Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 88

FSCO A16-002164

BETWEEN:

STALIN THIRUCHELVAM

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

(SECOND) AMENDED REASONS FOR DECISION

Before:

Louise Barrington

Heard:

In person at ADR Chambers on December 11 to 15, 2017

Post-hearing submissions completed on January 29, 2018

Appearances:

Mr. David Wilson for the Applicant

Mr. Darrell March for the Insurer

The Applicant, Mr. Stalin Thiruchelvam (“Mr. Thiruchelvam” or the “Applicant”), was injured on September 4, 2013 in a motor vehicle accident (“the MVA”)¹. He sought accident benefits under the Schedule² from RBC General Insurance Company (“RBC” or the “Insurer”). The Parties were unable to resolve their disputes through mediation, and Mr. Thiruchelvam, 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.

ISSUES TO BE DECIDED IN THIS ARBITRATION

The issues to be resolved in this arbitration are agreed as follows:

1. Has Mr. Thiruchelvam suffered a catastrophic impairment as claimed in OCF-19 dated June 29, 2015?

2. Is Mr. Thiruchelvam entitled to medical benefits as follows:

a) $1936.35 for chiropractic/physio by Darren Hylton as set out in an OCF-18 dated July 23, 2015; and

b) $1696.30 for chiropractic/physio by Scarborough Rehab as set out in an OCF-18 dated September 8, 2015?

3. Is Mr. Thiruchelvam entitled to the cost of an examination for occupational therapy to be provided by Zaraska Rehab Associates as set out in an OCF-18 dated January 15, 2016?

4. Is Mr. Thiruchelvam liable to pay the expenses of RBC, or is RBC liable to pay the expenses of Mr. Thiruchelvam?

5. Is Mr.Thiruchevam entitled to statutory interest on overdue payments, although it was not an agreed issue?

6. Is Mr. Thiruchelvam entitled to a special award? (Counsel for Mr. Thiruchelvam made a claim for a special award in post-hearing submissions.)

RESULT

1. Mr. Thiruchelvam has suffered a catastrophic impairment as a result of the accident of September 4, 2013.

2. Mr. Thiruchelvam is entitled to payment of medical benefits of $1936.35 for chiropractic/physio by Darren Hylton as set out in an OCF-18 dated July 23, 2015 and of $1696.30 for chiropractic/physio by Scarborough Rehab as set out in an OCF-18 dated September 8, 2015.

3. Mr. Thiruchelvam is entitled to the cost of an examination for occupational therapy to be provided by Zaraska Rehab Associates as set out in an OCF-18 dated January 15, 2015.

4. RBC shall pay to Mr. Thiruchelvam his expenses of this arbitration in the amount of $49,331.63.

5. Mr. Thiruchelvam is entitled to interest in accordance with the Schedule on all amounts awarded, from the date each benefit amount fell due until it is paid in full.

6. The claim for a special award is dismissed.

PRELIMINARY PROCEDURAL OBSERVATIONS

The first day of the Hearing of this matter was completely taken up by procedural arguments as to the admissibility of various documents, whether the Applicant’s spouse could be called to testify at the last minute, and which doctors must be produced for cross-examination.

One particularly acrimonious controversy arose at the Hearing as to whether an OCF-19 had been properly submitted to the Insurer. The Insurer had received an OCF-19 dated December 16, 2014 on June 25, 2015, when less than two years had elapsed after the MVA. This OCF-19 was included in the evidence submitted to the Arbitrator. The Insurer had refused the application on the basis of this OCF-19 being premature. However, in a second Explanation of Benefits, dated December 28, 2015, the Insurer noted an OCF-19 had been received in the Insurer’s office on December 18, 2015 and that the Applicant was to be referred for insurer assessments to determine whether he had sustained a catastrophic impairment as a result of the MVA. The second OCF-19 was not in evidence until produced by Applicant’s counsel at the Hearing. The Insurer had not had not raised an issue regarding the validity of the OCF-19 in its response to the Application for Arbitration or at any time thereafter.

At the Hearing however, counsel for the Insurer contended for the first time that the Insurer did not have the second OCF-19 and that in the absence of a valid OCF-19 in evidence the Arbitrator lacked jurisdiction to decide on the question of catastrophic impairment. He stated that the records of the Insurer had been reviewed, and that only one OCF-19, the invalid one, had been received. On the basis that it is reasonable to assume that without proper notice the Insurer would not have proceeded with its examinations, I adjourned the Hearing to permit counsel to make necessary investigations in their files and to prepare submissions for the following day.

Upon resumption of the Hearing, counsel for Mr. Thiruchelvam produced a copy of an email dated December 18, 2015 from his law firm to RBC, attaching an OCF-19 dated December 16, 2014. Part 4, completed by the physician Dr. Garner on December 16, 2014 (less than 2 years post-MVA), indicated that the Applicant’s catastrophic impairment was unlikely to cease being catastrophic. It appears that through inadvertence the first, invalid OCF-19 was submitted in evidence by Applicant’s counsel instead of this second one, which was the foundation for these proceedings. No one could explain why the second OCF-19 could not be located among RBC’s files during the adjournment of the Hearing which I had ordered for this purpose. Over the objection of counsel for RBC, I accepted the OCF-19 produced by the Applicant’s counsel, and I have marked it as Exhibit 5³ in these proceedings. I find no basis for the contention that I lack jurisdiction to decide this issue.

I now turn to the substantive issues in this arbitration.

THE POSITIONS OF THE PARTIES

There is no argument as to the circumstances of the accident or that the Applicant at the time of the MVA was covered by a policy of insurance issued by RBC.

Mr. Thiruchelvam claims that he suffered a catastrophic impairment as a result of the MVA. The Insurer denies that a catastrophic impairment exists, or if it is found to exist, the Insurer denies that it was caused by the MVA.

Mr. Thiruchelvam also claims medical benefits and costs of examinations, which the Insurer has denied as unnecessary or unreasonable.

1. Has Mr. Thiruchelvam suffered a catastrophic impairment as claimed?

The Law

The Court of Appeal case of Pastore v. Aviva⁴ sets out three questions which must be answered in order to make a finding of catastrophic impairment on the basis of mental or behavioural disorder:

1. Did the accident cause the applicant to suffer a mental or behavioural disorder?

2. If yes, what is the impact of the disorder on the applicant’s daily life?

3. In view of the impact, what is the level of impairment?

In order to “pass through the gate” of catastrophic impairment under the Schedule’s clause 3.1.2(g)⁵ an applicant must prove that he has an impairment or combination of an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

The concept of catastrophic impairment as a “gate-keeper” enhances compensation for those who have suffered such an impairment in their lives, while limiting compensation to those less seriously affected. A finding of catastrophic impairment is no guarantee of compensation, but the gate through which an applicant must past in order to advance a claim in excess of the standard statutory maximum of $50,000.

The Insurer contests the extent of the Applicant’s impairment, arguing that his condition does not satisfy the requirement of the Schedule, and that if his impairment is catastrophic, then it is as a result of prior injuries, not of the MVA. The Insurer also argues that any initial exacerbation of the Applicant’s impairments has subsequently subsided, returning him to his previous level of dysfunction. Alternatively, his impairment, if catastrophic, is the result of another accident, a year after the subject MVA. Thus, the Applicant would not be entitled to benefits in excess of the non-catastrophic limit, that is, $50,000, for medical and rehabilitation benefits sought in this arbitration. There is no clear evidence before me as to whether the Applicant has exhausted his $50,000 entitlement, but in none of the subject denials of claims does the Insurer mention this as a reason for denial.

