FSCO A13-004412

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CHHINDERPAL BHANDAL

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Jeff Musson

Heard: In person at the offices of ADR Chambers, Nov 27th-Dec 8th, 2017, Jan 8-12, 2018

Appearances: Ms. Samiya Ahmad for Ms. Chhinderpal Bhandal Mr. Michael Huclack for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Chhinderpal Bhandal was injured in a motor vehicle accident on January 21, 2009. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the SABS. ¹ The parties were unable to resolve their disputes through mediation and Ms. Bhandal through her 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 Ms. Bhandal’s injuries catastrophic as defined under the SABS as a result of the MVA on January 21, 2009?
Is Ms. Bhandal entitled to attendant care benefits from February 23, 2010 until March 13, 2013 in the amount of $645.30; and from March 14, 2013 and on-going in the amount of $3,039.33 per month?
Is Ms. Bhandal entitled to caregiver benefits in the amount of $300.00 per week from February 23, 2010 to date and on-going?
Is Ms. Bhandal entitled to medical benefits in the amount of $2,155.88 for a chiropractic treatment plan from Complete Rehab dated May 19, 2010?
Is Ms. Bhandal entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from February 23, 2010 to date and on-going?
Is Ms. Bhandal 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:

Ms. Bhandal’s injuries are not catastrophic as defined under the SABS and this claim is denied.
Ms. Bhandal is not entitled to attendant care benefits from February 23, 2010 until March 13, 2013 in the amount of $645.30; and from March 14, 2013 and on-going in the amount of $3,039.33 per month and this claim is denied.
Ms. Bhandal is not entitled to caregiver benefits in the amount of $300.00 from February 23, 2010 to date and on-going and this claim is denied.
Ms. Bhandal is not entitled to medical benefits in the amount of $2,155.88 for a chiropractic treatment plan from Complete Rehab dated May 19, 2010 and this claim is denied
Ms. Bhandal is not entitled to housekeeping and home maintenance benefits in the amount of $100.00 from February 23, 2010 to date and on-going and this claim is denied.
Ms. Bhandal 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.

EVIDENCE AND ANALYSIS:

BACKGROUND

The Applicant was born in Punjab, India and was approximately 35 years old at the time of the accident. She is divorced with 2 sons, ages 9 and 13. The Applicant has a Grade 12 education which she completed while she lived in India and subsequently completed 2 years of personal support worker courses. Her English skills as they relate to writing, reading and speaking are weak. The Applicant immigrated to Canada in 2001 and has lived in the greater Toronto area since 2004.

All of the Applicant’s pre-accident employment involved labour intensive jobs. She was on maternity leave at the time of the accident, however, was planning on returning to the workforce at the conclusion of her maternity leave. There was a significant pre-existing medical history including being a victim of spousal abuse prior to the accident. Post-accident and as recently as February 26, 2013, the Applicant was dealing with child support and custody issues against her ex-husband.

In terms of the accident itself, the Applicant’s vehicle was struck while making a left hand turn at an intersection. She was transported by ambulance to the hospital where she subsequently was found to have a broken tibia/fibular in her left leg. The Applicant also suffered some soft tissue injuries as a result of the accident. She has not returned to work since the accident took place.

The Applicant

The Applicant testified on her own behalf at the Hearing. She said that after the impact of the accident, she hit her head on the steering wheel and that she momentarily blacked out. When she awoke, she saw that her leg was broken and was dangling with her muscle showing. She was not able to turn around to see her son who was crying in the back seat. The Applicant testified that she thought both her and her son’s life were ending. She confirmed that she was taken to the hospital by ambulance where her broken leg was attended to. The Applicant’s fracture was a closed, mid shaft fracture. She confirmed a subsequent operation was completed on her leg on January 24, 2009 at William Osler Hospital where a rod was installed in her leg to assist with the healing and provide additional support. The Applicant filed her OCF-1 on January 25, 2009.²

Prior to the accident she testified that she was in good health except for a few issues related to the pregnancy of her second child. In terms of the abuse that she suffered from her husband, she said that it was a bad time in her life, but that it had nothing to do with the physical and psychological issues that she is facing now. Up until her maternity leave, the Applicant testified that she was working. Since the accident, she testified that she no longer works at any job. As a result of all of these issues, the Applicant testified that post-accident, she was evicted from her rental home and moved in with her extended family members for approximately 4 months. In February of 2010, the Applicant again, due to strained relations with her in-laws, moved into a government subsidized apartment. She testified that she applied for ODSP benefits and confirmed that she was approved and began receiving ODSP benefits in December of 2010.³

In terms of personal care post-accident, the Applicant testified that her niece and other family members helped her with her personal care needs as well as taking care of her children. However, she testified that these living conditions were not ideal and the Applicant had her mother come over from India in May of 2009 to take care of her and her children at that time. In 2015, the Canadian government granted her mother permanent residency based on compassionate grounds of her mother assisting her with post-accident care.

Since the accident, the Applicant testified that her mother has taken care of all of the Applicant’s attendant care needs as well as housekeeping and care giving for the Applicant’s 2 sons. The Applicant confirmed that she has not driven since the accident and she testified that she pays people to drive her children to school now. When she needs to travel, she said that she either makes an appointment for wheel-trans transportation or most of the time she gets rides with her friends.

In terms of injuries and her recovery post-accident, the Applicant testified that it has been a slow process. She was referred to a psychiatrist for her psychological injuries caused by the accident but her attendance has been sporadic. In terms of physical injuries, the Applicant testified that she still suffers from injuries to her head, back (both upper and lower), both legs, neck, shoulders and a general pain that is felt throughout her body.

