Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2018 ONFSCDRS 55
FSCO A15-000272
& A16-003255
BETWEEN:
MYLVAGANAM PONNIAH
Applicant
and
NORTHBRIDGE GENERAL INSURANCE CORPORATION
Insurer
REASONS FOR DECISION
Before:
Arbitrator Jeff Musson
Heard:
In person at the offices of ADR Chambers, October 23-26, 30-31, November 1-3, December 12-14, 2017
Appearances:
Mr. Eric Heath for Mr. Mylvaganam Ponniah
Ms. Jason Goodman for Northbridge General Insurance Corporation
Issues:
The Applicant, Mr. Mylvaganam Ponniah, was injured in a motor vehicle accident on August 29, 2012 (the “MVA”). He applied for statutory accident benefits from Northbridge General Insurance Corporation (“Northbridge”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation and Mr. Ponniah, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues at the Arbitration Hearing are as follows:
Are Mr. Ponniah’s injuries catastrophic as defined under the Schedule as a result of the MVA on August 29, 2012?
Is Mr. Ponniah entitled to attendant care benefits from October 1, 2013 until July 10, 2015 in the amount of $1,193.11; and from July 11, 2015 and ongoing in the amount of $3,664.75 per month?
Is Mr. Ponniah entitled to medical benefits in the amount of $1,979.36 for an assessment and treatment plan from Dr. Andrew Shaul dated October 29, 2013?
Is Mr. Ponniah entitled to medical benefits in the amount of $1,283.29 for an assessment and treatment plan from Daphne Lin dated February 14, 2014?
Is Mr. Ponniah entitled to medical benefits in the amount of $1,850.00 for an assessment and treatment plan from Shelia Lin dated August 26, 2015?
Is Mr. Ponniah entitled to medical benefits in the amount of $1,763.60 for an assessment and treatment plan from Shelia Lin dated October 7, 2015?
Is Mr. Ponniah entitled to interest for the overdue payment of benefits?
Is either party liable to pay the other party’s expenses in respect of the arbitration?
Result:
Mr. Ponniah’s injuries are not catastrophic as defined under the Schedule and this claim is denied.
Mr. Ponniah is not entitled to attendant care benefits from October 1, 2013 until July 10, 2015 in the amount of $1,193.11; and from July 11, 2015 and ongoing in the amount of $3,664.75 per month.
Mr. Ponniah is not entitled to medical benefits in the amount of $1,979.36 for an assessment and treatment plan from Dr. Andrew Shaul dated October 29, 2013.
Mr. Ponniah is not entitled to medical benefits in the amount of $1,283.29 for an assessment and treatment plan from Daphne Lin dated February 14, 2014.
Mr. Ponniah is not entitled to medical benefits in the amount of $1,850.00 for an assessment and treatment plan from Shelia Lin dated August 26, 2015.
Mr. Ponniah is not entitled to medical benefits in the amount of $1,763.60 for an assessment and treatment plan from Shelia Lin dated October 7, 2015.
Mr. Ponniah is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
It should be noted that the Applicant originally filed both pre- and post-104 income replacement benefits (“IRBs”) as issues in dispute. Evidence was submitted and witnesses testified to this issue. However, the issue of pre- and post-104 IRBs was withdrawn by the Applicant as part of his closing submission.
MOTION #1
At the beginning of the first day of the Hearing, the Applicant asked for an order to include the most recent Form 1 as the quantum for attendant care claimed in the amount of $6,000.00 dated June 13, 2017. The Applicant requested this motion on the basis of judicial economy.
The Insurer objected to this motion on the grounds that requesting attendant care in the amount of $6,000.00 per month was premature as the Applicant would only potentially qualify for this amount if his injuries were considered catastrophic in nature. Further the Insurer took the position that this Form 1 had not been considered nor had it been denied because the issue of catastrophic impairment had not been argued, therefore, there was no jurisdiction for this tribunal to add this issue to the Arbitration Hearing. In addition, this request had come forward post April 1, 2016 and as a result, it is the Licensing Administrative Tribunal (LAT) which has jurisdiction over such matters.
Ruling on the Applicant’s Motion
I ruled in favour of the Insurer and denied the Applicant’s request to add $6,000.00 per month as the quantum for attendant care benefits from June 13, 2017. I was unable to add the quantum from a Form 1 to this Hearing which has never been denied. This Hearing was being conducted in order to rule on the Applicant’s claim for catastrophic impairment. Therefore, the Applicant must first be successful with his catastrophic claim and then he can apply for $6,000 in attendant care benefits per month. Further, based on the Schedule and related case law, the Applicant has other avenues, mainly the LAT, in which to argue quantum of attendant care benefits should he be successful at this Hearing. Therefore, the Applicant’s motion was denied.
MOTION #2
The Insurer asked for an order to have the Applicant produce his entire Ontario Disability Support Program (“ODSP”) file. On October 20, the Friday prior to the commencement of the Hearing, the Insurer received approximately 28 pages from the Applicant’s ODSP file. The Insurer had determined after reviewing the file that there were some pages missing, therefore, it put forward a motion requesting that the Applicant be ordered to produce his entire ODSP file. The Applicant opposed this motion on the grounds that the Insurer had all of the relevant information from the Applicant’s ODSP file. In its opinion, by producing the entire file, it would just be a wasted exercise which would produce little to no value.
Ruling on the Insurer’s Motion
After hearing both parties’ submissions, I ordered the Applicant to produce his entire ODSP file to the Insurer prior to the start of Day 2 of the Hearing.
EVIDENCE AND ANALYSIS:
BACKGROUND
The Applicant was 58 years old at the time of the accident. He is married with two daughters and a son. At the time of the accident, the Applicant was receiving ODSP benefits. 2
The Applicant’s MVA occurred on August 29, 2012, in Detroit, Michigan at the customs area of the Ambassador Bridge. The Applicant was pinned against a wall by a transport truck that reversed and did not see him. He was sent by ambulance to Detroit Receiving Hospital. As a result of being pinned against the wall, the Applicant suffered multiple broken ribs and a broken ankle.
Once at Detroit Receiving Hospital, the Applicant decided to forgo treatment in the U.S. and instead sought treatment in Canada. The Applicant’s family was notified of the accident and they drove from Toronto to Detroit. Since the Applicant’s children’s passports had expired, they stayed in Windsor, Ontario while the Applicant’s wife and his nephew went to Detroit Receiving Hospital and picked up him up. Once they cleared Canada customs at the Windsor/Detroit border, they drove the van with the Applicant lying down in the back straight to The Scarborough Hospital in Toronto where he was admitted.
The Applicant was discharged from The Scarborough Hospital on September 5, 2012 and was scheduled for follow up surgery at that time. He returned for follow up visits on September 7 and September 13, 2012 to check the progress of his recovery.
In terms of prior accidents, it was noted in the records that the Applicant was involved in a prior accident in 2011.3
The Applicant’s Wife – Ms. Vignese Ponniah
The Applicant’s wife was the first witness to testify at the Hearing. I found her testimony to contradictive, unreliable and ultimately based on fiction instead of fact. She did agree that testifying in an honest manner was important, however, apparently she did not follow through on this belief. For example, she said that her husband was in good health prior to the accident when the evidence showed otherwise. Ms. Ponniah said that the household financials were only a problem post-accident since her husband could not work, however, the evidence shows that the family had severe financial problems pre-accident. Her evidence was also contradicted when she said that she tries to keep the Applicant from driving. The video surveillance showed her in the car with the Applicant driving. All of this sowed the seeds of doubt in terms of the credibility of her testimony.
Ms. Ponniah confirmed that she was married to the Applicant and that he was a long haul trucker. She testified that it was her and her nephew who drove to Detroit to get the Applicant once he was discharged from the hospital. She testified that the Applicant was in good health prior to the accident and it was only after the accident that the Applicant’s health started to deteriorate rapidly. Ms. Ponniah stated that the Applicant suffered both physical and psychological injuries as a result of the accident and in her opinion, it has left him a shell of his former self. She testified that also as a result of the accident, the Applicant is now incontinent and requires the use of diapers. He suffers from pain throughout his body on a daily basis. Even though he takes medication, it does not help. In terms of assistive devices, she confirmed that the Applicant uses a cane sporadically to move around.
Ms. Ponniah stated that the Applicant’s injuries from a psychological perspective are just as bad as his physical injuries, if not worse. He doesn’t remember birthdays, anniversaries or any other noteworthy days throughout the year. She testified that the Applicant gets angry very easily. As an example, one time when she said “Happy Anniversary” to him on their wedding anniversary, he got violent and pushed her away.