The Evidence of the Applicant

In support of his claim Mr. Thiruchelvam testified at the Hearing. He said at the time of the Hearing he was 57 years old. He had come to Canada via Germany in 1981 or 1982 as a refugee from the impending Sri Lankan civil war. He married in 1987 and now has two grown children who continue to live with him and his wife. For approximately 12 to 13 years he worked as a scheduling manager with a company called Theta Inc. (“Theta”). During his time with Theta he was involved in a motor vehicle accident around 1998 as well as a fall. Both of these entailed short absences of around two weeks from work. Neither produced any long-term damage, and apart from these two incidents his attendance at work was good. I find that these two accidents have no relevance to the Applicant’s present condition.

He later obtained work, again as a scheduling manager, at Protec. After only two or three weeks with Protec, in 2002, the Applicant was involved in two motor vehicle accidents, one in Montreal and a second in Toronto. The Applicant had little recollection of the Montreal accident but under cross-examination recalled that it involved an icy ramp and his car hit a wall. In the second accident, in Toronto, he remembered that his vehicle was rear-ended and he was seriously hurt. Since these two accidents in 2002, the Applicant has not returned to work. The injuries and sequelae from these two accidents were serious and persistent. He suffered substantial disabilities, both physical and mental, and was still receiving treatment for complaints arising from those accidents in September 2013, particularly with respect to his mental health.⁶ He testified that the impairments he suffered in the two accidents of 2002 not only prevented him from working but also affected his social life, and household activities such as cleaning, cooking, financial management, attendance at church and childcare.

Throughout the 11-year period between 2002 and the MVA, Mr. Thiruchelvam said that all his activities were affected to some extent by pain, depression, lack of motivation and lack of interest. He described his state of mind in that period as “down” – not interested in things, not sleeping, feeling that people were watching him, and feeling pain, sadness and hesitancy about even going outdoors. Whereas he had been active and involved in the community after arriving in Canada, after the 2002 accidents, he said, “I felt like a useless person. I lost a lot of friends. People withdrew from me as a person.”

The Applicant did continue to drive, and was involved in two further accidents, in 2009 and in 2011 or 2012. With prompting under cross-examination, he acknowledged that in one, his vehicle was rear-ended, while in the other, he hit the car in front, but there was no damage to his car. Subsequent to the MVA, he had another accident, in which a lady rear-ended his car. With respect to all these accidents, counsel at the Hearing was referring the witness to his medical reports. The Applicant remembered telling doctors about his accidents, and did not deny them, but had no specific memory of the actual events or what he might have said to the doctors at the times. At least one medical report characterised these two accidents as “fender benders”.

When asked if he was catastrophically injured in the 2002 accidents he said, “I do not know technical words, my counsel did it.⁷ I went to more than a hundred doctors. I don’t know what they said.” He insisted that he was confused, and that he knew he was receiving accident benefits, and then CPP benefits, but had no idea of details, just that he was receiving money. He insisted on his memory problems and repeatedly suggested that his family members would have better recollection than he did. Family members did not testify. He did recall starting to see Dr. Virey in 2003 or 2004 when his depression and sleeplessness worsened, and his family persuaded him to go to the psychiatrist. Under cross-examination the Applicant testified that he continued to drive, and continues to drive today, taking his wife to work or kids to school, or going to appointments, and visiting his siblings who live nearby in Mississauga. He sometimes shares the driving on family outings to Wasaga Beach, Montreal or Buffalo. However, he is an anxious driver, and if he is not feeling well, he would not drive that day and would use hospital transport or a public bus or walk to his appointments.

He has travelled for family vacations in Cuba, Dominican Republic and Israel, and in 2005 and again recently to Sri Lanka. Regarding these trips, he could not remember if there was a specific purpose for the trips, how long he spent there or what he did. Under cross-examination he did clearly remember that he had travelled to Sri Lanka in 2015 or 2016 to visit his grandmother and then to participate in her funeral. He also remembered more details about activities on that trip.

According to his testimony, over time the Applicant did experience some improvement in his condition after the 2002 accidents, notably in 2013. When asked if his social activities had improved at all he said, “In my mind, I thought it was a bit better, but I can’t measure.” He recalled that he had begun to assist with housecleaning, ironing, snow removal and driving the children to school. He began helping out with banking, laundry, dishes and small jobs around the house such as cleaning windows. He began helping his wife at her request; previously, pain and depression stopped him from taking any active part in household chores. He testified that the programmes recommended by the doctors seemed to be having some effect, but repeated, “I couldn’t measure…I don’t know if there is a change.” He began to manage his own medications, which previously his wife had picked up for him, and to make his own doctors’ appointments. He stated that as late as 2008-09 his wife had had to arrange his clothing for him; otherwise he would either not change at all, or would put the same set of clothes on, day after day. By 2013 he was dressing himself independently and shaving regularly. He also testified that he felt motivated to attend his cousin’s wedding, and travelled by car, train or bus to several cities in Germany with his son for this event.

As to the MVA, the Applicant testified, “I was stopped. Was hit from behind. In my mind, I hit the vehicle in front, but the other driver in front said no I didn’t, and he didn’t want to stay (at the scene). I cried. I don’t know, maybe the kids called the ambulance. I don’t remember.” He had pain in his back, shoulder, knee and head. He had had pain before the accident, but it increased “very heavily”. At the hospital the police asked questions. He told them then, and reiterated in his testimony: “I said I thought someone was trying to kill me. It is still my thought.” He testified that the Insurer had suggested writing off his vehicle, a van, but that instead he accepted $4000 in cash (after a $4250 deductible) and had the van repaired. The Applicant testified that after the accident, he thought, “Here we go again. Somebody wants to do something to me and it has happened.” He was x-rayed and received medications, and was told to go to his family doctor, whom he visited a day or two later.

At the Hearing, Mr. Thiruchelvam had difficulty describing the change in his condition after the MVA. When asked about pain after the MVA he testified that the pain was always there, but he could not measure, “It is the whole body, sometimes better, sometimes really bad, so I cannot state generally if was better or not better.” However, some of the things he had been doing before the MVA did not continue. A week or two after the MVA, he began treatments which included massage, physiotherapy, chiropractic treatment, heat therapy and electrical stimulation. His testimony was that the value of all these treatments was pain relief, although it was “short term”, lasting from hours to a few days. He said that he ceased treatment when the insurance money stopped, as he had no way of paying for it himself.

He testified that after the MVA his mental state worsened, with “higher” depression, worse sleeping, focussing on his problems and general sadness: “everything go (sic) high. It get worse after this, harder and harder, sleeping problem, focus problem, depression, sadness.” He said he “didn’t do anything at all” because of pain and depression. He ceased helping with laundry and household chores and banking, either because of depression and lack of interest, or because he would forget to do these tasks. For three years after the MVA his social life suffered as he had no motivation to leave the house or see friends. He might attend social functions once in two months, instead of weekly as before the MVA. In the three or four months prior to the Hearing he had begun to attend a programme at Mississauga Hospital in an attempt to improve his social contacts. He stopped attending after the MVA. He stated that his wife now manages his medications, including insulin for diabetes, by making up packages which he can then take on his own. However, he is afraid of what would happen if he took the medications at the wrong time, or not at all. Sometimes, he said, “I’m thinking about doing something, but not acting.”