The Applicant also stated that she now suffers from migraines since the accident. These migraine headaches also cause her nausea, dizziness, vomiting and overall weakness in her body. In terms of her major injury to her left leg tibia/fibular, the Applicant testified that she has lost proper function in her leg which causes her problems with balance, weight bearing and mobility. Further, there is numbness in her leg and she now has an overall fear of falling. As a result, she now uses a walker/assistive device to walk around.

She testified that all of these issues have now manifested in giving her pain throughout her entire body which is making it difficult for her to function on a daily basis.

Dr. Hussain – Applicant’s Family Physician

Dr. Hussain testified that he has been the Applicant’s family physician since 2004. He stated that he has a busy practice with a roster of over 2300 patients and will typically see between 40-50 patients a day. He testified that he has treated the Applicant for pregnancy related issues (gestational diabetes with her second pregnancy) but other than that, her health has been good. He testified that the Applicant had normal mental and physical health prior to the accident.

When asked about the entries in his notes related to the Applicant being a victim of spousal abuse, he said that the Applicant only suffered from superficial cuts and bruises. However, once shown the Applicant’s clinical notes and records, he confirmed there was an entry in the notes documenting that he sent the Applicant for a CT scan because of her bleeding scalp which she suffered as a result of the physical abuse. He testified that in his opinion, he didn’t think that the Applicant suffered any long term psychological issues as a result of this abuse. Dr. Hussain was presented with a letter dated September 15, 2009 where he states to ODSP that the Applicant had a motor vehicle accident with physical disabilities and a history of significant violence, alleged spousal abuse, with secondary chronic major depression. When questioned, he could not explain the contradiction with his testimony and what was contained in the clinical notes and records. He testified that the only long term physical effect of this spousal abuse was that the Applicant has a flexion deformity of the second and third digits in her right hand. He stated other than that, the Applicant’s injuries were minor and insignificant. Despite his letter, he said he still believes that there were no psychological issues related to the Applicants being a victim of spousal abuse. He also confirmed when presented with the evidence that there was an entry in his clinical notes and records related to the Applicant’s ongoing child support and custody issues with her ex-husband as of February 26, 2013. When asked if circumstances such as this could cause depression anxiety in a person, Dr. Hussain stated that he agreed that problems such as this could cause issues such as that.

Post-accident, in 2010, Dr. Hussain filled out the medical forms of the Applicant’s ODSP application which was subsequently approved in December of 2010. He also testified that he diagnosed the Applicant with fibromyalgia and chronic pain syndrome post-accident which he said is directly related to the injuries she suffered in the accident on January 21, 2009.

Dr. Hussain was asked to explain how the Applicant’s injuries would affect her ability to maintain a household, care for her children as well as care for herself. He testified that since the Applicant is suffering from chronic pain, it will affect her ability in all three tasks. Further, he said that the Applicant’s fibromyalgia has a compounding effect on the Applicant’s ability to do tasks around the house including anything that requires lifting, twisting and movement from side to side. All of these movements would be required to complete caregiving, housekeeping as well as self-care tasks. He testified that the Applicant’s mother’s support of these activities is required which is why he fully supported the Applicant’s mother’s immigration request to stay in Canada.

Post-accident, Dr. Hussain testified that in addition to fibromyalgia and chronic pain syndrome, he diagnosed the Applicant with migraines, depression and post-traumatic stress disorder as a result of the accident. He also testified that the Applicant to the best of his recollection did not suffer from any of these issues prior to the accident. He was asked to explain the contradictions with his notes. Under cross examination, he commented on the Applicant’s migraines prior to the accident. Dr. Hussain stated that the Applicant’s pre accident migraines were normal headaches, but her post-accident migraines are persistent and chronic which is completely different. In addition, her migraine headaches are also more severe post-accident. He testified that he has prescribed medication and treatment for these migraine episodes for the Applicant, but none of the medication or treatment has worked up until this point. In terms of fibromyalgia and the associated chronic pain, Dr. Hussain testified that he referred the Applicant to physiotherapy because in his opinion, this would most likely give the best results.

In 2015, Dr. Hussain also testified that he referred the Applicant to a Neurologist, but there was no relief from the migraines after attempting treatment and prescribed medications. When it came to the doctor’s diagnosis of the Applicant’s depression, Dr. Hussain testified that the Applicant’s depression is chronic, unrelenting and difficult to treat. It also affects the Applicant by increasing fatigue, pain and insomnia all of which are interrelated. Despite a multitude of treatment attempts, Dr. Hussain testified that the Applicant is still clinically depressed. In his opinion, since these psychological issues have been present since the accident, they can be considered chronic because the accident happened over 9 years ago. He confirmed that he is a family doctor with no specialty in psychiatry, psychology, physiatry, rheumatology or pain medicine. However, he testified that despite this fact, he felt that he was qualified to make the diagnosis that he did of the Applicant.

Dr. Hussain as part of his testimony stated that he admits he’s an advocate for the Applicant.

Ultimately, he said that he believes the Applicant is both physically and mentally disabled as a direct result of the accident. The Applicant also does not have an ability to carry out the basic duties of daily living. She is being treated by medical professionals including a treating Psychiatrist, however in his opinion, based on his knowledge of the Applicant, he believes that the Applicant’s condition both physically and mentally will not improve for the foreseeable future.

The Applicant’s Mother-Ms. Jasmail Malhi

Jasmail Malhi is the Applicant’s mother and she was called to testify at this Hearing. She was born in Punjab India and had been living there for 70 years. Up until she moved to Canada, she had been living in a residence with her sons and their families. She testified that she has multiple grandchildren who she tended to up until she came to Canada after the Applicant’s accident.

She testified that she came to Canada in May of 2009 and was only planning on being here a short while until her daughter recovered from her injuries. After being here a few months, she decided that based on the severity of her daughter’s injuries, that she would make Canada her permanent residence. She applied to the Federal government of Canada for the necessary paperwork to become a permanent resident.