In her opinion, the Applicant is depressed. She testified that he doesn’t take care of himself and has attempted to commit suicide on at least three separate occasions. Since the accident, she and the Applicant no longer have an active social life. She testified that the Applicant does find psychological relief from his daily routine when he attends temple. She said on those days, he is in a good mood. However, she testified that those days are far and few between. The Applicant’s behaviour is erratic when he is out in public and it is embarrassing. For example, she said that the Applicant stares at women in public places and makes inappropriate comments. Ms. Ponniah said this is not the person she once knew and his erratic behaviour is a direct result of the MVA. She testified that the Applicant has been seen by multiple doctors since the accident and in her opinion, the treatment he was receiving for his psychological issues has been somewhat helpful, but he is not well.
When asked about the Applicant’s health prior to the accident, Ms. Ponniah testified that the Applicant had previous medical issues, but that his medical issues were all resolved by the time of the MVA. She also testified that the Applicant had some issues with kidney stones, but again, they had all resolved by the time of the MVA. She stated that the Applicant was able to play sports, was active and able to do heavy work prior to the accident.
She testified that around the house, the Applicant no longer does gardening or anything else to contribute to the family household. Instead, he just sits around, watches TV and is completely disengaged with the rest of the family. She said that the only enjoyment that he has is when he is taking care of his dog, Chico.
Ms. Ponniah testified that the Applicant has not had any paid employment since the accident because he is a danger to himself and others based on his current medical condition. She said that the Applicant has only driven once since the accident and his trucking license has been revoked. She said that she has to lockup the keys to the car, but the Applicant tries to break into the cabinet to attempt to get them.
Ms. Ponniah confirmed that prior to working as a long haul trucker, the Applicant worked at GM but was laid off when things got slow. She testified that when the Applicant was laid off from GM, he was not depressed, however, the Applicant himself told Dr. Hope, a psychologist, that he had psychological difficulties after being laid off from GM.4 This was a perfect example of inconsistencies related to Ms. Ponniah’s testimony. There was a blurry line between truth and fiction which made it hard to accept most of her testimony at the Hearing.
After being laid off from GM, she confirmed that the Applicant started a trucking company in 2010, however, he put this company under his daughter’s name. Ms. Ponniah could not give an explanation as to why the Applicant did this, even though their daughter had no experience nor desire to drive transport trucks. Further, she has never been registered as a licensed truck driver.
Ms. Ponniah was asked about the household finances as they related to the Applicant. She testified that there were financial issues post-accident. She stated that she has had to sell some of her jewelry in order to make ends meet. As part of her testimony, Ms. Ponniah was asked about the Applicant’s ODSP benefits, specifically in regards to the family having major financial issues prior to the accident which were documented in the Applicant’s ODSP file.5 In one entry in the ODSP file, she confirmed that the family was without heat for three weeks and their house was foreclosed on in 2010. She confirmed the Applicant was in receipt of ODSP benefits and that the Applicant was working when he claimed that he could not work. She said that the Applicant received ODSP as a result of kidney stones. She also said that OSDP knew that he was working and still decided to pay him. Ultimately, Ms. Ponniah confirmed that she requested ODSP to have the check written in her name because she said that the Applicant suffered from alcoholism and that he leaves periodically to live either with his mother or his girlfriend.
From Ms. Ponniah’s testimony, it was clear that regardless of her credibility, the Applicant did have significant medical issues prior to the accident. At various points, her testimony was inconsistent and contradictory when compared to medical evidence submitted at the Hearing. Further, Ms. Ponniah stated that all of the Applicant’s financial and medical issues were a direct result of the accident. The evidence shows that this was not the case.
The Applicant’s Daughter – Ms. Vithusha Ponniah – Attendant Care Benefits Provider
Ms. Vithusha Ponniah is one of the Applicant’s daughters. She was the Applicant’s main attendant care provider. She testified that she splits her time between the family home in Markham as well as Ottawa where she attends the University of Ottawa. She stated that this has been a stressful time for her family since her father’s accident. She confirms that her mom helps the Applicant shower but that she does the majority of the other attendant care activities.
In terms of her schooling, she testified that this accident has taken its toll on her schooling. She delayed university after her father was involved in the accident but ultimately started university in 2013 and ended up attending the University of Ottawa. She registered for the Ontario Student Assistance Program (“OSAP”) and also found a place to live in Ottawa while in school. She enrolled in the political science and philosophy program. She testified that she however would register as a full-time student but then would have to reduce to a part-time program.6 She also testified that her grades in school were poor and ultimately she was evicted from her apartment in Ottawa. Ms. Vithusha Ponniah stated that while she was in and out of school, she had periodic retail jobs working at places such as Footlocker and Dollarama, but she quit due to a lack of hours assigned to her by her supervisors.
She testified that this accident changed the Applicant for the worse. Prior to the accident, she said that the Applicant had no problems working. She also said that he did not have any pre-existing medical conditions. Ms. Vithusha Ponniah was asked if she was aware that the Applicant was receiving ODSP benefits at the time of the accident. She testified that she had no idea.
Ms. Vithusha Ponniah described the Applicant’s odd behaviour which has only been present since the accident. She stated that now, someone must constantly watch over the Applicant because of his irrational behaviour. She confirmed that the Applicant attempted suicide on three separate occasions. The Applicant attempted to dig a hole and bury himself. An ambulance was called and she rode with the Applicant to the hospital. She also testified that he also attempted to overdose on Tylenol 3 when he dug the hole.
She concluded her testimony by saying her dad used to be loving and was very involved in her life prior to the accident. Since the accident, she says people mistake her dad as her grandfather and he is a completely changed person.
Dr. Pushpa Kanagaratnam – Clinical Psychologist
Dr. Kanagaratnam is a witness called by the Applicant to testify in regards to the Applicant’s psychological health. She is the Applicant’s treating psychologist and as a treating psychologist, she testified that it is only her patient’s symptoms and difficulties that are of concern to her. When asked if she was an advocate for this Applicant, she responded no, that she treats anyone who is able to pay.
Dr. Kanagaratnam testified that she provided mainly supportive therapy to the Applicant. She stated that the Applicant’s attendance for his sessions could best be described as sporadic. Dr. Kanagaratnam testified that she was not given any pre-accident clinical notes and records nor any other medical reports to review when she prepared her reports. She also testified that she was not aware of the Applicant’s ODSP file or substantial pre-accident medical history. As part of her first session when she sees a patient, she testified that she takes a personal inventory of that patient.
Dr. Kanagaratnam testified that she wrote a report dated February 25, 2015 which commented on the Applicant’s psychological condition.7 Her conclusions and diagnoses in her report were made only for the purposes of treatment, and not for the purposes of determining entitlement to benefits or causation. In her assessment, she stated that the Applicant had been attending at the Kennedy Care Centre for rehabilitation treatment and he was on medication for sleep, pain and psychological issues. She reported that the Applicant told her he has constant numbness in the left side of his head, intermittent vision problems, and constant pain in the left side of his body and ribs along with breathing problems. She testified that with his sleep difficulties he was experiencing nightmares and flashbacks of the accident. When asked about pain magnification, she said that the Applicant’s test scores for magnification and helplessness were above the cut-off range. She testified that these tests scores suggested that the Applicant engaged in thoughts that serve to “perpetuate the pain experience”. When asked about the Applicant’s results on the Beck Depression Inventory and Beck Anxiety Inventory, she said that the Applicant’s scores were in the severe range.
She concluded that the Applicant suffered from major depression, severe psychotic features, post-traumatic stress disorder including specific in-vehicle phobia, pain disorder associated with both psychological/medical factors among other diagnoses. As a result of these findings, she testified that she began a course of psychological treatment sessions from March 18, 2015 through June 30, 2016. She wrote a treatment progress report dated March 27, 2016.8 Dr. Kanagaratnam stated that the Applicant continues to suffer from major challenges in his daily functioning due to chronic pain, physical disabilities, psychological symptomology and personality changes.
Dr. Richard Guscott - Applicant’s Expert
Dr. Richard Guscott is an expert psychiatrist. He testified that he currently operates a mood disorder clinic in Hamilton. He has practiced as a psychiatrist for over 30 years and taught at McMaster University. As part of his testimony, he stated that he works with the RCMP as it relates to mental issues and specifically the determination if police officers should be allowed to use their weapons after an incident. Dr. Guscott conducted the catastrophic assessment (OCF-19) on behalf of the Applicant.9 He completed his initial assessment of the Applicant on July 18, 2016 and wrote the subsequent report on August 30, 2016. He also completed a second OCF-19 dated September 7, 2016. He testified that he diagnosed the Applicant with major depression severe; chronic pain syndrome with psychological factors and a general medical condition; acquired brain injury with personality change, apathetic sub-type.10
Dr. Guscott testified that at the assessment, the Applicant had reported pain in his back, shoulders, lower back, head, shoulders, rib pain and that he had trouble keeping balance. The Applicant also reported that his sleep was impaired and that he had flashbacks of the accident on a daily basis, all of which left him housebound. Dr. Guscott testified that the Applicant told him he wanted to die and that he felt diminished as a partner and as a parent.
