It is blatantly clear that he reported false income numbers to the Insurer both pre and post accident in this matter. Mr. Gawri provided a tax document to me at the commencement of the hearing which eventually had to be admitted to be unsupportable and he, through his counsel, admitted that the quantum of IRB he was claiming could not be proven to be $400.00 per week but was, at best, $169.33 per week and that it must be subject to post-accident income deduction(s). This is another major blow to Mr. Gawri’s credibility.

In conclusion, I have to find that, on balance of probabilities, Mr. Gawri has not proven that he is entitled to income replacement benefits in any amount or at any time. I find, in particular, that by November 26, 2014, the date he claims first eligibility for IRBs, Mr. Gawri would have recovered from the soft tissue injuries which can actually be attributed to the accident in question. Therefore, in terms of causality attributable to the February 1, 2014 collision, by the first date for which he claims eligibility (about ten months after the date of loss) he does not meet even the test for initial entitlement to IRBs, namely that he “was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment”. It goes without saying, therefore, that he certainly does not meet the post 104 week threshold.

I now turn to the single medical treatment plan which remains in issue. Dr. Charko, the chiropractor who signed the treatment plan provided by Synergy Rehab dated June 26, 2014, appeared as a witness at the hearing. This treatment plan was for chiropractic treatment in the amount of $2,402.28. Dr. Charko testified that he provided chiropractic care to Mr. Gawri between March and October 2014 and that he had not seen Mr. Gawri since that time. On cross examination he admitted that the treatment he provided to Mr. Gawri was approved and paid for by Dominion and that the various modalities of care being administered to Mr. Gawri, including his chiropractic treatments, had been previously approved by Dominion for the full period between March and October 2014. When pressed on the issue of how an additional treatment plan for the same type of treatment, during the same period of time, could be reasonable and necessary he could not explain the necessity for it. He, in fact, did not take direct responsibility for the OCF-18 and stated that “the clinic owner decided it”. Accordingly I find that this specific treatment plan was not reasonable or necessary and that it was not incurred. Therefore, Mr. Gawri is not entitled to payment for this plan.

EXPENSES:

I find that in light of his complete lack of success in this matter Mr. Gawri is liable to pay Dominion’s expenses in respect of the arbitration. If the parties cannot reach an agreement as to the appropriate level of expenses to be paid, an expense hearing can be arranged with the Commission through the regular procedures set out in the DRPC.

November 17, 2017

David Snider Arbitrator

Date

Financial Services Commission of Ontario