Ms. Malhi was asked to comment on the Applicant’s current condition. She said that the Applicant is not doing well post-accident. Her daughter continually has headaches which cause her to vomit. The Applicant cannot take care of herself or her children. In addition, the Applicant is not able to take care of the household chores or cook for the family. As a result, Ms. Malhi testified that she has to complete all of these tasks. She said that she is constantly busy from the time she wakes up in the morning until the time that she goes to bed. When asked to describe her daily routine as it related to housekeeping and care giving, Ms. Malhi stated that she prepares meals, cleans the floors, dresses and gets the children ready for school. She will also prepare their lunches and snacks in addition to bathing and grooming them. When asked to describe her attendant care duties for her daughter, she stated that she follows her daughter, the Applicant around all day to make sure she doesn’t fall or require assistance. She also bathes, dresses and grooms the Applicant everyday as well as help her to undress and get ready for bed on a nightly basis. She said that her daughter’s condition is not improving and in most cases is getting worse.

Dr. Archaryya

Dr. Archaryya was called to testify on behalf of the Applicant. The Applicant was referred to Dr. Archaryya by her family doctor, Dr. Hussain. He testified that he never obtained any background information about the Applicant from Dr. Hussain. He stated that the Applicant from a psychological standpoint has been suffering from the same problems since 2010, one year post-accident. He concurred with the Applicant’s family doctor that the Applicant cannot function with the activities of daily living and this is also a reason why he supported the Applicant’s mother’s application to immigrate to Canada in order to take care of the Applicant.

After the initial visit, the Applicant had a follow up visit with Dr. Archaryya in 2011. It was at this time that he wrote a letter of support for the Applicant’s mother’s immigration application. The Applicant did not see Dr. Archaryya again until May of 2014, which is 5 years post-accident. He testified that it is hard to treat a patient who is non-compliant with a treatment program and having sporadic appointments does not help a patient’s recovery. Dr. Archaryya testified that he saw the Applicant for approximately a total of 5 hours in 9 visits over a 9 year period.

Dr. Archaryya was asked to comment on the Applicant’s history of being the victim of spousal abuse and specifically if this would cause her current psychological issues. He stated that he did consider the impact of the Applicant’s psychological state as it related to the spousal abuse prior to the accident, however, he confirmed that there was no referral to a psychiatrist in his clinical notes and records as a result of that episode so he doesn’t consider it impacting her current state.⁴ He also testified that he did not follow up with Dr. Hussain concerning other potential causes other than the accident for the Applicant’s psychological problems.

After administering many psychological tests, he has determined that the Applicant suffers from a chronic depressive disorder with associated chronic pain. Since this condition has been present for a number of years post-accident, he testified that the Applicant will be challenged to fully recover from her psychological injuries.

Dr. Archaryya testified that the Applicant’s physical and mental issues are related to the car accident as well as the spousal abuse, social problems and the lack of support by her in-laws, however, the car accident is only one of several contributing factors. He further testified that the Applicant’s symptoms of depression, post-traumatic stress disorder (“PTSD”) as well as anxiety are caused by some combination of the accident, martial dysfunction and lack of a social support network. He also stated that he cannot say for certain that the Applicant did not suffer from depression and PTSD prior to the accident. Ultimately, he testified that he cannot say for certain that the Applicant’s car accident is the cause of her psychological symptoms.

Dr. Zohar Waisman

Dr. Waisman was an expert psychiatrist that was called on behalf of the Applicant to testify. He has anywhere between 500 and 600 different appointments per month and he also testified that he has probably seen over 1000 patients between the time he assessed the Applicant and being called to testify at the Hearing. Dr. Waisman said that the records he reviewed as part of this assessment included the records of the Applicant’s family doctor, Dr. Hussain as well as the records of Dr. Acharyya. Dr. Waisman also testified that he is of the opinion that a family physician is in a unique position to provide an opinion on the patient’s condition because the family doctor has a history with that patient as opposed to an assessor who only sees the patient for a single visit.

He testified that the Applicant in his opinion was truthful in her self reporting. The Applicant’s test results did not show evidence of malingering. Dr. Waisman was asked to comment on the differences between his assessment and the assessment completed by Dr. Gnam. He stated that he administered the TOMM test in which the Applicant scored 50 out of 50. Dr. Gnam, who completed an Insurer assessment, did not administer this test. Dr. Waisman was asked to comment on the methodology that Dr. Gnam used in assessing the Applicant. He testified that he disagreed with the manner in which Dr. Gnam assessed the Applicant, especially when the assessments that Dr. Gnam administered did not account for deficiencies related to language and cultural issues. In addition, Dr. Waisman testified that Dr. Gnam erred in using the MOCA test on the Applicant in order to come to his conclusions in his report.

Dr. Waisman stated that the big difference between his assessment and Dr. Gnam’s assessment was centred on work adaptation. The Applicant hasn’t returned to work post-accident, yet, Dr. Gnam’s report did not view this as being a significant issue. Dr. Waisman felt that this was a significant impairment for the Applicant. In Dr. Waisman’s opinion, Dr. Gnam looked at the Applicant through a narrow lens as opposed to looking at all aspects of the Applicant’s life post-accident. Ultimately, Dr. Waisman concluded that the Applicant suffered from a Marked Class 4 Impairment under the sphere of adaptation. ⁵

Dr. Blitzer

Dr. Blitzer was the Applicant’s CAT assessor. He is a family doctor by training and education. He completed his CAT assessment report (OCF-19) on July 15, 2014. ⁶ There was a second addendum report filed on July 15, 2014⁷ and a third and final addendum report filed on March 23, 2016.⁸ He testified that he found the Applicant to be truthful and provided accurate information as part of her self reporting medical history. He noted the Applicant’s pre-accident history of being a victim of spousal abuse, however, he placed little weight on that issue contributing to the Applicant’s current functioning state. The only injury that he testified which had a long term, lasting effect on the Applicant was her deformed fingers which she now has as a result of the abuse.