He also testified that he asked the Applicant about his pre-accident medical history. The Applicant said that he was healthy prior to the accident. The Applicant reported to Dr. Guscott that all of his medical issues were directly a result of the MVA. In his report of August 30, 2016, Dr. Guscott testified that he used the DSM-IV-TR criteria in completing his analysis. He diagnosed the Applicant with acquired brain injury with personality change, apathetic sub-type, secondary to his brain injury with ongoing emotional, cognitive, behavioural sequelae; major depressive disorder, severe; and chronic pain disorder due to both psychological factors and a general medical condition.11 Dr. Guscott testified that the Applicant’s physical and psychological symptoms are completely interrelated. He also stated that the Applicant’s condition is similar to others in the same circumstance. Dr. Guscott testified that there are studies which show that up to 80% of people with chronic pain will develop clinical depression. As a result, he has concluded that in the Applicant’s case both medical and psychological factors play a prominent role in his clinical presentation.
As part of cross-examination, Dr. Guscott was presented with the Applicant’s pre-accident medical history as well as the Applicant’s ODSP file showing that he had been found to be disabled for the purposes of collecting ODSP, and this was prior to the accident. Dr. Guscott testified that this was the first time that he had been told this information. He stated that this information would have had been nice to have prior to conducting the assessment of the Applicant because it would have given him a better overview of the Applicant’s medical situation. Having said this, after being presented with the Applicant’s pre-accident and ODSP medical history, he concluded that it would not have changed his opinion. He stands by his diagnosis that the Applicant is catastrophically impaired as a result of the MVA.
Ms. Amber Reid & Ms. Andrea Bayer
Both of these witnesses were called by the Applicant to testify at the Hearing. They are the York Region paramedics who were dispatched to the Applicant’s house after his attempted suicide in his backyard. The Applicant tried digging his own grave and overdosing on pills. Both Ms. Reid and Ms. Bayer confirmed that they found an empty bottle of Tylenol 3. They conducted onsite heart & sugar tests. The findings were within the normal range and they proceeded to transport the Applicant to Markham/Stouffville Hospital.12
Ms. Bayer testified that the Applicant’s daughter told her that the Applicant was being seen by a psychologist and she also told her that the Applicant was taking some drugs as a result. Ms. Bayer testified that she told the Applicant’s daughter that the family may want to consider finding another psychologist.
Other than confirming that the Applicant dug a 1-2 foot deep hole in his backyard and covered himself in 1-2 cups of dirt by the time they were on scene, I found there was no valuable information that could be gleaned from the paramedics’ testimony.
Dr. Rajaratnam Kirubaharan
Dr. Kirubaharan was the Applicant’s family doctor for the past 15 years. He testified that he filled out the Applicant’s OCF-3 form on January 15, 2014.13 He also confirmed that he knows about the accident for which this Hearing is being conducted. Dr. Kirubaharan testified that prior to the MVA, the Applicant was working and his family life as far as he knew was fine. He stated that he had no concerns about the Applicant being a truck driver, specifically on long haul routes.
Dr. Kirubaharan testified that the Applicant did not suffer many medical issues prior to the accident. He said that the Applicant had some blood pressure issues and asthma. At one time, he did have some sporadic back pain, but he did not have many problems pre-accident.
Dr. Kirubaharan was asked about a prior motor vehicle accident that the Applicant was involved in, back in 2011. He did not remember anything about this accident. Dr. Kirubaharan was also asked about filling out an ODSP application form to support the Applicant’s ODSP request in 2011. He stated that he knew nothing about it. However, in what can only be classified as an uncomfortable moment for the doctor, he was presented with the Applicant’s ODSP application. Dr. Kirubaharan confirmed that it was his signature on the ODSP form. Under cross-examination, Dr. Kirubaharan was asked about the validity of the information on the form. He testified that the “information included in this form must be accurate, as he would not have endorsed it if it was untrue.” In a further moment of embarrassment, Dr. Kirubaharan was shown the Applicant’s clinical notes and records, written by him and containing information related to the Applicant. These clinical notes and records referenced the Applicant’s prior motor vehicle accident. In addition, they showed various drug prescriptions that he had prescribed for various ailments. Further, in the Applicant’s clinical notes and records, Dr. Kirubaharan wrote that he diagnosed the Applicant with chronic pain prior to the accident.
Dr. Kirubaharan testified that he saw the Applicant one month after the August 29, 2012 accident. He also knew that the Applicant was seeing a psychologist post-accident because he said the Applicant suffered from PTSD following the accident. He also gave a prescription for Cymbalta and Rispertal for the Applicant. He stated that the Applicant’s personality changed and demeanor changed and in his words, he is not a normal person. Dr. Kirubaharan testified that this is why he prescribed the Applicant drugs to calm him down so that he can function.
The doctor also referred the Applicant to a pain clinic because of chronic pain, neck, back and ankle pain. He confirmed that the Applicant complains of pain since the accident and now uses a cane to walk. He also said that the Applicant always attends his appointments with a family member and he doesn’t say much.
The doctor testified that he thought the Applicant was okay to be driving a truck at the time of the accident, however upon the presentation of evidence, the doctor forgot that he wrote a letter on the Applicant’s behalf to ODSP a year before the accident saying that the Applicant was in such bad shape that he could not work as a truck driver. This put a further strain on the doctor’s credibility as a witness.
In my opinion, the testimony of the Applicant’s family doctor lacks the ring of truth that one would expect from a family doctor who has known his patient for 15 years. His testimony didn’t align with the notes that he took of the Applicant. Either the doctor is a poor historian or he is strictly testifying as an advocate of the Applicant instead of presenting facts. I suspect after hearing the doctor’s testimony, it might be a combination of both.
Ms. Abhira Ponniah – Applicant’s Daughter
Ms. A. Ponniah is the Applicant’s daughter and was called to testify as to the effect that the MVA has had on the Applicant. Ms. A. Ponniah was 21 years old at the time of the accident. She attended the University of Waterloo for one year, but then took time off for personal reasons and did not return. She also received OSAP for school and she testified that any excess money was given to her parents.
With her testimony, she confirmed the details of the accident, mainly that her father was injured when a transport truck backed up into him at the Ambassador Bridge in Detroit, Michigan. She also confirmed that the Applicant was admitted to The Scarborough Hospital when he returned to Toronto after the accident.
Once the Applicant was discharged from The Scarborough Hospital, she testified that he lived on the first floor of their family home for approximately six months to a year. She also stated that life at home is turbulent starting with the Applicant’s irregular sleeping patterns. He also has outbursts and is verbally confrontational. As an example, one night she was watching TV. The Applicant started to yell and complain. He ended up calling the police on his daughters because the TV was too loud and was bothering him. As a result of his verbal outburst, she testified that she never has people over to the house. She tries to limit the amount of time that she is out in public with him because of this behaviour.
Ms. A. Ponniah confirmed that the Applicant is having trouble dealing with his physical and psychological issues. When describing the Applicant’s hygiene, she stated that it was poor. His hair is never groomed, his teeth are never brushed. The Applicant constantly pees the bed which smells throughout the house. He also fights the family on the need for him to wear diapers. In terms of assisting the Applicant, she does shopping for her dad, tries to assist with his hygiene, and does some cooking and household chores. She described her dad as getting out of bed at noontime-1 pm. She brings him to temple where he enjoys spending time.
Ms. A. Ponniah testified that she was the person who wrote the Applicant’s handwritten letter requesting ODSP benefits.14 She said that she was only writing down the information that her father told her to write down. Ms. A. Ponniah also said that she was away at school in Waterloo and wasn’t able to observe first-hand the issues that the Applicant told her to write down as part of his ODSP application. She stated that it was her understanding that the reason why her father was applying for ODSP was due to his suffering from kidney stones.
Ms. A. Ponniah testified at the Hearing that the Applicant was not involved in a 2011 motor vehicle accident (the “2011 MVA”) which contradicted the evidence showing that the Applicant was involved in the 2011 MVA. As proof that he was involved in this accident, there was an emergency room record entered as evidence showing that the Applicant reported left chest pain because he was involved in the 2011 MVA. The Applicant also testified that he was involved in the 2011 accident.15
Ms. A. Ponniah concluded her testimony by saying she thinks the Applicant is bi-polar or at the very least, he acts out similar to someone who is suffering from bi-polar issues. As a result, since the MVA, she handles the household finances. She agrees that since the accident, her dad should not be driving, but he does and she can’t control him. Originally the Applicant was putting Ms. A. Ponniah forward as one of his attendant care providers, however, at the Hearing the Applicant withdrew the listing of Ms. A. Ponniah as one of his attendant care providers.