He is capable of dressing himself but listens to his family who tell him to change clothes when he wears the same thing for several days in a row. He visits a barber once every 15 days to have his facial hair trimmed. He testified that he doesn’t want to do this himself because his hand shakes when he is holding the razor and looking into the mirror, and he leaves hair on his face. His family tells him to go to the barber. He often must be reminded to eat by a family member, as he eats irregular amounts at irregular times, and thinks his diabetes has worsened. He will put milk on cereal and eat that if no one is at home but does no cooking. He will sometimes stay in the kitchen and watch his wife and daughter prepare food. His wife and daughter take out the garbage, although he sometimes wheels the bin to the curb. Instead of going shopping with his wife, he now limits himself to picking up bread or milk. His pain levels vary. He has always got pain – in the head, neck, shoulder, back and knee. He gets headaches, and these sometimes increase if he is more active than usual. He is not sleeping well. When asked about his sleep problems he began to weep. After a brief recess he explained that he does not remember the last time he had a good night’s sleep, as he usually wakes up after about an hour. He added that his problems affect not only him, but also his family life and relationship with his wife and children. He has difficulty focussing and making decisions. If asked questions he doesn’t know what to say. He feels himself to be a disgrace to his family and worries that this will affect his daughter’s marriage prospects. He considers his life “scary”, and when he goes out, feels that “someone is trying to do something to me.”

During his testimony, the Applicant’s demeanor seemed lethargic, almost sullen at times; he had obvious difficulties remembering details and often answered vaguely or simply that he didn’t know or he didn’t remember. He acknowledged that his memory is very bad and that he often confuses events and details. He became frustrated and irritated when challenged to remember dates and details, telling cross-examining counsel that certain dates and events he remembers very well, whereas he has great difficulty remembering the doctors he has visited and what his complaints were at specific times. When speaking of his situation at times he lost composure and became tearful. He asked on two or three occasions to stand for a break during his testimony and during discussions.

Medical Evidence

The Applicant relied on medical reports from doctors who treated him before and after the MVA. Dr. Nguyen, his family doctor, recorded increased neck pain and back pain, as well as shoulder pain on the day following the MVA.⁸ On an OCF-3 disability certificate submitted on September 19, 2013, answering the question, “Does the applicant suffer a complete inability to carry on a normal life? (i.e., Has the Applicant sustained an impairment that continuously prevents a person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident?)” Dr. Nguyen checked “Yes”.⁹

It is important in this case to know something of the Applicant’s pre-MVA situation. Dr. Hoff, a clinical psychologist, treated the Applicant with psychotherapy between 2008 and 2015, and had authored a report on April 29, 2011.¹⁰ Dr. Hoff or an assistant, Mr. Whetstone, saw the Applicant once a month from July 2008. Before the MVA, in April 2011, Dr. Hoff observed a number of symptoms and signs including difficulties lifting objects and physical pain. She also described psychological symptoms including restlessness and impatience, agitation and discontent, grieving about losses suffered in the accidents of 2002, low motivation and energy, poor appetite, sleeping difficulties and cognitive difficulties which Dr. Hoff describes as resulting from post-traumatic fibromyalgia. On the Beck Anxiety Inventories, Mr. Thiruchelvam’s scores were in the upper end of the severe range of depression and in the high end of the moderate range. Dr. Hoff diagnosed a Pain Disorder Associated With Psychological Factors and a General Medical Condition, as well as Major Depressive Disorder and an Anxiety Disorder, with lingering posttraumatic stress symptoms such as disrupted regulation of emotional impulses including hyper sensibility, irritability, and loss of basic trust. On the Global Assessment of Functioning (“GAF”) Scale, Dr. Hoff’s opinion was that Mr. Thiruchelvam was functioning around 42, near the bottom of the serious impairment range. This opinion did not include physical functioning per se but did include his chronic pain experience. In 2011, Dr. Hoff’s opinion was, “…the low degree of energy exhibited by Mr. Thiruchelvam and his cognitive deficits leave him unable to work on a regular basis…. As well, there is still no end in sight to his chronic psychological condition, and thus, no indication regarding when, if ever, he will be able to work again.”

Dr. Martin Lee, a rheumatologist, treated the Applicant for fibromyalgia in 2012.¹¹ He noted negative side effects of certain medications tried by the Applicant, and recommended that he continue a combination of medications and non-pharmacological measures. In November of 2012 he described the Applicant as “massively symptomatic but stable.”

On September 11, 2014, one year post-MVA, Dr. Hoff wrote that the MVA had aggravated the Applicant’s physical and psychological conditions, augmenting his existing pain experience, despair, demoralization, irritability, anxiety about his health and future, trauma symptoms including loss of basic trust, and psychotic-like ideation. It gave him more reason to assume that he leads a doomed existence as understood in terms of his Sri Lankan Catholic beliefs. The MVA likely caused his condition to become more deeply entrenched.¹² The Applicant stopped coming in May of 2015, but resumed treatment in December 2016.

In a third report dated September 18, 2017, Dr. Hoff explained the negative impact of the MVA upon the Applicant’s daily activities:

... Within about three months he was behaviourally and functionally back to where he was before this third accident occurred, but… A more subtle, long-term effect was set in process as a result of the MVA. ... As a result of [the MVA] Mr. Thiruchelvam became less hopeful and more forlorn about his future. The [MVA] reinforces negative thinking and caused him to become more convinced that he is destined to suffer for the rest of his life. Likewise, his learned helplessness intensified, and he felt more trapped within a dysfunctional existence, with no way out. His depressive episodes persisted and increased. Since writing my previous report, three more years of feeling useless and worthless have passed by for Mr. Thiruchelvam. Interpersonal discord with other family members has increased during these past three years. …[His wife and children] are frustrated that he is not making a contribution to the functioning of the household and is not earning a living so as to support them. Mr. Thiruchelvam recently explained to me, they are tired “of babysitting me.”… He has lost the respect of his family members. This deterioration of his status and respect within the family is likely not primarily attributable to his [MVA], but I consider it to be a significant factor.¹³

Counsel for the Applicant also referred to the reports of Dr. Maselle Virey, a neuro-psychiatrist who treated Mr. Thiruchelvam over several years beginning on May 1, 2003.¹⁴

In March 2013, Dr. Virey wrote to the Applicant’s family doctor, Dr. Nguyen, reporting that Mr. Thiruchelvam continued to endorse severe depressive symptoms. Dr. Virey reported the Applicant’s fear that the insurance company was conspiring against him, his phone was being monitored, and he was under surveillance. At that time Dr. Virey concluded that the Applicant remained “massively symptomatic but stable.”¹⁵

In his report of July 21, 2014, Dr. Virey updated his previous report. Included were the dates of the Applicant’s visits, which appear to be about once per month, with occasional months missed and other months with two visits.¹⁶ This report, just under a year after the MVA, reviewed his annual findings between 2009 and 2014, stating, “clearly there have been symptom validity and reliability through the years”.