In terms of injuries that the Applicant suffered as a result of the accident, there was some ambiguity in terms of the Applicant’s head being struck and a subsequent loss of consciousness. In one part of his testimony, Dr. Blitzer stated that the evidence showed that the Applicant did strike her head. Then in another part of his testimony he stated that she did not. Finally he testified that there is no corroborating evidence that the Applicant did in fact strike her head as a result of this accident. I found his testimony to be very inconsistent when it came to this important distinction.

Dr. Blitzer was asked to comment on the Applicant’s pre-existing medical condition. He testified that he only looked at the family doctor’s notes up until 2008 and he stated that of those, he was unable to read much of Dr. Hussain’s written notes due to poor penmanship. Once given a transcribed version of Dr. Hussain’s notes to review at the Hearing, he stated that information contained in the now legible notes “would have made him rethink things” as it related to the Applicant’s pre-existing condition.

Dr. Blitzer testified how he calculated to the whole person impairment (WPI) rating for the Applicant. Dr. Blitzer testified that he assessed the Applicant’s symptoms from her injuries and applied them against the rating system in the 4th Edition of the AMA guides. He stated that he factored in the injuries to the Applicant’s lower extremities, the presence of arthritis, muscle atrophy and her reliance on assistive devices to give the Applicant a 20% rating for her gait.

In terms of the Applicant’s headaches, Dr. Blitzer assigned a rating of 24% because the Applicant’s headaches cause her to completely withdraw from activities due to their debilitating nature. When asked about the Applicant’s range of motion in her shoulders, Dr. Blitzer said that he gave an impairment rating of 7%. He stated that he thought that this was a fair rating based on the evidence that he was presented. In terms of the Applicant’s digestive issues, he gave her a 3% rating which he testified was lower than the 4% rating that the Insurer’s CAT assessor gave which was completed by Dr. Miekle. Dr. Blitzer also gave the Applicant a 5% rating for TMJ. He testified that even though a TMJ diagnosis was never commented on in any prior records, he felt that based on the Applicant’s condition, it was definitely present upon his assessment. He hypothesized that the Applicant may have never commented on TMJ to her doctors because of all the injuries and issues that she was suffering, TMJ was not of primary concern. He also stated that for the most part, unless prompted during a cranial exam, which only Dr. Blitzer administered, the Applicant most likely would not have brought this up in any prior patient doctor interactions.

As it related to loss of function, Dr. Blitzer gave a rating of 9% to the Applicant. This was a number that he determined to be a fair assessment based on the evidence he was presented. The Applicant suffers fatigue from various sources including lack of sleep due to her injuries and he stated that this contributed to the 9% rating.

Dr. Blitzer testified that he is not a psychiatrist nor would he attempt to make a psychological diagnosis, so he relied on the assessment of those doctors who did conduct the psychological assessments on the Applicant. This is how he gave a WPI rating for the Applicant’s psychological injuries. He testified that these records provided the foundation for the Applicant’s emotional and behavioral impairment ratings. Dr. Blitzer ultimately calculated that the Applicant had a WPI of 70%. For the psychological component it was 23% and for the physical component, it was 47%. He also stated that for the psychological component he was conservative in this calculation and overall he testified that in his opinion, his impairment ratings were fair and unbiased.

Dr. John Zelden

Dr. Zelden testified on behalf of the Insurer. He is an orthopedic surgeon and was one of two assessors given the task of assessing the Applicant in terms of the continued need for housekeeping, attendant care and care giving benefits.⁹ Dr. Zelden testified that his services are not retained to approve or deny benefits. His services are retained to provide a medical opinion only. He said it is up to the Insurer to determine if an Applicant is entitled to benefits or not.

As part of his testimony, Dr. Zelden explained in detail about the injury that the Applicant suffered as well as what the recovery time and prognosis one would expect of someone the Applicant’s age and physical condition. Since the Applicant’s injury was a mid-shaft fracture, he testified that it would be a routine operation to repair the injury. He also stated that the open reduction and internal fixation surgery allowed for a good positioning of the fractured bone in addition to faster healing time with fewer complications. In his expert opinion, he testified that with the injury suffered by the Applicant and the operation preformed on the Applicant’s leg, that it would take at most 12 months to fully recover.

Dr. Zeldin stated that in his expert opinion there is nothing in the Applicant’s medical condition that would prevent her from attaining full recovery. With his February 9, 2010 examination of the Applicant’s leg, there were no complications from the surgery that he detected and the Applicant’s left leg was well aligned, straight and no other deformities were present. He found that throughout her examination, the Applicant exaggerated the pain from even the slightest touch. He also commented that there was no physiological reason for this unusual reaction. Ultimately, in Dr. Zeldin’s opinion, he concluded that there is no physical reason for the Applicant to require a walker in order to be mobile nor a physical reason for the pain that the Applicant claims to suffer.

Ms. Melanie Robbins

Ms. Melanie Robbins testified at the Hearing on behalf of the Insurer. Ms. Robbins conducted an occupational therapy assessment of the Applicant over a span of 2 days (October 29 and November 18, 2014) for a total of approximately 2.5 hours. ¹⁰ She stated that the Applicant, based on her assessment, did not have any specific medical restrictions for lack of movement. She also said that the Applicant showed inconsistencies between the results of her formal and informal testing. Ms. Robbins testified that in the opinion and recommendation section of her report, she found that in terms of self-care, the Applicant appears to be self-limiting. With housekeeping/home maintenance and caregiving tasks, Ms. Robbins testified that she found the Applicant to be self-limiting in these tasks as well. She found that there is no current objective evidence to support the Applicant’s claim that she can’t perform any of these tasks. Ms. Robbins was asked if she still stood by the findings in her report. She said that yes, she still does.