As with the other witnesses testifying on behalf of the Applicant, credibility was again an issue with Ms. A. Ponniah. It was hard to take her testimony at face value because it was contradicted by much more reliable evidence submitted by both the Insurer as well as the Applicant.
The Applicant - Mylvaganam Ponniah
The Applicant filed his OCF-1 on September 10, 2012.16 He testified that it was his signature on the page but said he didn’t understand what the document was. He relies on his daughters, son and wife to translate his insurance documents.
The Applicant testified that his last memory prior to getting hit was of himself talking to a US Customs agent. He testified that the next thing that he remembers is waking up in the hospital in what he thought was the morgue. The Applicant explained the details surrounding the accident. He testified that following being crushed by the reversing truck, he was on the ground covered by a white cloth. His stomach was so swollen that it was touching his beard.
When the Applicant testified as to the details of the accident, he said that he lost consciousness as a result of the MVA; however, the evidence showed that he told the emergency room physician at Detroit Receiving Hospital that he never lost consciousness and the ambulance report showed he had a score of 15 on the Glasgow Coma Scale on his intake chart.
The Applicant testified that he had a choice to be treated in Detroit, but he refused even though he had multiple broken ribs and a broken ankle. He stated that he was given the option of being airlifted to Toronto, driven by ambulance or to be discharged on his own. He said that he chose to be discharged on his own. He testified that his wife and two family members picked him up in Detroit in a van. The Applicant recalled that they drove him back to Toronto. He laid down in the back of the van the entire trip from Detroit to Toronto. He said that they immediately drove to The Scarborough Hospital from the highway where he was admitted and remained for approximately a week post-accident. He testified that after he was discharged, he went home where a hospital bed was set up at his residence. Upon being discharged, he said he was given a prescription for drugs to deal with the pain. The Applicant stated that he eventually returned to the hospital to undergo surgery for his foot. There were pictures presented to the Applicant at the Hearing which were taken of various areas of his body that were injured as a result of the accident. He confirmed that these were pictures of his various injured areas.17
Prior to the accident, the Applicant testified that he was healthy. He said that he couldn’t do his trucking job if he wasn’t healthy. He stated that he did not have any medical issues and didn’t suffer from diabetes. The Applicant also testified that prior to the accident, he had not required any medication on a continual basis. When asked why his family doctor’s clinical notes and records show that prior to the accident, he was prescribed Crestor, Ventolin, Advair, Symbiocort, Celebrex, Jenumet, Coversyl and Tylenol #3, he didn’t know why that was written. The Applicant testified that he never told his wife or daughters about his pre-accident medical history. When he was presented with evidence showing that his pre-accident medical history was part of his ODSP application and his complete pre-accident medication history was included as well, he said that his family filled out the Application, so they must have made it up.
In terms of medical issues post-accident, the Applicant testified that the whole left side of his body is numb. He stated that he has bumps in his back post-accident, however, he testified that his pre-accident clinical notes and records were incorrect when they noted that he previously had bumps on his lower back.18
The Applicant also testified that post-accident, there were many blood clots that he suffered from throughout his body. He also stated that there was a leak in his stomach and there was a 50/50 chance of being bed ridden, so he didn’t have the leak fixed. He further said that his liver was damaged and that his doctors told him, if he was younger, they would have recommended surgery.
As part of the cross-examination, the Applicant was given records that showed he was involved in a motor vehicle accident in January of 2011. The records show that he attended The Scarborough Hospital emergency ward after that accident. He reported the 2011 MVA to his family doctor, Dr. Kirubaharan, and he complained of tenderness with his scalp. His doctor prescribed him Tylenol 3. All of this documentation was provided in his ODSP file as support to his ODSP application; however, the Applicant testified that he didn’t know if he was involved in a motor vehicle accident in 2011. When asked other questions about the 2011 MVA, he stated that he was involved in that accident.
The Applicant confirmed that he applied for ODSP, but he testified that the reason why he applied was as a result of financial difficulties and not due to any kind of disability. Further, he then denied applying for ODSP and then stated that his wife or daughter may have applied on his behalf without him knowing. The Applicant was shown his ODSP form and despite his testimony related to this form he confirmed that it was his signature.19 When he was read the ODSP statement in his application that his daughter, Abhira, wrote on his behalf, he testified that the information contained in the application was accurate, but that he had recovered from all of those aliments by the time he was involved in the MVA.
Since the MVA, he stated that he has been receiving therapy treatment every two weeks including massage and acupuncture along with having sessions with the TENS machine. He testified that this makes him feel better for two to three days afterwards. He stated that his body gets numb when he’s in bed. The Applicant also confirmed that he is receiving psychological treatment. He stated that he used to go once a month for psychological treatment and now he goes sporadically. The Applicant said that he doesn’t know if he is coming or going. He testified that he sees people smile and he thinks that they are laughing at him.
When asked to describe his life at home, the Applicant said he gets locked in a room in his house but doesn’t know by who. As a result, he has broken all the doors in the house. The Applicant was asked to describe life around his house post-MVA. He says that he has a dog named Chico which he enjoys taking care of. He will take Chico for walks throughout the day. He also does gardening in the backyard and just likes sitting around his house both inside and, if weather permitting, outside. He used to do more outdoor chores including shoveling snow, but can’t do them now because of his back pain.
The Applicant testified that he has a hard time getting up in the morning. If his family doesn’t come for him at 7 am to give him a massage, he will lie in bed until 11 am and if no one comes at that time, he will urinate in the bed. The Applicant’s counsel asked him to describe his urination episodes. The Applicant stated that he wears diapers because he can’t tell when he has to relieve himself. It will just happen spontaneously no matter where he is. When he has to urinate, he will do it wherever he is and he is the only one who will know that he is urinating. When asked for an example by his own counsel when this occurs, the Applicant testified that he urinated himself in the Applicant’s lawyer’s office during a previous appointment when they were preparing for this Arbitration.
Due to all of these issues, he testified that his daughter, Ms. Vitusha Ponniah, is his main caregiver; however, he says that his son dresses him and washes him because he can’t bathe alone. As a result of the accident, he testified that he uses a cane everyday for getting around since the MVA. The Applicant says that he doesn’t go out much, but when he does, it’s only to go to temple. When asked how he gets to and from temple, the Applicant testified that his family hides the keys, but he’s able to find them, so he will drive. He says he doesn’t eat at home and eats at temple instead.
The Applicant was asked to explain why there were so many inconsistencies, lies and misleading facts with the information that he told the assessors. For example, he lied to his ortho assessors about not taking prescription drugs, not being involved in a prior motor vehicle accident, and many other fabrications which were all proven to be true with other corroborating evidence at the Hearing. The Applicant was asked about his use of assistive devices. He testified that he always uses a cane. When shown surveillance of himself not using a cane, the Applicant said it must have been a good day and he didn’t need it.
The Applicant concluded his testimony by saying he was healthy prior to the MVA and as a result of the MVA he is now completely disabled. He also stated that regardless of the evidence presented, the MVA is the cause of all of his physical and psychological health problems.
After hearing the Applicant’s testimony, I completely disagree that the Applicant was healthy prior to the accident. His testimony lacked a complete ring of truth. Between not knowing dates and giving multiple explanations, it was nearly impossible to have any reliable evidence submitted as part of his testimony. As a result, I have given very little weight to the testimony he provided at this Hearing.
Dr. Garry Moddel
Dr. Moddel is a neurologist who testified on behalf of the Insurer. He was part of the Insurer’s catastrophic assessment team. He testified that he completes anywhere between six to eight assessments per year. I found Dr. Moddel to be a most impressive expert in his field. He completed his assessment of the Applicant on July 20, 2014.20
He relied on the Applicant to provide truthful information. The Applicant never mentioned his prior accident. Dr. Moddel found the Applicant to leave important details out of his self-reporting that would have been helpful for the doctor to know. For example the Applicant didn’t inform the doctor that he was taking prescription drugs or what kind of drugs he was taking. The Applicant reported to Dr. Moddel that he had no memory of the MVA.21
Dr. Moddel testified that when he reviewed the Applicant’s Detroit Receiving Hospital records, the records show that the Applicant did not lose consciousness as a result of the MVA nor did he suffer a head injury. The Applicant did suffer other injuries such as rib fractures and a left ankle fracture, but not a head injury.
Dr. Leslie Kiraly
Dr. Kiraly assessed the Applicant on behalf of the Insurer on January 25, 2015.22 The purpose of this assessment was to determine the Applicant’s entitlement to IRBs. Subsequent to Dr. Kiraly’s testimony, the Applicant withdrew his claim for IRBs. Therefore, it is moot to further comment on his testimony.
Dr. Mark Watson – Insurer
Dr. Watson is a clinical neuropsychologist who assessed the Applicant on behalf of the Insurer on February 2, 2016 as part of the CAT assessment team. His report was completed on February 16, 2016.23 Dr. Watson testified at this Hearing that he had met with the Applicant for 6.75 hours to conduct his assessment.