Nevertheless, there had been some improvement recorded, as he noted in the July 21, 2014 report:

From August 5 to 24, 2013, [the Applicant] was doing much better. He was in Germany at that time for a wedding. …still suffering from depression but his general mood was a lot better. At the time he had shown no signs of any psychotic symptoms. He was less angry, irritable, less procrastination. He did not feel the need to cry nor did he cry. … He also worried less and had no auditory or visual hallucinations or any thoughts of conspiracy against him. Following the [MVA] his symptoms of depression worsened and he developed some psychotic symptoms. He felt that the insurance company was plotting against him and that they were bugging his phone and his room. He felt like they started the accident and were trying to delay the ongoing litigation. Furthermore, he was in much greater pain than he was a month prior; a lot more depressed, sad, lonely, angry, irritable, guilty, and he felt like he was procrastinating a lot more. His feelings of hopelessness, helplessness, and worthlessness also increased. He again felt like the need to cry, unlike prior. He was in much greater pain than he was before. He was very anxious and very worried more than before the accident. Clearly his MVA of September 4, 2013 impacted upon his psychiatric status and caused recrudescent symptoms of post-traumatic stress disorder.¹⁷

Mr. Thiruchelvam has remained massively symptomatic, the magnitude of his symptoms skewed towards severe intensity. … It is well-known that rates of recovery diminish with the duration of a major depressive episode. At six months, recovery rate is 54%. At five years, 1%. I initially saw Mr. Thiruchelvam on May 1, 2003. That is more than 11 years now. The rate of recovery would be less than 1%. Prognosis is dismal and guarded. It is my opinion his impairments appear to be permanent, or at least of an indefinite duration.¹⁸

Counsel for the Applicant also filed a report from Dr. Brian Levitt of Kaplan Psychologists Clinic. In this report, dated August 27, 2014, nearly one year post-MVA, Dr. Levitt produced an extensive review of the Applicant’s history, going back to an earlier Kaplan report of March 20, 2007, in which he and his associates had determined that Mr. Thiruchelvam’s impairment following the two accidents of 2002,

Mr. Thiruchelvam was moderately to markedly impaired with respect to activities of daily life; social functioning; concentration, persistence and pace; and markedly impaired with respect to adaptation. We determined his impairment due to mental and behavioural disorders was marked overall and concluded that he met criteria according to SABS G (now SABS criterion 8) for a Catastrophic Impairment.

Dr. Levitt’s comment on Causation reads as follows:

His depression worsened and he developed psychotic features that included a belief that the accidents were part of an effort from the insurance company to kill him. His symptoms have remained quite serious, for years, as documented by his treatment psychiatrist and others. A further MVA in 2013 initially aggravated all of his symptoms, though he knows that depression and pain are likely similar to what they would have been before that accident. However, anxiety during auto travel is worse since his third MVA, and the 2013 MVA also reinforces his paranoid belief that the insurance company is trying to kill him. As such, all three accidents materially contributed to his current symptom picture and impairments from a psychological perspective (original emphasis) – they function in concert with respect to causation of his current psychological disorders.¹⁹

Dr. Levitt offered an updated prognosis 11 months after the MVA:

... Unremitting and serious symptoms, entrenched for many years since his 2002 [accidents]. Significant and ongoing treatment efforts have prevented further serious deterioration, but have not resulted in significant, lasting improvement. His prognosis at this point for any significant improvement is poor. He has sustained permanent and serious impairment of important medical and psychological functioning as a result of his 2002 [accidents] and 2013 MVA. It has been more than two years since his 2002 [accidents], and he is unlikely to make any significant improvement since his 2013 MVA from a psychological perspective, and as such meets SABS criteria for permanence with respect to all three MVAs….[f]rom a psychological perspective Mr. Thiruchelvam is incapable of returning to any form of employment, and this is likely permanent.²⁰

In his report of October 30, 2017, Dr. Levitt stated:

1. The September 2013 accident had led to a more complex and severe symptom picture, particularly with respect to anxiety and paranoia. Had this accident not occurred, his outcome would have had the potential to be different;

2. If the September 2013 had not occurred, his status after September 4, 2013, could not be reliably predicted to be the same.

Counsel for the Applicant also referred to the 90-page report of Omega Medical Associates dated November 10, 2017 entitled Catastrophic Multidisciplinary Examinations – Criterion 8 (the “Omega report”).²¹ A major part of the Omega report reviewed and criticized reports from the Insurer’s Examination done by Viewpoint in response to the OCF-19 submitted by Dr. Garner on December 18, 2014. In the Viewpoint report, physiatrist Dr. Oshidari had expressed the opinion that Mr. Thiruchelvam did not meet the definition of catastrophic impairment under the Schedule criteria. Dr. Oshidari a physiatrist, had provided a whole person impairment (“WPI”) rating of 0% and Dr. Wiseman, a psychologist, had offered Moderate (Class 3) for the impairment in activities of daily living and adaptation, and Mild (Class 2) impairment in social functioning and concentration, persistence and pace, with a total WP I of 13-16%.

The Omega report included the findings of its own examiners, Dr. Dory Becker’s Psychological Assessment of April 10, 2017 and Ms. Stacey Baboulas’ In-Home Occupational therapy and 2-day Situational Assessment on April 11 and 12 and May 13, 2017. After an extensive review of the findings of “countless peers who have opined that Mr. Thiruchelvam has evidenced serious psychological symptomology and offered support for Marked impairment in functioning,” Dr. Dory Becker and Ms. Baboulas concluded, “[w]e do not believe that there is sufficient evidence to suggest that Mr. Thiruchelvam’s functioning has deteriorated in Social Functioning, Concentration, Persistence, and Pace, and Adaptation as a result of his involvement in the 2013 motor vehicle accident.” However, with respect to the sphere of Activities of Daily Living, Dr. Becker reviewed the assessments of the Applicant’s ability to engage in activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. She reviewed the reports of Dr. Bartolucci, Dr. Virey, and Dr. Cowman, as well as Mr. Avi Kaplan, occupational therapist, Dr. Barber, psychologist, and Drs. Levitt and Kaplan. In 2007 Drs. Levitt and Kaplan had offered evaluations of Class 3 to 4 Moderate to Marked impairment in Activities of Daily Living. Citing the AMA Guides, Dr. Becker noted that what is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.²²

The Omega report listed a number of activities relating to self-care, household tasks, social and church activities as well as motivation for doing those things prior to the MVA, noting that the Applicant’s post-accident emotional issues further impacted his ability to engage in activities he was capable of performing before the MVA.²³ After a thorough comparison of the pre-MVA descriptions and assessments with the observations and assessments she and Ms. Baboulas had made, Dr. Becker concluded:

… Mr. Thiruchelvam is currently evidencing a Class 4 Marked impairment under the Activities of Daily Living parameter at the present time. While I recognize that he was indeed impaired as a result of psychological factors prior to the subject accident, I do not believe that there is convincing evidence of a Class 4 Marked impairment in this domain just prior to the subject accident and the evidence gathered as part of today’s multidisciplinary evaluation suggests that Mr. Thiruchelvam has experienced the deterioration in functioning under this domain since his involvement in the 2013 motor vehicle accident.

…[t]he issue of causality appears complex regarding the impact of the September 2013 motor vehicle accident. Mr. Thiruchelvam presented as a poor historian at times and he often had difficulty differentiating between his pre-2013 MVA and post-2013 MVA symptoms. He also had difficulty identifying whether his functioning changed as a result of the 2013 accident. While he was able to articulate his pain increase, he noted that he was unable to offer an opinion regarding how much his pain had increased and how notable this difference was. He did note however that his mood deteriorated post-accident which he attributed to increased pain and greater impairments and functioning.²⁴

Acknowledging the differences of opinion among the specialists as to causation, Dr. Becker pointed out that Ms. Baboulas had had the benefit of communicating with the Applicant’s wife, and that her evaluation covers the most current period. Dr. Becker concluded, “I am in agreement with my colleagues Drs. Kaplan, Levitt, Virey and Hoff, that the subject September 4, 2013 accident has materially contributed to Mr. Thiruchelvam’s current psychological symptoms and associated impairments and functioning.”²⁵

Dr. Garner, a specialist in physical medicine and rehabilitation, summarised, “Mr. Thiruchelvam has sustained a catastrophic impairment as a result of the March 16, 2002, March 23, 2002 and September 4, 2013 MVAs” (emphasis added). In the OCF-19, Dr. Garner attributes cause to all three accidents, which merely underscores the difficulty of establishing that the MVA directly caused the Applicant’s current impairment. In his report of August 26, 2014, under Impact of Most Recent Motor Vehicle Accident, Dr. Garner states:

His most recent motor vehicle accident of September 4, 2013 appears to have subjectively caused an aggravation of his pre-existing symptoms but he is not totally certain of this. He notes no change in his tolerance for activity as a result of this most recent accident (no increased disability). Thus the functional limitations in relation to this most recent accident are not significant although from his subjective perspective, he feels that there was an aggravation of his symptoms as a result of the accident. He reports that there is increased psychiatric consequences (sic) from the impact of its accident but I will defer any additional comment about this matter to the psychological review.²⁶

The Evidence on Behalf of the Insurer

At the Hearing, counsel for RBC called no witnesses but did cross-examine the Applicant and Dr. Virey, and in argument made multiple critiques of the Applicant’s medical reports. Counsel for RBC relied on reports by Dr. Wiseman, a neuropsychologist, who attended at the Hearing for cross-examination, and of Laura Youm, an occupational therapist. Counsel for RBC also pointed to lacunae in the Applicant’s productions, suggesting that negative inferences should be made in each case. The Applicant’s position was that he was under no obligation to call oral testimony and that the medical reports sufficed; if the Insurer wanted the doctors present for cross-examination it was up to the Insurer to subpoena them to assure their presence. I merely record that any analysis or decision made in this award is not based on negative inference, but on the weight of the evidence (or lack of it) available at this Hearing and in the documents filed by the Parties.

Counsel for RBC argues that the Applicant has not established that he has suffered catastrophic impairment, but if there is a catastrophic impairment, it is not due to the MVA but to his previous accidents, notably the two accidents which took place in 2002. According to RBC, any initial exacerbation of the Applicant’s impairments arising out of the MVA subsided within several months, so that the Applicant has now returned to his pre-accident level of dysfunction.

It is argued on behalf of RBC that the assessors who produced the Omega report failed to consider the impact of an intervening accident in 2009 or 2010, and of a subsequent accident in 2014, and therefore their assessment is seriously flawed and should be disregarded. On this point, Dr. Becker did note that there had been a couple of “fender benders,” but apparently did not consider them serious enough to warrant any attention. Counsel for RBC also argues that the Omega assessors failed to consider the psychological impact of unrelated legal proceedings; for that reason as well the Omega report should be disregarded. Although there were some mentions of unrelated legal proceedings in Dr. Virey’s clinical notes, no evidence was adduced as to their nature or seriousness. There is thus no way to evaluate any potential effect they might have had on the Applicant’s state of mind.

Dr. Sherri MacKay of Centrum Medical Assessments assessed the Applicant on October 31, 2014, approximately 14 months post-MVA. In her report²⁷ Dr. MacKay observed that the Applicant had been under the care of Dr. Virey because of depression and anxiety subsequent to the 2002 accidents. Dr. MacKay stated that when queried about changes in his functioning since the MVA, the Applicant was not able to articulate any specific changes in his day-to-day functioning but felt more anxious while driving. He continues to feel sad, cries intermittently, feels especially anxious while driving and continues to have trouble sleeping. He feels that his motivation is low and his concentration limited. These symptoms, the doctor stated, pre-existed the MVA. His low and mid back pain, head pain, shoulder pain, and neck pain and limited range of motion in his neck also are pre-existing pain complaints. Dr. MacKay wrote, “there may have been a minor exacerbation of pre-existing symptoms… However, there is no indication of any significant persistent increase in the severity of his mental health symptoms as a result of the September 4, 2013 MVA.”²⁸

Dr. Becker, on the other hand, had noted weaknesses and limitations to the tests administered to the Applicant, noting his difficulties as a non-native English speaker and his difficulties with comprehension, concentration and focus. Counsel for the Applicant suggests that Dr. MacKay’s conclusion is flawed in that she did not review important pre-MVA medical documents, she failed to obtain sufficient information from the Applicant by asking questions (for example about other accidents which he might have had) and she failed to consider the limitations of the tests in assessing a non-native English speaker with an obvious communication deficit. Thus she was not in a position to make a comparison between his functions before and since the MVA. Where the two disagree, I prefer the evidence of Dr. Becker, who with Ms. Baboulas, had much more opportunity to observe and evaluate the Applicant and his impairments, and who had access to his medical records from before the MVA. Dr. MacKay’s appointment with the Applicant was just over 3 hours, including the batteries of tests, and so of necessity was comparatively superficial.

The OCF-19 submitted on December 18, 2015 and produced as Exhibit 5²⁹ at the Hearing, referred to a report of Dr. Levitt in 2007, and an update in August 2014. The 2007 report offered an opinion that the Applicant was moderately to markedly impaired in three of four domains and markedly impaired in Adaptation as a result of the two accidents in 2002. In requesting a determination of catastrophic impairment, Dr. Garner stated that Applicant suffered from a Class 4 impairment due to a mental or behavioural disorder. He ticked the box beside the statement that the insured person’s condition is unlikely to cease being a catastrophic impairment. In his explanatory notes Dr. Garner referred to an earlier psychological legal report from Dr. Levitt and Dr. Kaplan of March 20, 2007 detailing the Applicant’s impairments at that time and describing them as “moderate to marked” in three spheres and marked in Adaptation. He stated that the Applicant had sustained serious and permanent impairment of important social and psychological functioning due to mental and behavioural disorders and that he is likely to remain unemployable.

The Insurer’s report prepared by Dr. Oshidari, Dr. Wiseman, and Laura Youm, an occupational therapist, on July 7, 2016 expressed the opinion that the Applicant did not sustain catastrophic impairment as a result of the MVA. The Insurer also pointed out that the Applicant’s experts at Omega found him only moderately impaired in three spheres and marked in one. Dr. Oshidari, after noting a number of physical weaknesses, stated that “there were numerous findings which cannot be explained by specific neuromusculoskeletal abnormality. Therefore, in relation to the 2013 motor vehicle accident there is no impairment.” This statement is puzzling, as Dr. Oshidari seems to suggest that only neuromusculoskeletal abnormalities can cause impairment. Dr. Oshidari had previously said “there is no diagnosis of pain disorder associated with both psychological factors and a general medical condition…any abnormality or limitation of function is due to the longstanding pre-existing condition.”³⁰ This comment is contradicted by the Omega report, which was delivered some weeks after his report and did find psychological impairment.

Analysis

The Insurer criticised the Applicant for not calling his medical witnesses to the Hearing but required only Dr. Virey to attend for cross-examination. Given the FSCO policy to restrict oral evidence by specialists and to encourage reliance on their written reports, this decision by the Applicant was reasonable. The Applicant’s counsel suggests that in light of the Insurer’s failure to cross-examine the authors of the other medical reports filed, those reports should be taken as uncontradicted evidence. The reports submitted for the Applicant do tend to confirm symptomatically the experiential testimony as related by the Applicant, especially in the case of Dr. Virey, who had recorded and could compare the Applicant’s psychiatric symptoms and conditions from regular visits over a period of more than 11 years, and Ms. Baboulas, who had done an extensive assessment of the Applicant and had spoken with his spouse as well. However, I acknowledge the reports filed on behalf of the Insurer, which in many respects do contradict the evidence proffered by the Applicant. If the Applicant is relying on medical reports in lieu of oral testimony at the Hearing, there is no reason that the Insurer cannot do the same. Since the Hearing I have read the medical reports from both sides and considered their contents in reaching this decision.