Dr. Stanley Debow

Dr. Debow is a psychiatric expert retained by the Insurer to provide an expert opinion as it related to the Applicant’s requirement for housekeeping, caregiving and attendant care benefits. There were two reports that Dr. Debow authored. One report was in February of 2010 ¹¹ and the second report was in October of 2014. ¹²

In the 1st report that he authored on February 9, 2010 he testified that the Applicant had a GAF score of 85-90. He also stated that he found no psychiatric impairment that would have a direct relationship to the MVA. Dr. Debow found the Applicant’s self reporting to be of limited reliability. He concluded that there is no psychiatric impairment present with the Applicant. Therefore, in his expert opinion, no further treatment is reasonable or necessary. He testified that when it came to assessing the Applicant for care giving requirements, from a psychiatric perspective, the Applicant doesn’t have a substantial inability to engage in the caregiving activities. He also said that from a psychiatric perspective, no attendant care benefits are required. Finally, from a psychiatric perspective, no housekeeping and home maintenance benefits are required either.

Dr. Debow authored a follow up report in 2014. With this report, the Applicant was assessed for catastrophic impairment. Dr. Debow testified that the Applicant’s GAF score was in the range of 75-80. After conducting his assessment, he stated that the Applicant did not suffer a marked impairment in any of the 4 spheres (activities of daily living, social functioning, concentration/persistence/pace or adaptation). He found that all ratings were Class 1 which meant no impairment was present as it related to the accident of January 21, 2009. When asked if there is anything that would change his finding in either report, he replied no.

Dr. Joshua Muhlstock

Dr. Muhlstock completed a physiatry assessment of the Applicant, on behalf of the Insurer, on October 14 and November 4, 2014.¹³ His report was part of the catastrophic assessment report. He testified that his examination report concluded that the Applicant was most likely exaggerating her injuries. He testified as to the observations and the methodology his assessment.

Dr. Muhlstock noted that while examining the Applicant’s upper extremity, her left and right wrists, they were found to be unremarkable. There was no evidence of swelling, erythema, atrophy or deformity in the areas examined. He testified that she was self-limiting during the clinical exam especially when it came to range of motion. Dr. Muhlstock testified that the Applicant did not complete several tests that he had administered.

In his conclusions, he said that there was no objective findings of accident related physical impairments other than a well healed scar on her left lower leg. Any and all injuries sustained by the Applicant as a result of the MVA have long since resolved from a physical point of view and she has reached maximum medical recovery. He was asked if there is anything that he would change in his reports. He replied no.

Dr. Jovanovski

Dr. Jovanovski completed a neuropsychological assessment on the Applicant. She administered a number of validity test to the Applicant. She testified that the Applicant’s results of these tests were abnormal. For example, on the Dot Counting Test which doesn’t require a great deal of skill, the Applicant was given 12 questions and proceeded to answer all 12 questions wrong. As Dr. Jovanovski testified, the Applicant’s performance was “inconsistent with valid performance.” Further, in relation to the Dot Counting Test, in her opinion, an individual with severe brain injury would pass this test. This pattern of invalid performance was repeated in the other tests that Dr. Jovanovski administered.

She testified that in the worst case scenario, the Applicant would have suffered a mild traumatic brain injury as a result of the accident. However, she said if in fact this was the case, and no evidence was given that there was mild traumatic brain injuries, these injuries typically resolve within 3 months of the accident and therefore, intervention is not required. The testing that was completed by the Applicant was terminated by the doctor after approximately 4.5 hours because the Applicant experienced nausea and vomiting. Dr. Jovanovski testified that even though it sounds like a long time, she denied that the Applicant’s failure on these tests could be the result of her overall condition including fatigue and pain. When questioned on the methodology of the tests that were administered to the Applicant, she said that they were all very simple tests and administered in a basic manner while accommodating for the Applicant’s language barrier. She did however confirm that the tests were administered by a psychometrist and not administered by herself. Dr. Jovanovski testified that despite the validity issues related to the tests administered, she graded the answers given by the Applicant in her report dated October 31, 2014. ¹⁴

Dr. Ben Meikle

Dr. Meikle testified at this Hearing on behalf of the Insurer. He completed his catastrophic impairment report on December 17, 2014.¹⁵ Dr. Meikle stated that he completes approximately 30 reports each month. He testified that he never assessed the Applicant in person. He was only asked to conduct a paper review on the file. He confirmed that his CAT report relies on the reports of Dr. Mayer, Dr. Muhlstock, Dr. Jovanovski, Dr. Debow and Melanie Robbins.

Dr. Miekle disagreed with Dr. Blitzer’s methodology when completing the CAT assessment, specifically when Dr. Blitzer admitted that he used subsequent additions of the AMA guide to justify the highest possible rating for the Applicant’s chronic pain. Dr. Meikle did admit that there are disagreements among physicians as to how to interpret and apply the guides when assessing for catastrophic impairment.

Dr. Meikle gave a 5% WPI rating under criteria 7 (physical) for the Applicant. He assigned a 2% rating for the Applicant’s lower extremities and a 3% rating for medication. In terms of the psychological WPI impairment rating he assigned a 0% rating. Dr. Meikle testified that none of the Insurer’s assessors who completed a psychological evaluation on the Applicant found her to have a marked impairment in any 1 of the 4 spheres. When it came to the Applicant’s GAF score, she never scored in a range that would reflect psychological injuries, so in his expert opinion, he could not assign any percentage to the Applicant’s psychological WPI score of anything more than a 0%. Ultimately, Dr. Meikle testified that he found that the Applicant does not have any medical issues, both physical and psychological, that are a direct result of the accident on January 21, 2009.