Dr. Watson testified as to the tests administered to the Applicant as part of his assessment. He stated that one of the tests he administered was the SIMS (Structured Inventory of Malingering Symptomology) test. Dr. Watson testified that the Applicant had one of the highest scores ever attained which showed the Applicant was completely malingering with his testing. He scored in a range that was poorer than a person with severe dementia, a child with intellectual challenges, or a person with a mild to severe brain injury. Persons with disabilities also score better than the Applicant did on these validity measures. During cross-examination, Dr. Watson clarified that a person would have to have a deep aphasia, or severe Alzheimer’s, to score as poorly as the Applicant. Of the 75 true or false questions on the SIMS test, Dr. Watson testified that the threshold for invalidity is a score of 24 or higher out of 75. The Applicant scored 60 out of 75.
Dr. Watson testified that he also was cognisant of the fact that the Applicant’s test results could be distorted due to language and culture especially since the Applicant’s native language is not English. In order to mitigate any skewing of results, Dr. Watson testified that these tests were completed with the assistance of a Tamil interpreter. Dr. Watson testified that he conducted a number of validity tests, but due to the use of an interpreter, he did not rely on many tests which required vocabulary or verbal memory. The Applicant scored poorly on all tests which had validity measures. With regards to whether the Applicant’s scoring could constitute a cry for help, Dr. Watson testified that this would only apply to an individual who has valid complaints.
Dr. Watson testified and hypothesized that at most, under a worst case scenario, that the Applicant might have sustained a mild traumatic brain injury. There is no conclusive evidence that he did. Research shows that 98% of people fully recover within a month. At three months, research shows that people who have sustained a mild traumatic brain injury are indistinguishable on cognitive testing from those who did not have a traumatic brain injury. In his expert opinion, Dr. Watson concluded that the Applicant has not suffered any long-term medical issues directly as a result of the MVA.
Dr. Joel Eisen
Dr. Joel Eisen was a psychiatrist called to testify by the Insurer. He assessed the Applicant on December 8, 2015, and completed his report on February 2, 2016 as part of the CAT assessment team.24 Dr. Eisen testified that he concluded that the Applicant had a GAF score of 15. He stated that in his expert opinion, only 10% of the Applicant’s GAF score could be attributed to the MVA. He testified that he believed the Applicant has a Class 4 impairment in all four of the areas of functioning, although he testified that the Applicant could have only had a Class 1 or 2 impairment due to the accident. He testified that the Applicant’s lack of credibility and dishonesty made it difficult to assess the Applicant.
Dr. Christopher Hope
Dr. Christopher Hope is a clinical psychologist and neuropsychologist. He testified in regards to the four reports he has prepared in his capacity as a psychologist. He assessed the Applicant twice; once on December 30, 2013,25 and another time on October 27, 2014.26 Dr. Hope testified that he could not accept Mr. Ponniah’s reporting or presentation as valid or credible.
The first examination was completed to assess the reasonableness of the treatment plan proposed by Dr. Andrew Shaul, and the second report was written to comment on a treatment plan proposed by Dr. Kanagaratnam. Dr. Hope testified that the Applicant scored high on the SIMS test that he administered. The results showed that the Applicant was malingering. With regards to the SIMS, Dr. Hope testified that the Applicant scored 51 out of 75. For someone with severe psychosis, such as an individual with schizophrenia, the cut off for a valid score is 24. Dr. Hope testified that 51 was an extreme result.
Dr. Hope also used the Victoria Symptom Validity Test ("VSVT"), which is a five digit number test where the Applicant would observe the digits, then five seconds later indicate what digits he had seen. He stated that the neuropsychological testing results are but one component of the entire clinical picture. Dr. Hope testified that the Applicant scored significantly below chance. He said that even if an individual had no memory of what they had seen, it would be anticipated that they would score at a chance level. Therefore, the Applicant’s results show he was trying to skew his answers.
Dr. Hope testified that the Applicant’s initial presentation as emotional and confused was contrasted by the detailed history he provided regarding his impairments, and the accident. Dr. Hope testified that being able to recall an accident which happened years earlier, and to articulate your impairments, is not consistent with the injuries that someone like the Applicant is claiming to have. Dr. Hope testified that the Applicant’s results would indicate that he was consistently identifying the correct response and intentionally choosing to answer the incorrect response. Dr. Hope testified that cultural or language differences would not play a role on the VSVT, as the test relies on number identification and is not language based.
Dr. Hope concluded by testifying that even if one were to ignore the validity testing results, when people do have psychological problems following a motor vehicle accident they tend to be discrete conditions. People can present with driving phobias, but it is rare to have association with major depression, post-traumatic disorder, chronic pain, cognitive impairment, and psychosis all together at once, even after a severe accident. These results would be an indicator of non-credible symptom reporting. Dr. Hope found that he was not provided with any credible evidence that the Applicant suffered from the accident-related, psychological impairments that he claims.
ANALYSIS
Pre-existing/Pre-accident Medical History
Going back to 2006 in the Applicant’s family doctor’s (Dr. Kirubaharan’s) clinical notes and records,27 there are entries showing the Applicant had a significant pre-accident medical history.28 There are entries showing the Applicant had left sided abdominal pain, elevated blood pressure and kidney stones among other ailments. He complained of dizziness and had two small cortical cysts on each kidney. The Applicant was diagnosed with dysuria, hematuria and abdominal distension in addition to having chest pains. He also had numerous pre-accident prescriptions including among other medications, Celebrex.29
The evidence also showed that there were entries in the Applicant’s family doctor’s clinical notes and records related to the 2011 MVA. In addition, on January 30, 2011, the Applicant attended The Scarborough Hospital complaining of chest pains related to the 2011 MVA.30 The Applicant was also prescribed medication at this time. It was also noted that because of the 2011 MVA, he complained of a tender scalp. Further, approximately, one week after visiting The Scarborough Hospital, the Applicant visited his family doctor as a follow up to the 2011 MVA.
Based on the evidence presented at the Hearing, 2011 was a busy year for the Applicant and his medical issues. In 2011, the Applicant’s doctor diagnosed the Applicant with chronic pain. In February of 2011, the Applicant had a driver’s physical which was required in order for him to obtain a truck driver’s license. There were numerous visits noted to his family doctor in 2011 and The Scarborough Hospital, including an emergency room visit where x-rays were taken because of pain in his ribs. In May of 2011, the Applicant attended his doctor’s office still complaining of longstanding left chest pain after the 2011 MVA.31 Later in the summer of 2011, the clinical notes and records show the Applicant was suffering from sharp, shooting pain in his right ribcage. The Applicant also complained of trouble sleeping, severe back pain and muscle spasm when he was both standing and sitting. It was also noted in the clinical notes and records that he had bumps on his lower back. In 2011, the Applicant applied for and began receiving ODSP benefits based on his health issues which were noted as preventing him from working.
In 2012, the Applicant’s health continued to be noteworthy. He was still taking prescribed medications for his various health issues. The Applicant also was diagnosed with an abdominal distension. All of these entries lead up until the MVA. Suffice it to say, the Applicant had a multitude of health issues pre-accident.
ODSP Benefits – Pre-Accident
The Applicant has been collecting ODSP since late 2011. He claimed and produced evidence showing that he had such severe medical issues in 2011 that he couldn’t work and therefore was approved for ODSP with his family doctor’s approval and support.
The evidence submitted at this Hearing shows that the Applicant’s family doctor, Dr. Kirubaharan, signed a health status report as well as the activates of daily living index on June 30, 2011 in support of the Applicant’s ODSP application. In support of the Applicant’s ODSP claim, the Applicant submitted medical evidence that he suffered from chronic and severe bronchial asthma, musculoskeletal and myofascial ligamentous pain, chest pain, lower back pain, plantar fasciitis, chronic pain syndrome, and difficulties with his activities of daily living. Further, in his ODSP application, he said that he suffered from hypertension and hyperlipidemia and had a potential for stroke and cardiovascular illnesses. He also listed that he suffered from diabetes mellitus, with hypoglycemic spells including dizziness and headaches. As part of the Applicant’s ODSP application, Dr. Kirubaharan said that the Applicant was engaged in psychotherapy and counselling at the time in 2011.32 In the ODSP Application, Dr. Kirubaharan endorsed the Applicant’s psychological symptoms including impulse control difficulty, lack of insight (grandiosity, excessively negative self-evaluation, difficulty in understanding one’s own mental health problems), intellectual function (cognitive disturbance etc.), judgment, learning, and motivation.33
The Applicant’s family doctor noted that the Applicant had poor stamina to engage in any physical/emotionally strenuous activities including many routine activities of daily living in support of his ODSP application. All of this was also documented and noted for the MVA which was unrelated to the ODSP Application.
