Paraloganathan Nadesu v. Zurich Insurance Company Ltd., 2019 ONFSCDRS 27

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2019 ONFSCDRS 27

Appeal P17-00020V

OFFICE OF THE DIRECTOR OF ARBITRATIONS

PARALOGANATHAN NADESU

Applicant

and

ZURICH INSURANCE COMPANY LTD.(COMMERCIAL BUSINESS)

Respondent

BEFORE:

Edward Lee

REPRESENTATIVES:

David S. Wilson for Mr. Nadesu

William M. Sproull for Zurich Insurance Company Ltd.

HEARING DATE:

March 18, 19, 20, and April 3, 2019, submissions received May 8, 2019

VARIATION ORDER

Under section 283 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 Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. Paragraph 2 on page 2 (under the heading “Result”) of the Order of May 27, 2015 in FSCO file No. A09-001538 is replaced with the following (this variation encompasses account Delegate Feldman’s order of October 7, 2016):

2. Zurich shall pay Mr. Nadesu monthly attendant care benefits as follows:

• $730.50 from April 4, 2006 through February 13, 2007;

• $730.50 from April 1, 2007 through May 4, 2007;

• $730.50 from May 17, 2007 through January 8, 2008;

• $730.50 from January 22, 2008 through October 30, 2009;

• $796.45 from November 1, 2009 through January 10, 2016; and

• $1,445.75 from January 11, 2016 to present and ongoing.

2. Mr. Nadesu’s claim for a special award is dismissed.

3. Zurich shall pay Mr. Nadesu interest on attendant care benefits owing, pursuant to section 46 of the SABS as amended.

4. If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

Edward Lee

Director’s Delegate

May 31, 2019

REASONS FOR DECISION

I. ISSUES AT VARIATION PROCEEDING

The parties had agreed to the following issues in dispute for this variation proceeding:

1. Is the existing arbitration order to be varied so that Mr. Nadesu is entitled to payments of Attendant Care in the amount of approximately $5,897.41/mo. (as set out in the Zaraska Rehab report dated December 17, 2015 and the two Form 1’s provided) from January 11, 2016 to August 21, 2017; and $6,052.97/mo. from August 22, 2017 to October 26, 2018; and $6,107.62/mo. from October 27, 2018 and ongoing (subject to any statutory maximums)?

2. Is Mr. Nadesu liable to pay Zurich’s expenses for this variation proceeding?

3. Is Zurich liable to pay Mr. Nadesu’s expenses for this variation proceeding?

4. Is Zurich liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Nadesu?

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

II. INTRODUCTION

This matter involves the SABS–1996.¹

This is an application for a variation of an arbitration order² brought by Mr. Nadesu (“the Applicant”). The arbitration order was issued by Arbitrator Rogers (“the Arbitrator”) on May 27, 2015, and later amended on appeal by Delegate Feldman on October 7, 2016.

The original arbitration hearing was conducted before a different arbitrator over the course of sixteen days, and that arbitrator left FSCO before rendering a decision. The parties and FSCO then agreed to have the matter determined on the evidence adduced in the record of the hearing, using a transcript of the proceedings. The in-hearing rulings of the first arbitrator were preserved, and Arbitrator Rogers rendered a decision based on the record and the transcript.

In his decision, the Arbitrator determined the accident caused the Applicant’s mental and behavioral disorders, and his function was markedly impaired within the meaning of section 2(1.1)(g) of the SABS. Therefore, the applicant had sustained a catastrophic impairment due to the accident.

The Arbitrator also determined the Applicant was entitled to attendant care benefits in the amounts of $230.50/month for various periods between April 4, 2006 to October 30, 2009; and then $296.45/month from November 1, 2009 and ongoing.

Delegate Feldman later allowed a partial appeal of those amounts and increased the quantum of the attendant care benefit to $730.50/month for all the periods from April 2006 to October 1, 2009; and then to $796.45/month from November 1, 2009 onwards.

The Applicant now seeks to vary the order of the Arbitrator, as amended by the appeal decision of Delegate Feldman. The variation sought is a further increase of the amount of the attendant care benefit.

To determine this variation proceeding, I must decide whether there has been a “material change in the circumstances of the insured” to justify a variation of the previous order. If “yes,” I must then decide what order should be issued as result of that change if I consider it advisable to do so.³

III. HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES?

Accordingly, I will first examine the Arbitrator’s decision to determine the circumstances of the insured at that time. I must then compare those circumstances with the insured’s present circumstances.