The assessment of impairments is an art as well as a science. Measurements are taken, symptoms recorded and categorised. But the art lies in assessing the effect of impairments on any given individual, in the unique circumstances of that individual’s life. Given the degree of subjectivity involved in arriving at these classifications, it is perhaps not surprising that there were different conclusions reached by various professionals at different times over 15 years. However, this does make it extremely difficult to compare the assessments in order to ascertain whether there has been a real exacerbation of the Applicant’s pre-MVA condition. Typically, the testimony of an applicant would serve to elucidate and illustrate in practical terms the extent and effects of the impairments indicated by the doctors’ assessments of his symptoms. However, in this case, the Applicant is a poor witness and his testimony is often not particularly helpful. He readily admits that he suffers from cognitive deficiencies including a poor memory and an inability to focus. Ironically, both these difficulties, which cause the Applicant to produce testimony which might appear vague or evasive, may well result - at least in part - from the MVA itself. The situation is not improved by Mr. Thiruchelvam’s Asian background and non-native English which, as observed by some of the reporting medical professionals, may tend to skew the results of validity tests standardized to a North American culture. This juxtaposition of circumstances makes this a particularly challenging case.

The Insurer pointed out that the more recent Omega report found the Applicant markedly impaired only in one sphere, while Dr. Garner who signed the application for a determination of catastrophic impairment had relied on a 2007 report stating that he was moderately to markedly impaired in three and markedly impaired in the fourth prior to the MVA.³¹

In the case of Pastore, Court of Appeal approved the Director’s conclusion, deciding that the conclusion that the word "a" in clause (g) requires only a single function from the Guides to be at the marked impairment (class 4) level in order to qualify as catastrophic impairment, is certainly within the range of possible, acceptable interpretations….In reaching the opposite conclusion, the Divisional Court did not have the benefit of this court's decision in Kusnierz.

Thus, a marked impairment of any one of the four spheres can qualify the Applicant under Schedule subsection (g). The OCF-19 of December 2015 (Exhibit 5) relied on the Levitt/Kaplan report of March 20, 2007, updated by testing of cognitive functioning and psychological symptoms and functioning, behavioural observations and updated clinical interviews.

At the Hearing Dr. Virey reiterated his written opinion that Mr. Thiruchelvam’s various psychiatric disorders had originated from the 2002 accidents, but that all three accidents had materially contributed to the impairments suffered by Mr. Thiruchelvam today: “You can’t tease [the effects] apart from a clinical or scientific perspective. They function in concert to cause the current psychological disorders.”

Accepting the Omega report as evidence of Class 4 Marked impairment in the sphere of Adaptation, and having personally observed his difficulties during the Hearing, I am persuaded on the balance of probabilities that Mr. Thiruchelvam, at the time of the Hearing, was markedly impeded in useful functioning, at least in the sphere of Adaptation, and consequently meets the Schedule criteria for catastrophic impairment in his activities of daily living. The apparent contradiction between the more recent Omega report and the pre-accident report referred to by Dr. Garner can only be relevant to causation.

Causation

The Schedule defines an accident as an incident in which the use or operation of an automobile directly causes an impairment. Generally an applicant must show that “but for” the accident he would not have suffered the impairment. In a simple case, the decision-maker would look at the applicant’s normal pre-accident activities and compare these with the impaired activities following the accident. However, in this case the pre-existing physical and psychological impairments resulting from previous accidents had created a “new normal” for the Applicant which his doctors thought would most probably have been permanent. Thus, it would be futile to ask the Applicant whether “but for” the MVA he would not be suffering his current impairment. He was already in a considerably impaired state before the MVA. As miserable as this “new normal” may have been for Mr. Thiruchelvam, it was this pre-MVA level of dysfunction to which his post-MVA impairments are to be compared.

The Applicant refers to the Court of Appeal case of Monks v. ING³² in support of using the test of material contribution in lieu of the “but for” test. The Court of Appeal did state that the material contribution test applies to statutory accident benefits cases. In Monks, however, the Court held that the evidence relied upon by the trial judge could have grounded the application of the “but for” causation test as well as the material contribution test, so the outcome would have been the same had the “but for” test been applied. I am not satisfied that Monks is particularly useful to the Applicant in the present case, given that counsel for RBC accepts that the alternative test is for the Applicant to show that the MVA has made a material contribution to his total mpairment.³³ The question before me is, if the Applicant can prove, on the balance of probabilities, that his pre-existing psychiatric impairment was exacerbated by the MVA, can that exacerbation be deemed a “material contribution”?

His own expert had said in 2007, six years prior to the MVA, that his chances of recovery stood at less than one per cent. The MVA may well have exacerbated the Applicant’s symptoms, but he himself is unable to tell us to what extent, or indeed if there was any serious deterioration after the MVA. There was no clinical measurement to allow doctors to state with certainty what proportion of the impairment stemmed from the MVA, nor the precise extent of his impairment.³⁴

According to the documents in evidence, reports pre-dating the MVA³⁵ showed the Applicant to have severe psychiatric problems following his 2002 accidents. The result of any determination following the catastrophic impairment assessment in 2007 referenced by Dr. Garner in the OCF-19 was not entered into evidence.³⁶ He did, however, state that it was a first application for a catastrophic determination. Dr. MacKay quotes comments in Dr. Virey’s notes post-MVA in 2014 and 2016, stating that he would continue to see the Applicant in a palliative role, and that the Applicant had “unrelenting stresses” unrelated to the MVA. I note that Dr. Virey’s notes referred to do not comment on causation, and do not preclude a conclusion that the MVA did have a material effect on Mr. Thiruchelvam’s already weakened psychiatric condition. The subjective, disjointed and rather sketchy oral evidence of Mr. Thiruchelvam is nevertheless corroborated by several medical practitioners, some of whom observed him over a long period of time both pre- and post-MVA. There is agreement among his treating and assessing professionals that despite serious pre-existing psychiatric symptoms, he is now in worse condition than immediately before the MVA.

Dr. Wiseman, the neuropsychologist who contributed to the Viewpoint report requested by the Insurer, refers to a report from Dr. Hoff, the Applicant’s treating psychologist. Her conclusion is that if the MVA did impact the Applicant, it is not quantifiable by the metrics commonly used in disability assessment and the evidence indicates that he was already impaired at a level consistent with catastrophic impairment prior to the MVA.

Counsel for the Insurer argues that a subsequent accident in 2014 could have been the cause of Mr. Thiruchelvam’s current state of dysfunction. However, there is no evidence before me to support that argument.

Acknowledging the impossibility of imputing a precise proportion of his present disability to the MVA, I must look to the legislative intent of the statute, which is consumer protection. A seminal decision considering the definition of catastrophic impairment is Desbiens v. Mordini, a decision of Justice Spiegel of the Ontario Superior Court in 2004. In Desbiens, Justice Spiegel commented: “the Legislature’s definition of “catastrophic impairment” is intended to foster fairness for victims of motor vehicle accidents and ensure that victims with the greatest health needs have access to expanded medical and rehabilitation benefits.” The court also noted that the text of the regulation itself indicates that the drafters clearly intended the definition of “catastrophic impairment” to be inclusive rather than restrictive. In the present case, there is a consensus among the Applicant’s medical experts that there is a marked impairment, and several concurring opinions among his treating and assessing specialists that the current level of his impairment is worse than pre-MVA. The Viewpoint report is the outlier, with the opinion that he was already catastrophically impaired before the accident. Causation is admittedly ambiguous. There is no certain way to ascertain the relative importance of the MVA. His treating physicians, who know him and his history better than anyone else, agree that his current status results from three accidents, one of which is the MVA. The Insurer’s assessors say he was already markedly impaired so in effect the MVA was immaterial to his current status.