Post-Accident Medical Condition
The Applicant’s noted medical issues that he claimed as a result of the MVA are similar to the issues that he noted in his ODSP application that was approved 10 months prior to the MVA. In addition to the Applicant’s pre-accident prescription summary which included Metformin, Crestor, antibiotics, Prednisone, Ventolin, Advair, Salbutamol, Flovent, Coversyl, Celebrex, Arthrotec, Tylenol #3, and Pantoloc/Tecta the Applicant claimed that he required these same medications post-accident as a direct result of the accident.
The testimony from the Applicant, the Applicant’s family members and even the Applicant’s family doctor had so many inconsistencies that I was left with no alternative but to give it little weight. Instead, I focused on giving greater weight to other documentary evidence. All of the aforementioned individuals at various times said that the Applicant had no significant medical issues prior to the accident, yet, the evidence, including the Applicant’s ODSP file, told a completely different story.
Further, the Applicant and his family members were not truthful to his own medical assessors by leaving out critical information and misstating facts. This caused those who assessed the Applicant to come to incorrect conclusions and at the very least in the case of a couple of assessors, they would have reconsidered their recommendations in their reports.
Pre- & Post-Accident Financial Issues
The financial issues that the Applicant and his family were suffering from were well documented at this Hearing. The Applicant’s wife testified that she had to sell jewelry to a pawn shop in order for the family to survive post-accident. She also testified that there were no financial issues pre-accident however, in the ODSP application which was filed prior to the MVA, there were notes in the file about the family having financial issues including the heat being turned off at their residence for an extended period of time. The Applicant’s daughter Abhira also testified that even though OSAP had given her money for her schooling, she turned some of this money over to her parents for living expenses.
Surveillance of the Applicant Post-Accident
The Insurer had the Applicant filmed on surveillance for numerous hours at various times and at various locations starting three months post-accident. Up until May of 2017,34 the Applicant told Dr. Watson35 that he was in a wheelchair for six months post-accident, but the surveillance at the three-month period never showed the Applicant in a wheelchair. The Applicant also testified that he could not do anything for months post-accident because he was completely bed ridden.36 The surveillance at the three-month time period showed the Applicant going about a daily normal routine.
The Applicant was also witnessed in numerous other surveillance videos walking without a cane, carrying food from his car to the cultural centre along with doing other routine tasks with ease. In fact he was balancing pots of food that he was carrying to the cultural centre in a similar manner to a waiter.
In May of 2017, the surveillance shows the Applicant walking up a flight of stairs unassisted, without even grabbing the hand rail.37 In another surveillance scene, there was video showing the Applicant’s family members turning over the keys to the Applicant to drive. This same video shows him backing out of a tight parking spot with little to no trouble maneuvering his body in the car to check around him to safely get out of the parking spot. In this same sequence, there was further video showing the Applicant doing yard work including digging with a shovel in the front yard of his house, picking up garbage and walking after his dog. The Applicant is shown with a member of his family carrying out an upholstered couch out to the road to be picked up with the weekly garbage pickup. He also carried a bed headboard and footboard out to the curb. There is then video showing him driving and walking into a garden centre with his wife, carrying plants, bending over to tie his shoe laces and loading bags of dirt in the cart and then into his car as his wife watched.
Further video shows the Applicant carrying groceries in the front door, with his arms full, completing multiple trips back and forth between the house and the car. At the end of the video, the Applicant is seen being able to pull down the garage door with his hands.
The Applicant is witnessed on surveillance being physically able to walk without the use of a cane and without an observable limp. In fact, to the average person, the Applicant seems to be leading a normal life of someone living in a suburb of Toronto. In addition, for all of the psychological evidence put forward by the Applicant, the surveillance shows someone who is able to make decisions, converse with people, laugh and function in a manner which is indistinguishable from someone who isn’t claiming to suffer a long list of psychological aliments. The surveillance is a complete contradiction of the evidence presented by the Applicant, and by his expert and lay witnesses at the Hearing.
CATASTROPHIC DETERMINATION
THE APPLICANT’S CAT ASSESSMENT
The onus is on the Applicant to establish that on a balance of probabilities he has sustained a catastrophic impairment as a result of the MVA. Ultimately, the determination of catastrophic impairment is a legal determination as stated in Taylor and Pembridge Insurance.38 In his decision, Arbitrator Huberman summarized the law on the role of an arbitrator in determining whether a claimant has sustained a catastrophic impairment. He stated as follows:
The trier of fact has the responsibility to try to accurately express and estimate all of the impairments that an insured person has sustained as a result of the accident, and then to determine whether the insured person, on a balance of probabilities, has sustained a catastrophic impairment, as defined in the Schedule.
The Applicant submitted his OCF-19 on August 10, 2015.39 It was prepared by Dr. Nguyen, a physiatrist who stated that the Applicant met the test for catastrophic injuries both under criterion 7 and 8 of the Schedule.
There were four reports submitted to support the Applicant’s claim of catastrophic impairment. These reports were written by assessors who work at DMS (Disability Medical Specialists). The Applicant’s CAT assessor team included Dr. Andrew Lin (Neurologist), Dr. Andrew Shaul (Psychologist), Dr. Melody Nguyen (Physiatrist), and Dr. Richard Guscott (Psychiatrist). Dr. Guscott was the only person from the Applicant’s CAT assessment team who testified at the Hearing. Based on the evidence and comparing the reports of the Applicant’s assessors, the Applicant never reported the 2011 MVA to any of them. He also failed to note his pre-existing medical history as well as the ODSP benefits he was receiving at the time of the MVA.
Dr. Andrew Shaul
The first report on behalf of the Applicant was authored by Dr. Andrew Shaul, Psychologist, and is dated January 7, 2015.40 He diagnosed the Applicant with Major Depressive Disorder, Severe, and Features of Specific Phobia (Vehicular and Pedestrian) as a direct result of the MVA. Dr. Shaul relied on the Applicant’s self-reporting in order to come to his diagnosis. As well, Dr. Shaul relied on the Applicant’s self-reporting to make conclusions as it related to causation. It was noted that the Applicant reported to Dr. Shaul that he was functioning well prior to the accident. The Applicant told Dr. Shaul that he had no reported history of emotional/psychological difficulties prior to the accident.
Dr. Shaul concluded in his report that the Applicant was marked (class 4 impairment) in three domains of functioning, and extremely limited (class 5 impairment) in social functioning. It should be noted that Dr. Shaul was not provided with the Applicant’s pre-accident medical documentation, or the Applicant’s ODSP file. Therefore, between the Applicant’s false self-reporting, and not having the benefit of the Applicant’s ODSP file along with clinical notes and records showing the Applicant’s significant pre-existing medical condition, Dr. Shaul’s report fails to meet the standard of proving the Applicant’s claim for CAT designation.
Dr. Nguyen
Dr. Melody Nguyen, Physiatrist, prepared a paper review only report on August 10, 2015.41 She concluded that the Applicant met criterion 7 and 8 in the Schedule for CAT designation. Dr. Nguyen’s report from a psychological perspective was based on Dr. Shaul’s assessment because she is not qualified to assess the Applicant’s psychological injuries.
Dr. Nguyen specifically stated in her report that she last saw the Applicant on November 18, 2013. However, when she saw him, it was not for the purpose of evaluating the Applicant’s CAT impairment. Dr. Nguyen’s summary was completed without the Applicant’s ODSP file or substantial pre-accident medical documentation being reviewed. The only documents she had for the Applicant’s CAT assessment review were the diagnostic imaging reports from Detroit Receiving Hospital and the Scarborough Hospital.
Dr. Nguyen also stated that in addition to the Applicant’s injuries being found to be catastrophic, he is also suffering from:
sustained injuries of a traumatic closed brain injury, posterior right eighth and ninth rib fractures, and left ankle fracture. He has reported ongoing issues of cognitive impairment; headaches; chronic posttraumatic left ankle pain; chronic post-traumatic right rib pain; chronic soft tissue pain of the neck, upper back, and left shoulder; chronic mechanical low back pain; jaw pain; left knee pain; poor sleep and fatigue; dizziness and poor balance; blurry vision; bowel and bladder incontinence; and left sided numbness.42
She further opined that, “for the purposes of catastrophic impairment analysis, Mr. Ponniah’s physical issues and possible neurocognitive issues require further evaluation and analysis.” Based on the CAT assessments, the Applicant was found to meet the definition of catastrophic impairment both under criteria 7 & 8.