In addition, I note that when the Arbitrator assumed carriage of the file, the parties were given the opportunity to decide how they would proceed. They decided to proceed upon the record and evidence at the hearing already completed and the transcript. Had one or other party wished to adduce new evidence they could have sought to do so, but they did not. Thus, I reject the Applicant’s argument regarding any extreme prejudice he might have suffered due to delay.

I also note the issues agreed to by the parties at the pre-hearing discussion of February 1, 2019 contemplated a variation of the order of Arbitrator’s order from January 11, 2016.⁴ I am therefore using that date as the starting point for any variation I might issue.

(a) The May 27, 2015 decision of Arbitrator Rogers

In the immediate aftermath of the 2003 accident, Mr. Nadesu was diagnosed with musculoligamentous strain to his neck, back and right shoulder, and soft tissue injury to his rib cage. Within months, these symptoms showed improvement or resolved. Starting in April 2005, the Applicant was diagnosed with insomnia and stress problems, and this was followed by more and progressively more serious psychological issues.⁵

In his decision, the Arbitrator accepted that Mr. Nadesu had the following disorders:

Major Depressive Disorder and Pain Disorder Associated with Both Psychological Factors and a General Medical Condition.⁶

He also determined Mr. Nadesu had been hospitalized on three different occasions in 2007 and 2008 because of a Major Depressive Disorder with Psychotic Features and Chronic Pain Syndrome. These diagnoses were also recognized by Dr. Miller.⁷ The Arbitrator held as follows:

Dr. Miller and Dr. Rosenblatt described Mr. Nadesu’s development of mental illness as a progression, starting with chronic pain, compounded by Mr. Nadesu’s lack of insight into the connection between his emotions and his pain, fed by his creeping loss of function and self-esteem, and leading to loss of hope and recovery. I accept their opinions and I find that the accident caused the mental disorders that Dr. Miller and Dr. Rosenblatt diagnosed.⁸

In addition, the Arbitrator noted the following:

The accident in which Mr. Nadesu was injured was not particularly violent. His physical injuries did not appear serious. He was a front seat passenger in a car that as rear-ended. He was not taken to the hospital. He attended at his family doctor a few days after the accident, reporting pain and stiffness in his neck, lower back, and right shoulder. The family doctor diagnosed a Grade II. Whiplash associated Disorder (WAD II)). He imposed limitations with regard to prolonged standing and bending.⁹ [italics mine]

There is no objective evidence supporting Mr. Nadesu’s claim of ongoing pain.¹⁰

The Arbitrator also made this finding:

In this case, no one has been able to identify a continuing organic cause of the pain which is at the root of Mr. Nadesu’s loss of function. Therefore his impairment is due primarily, if not entirely, to his diagnosed mental disorders. No one has suggested otherwise.¹¹ [italics mine]

The Arbitrator determined the applicant was not entitled to 24 X 7 attendant care, rejecting the Form 1 prepared by Sophie Bielawski (the Applicant’s occupational therapist), who recommended around-the-clock attendant care because of her “… concern due to [the Applicant’s] psychiatric hospitalizations and how that affected his function.”¹²

Instead, the Arbitrator accepted the evidence and conclusions of Dr. Miller, who stated in her report of April 5, 2010:

Ms. Bielawski also recommended that Mr. Nadesu receive full-time (24 hours/day X 7 days/week) Attendant care due to “severe pain, dizziness, depression, anxiety” and his previous hospitalizations for violent behavior and suicidal impulses. She states in her view that Mr. Nadesu requires monitoring and supervision 24 X 7 for safety (page 31, 2^nd paragraph). Based on Mr. Nadesu’s self-report and presentation in his sessions at this point in time, it does not appear that Mr. Nadesu requires 24 X 7 supervision.

Mr. Nadesu reports that he is maintaining control of his angry feelings and avoids interacting with his wife, children, and others most of the time. He does not report having lost control of his anger physically toward his wife of children since 2006. [italics mine]

Mrs. Bielawski reports that Mr. Nadesu currently receives many attendant care type services from his wife. .. Thus, I agree that Mr. Nadesu continues to require attendant care services, although not 24 X 7.¹³

Ultimately, the Arbitrator found that Mr. Nadesu was entitled to $296.45/mo. from November 1, 2009 onward. This amount was based on his ruling that Mr. Nadesu was entitled to 14 minutes per day for dressing, 65 minute/week for grooming, 210 minutes/weeks of feeding as well as 60 minutes per week for monitoring medications, including checking his blood sugar levels.