Dr. Gnam

Dr. Gnam testified on behalf of the Insurer. His criteria 8 psychological report was completed on November 23, 2017. He was asked to assess the Applicant as it related to catastrophic determination under criteria 8. Dr. Gnam was asked to explain how he conducted his examination in order to determine the rating of the Applicant in all 4 spheres. (Activities of Daily Living, Social Function, Concentration/Persistence/Pace, Adaptation).

He stated that he administered 4 validity tests in order to assess the Applicant. ¹⁶ He found the Applicant’s validity scores to be abnormally low. He concluded that the Applicant might have been malingering, exaggerating or amplifying her injuries and quite likely all three. Dr. Gnam testified that the Applicant’s issue of malingering, exaggerating and amplifying during his assessment were similar to the findings of Dr. Jovanovski, Dr. Debow, Ms. Robbins and Dr. Muhlstock.

He concluded through his assessment that the Applicant was capable of watching T.V.., reading a book, going shopping alone or with her children, basic personal grooming, keeping track of a daily schedule, raising her children and socializing with friends.

In the area of activities of daily living, he testified that he found that the Applicant would be rated somewhere between a mild to moderate impairment. In terms of social function, he found the Applicant to at best would have a mild impairment. When it came to concentration, persistence and pace, Dr. Gnam concluded that the Applicant had a mild impairment. Finally, in the area of adaptation, he found that with the totality of the evidence given to him, the Applicant rated as having a moderate impairment in the area of Adaptation.

In the end, between the questions surrounding the validity of the Applicant’s answers, together with the assessment that Dr. Gnam completed of the Applicant, he testified that in his professional opinion, the Applicant does not meet the criteria 8 definition of catastrophic impairment.

ANALYSIS

A significant amount of time has lapsed between the date of the accident and the date of the Hearing. As a result, a large part of the evidence that was relied upon was the assessments, reports and clinical notes which documented the Applicant’s condition and rehabilitation progress both pre and post-accident. In addition, the credibility of the Applicant also played a significant role in determining her entitlement to benefits. In essence, was she being truthful with her testimony and was it corroborated with additional evidence?

The Applicant listed her mother as not only the service provider for her housekeeping and home maintenance tasks, but also the attendant care provider as well as the person tasked with providing caregiving to the Applicant’s children. This is quite a long list of responsibilities to thrust on a person who is in the 7th decade of her life. Further, it goes to the credibility of this case if the service provider in fact was able to complete these tasks and most importantly, was there an agreement or promise to eventually pay for these services from the Applicant to the service provider for the services rendered?

The Applicant claimed that she did not understand the English language, but yet there were times at the Hearing where she responded to questions in English instead of her native tongue. Further, the Applicant made submissions throughout the Hearing that she was at a severe disadvantage with her assessments because they were prejudicial to someone who doesn’t understand the English language. Further, in the Applicant’s testimony, it was entered into evidence that the Applicant communicated with doctors, her transit drivers and others without the use of an interpreter. I find that the Applicant’s English skills were on the balance of probabilities better than she professed to this tribunal.

When it came to the Applicant’s health prior to the accident, she said that other than her gestational diabetes with her second pregnancy, she was in good health. With the clinical notes and records entered into evidence, I find that this was not the case. There were entries related to headaches, neck and back pain as well as injuries both physical and psychological that she sustained sadly as a victim of spousal abuse. The Applicant was continually changing the story related to her abuse at the Hearing and its effect on her well-being. Regardless, these issues were all present prior to the accident and many of the issues and injuries that she claimed as part of the accident were in fact present pre-accident.

Ultimately, the Applicant failed to disclose her pre-existing medical condition to many of the doctors who conducted assessments on her as part of her application for accident benefits. As a result, this suppression of information did not give the assessors a proper overview as to the Applicant’s pre-accident medical condition in which to properly assess her post-accident medical condition. There are entries in the Applicant’s clinical notes and records which show that the Applicant had neck and upper back pain during a visit in August of 2008 prior to the accident. In November of 2008, 2 months pre-accident, the Applicant was sent for a CT scan as a result of a head injury. In the clinical notes and records, it also shows an entry listing multiple injuries to the Applicant’s head, neck and back pain as of November 14, 2008. Based on this information, the Applicant had anything but a clean bill of health both physically and psychologically prior to the accident.

As for the injuries sustained as a result of the accident, the Applicant suffered a mid-shaft fracture. There was no damage to the Applicant’s knee or ankle as well as no collateral damage to the Applicant’s muscle or blood vessels in the injured leg. She said that she briefly blacked out after the collision, however, there was no evidence presented to corroborate this statement. The Applicant also suffered soft tissue injuries sustained in the accident as well. The Insurer is not denying that the Applicant was involved in an accident and that she did suffer injuries. However, based on the severity of the injuries, there is no credible evidence presented as to why the Applicant has not recovered from these injuries despite the fact that the assessment doctors all concluded that she has achieved maximum medical recovery. Further, there are entries in the Applicant’s clinical notes and records which show that she has a track record of non-compliance with medication and treatment prescribed.

When looking at the totality of the evidence, it shows that the Applicant has evaded truthfulness to her pre and post-accident medical history. The assessors were at a loss as to why she was self-limiting in her movements and when looking at the reports of both the Insurer and Applicant’s doctors, it is important to determine which medical professionals’ opinions are based on sound and reasonable medical evidence and which ones are not.

CATASTROPHIC DETERMINATION

THE APPLICANT’S CAT ASSESSMENT

The onus is on the Applicant to establish that on a balance of probabilities she has sustained a catastrophic impairment as a result of the January 21, 2009 MVA. The determination of catastrophic impairment is a complex analysis with numerous reports as stated in Cheema v. TD General ¹⁷. The Arbitrator in that case established that the role of an Applicant is to establish on the balance of probabilities both entitlement to benefits and also to any impairments that they meet the catastrophic definition.