Dr. Richard Guscott
Dr. Guscott conducted the catastrophic assessment and submitted an OCF-19 on behalf of the Applicant. His expertise is in the area of psychological issues. Dr. Guscott was presented with evidence that the Applicant wasn’t in good health prior to the accident. He said that this information would have been extremely helpful in his assessment and agreed that based on the evidence presented, the Applicant wasn’t in good health prior to the accident as he reported in his CAT assessment. He authored two reports on behalf of the Applicant. The first report was August 30, 201643 and the second report was September 22, 2017.44
In his initial report, Dr. Guscott diagnosed the Applicant with a Major Depressive Disorder, Severe, along with a Chronic Pain Disorder, and an Acquired Brain Injury with ongoing emotional, cognitive, and behavioural sequelae. Dr. Guscott gave the Applicant a GAF score in the range of 35-40. In the second report, Dr. Guscott was provided with further medical documentation, particularly with regards to the alleged suicide attempts. Dr. Guscott opined that the Applicant was marked in all four spheres of functioning: activities of daily living, social functioning, concentration, persistence and pace and deterioration in work or work-like settings.
Similar to the other assessments conducted by the Applicant’s other doctors, Dr. Guscott did not receive all of the Applicant’s pre-accident medical documentation prior to the preparation of his reports including the Applicant’s ODSP file.
In the end, Dr. Guscott stood by the findings of his report; that the Applicant suffered from psychological issues as a direct result of the MVA. Despite being shown clinical notes and records that identified pre-existing medical conditions as well as the Applicant’s ODSP file, Dr. Guscott stated that it would not change his diagnosis or opinion on causation.
THE INSURER’S CAT ASSESSMENT
From the Insurer’s perspective, Dr. Darrin Milne, Chiropractor, prepared a summary CAT report on February 25, 2016.45 For the WPI rating of the Applicant, Dr. Milne combined the 7% WPI gait impairment noted by Dr. Hummel from an orthopaedic perspective, with the 8% WPI impairment noted by Dr. Eisen from a psychiatric perspective, for a combined 15% WPI impairment rating. Therefore, the Applicant fell short of the required 55% threshold to be considered CAT under criterion 7.
Dr. Jonathan Hummel
Dr. Hummel, an orthopedic surgeon, did his assessment on October 28, 201546 and he found that the Applicant sustained numerous injuries when he was injured when the transport trailer backed into him, pinning the Applicant between the truck door and the wall. In his report, Dr. Hummel concluded that the Applicant sustained a fractured ankle, fractured ribs, blunt chest trauma, and other soft tissue injuries; however, he concluded that from a musculoskeletal perspective, the Applicant’s injuries have healed. This is how he concluded that a 7% WPI rating should be given and that rating was mostly as a result of the Applicant’s left ankle fracture.
Dr. Garry Moddel
Dr. Moddel is a neurologist. He assessed the Applicant as part of the Insurer’s Catastrophic Assessment Team. He opined that the Applicant had not sustained any neurological impairments as a result of the accident. He assessed the Applicant on November 10, 2015.47 In his report, Dr. Moddel noted the various inconsistencies and issues with the Applicant’s assessments including validity problems. Ultimately, Dr. Moddel concluded that the Applicant's neurological examination gave the Applicant a 0% WPI.
Dr. Mark Watson
Dr. Mark Watson, Neuropsychologist, prepared a report dated February 16, 2016.48 He assigned a 0% WPI from a neuropsychological perspective of the Applicant’s injuries. His report stated that there was little to no objective evidence to support subjective psychological complaints, hence the 0% WPI rating.
Dr. Joel Eisen
Dr. Joel Eisen, Psychiatrist, prepared the Applicant’s CAT report on February 16, 2016.49 Dr. Eisen noted in his report that the Applicant’s answers were inconsistent and at times completely inaccurate. From a psychiatric perspective, Dr. Eisen found the Applicant’s symptoms to be mostly incompatible with any commonly observed psychiatric disorders which would be present in the time frame that the Applicant has experienced. Dr. Eisen diagnosed the Applicant with passenger anxiety phobia, and stated the Applicant potentially could have a neurocognitive disorder/dementing disorder, psychotic disorder and factitious disorder, all of which were in his professional opinion unrelated to the MVA.
Dr. Eisen opined that while there appeared to be marked impairments across the four spheres of functioning, he could not attribute these mental or behavioural disorders as a consequence of the MVA. Dr. Eisen concluded that the Applicant had a GAF of 15, which corresponds to an 80% WPI. However, he noted that at most 10% of the WPI could be reasonably attributed to the MVA, which is how he concluded a WPI for the Applicant (8%).
Dr. Eisen testified that it seemed unlikely that the Applicant had a genuine psychiatric disorder. He had stated that he had since reviewed the surveillance evidence, and it was highly inconsistent with the Applicant's subjective reporting. Dr. Eisen testified that the documentation he had been provided with since his assessment confirmed his suspicions that the Applicant’s self-reporting lacked complete credibility. While he concluded in his report that the Applicant's GAF score was 15, based simply on the Applicant’s self-report, Dr. Eisen testified that the Applicant’s score would have been much higher than 15 (resulting in a much lower WPI rating) if the Applicant was truthful in his self-reporting. In the end, Dr. Eisen felt the Applicant was deliberately trying to mislead him.
Dr. Eisen testified that as part of his Criteria 8 assessment in the four spheres of function, (1) activities of daily living, (2) social functioning, (3) concentration, persistence and pace, and (4) adaptation to work, he concluded the following. He stated that the Applicant had a Class 2 (mild) impairment in activities of daily living, Class 1 (absent) impairment in social functioning, Class 1 (absent) impairment in concentration, persistence and pace, Class 1 (absent) impairment in adaptation to work. Dr. Eisen ultimately concluded that he was unable to attribute the Applicant’s impairments to the MVA.
Causation
The evidence has established that the Applicant was working as a long-haul truck driver at the time of the MVA. It has also been established that the Applicant was on ODSP at the time of the MVA. What the Applicant’s ODSP file shows along with the Applicant’s significant pre-existing medical history is that the Applicant’s issues were pre-existing and the Applicant’s current injuries relate to that versus the MVA. I believe that the evidence shows that on the balance of probabilities the Applicant’s current medical condition is a result of his pre-existing injuries and not from the MVA.
Based on the evidence submitted at the Hearing, the Applicant has been witnessed driving, attending temple, socializing with various individuals, carrying various items (some larger, such as furniture), gardening, chasing his dog, and attending to daily errands such as carrying groceries and shopping at a garden centre. This evidence shows that he is functional as it relates to the four spheres required to be considered when determining catastrophic impairment.
Based on the experts that both the Insurer and Applicant have engaged, looking at their clinical experience, the information available at the time of the assessment and the overall credibility of the evidence, I prefer the reliability of the evidence of the Insurer’s assessors. Ultimately the onus is on the Applicant to prove on a balance of probabilities that he sustained a catastrophic impairment from a mental and behavioural perspective under criterion 7 and 8. In this regard, the evidence overwhelmingly shows he failed to meet this onus.
Attendant Care Benefits
In order to qualify for attendant care benefits in section 19 of the Schedule, an Applicant must also establish that the services were “incurred,” which involves three components that must be addressed, as set forth in section 3(7)(e) of the Schedule.50
The Applicant’s family members testified that each of them has had a role in taking care of the personal caregiving needs of the Applicant through his recovery from his injuries. Rather than pay an individual attendant care provider, the Applicant’s family decided that it would be in the best interest of the Applicant that his family members act in this capacity. The Applicant’s position is that he is catastrophically impaired, and is eligible to claim attendant care benefits for expenses incurred more than 104 weeks after the MVA or from August 29, 2014 and onward pursuant to s. 20(3)(a) of the Schedule.
The following Form 1s were prepared by both the Insurer and the Applicant as it related to the Applicant’s attendant care benefits.
September 7, 2012
Ashok Jain (Volume 3, Tab 9(C))
$3,975.51
October 1, 2013
Daphne Solano (Volume 5, Tab 13(E))
$1,193.11
December 6, 2013
Danielle Reich (Volume 6, Tab 17(G))
$0
July 11, 2015
Daphne Solano (Volume 5, Tab 13(V))
$3,664.75
June 12, 2017
Rachel Morrison (Volume 5, Tab 16(B)
$8,342.32
September 20, 2017
Rachel Morrison (Volume 5, Tab 16(C))
$13,375.67
It should be noted that the Applicant’s September 20, 2017 Form 1 was the subject of the Applicant’s initial motion prior to the start of the Hearing. This Form 1 is not currently in dispute at this Hearing since it has yet to be officially denied by the Insurer.
Up until the beginning of the Hearing, the Applicant stated that his attendant care services were provided by both of his daughters and his son but once the Hearing commenced, the Applicant stated that it was his daughter Ms. Vithusha Ponniah who was his attendant care provider.
In order to claim entitlement to attendant care benefits, there are two steps required for an Applicant to receive benefits if his provider is a lay person. The first step is to show economic loss by the provider because they are providing services to the Applicant. The second step is to show that from a medical perspective, the Applicant requires attendant care services.