The Schedule, being remedial consumer protection legislation, should be interpreted in a manner that assists consumers. Mr. Thiruchelvam may possibly have already been catastrophically impaired prior to the MVA, but that does not prevent the MVA from materially contributing to an even worse condition than what he was already suffering before it. The designations of impairment - Mild, Moderate, Marked and Extreme - are not pinpoints on a scale but each is rather a range. The characterisation cited in the OCF-19 of “moderate to marked” would indicate a range between high moderate and low marked. Even if Mr. Thiruchelvam had already been in a low marked range prior to the MVA, nothing prevents the MVA’s impact from worsening his impairment to a higher level within the Marked range, a level closer to, but which does not reach Extreme. In this light, an ambiguity must be resolved in favour of the Applicant. I find that, on the balance of probabilities, the MVA did have a material effect on the Applicant’s psychiatric condition, leaving him with impairments more severe than those he was already suffering before September 4, 2013, and which are catastrophic within the meaning of the Schedule.

Is Mr. Thiruchelvam entitled to payment of medical benefits?

The Applicant has claimed the amounts of $1936.35 for chiropractic/physiotherapy by Darren Hylton as set out in an OCF-18 dated July 23, 2015;³⁷ and $1696.30 for chiropractic/physiotherapy by Scarborough Rehab as set out in an OCF-18 dated September 8, 2015.³⁸ I shall deal with them together as the evidence and arguments for both are similar. The Insurer argues that the failure to bring the treating professionals’ notes into evidence are fatal to the Applicant’s case. It is true that there is at least one case which has so held. However, there is no hard and fast rule as to the nature of the evidence to prove one’s case, and it is the Applicant’s decision as to what he should offer as evidence. In this case, there is ample evidence of the Applicant’s physical pain and mental disorders in the clinical notes and in the medical reports which are in evidence.

Mr. Thiruchelvam’s family doctor’s, Dr. Nguyen’s, clinical notes mention an increase in neck pain and spasm.³⁹ In his disability certificate of September 19, 2013, he indicated that the Applicant had sustained a complete inability to carry on a normal life.

The Schedule requires the Insurer to pay for all reasonable and necessary chiropractic and physiotherapy services incurred as a result of the accident which are undertaken to reduce or eliminate the effects of a disability (emphasis added) or to facilitate the insured person’s reintegration into his family, society or the labour market.⁴⁰

The first claim, of July 23, 2015, covers exercises, cardiovascular work and manual therapy. The second is for 12 physiotherapy sessions. There is evidence from both the Applicant’s oral testimony and his doctors’ reports that his chronic pain and fibromyalgia persist. At the Hearing the Applicant said that after the MVA his pain had increased but the treatments did offer him relief, sometimes for a few hours, sometimes for a couple of days. This is supported by the reports of his doctors. He also testified that could not afford the treatment once the insurance payment ceased.

There is also evidence from the Applicant’s doctors that the likelihood of his recovery is minimal. However, even if the ideal goal of treatment is ideally to return the Applicant to pre-accident status, these plans also are aimed at improvement in strength, range of motion, function and endurance, as well as showing the Applicant how to compensate for his physical shortcomings with a view to helping him return to a more normal life despite his recurring pain.

The denials were both based on an assessment dated August 12, 2015⁴¹ by Dr. Khan who did not meet Mr. Thiruchelvam but reviewed documents to arrive at his opinion that the treatments were unlikely to provide significant or long-term improvement. Dr. Khan did not appear to consider the value of temporary pain relief as a legitimate reason for treatment. Given that the treatments did give Mr. Thiruchelvam a measure of pain relief, and his stated wish to continue, even if they could not completely or permanently alleviate his symptoms, I find that both treatments were necessary to reduce or eliminate the effects of his disability.

Counsel for the Applicant referred to the case of Amoa-Williams and Allstate,⁴² in which Arbitrator Sapin reviewed extensively the notions of reasonableness and necessity as expressed by a number of physiotherapists and kinesiologists. I find that the treatments recommended fall within the range of reasonable cost and frequency expressed in the Amoa-Williams case.

Is Mr. Thiruchelvam entitled to payment for the cost of an examination?

Mr. Thiruchelvam has claimed the cost of an examination for occupational therapy to be provided by Zaraska Rehab Associates as set out in an OCF-18 dated January 15, 2016,⁴³ for an attendant care and occupational therapy assessment. Again, relying on the report of Dr. Khan,⁴⁴ the Insurer denied this claim. This was a report prepared on paper review, prepared by the doctor without seeing the patient. Dr. Khan appears to have concluded that because no bones were broken, Mr. Thiruchelvam did not need assistance. Given the many instances of corroboration by numerous specialists of Mr. Thiruchelvam’s testimony regarding persistent pain and his inability to manage daily activities such as dressing, medication and shaving, I find that an assessment for attendant care would have been a logical step to ascertain the necessity and reasonableness (or not) of attendant care and occupational therapy. I find that Mr. Thiruchelvam is entitled to the cost of this examination.

Is Mr. Thiruchelvam entitled to interest for the overdue payment of benefits?

The law entitles a successful applicant to interest on amounts awarded.⁴⁵ Interest under the Schedule is recognized to be remedial, rather than punitive, and is intended to discourage insurers from delaying payment. The date of Mr. Thiruchelvam’s was September 4, 2013. Interest on overdue payments runs at 1% per month, compounded monthly until the date the mediation occurred, that is, February 23, 2016. Thereafter, the interest rate is the pre-judgment interest rate in the Courts of Justice Act⁴⁶ for past pecuniary loss, calculated from the date on which a mediation proceeding is commenced and ending on the date of the decision. All amounts awarded shall bear interest from the date this decision is published at the rate of 1% per month compounded monthly, from the date each became due until June 25, 2013, the date they were mediated. Thereafter, overdue sums will bear interest until they are paid in full, at the usual judgment rate of 1.3% per annum.

Is Mr. Thiruchelvam entitled to a special award?

The Applicant’s counsel made a belated application for a special award during the Hearing, and in post-hearing submissions argued that if an arbitrator concludes that payments were unreasonably withheld or delayed the arbitrator shall make a special award. With respect, on that interpretation of section 3(8) of the Schedule, every successful applicant would be automatically entitled to a special award. I cannot think that this was the intent of the legislator, given that the delayed payments bear interest, which compensates the injured party for the loss of the use of the delayed funds. Every denial of a claim or delayed payment cannot be “special” so as to entitle an applicant to a special award. For each claim, an insurer makes a judgment, and in some cases, that judgment may not be upheld by an arbitrator or judge reviewing it. That does not in my view dictate that a special award should follow. Not all error is unreasonable. In Erickson and The Guarantee Company of North America,⁴⁷ Arbitrator Rotter, in ordering the first special award, found that the insurer had acted unreasonably in withholding benefits. In that case the insurer had suspended benefits without giving a proper reason and without notice in accordance with section 24(8) of the Schedule, and then refused to update its assessment in the face of updated medical information. In the present case, given the complexity of the factual situation, having found the denials unjustified, I am not persuaded that the withholding of benefits was unreasonable. I do not consider this to be an appropriate case for a special award.

Is the Insurer liable to pay the Applicant’s expenses in respect of the arbitration?

Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration?