The Applicant submitted her OCF-19 on July 15, 2014. ¹⁸ It was prepared by Dr. Blitzer, who concluded that the Applicant met the test for catastrophic impairment both under criterion 7 and 8 of the Schedule.

Dr. Blitzer testified that he does his validity testing by observation, without a measuring device. He is of the opinion that this is a completely acceptable means in which to determine the validity of the Applicant he is assessing. He determined based on reports by the Applicant’s experts together with his assessment, that the Applicant had a WPI rating of 70% and also had a marked impairment under Criteria 8 of the AMA guides. In his professional opinion as a family doctor and a CAT assessor, the Applicant’s injuries qualify as being catastrophic.

I found Dr. Blitzer to continually stumble throughout his testimony. He had difficulty with explaining the reasons for his rating in a clear and coherent manner. Further, he was easily frustrated with the questions he was being asked to answer, especially by the Insurer. In the end, Dr. Blitzer got through his testimony but it was an exercise fraught with difficulty.

THE INSURER’S CAT ASSESSMENT

From the Insurer’s perspective, Dr. Meikle prepared a summary CAT report on December 17, 2014.¹⁹ For the WPI rating of the Applicant, Dr. Meikle based his report on the findings of Dr. Muhlstock, a physiatrist, Dr. Debow, a psychiatrist, Dr. Mayer, a neurologist, Dr. Jovanovski, a neuropsychologist and Ms. Robbins an Occupational Therapist for a combined 5% WPI impairment rating. Therefore, the Applicant fell well short of the required 55% threshold to be considered CAT under criterion 7.

Dr. Debow assigned a 0% WPI psychiatric rating for the Applicant. Dr. Gnam who was called to testify at the Hearing, also concurred with this rating. Further, in terms of criteria 8, Dr. Gnam found that the Applicant was not marked in any of the four spheres related to CAT determination.

Analysis of Criteria 7 & 8

Criteria 7 - WPI

Based on the evidence submitted at the Hearing, there is major discrepancy as it relates to WPI calculation between the experts. Dr. Blitzer assigned a 20% rating for gait disturbance. However, there is no corroborating medical evidence put forward at this Hearing showing that the Applicant’s leg did not fully heal properly. Therefore, I prefer the rating for gait given by Dr. Meikle which is a 0% for gait disturbance. As a result, based on this finding, the Applicant from a WPI perspective is reduced to 50% and therefore does not attain the 55% WPI required in which to be considered catastrophic.

In the alternative, there were further discrepancies in terms of WPI that should be noted. The Applicant was given 5% for TMJ as an impairment, however, there is no documented evidence presented save and except for the Applicant’s CAT report completed by Dr. Blitzer that she had a TMJ impairment. The 3% and 4% rating for the Applicant’s shoulders are not supported again by any medical evidence that Dr. Blitzer assigned. Finally, Dr. Blitzer assigned a 24% rating to the Applicant for headaches, but he admitted that he does not have a clear picture as to what the Applicant’s pre-existing medical condition was prior to the accident. Further, Dr. Blitzer used an incorrect rating method when it came to assessing headaches. Headaches are defined as a symptom, not an impairment under the AMA guides. At most, the maximum rating should be 5%, not the 24 % given by Dr. Blitzer. With all of these discrepancies, I prefer the evidence given by the Insurer’s experts when they assigned a WPI of 5%. Therefore, the Applicant fails on multiple levels to meet the 55% threshold for catastrophic impairment under criteria 7.

Criteria 8

With criteria 8, Dr. Waisman concluded that the Applicant suffered a marked impairment in the sphere of adaptation. When discussing his report, he stated that he was told to complete the report quickly and he noted he was being asked to do a report based on an accident that had taken place over 9 years prior. He testified under oath that his report is less than ideal. In addition, there were many inaccuracies that were found in Dr. Waisman’s report, such as a missing date of the assessment and the Applicant’s current work status just to name a few. In the end, Dr. Waisman’s testimony left much doubt as to the reliability of the assessment that he conducted of the Applicant. Further, based on his testimony of how he concluded that the Applicant was marked in the sphere of adaptation, there was much information which he did not have in order to properly conclude that from a psychological perspective the Applicant suffered a marked impairment as a direct result of the accident.

The Insurer’s doctor, Dr. Gnam by contrast found that the Applicant did not suffer from a marked impairment in any sphere. Further when he analyzed Dr. Waisman’s report, he found that there were no credible examples of impaired cognition. In essence, Dr. Waisman’s report relied heavily on the self-reporting of the Applicant as opposed to objective corroborating evidence. Alternatively, Dr. Gnam’s report had much better detail as it related to corroborating evidence as to how he came to his conclusions. Therefore I prefer the evidence submitted by the Insurer and the Applicant fails to meet the necessary threshold for catastrophic impairment under criteria 8.

Conclusion of CAT determination

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 she sustained a catastrophic impairment from a psychological and physical perspective under criterion 7 and 8. In this regard, the evidence overwhelmingly shows she failed to discharge this onus.

Housekeeping/Home Maintenance:

What is interesting to note as part of the Applicant’s claim for housekeeping and home maintenance benefits is that she was living in a different residence prior to the accident from which she was eventually evicted, and is now living in a subsidized apartment. Therefore it is difficult to determine the activities that the Applicant did prior to the accident as opposed to after. Having said this, the Applicant’s service provider testified as did the Applicant that she cannot do any housekeeping and home maintenance activities post-accident. Instead, the Applicant based on the oral evidence given stays in bed all day while her mother does all the housekeeping work.

In order to receive housekeeping and home maintenance benefits, the onus is on the Applicant to prove that she can no longer preform the housekeeping and home maintenance services that she normally performed before the accident as per s.22 of the SABS. These expenses must also be incurred or at the very least, a promise to pay has been acknowledged. When determining entitlement for housekeeping and home maintenance benefits, the test for this benefit is set out in the widely known case of Konstantakos and Aviva Canada Inc.