The Applicant’s daughter, Ms. Vithusha Ponniah, listed what she did for her dad as his attendant care provider.51 She also wrote down the hours that she spent doing these tasks. However, there was confusion as to these activities because some of the time sheets were submitted for periods when she was registered to be in school. Further, there are only 168 hours in a week, but she is claiming numerous times that she did upwards of 130-140 hours in attendant care tasks which meant that the Applicant’s daughter only slept for 28 hours per week or 4 hours per day and 100% of the rest of time she was doing attendant care tasks for her father. On the balance of probabilities, I find this difficult to believe. At the end of her testimony Ms. Vithusha Ponniah then changed her evidence and said that some other family members’ hours were included in the sheets that she submitted. Needless to say, this did not help her to prove that she did all of these attendant care activities.
Ms. Vithusha Ponniah is claiming that because she was helping the Applicant with his attendant care requirements, she is proving economic loss because she was evicted from her Ottawa apartment and thereby lost her rent deposit. She is claiming further economic loss because she was forced to take a reduced course load at school. As a result, she lost money on tuition at university which again proves economic loss. She is $50,000 in debt with OSAP and has not yet completed her degree. Her rent was $845 per month for a lease signed in 2013. Based on the evidence provided at the Hearing, there is no documentation provided by the Applicant showing that she suffered an economic loss. There were no rental contracts, rental receipts, cancelled cheques or online payments, letters from her landlord or university tuition statements showing that Ms. Vithusha Ponniah suffered any economic loss.
In the case of Mohammad and Allstate Insurance Co. of Canada,52 I agree with Arbitrator Smith when he stated that an adverse inference should be drawn where a lack of documentary corroboration is provided of an economic loss. In the case before me, the same inference should be drawn.
As a result, the Applicant fails to qualify for attendant care benefits because his attendant care service provider failed to show that she suffered an economic loss as a result of attendant care activities. In the alternative, even though the Applicant’s entitlement to attendant care benefits stops with the determination of the absence of economic loss, the Applicant based on the surveillance and medical evidence submitted, fails to meet the threshold of attendant care from a medical perspective as well. From the evidence presented and based on a balance of probabilities, the Applicant has not met his onus to prove that he is entitled to attendant care benefits.
Medical Benefits – Physical and Psychological
The Applicant submitted four treatment plans as part of his Application for Arbitration. There was no evidence put forward by the Applicant as to why specifically the treatment plans in dispute were reasonable and necessary. However, there was enough medical documentation and testimonial evidence that shows that the Applicant suffered from a significant number of medical issues prior to the MVA. Before the MVA, the Applicant had a number of medical issues, and most importantly, the medical issues he did suffer from were virtually identical to the issues stated in the treatment plans.
The Applicant is seeking a combined total of $3,613 in medical and rehabilitation benefits. He is also seeking $1,850 and $1,763 for Treatment Plans provided by Sheila Laboni dated August 26, 2015 and October 7, 2015 respectively.53
The Applicant is also seeking entitlement to $1,979.36 for a mental health assessment proposed in a Treatment Plan, dated October 29, 2013 prepared by Dr. Shaul.54
Finally, he is also seeking entitlement to $1,283.29 for in-home assessment proposed in a Treatment Plan, dated February 14, 2014, prepared by Daphne Solano, Occupational Therapist.55
The Applicant was even asked when he was testifying if there was anything that he wanted to add to his testimony as it related to the treatment plans in dispute. He responded that he did not. Since the onus is on the Applicant to prove that the denied treatment plans were necessary and reasonable, I find that because of a lack of credible evidence put forward by the Applicant, it leaves me no choice but to deny all treatment plans in dispute that were part of this Arbitration Hearing.
CONCLUSION
This case hinged on credibility, and the Applicant failed in this respect. The testimony of himself, his wife and his daughters at times bordered on improbable, and dishonest. The Applicant was receiving ODSP because he said that he was completely disabled, yet he was working and earning income by driving a truck.
The Applicant failed to tell all assessors about his pre-existing medical condition as well as the 2011 MVA. He actually went one step further and denied that either of these issues existed and purposely mislead both the Applicant’s and Insurer’s doctors. Further, even the Applicant’s own experts didn’t have truthful information in order to provide a proper diagnosis of his aliments.
The onus of proof is on the Applicant to prove his entitlement to benefits. Based on the evidence presented at this Hearing, he has failed to achieve this threshold as it related to all benefits in dispute. As a result, the Applicant has not established on a balance of probabilities that he has sustained a catastrophic impairment, requires attendant care services or that the treatment plans in dispute reasonable or necessary. Therefore the Applicant is not entitled to any benefits in dispute.
Interest for the Overdue Payment of Benefits
Since no benefits are payable, there is no interest payable.
EXPENSES:
The parties made no submissions on expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
If an Expense Hearing is requested, the request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submission regarding entitlement to and/or the amount of such expenses.
March 14, 2018
Jeff Musson Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2018 ONFSCDRS 55
FSCO A15-000272 &
A16-003255
BETWEEN:
MYLVAGANAM PONNIAH
Applicant
and
NORTHBRIDGE GENERAL INSURANCE CORPORATION
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Mr. Ponniah’s injuries are not catastrophic as defined under the Schedule and this claim is denied.
Mr. Ponniah is not entitled to attendant care benefits from October 1, 2013 until July 10, 2015 in the amount of $1,193.11, July 11, 2015 and ongoing in the amount of $3,664.75 per month.
Mr. Ponniah is not entitled to medical benefits in the amount of $1,979.36 for an assessment and treatment plan from Dr. Andrew Shaul dated October 29, 2013.
Mr. Ponniah is not entitled to medical benefits in the amount of $1,283.29 for an assessment and treatment plan from Daphne Lin dated February 14, 2014.
Mr. Ponniah is not entitled to medical benefits in the amount of $1,850.00 for an assessment and treatment plan from Shelia Lin dated August 26, 2015.
Mr. Ponniah is not entitled to medical benefits in the amount of $1,763.60 for an assessment and treatment plan from Shelia Lin dated October 7, 2015.
Mr. Ponniah is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
March 14, 2018
Jeff Musson
Date
Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Exhibit 3, pg. 15.
- Exhibit 7, Vol. 1, Tab W, pg. 15.
- Exhibit 1, Vol. 5, Tab 17 E, pg. 5.
- Exhibit 4, Tab 1, pg. 60.
- Exhibit 1, Vol. 7, Tab L.
- Exhibit 1, Vol. 5, Tab 15C.
- Exhibit 1, Vol. 5, Tab 15E.
- Exhibit 1, Vol. 7, Tab 24B.
- Ibid., Vol. 6, Tab 18A, pg. 8.
- Ibid.
- Exhibit 1, Vol. 2, Tab 6, pg. 56.
- Exhibit 1, Vol. 3, Tab 7b, pg. 45.
- Exhibit 4, Tab 9, pg. 7.
- Exhibit 7, Vol. 1, pg. 68.
- Exhibit 1, Vol. 7, Tab 21.
- Exhibit 8, pgs. 1-24.
- Exhibit 1, Vol. 3, Tab 7A, pg. 646.
- Exhibit 4, Tab 9, pg. 8.
- Exhibit 1, Vol. 6, Tab 17 AA.
- Ibid.
- Ibid., Tab R, pg. 7.
- Ibid., Tab 17BB.
- Exhibit 1, Vol. 6, Tab Y.
- Exhibit 1, Vol. 5, Tab 17D.
- Ibid., Vol. 6, Tab 17K.
- Ibid., Tab 7A, pg. 332.
- Ibid., Tab 7B.
- Ibid.
- Exhibit 7A, pg. 15.
- Exhibit 1, Vol. 3, Tab 7A, pg. 647.
- Exhibit 4, Tab 8, pg. 6.
- Ibid.
- Exhibit 1, Vol. 9, Tab 37.
- Ibid., Tab 17 BB, pg. 6.
- Ibid.
- Ibid., Vol. 9, Tab 44, pg. 38.
- A12-004886, Taylor and Pembridge Insurance Co. of Canada.
- Exhibit 1,Vol. 7, Tab 24A.
- Ibid., Vol. 4, Tab 12K.
- Ibid., Tab 12M.
- Ibid.
- Ibid., Vol. 6, Tab 18A.
- Ibid., Tab B.
- Ibid., Vol. 6, Tab 17CC.
- Ibid., Tab 17Z.
- Ibid., Tab 15AA.
- Ibid., Tab 17BB.
- Ibid., Tab 17Y.
- Section 3(7)(e) of the Schedule defines “incurred” as follows: “(e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless, (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person;”
- Exhibit 1, Vol. 7, Tab G.
- A13-006712, Mohammad and Allstate Insurance Co. of Canada.
- Ibid., Vol. 5, Tab 13X and Y.
- Ibid., Vol. 4, Tab 12H.
- Ibid., Vol. 5, Tab 13H.