Given the success of the Applicant’s claims, the Applicant is entitled to have his expenses paid by the Insurer. The Parties submitted information on costs with their Post Hearing Briefs. I have reviewed the Applicant’s Bill of Costs, which claims for 120 hours of lawyer’s time billed at $20,238.20. Adding disbursements of $27,059.43 (including $1551.00 for a partial transcript49), and additional costs set out in the Insured’s Reply Submission, the Applicant’s expenses total $49,331.63. By way of comparison, the Insurer’s Bill of Costs was for a roughly similar amount of $43,796.00, and this to my mind is an indication that both parties’ claimed costs for this particular case were reasonable. The Insurer shall pay to the Applicant his costs of $49,331.63.

April 26, 2018

Louise Barrington Arbitrator

Date

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:

1. Mr. Thiruchelvam has suffered a catastrophic impairment as a result of the accident of September 4, 2013.

2. Mr. Thiruchelvam is entitled to payment of medical benefits of $1936.35 for chiropractic/physio by Darren Hylton as set out in an OCF-18 dated July 23, 2015 and of $1696.30 for chiropractic/physio by Scarborough Rehab as set out in an OCF-18 dated September 8, 2015.

3. Mr. Thiruchelvam is entitled to the cost of an examination for occupational therapy to be provided by Zaraska Rehab Associates as set out in an OCF-18 dated January 15, 2016.

4. RBC shall pay to Mr. Thiruchelvam his expenses of this arbitration in the amount of $49,331.63.

5. Mr. Thiruchelvam is entitled to interest from the date each benefit amount fell due until it is paid in full.

6. The claim for a special award is dismissed.

April 26, 2018

Louise Barrington Arbitrator

Date

Footnotes

1. 1Because there are a number of motor vehicle accidents referred to in this Decision, for clarity the accident of September 4, 2013 which is the subject of this arbitration is designated throughout as “the MVA”.
2. 2The Statutory Accident Benefits Schedule, Ontario Regulation 34/10 – Effective September 1, 2010.
3. 3Exhibit 5, OCF-19 signed by Applicant 2015/06/19, signed by Dr. Garner 2014/12/16 and received by RBC 2015/12/18 attached to an email from David S. Wilson to johnny.fragnelli@rbc.com. The cover email mentioned that the OCF-19 “was forwarded to [RBC] on earlier occasions, and most recently by fax on December 9, 2015”.
4. 42012 ONCA 642
5. 5Version in force on the date of the MVA.
6. 6Applicant’s Post Hearing Submission (“PHS”) at p. 2.
7. 7In the Applicant’s PHS his counsel stated that there had been an application for a Catastrophic Designation as a result of the 2002 motor vehicle accidents and referred to Exhibit 8, the Applicant’s medical brief, specifically Drs. Hoff and Virey, whose reports are considered below. No evidence was offered regarding the outcome of that application.
8. 8Clinical notes (handwritten) of Dr. H.K. Nguyen, Exhibit 11,Tab 15, p. 212.
9. 9Exhibit 7, OCF-3 of September 19, 2013 signed by Dr. Nguyen, in Respondent’s Brief, Tab 15, p. 132.
10. 10Exhibit 8, Dr. Tory Hoff, Psychological Update Report, April 29, 2011, in Medical Brief of Insured at Tab 1.
11. 11Exhibit 8, Dr. Martin Lee, Report April 30, 2012, September 26, 2012, and November 21, 2012 at Tabs 4, 5 and 6. Fibromyalgia is characterised by chronic widespread pain and a heightened pain response to pressure, as well as tiredness to a degree that normal activities are affected, sleep problems and troubles with memory. It is often associated with depression, anxiety and posttraumatic stress disorder. Causes may include psychological stress, trauma and certain infections.
12. 12Exhibit 8, Dr. Tory Hoff, Psychological Update Report, September 18, 2017, in Medical Brief of Insured at Tab 11, p. 8-9.
13. 13Exhibit 8, Dr. Tory Hoff, Psychological Update Report, September 18, 2017, in Medical Brief of Insured at Tab 13, p. 2.
14. 14Dr. Virey, Report of July 21, 2014 in Medical Brief of Insured at Tab 7, p. 3.
15. 15Dr. Virey, Report of March 11, 2013 in Medical Brief of Insured at Tab 6, p. 2.
16. 16Dr. Virey, Report of July 21, 2014 in Medical Brief of Insured at Tab 7, p. 2.
17. 17Dr. Virey, Report of July 21, 2014 in Medical Brief of Insured at Tab 7, p. 12.
18. 18Dr. Virey, Report of July 21, 2014 in Medical Brief of Insured at Tab 7, p. 3, p. 10 and 11.
19. 19Dr. Levitt, Report of August 27, 2014 in Medical Brief of Insured at Tab 8, p. 2, p. 22-23 and p. 27.
20. 20Dr. Levitt, Report of August 27, 2014 in Medical Brief of Insured at Tab 8, p. 30.
21. 21Exhibit 8, Medical Brief of Insured, Report of Omega Medical Associates dated November 10, 2017 entitled Catastrophic Multidisciplinary Examinations – Criterion 8 at Tab 15.
22. 22AMA Guides 4th Edition p. 294, cited by Dr. Becker.
23. 23Exhibit 8, Tab 15, p. 29.
24. 24Ibid.
25. 25Exhibit 8, Tab 15, p. 29-30.
26. 26Exhibit 8, Tab 9, p. 13-14 and report of Dr. Garner of August 28, 2014 and p. 272-280, article by Dr. Brian E. Levitt, Determining Overall Mental and Behavioural Impairment: A Scientific Approach to Using Chapter 14 of the 4th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment at p. 270-279.
27. 27Exhibit 11, Tab 16a, p. 329.
28. 28Exhibit 11, Tab 16, p. 332-336.
29. 29Exhibit 5, OCF-19 signed by Dr. Garner and received by RBC on December 18, 2015.
30. 30Respondent’s Supplementary Arbitration Brief of December 4, 2017, Tab 1, unpaginated.
31. 31Exhibit 5, p. 4. This statement, relying on pre-accident reports, is not consistent with the more recent Omega report. One possible explanation for this is the fact that Dr. Garner was a doctor of physical medicine, whereas the impairments being considered for this analysis are psychiatric, not physical.
32. 32Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, 90 O.R. (3d) 689.
33. 33Agyapong v Jewco Insurance Co., [2016] O.F.S.D. No. 35 para. 44, Tab 3 of RBC PHS.
34. 34See above, Dr. Levitt’s report at Footnote 17 and Dr. Virey’s testimony at the Hearing, cited above.
35. 35Including the Levitt/Kaplan report of 2007 referred to in Exhibit 5, the report of Dr. Tory Hoff of April 29, 2011, in Exhibit 8, Tab 1 and the report of Dr. Virey of March 11, 2013 in Exhibit 8, Tab 7.
36. 36Medical Legal Assessment dated August 28, 2014, Exhibit 8, Tab 9, p. 1.
37. 37Exhibit 11, Tab 16.
38. 38Exhibit 11, Tab 15, p. 133.
39. 39See Schedule, s. 14(2)(b).
40. 40Exhibit 11, Tab 16, p. 351.
41. 41Amoa-Williams v Allstate, FSCO A97-001864, Decision of Arbitrator Sapin of June 5, 2000.
42. 42Exhibit 10, OCF-18 dated January 14, 2016.
43. 43Exhibit 11, Tab 16, p. 341.
44. 44Insurance Act, s. 51, Schedule (Ont. Reg. 236/14).
45. 45Courts of Justice Act, R.S.O. 1990, c. C.43.
46. 46FSCO No. A-000560, Decision of Senior Arbitrator Rotter, dated June 2, 1992.