The test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary. ²⁰

With respect to housekeeping benefits, the Insurer denied these benefits based on two OCF-9 dated March 1, 2010 ²¹ and March 14, 2013.²² With this case I have no doubt that the Applicant’s mother performs some housekeeping and home maintenance tasks around the house, but the question to ask is why? Again, according to the Insurer’s assessment, Ms. Bhandal was assessed as being able to conduct housekeeping and home maintenance duties. The Applicant even though the onus is on her to prove entitlement failed to provide an expert opinion that gave specific details as to why the Applicant could not perform home maintenance and housekeeping tasks. In addition, the Applicant also failed to produce a report that stated specifically that her inability to preform housekeeping tasks was directly related to the accident. Instead, the Applicant took the position to discredit the Insurer’s assessment.

The Applicant only submitted 12 expense claim forms dated from March 25, 2010 until January 21, 2011 which was exactly up to two years post-accident. These OCF-6 forms were submitted approximately two years after that on March 12, 2013.²³ There were no details other than the boxes ticked off, of which all boxes were checked, as it related to the services provided. However, the most important requirement in order to claim housekeeping and home maintenance benefits is that these expenses must be incurred or at the very least, a promise to pay for these services be established. There was no credible evidence submitted at the Hearing which showed that the Applicant promised to pay the service provider for services rendered. Therefore, the claim for housekeeping and home maintenance is denied.

Caregiving Benefits

In order to qualify for caregiving benefits, the Applicant must show that she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident, and continues to suffer a complete in ability to carry on a normal life, as per s. 13 of the SABS. These caregiving expenses must also be incurred as a result of the accident.

The Applicant’s mother is the person providing caregiving services for the Applicant’s children. The Applicant’s mother testified that she had to put diapers on both children as part of her caregiving tasks. She also testified that she takes the children to the driver to be dropped off at school as well as waiting for them at the end of the school day to pick them up. Ms. Malhi also said that she puts the clothes on for both children who are age 9 and 13. I find this highly improbable since no evidence was submitted that these children were not functioning as typical 9 and 13 year-old boys. However, in a contradictory moment with the testimony of Ms. Malhi, she stated further in her testimony that in fact the 9 year old and 13 year old put on their own socks and underwear.

The Applicant submitted 12 expense claim forms dated from March 25, 2010 until January 21, 2011 in relation to caregiving expenses. These OCF-6 forms were submitted approximately two years after that on March 12, 2013.²⁴ There were no details other than the boxes ticked off, of which all boxes were checked as it related to the services provided. Just as with the housekeeping and home maintenance benefits, the most important requirement in order to claim caregiving benefits is that these expenses must be incurred or at the very least, a promise to pay for these services be established. There was no credible evidence submitted at the Hearing which showed that the Applicant promised to pay the service provider for caregiving services rendered. Therefore the claim for caregiving benefits is denied.

Attendant Care Benefits

To qualify for attendant care benefits, the Applicant must show that the expenses are incurred as per s. 16 of the SABS. Any amounts payable should be in accordance with a Form 1 submitted to the Insurer.

Although not called to testify, the Insurer had an occupational therapist named Ms. Vanita Tandon complete an attendant care benefits report dated March 27, 2009. ²⁵ She concluded that the Applicant required $645.30 per month in attendant care costs.

The Applicant’s mother is the person providing attendant care benefits for the Applicant. The testimony given by the Applicant’s mother, Ms. Malhi is that the Applicant’s injuries are so severe that she needs assistance to sit up in bed, walk around as well as do other activities of daily living. The Insurer produced evidence that the Applicant is able to go about her daily business without the need to have her attendant care provider by her side. There was no credible evidence submitted that shows specific details as to the attendant care tasks which were completed by Ms. Malhi as being required on behalf of the Applicant.

As with the housekeeping/home maintenance benefits and the caregiving benefits, the Applicant submitted 12 expense claim forms dated from March 25, 2010 until January 21, 2011 for attendant care benefits. These OCF-6 forms were submitted approximately two years after that date on March 12, 2013.²⁶ There were no details other than the boxes ticked off, of which all boxes were checked as it related to the attendant care services provided. However, the most important requirement in order to claim benefits is that these expenses must be incurred or at the very least, a promise to pay for these services be established. There was no credible evidence submitted at the Hearing which showed that the Applicant promised to pay the service provider for the attendant care services rendered. From the evidence presented and based on a balance of probabilities, the Applicant has not met her onus to prove that she is entitled to attendant care benefits.

Medical Benefits

The Applicant submitted one treatment plan as part of her Application for Arbitration. The Applicant is seeking $2,155.88 in medical benefits for a chiropractic treatment plan.

There was no evidence put forward by the Applicant or the witnesses called to testify as to why specifically the treatment plan in dispute was reasonable and necessary. Therefore with no credible evidence given by the Applicant as to the reasonableness of this treatment plan, it is therefore denied.

CONCLUSION

This case hinged on credibility, and the Applicant failed in this respect. The testimony of the Applicant, her mother and other witnesses, at times bordered on fiction as opposed to reality.

The onus of proof is on the Applicant to prove her entitlement to benefits. Based on the evidence presented at this Hearing, she 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 she has sustained a catastrophic impairment, that she requires attendant care, housekeeping and home maintenance as well as caregiving services or that the treatment plan in dispute is 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, therefore there is no interest payable.

EXPENSES:

The parties made no submissions on expenses. If they are unable to agree on the legal expense of this case, an Expense Hearing shall be requested within thirty days of the date of this decision in accordance with Rule 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.

April 26, 2018

Jeff Musson Arbitrator

Date

Neutral Citation: 2018 ONFSCDRS 86