This amount was raised by approximately $500.00 by Delegate Feldman who concluded that the Applicant required further care.

(b) Evidence at the Variation Proceeding

Mr. Nadesu was approximately 35 years old¹⁴ at the time of his accident on September 7, 2003. He was approximately 47 years old when Arbitrator Rogers issued his decision. At the time of this variation proceeding Mr. Nadesu is approximately 50 years old. Almost sixteen years have elapsed since his accident, and there is no evidence of any physical sequelae or injury remaining from that accident. Apart from a short return to work, he has never worked since.

As in Arbitrator Rogers’ arbitration, the Applicant alleges that he has never recovered from the injuries from his accident of 2003. He argues he experiences pain and a deterioration of his mental health and functioning, such that there has been a material change in his circumstances, justifying a variation of the Arbitrator’s order.

Mr. Nadesu did not testify before me. The parties had agreed Mr. Nadesu would not testify, mainly because of his poor memory, and requested that I not draw an adverse inference against him. Mr. Nadesu’s poor memory had already been noted by the Arbitrator, and I draw no inference in regard to the lack of testimony from Mr. Nadesu.

Instead, I was presented with testimony of other witnesses, a voluminous medical record and documentation detailing the Applicant’s medical history and current status, as well as surveillance evidence in the form of video recordings and logs.

The Applicant called two medical witnesses, Dr. Cullen and Dr. Kanagaratnam, and Mr. Jose Bernardes, a Rehabilitative Support Worker (RSW), assigned to Mr. Nadesu as part of the medical and rehabilitation benefit provided by the Respondent.

The Respondent called Angela Fleming, an occupational therapist who prepared two documents,¹⁵ and relied on various medical documents, including the reports of Dr. Hershberg¹⁶ and Dr. Ranalli¹⁷, and surveillance evidence in the form of video recordings and surveillance logs¹⁸.

(i) The Applicant’s evidence

Ms. Nadesu testified at length in regard to her observations of Mr. Nadesu’s condition and functionality. She had already been recognized as a provider of “many attendant care-type services” for Mr. Nadesu by the Arbitrator.¹⁹

The Arbitrator had found there was little familial support of any type, and that Mr. Nadesu had few or no friends, and he had little or no involvement in the upbringing of his children. Ms. Nadesu appears to have raised the children on her own. This situation is unchanged from the period of that arbitration.

Before me, Ms. Nadesu stated she had been married and living with Mr. Nadesu at the time of his accident in 2003, and that they have three children who now are aged thirteen, fourteen, and sixteen. She continues to live with him and states that his mental and physical condition has worsened since 2010.

The Nadesu family live in the same two-floor detached home they inhabited at the time of the previous arbitration. Mr. Nadesu sleeps in a second floor bedroom, and there is also a bathroom on this floor.

Ms. Nadesu testified Mr. Nadesu has dizziness and worsening pain. He has been unable to go up the stairs without assistance since 2012. He has been using a walker to help him ambulate since 2016. His sleep is bad and he cannot get out of bed by himself. He has numbness in his legs and is weaker than before. He has headaches, and believes he is being followed. His memory and understanding have grown worse. Ms. Nadesu helps him to use the ATM machine, and with his personal hygiene. She also feeds him.

After the decision of the Arbitrator, Mr. Nadesu has received assistance in the form of a Personal Support Worker (PSW) through public funding as part of the CCAC/LIHN), and a Rehab Support Worker (RSW) as part of his medical and rehabilitation benefit. Initially the RSW came three times a week, but it has become five and six days a week, for three-hour periods. This person helps shower Mr. Nadesu. Mrs. Nadesu does it one day a week. The PSW comes three days a week and stays for approximately one hour each time. He also helps dress and change and shower Mr. Nadesu. Ms. Nadesu does this the other days.

The aides also transport Mr. Nadesu to and from his various medical appointments and therapy sessions. They accompany him when he leaves the house, and help him transfer from his walker, in and out of cars, or when he walks outside. They also support him in stair climbing.

Ms. Nadesu states that Mr. Nadesu now spends most of his time at home in bed and no longer reads or watches television as he formerly did. She brings him a urinal at night. She does not leave him alone at home. She testifies that she “is there if he falls when he comes down the stairs.” She stays close to him and states, “I hold him if he falls,” and that if she does not hold him he will fall. He descends gradually and slowly. She states he cannot get out of bed himself. She helps get his legs to the ground although he holds his leg out.

Ms. Nadesu’s testimony that Mr. Nadesu’s circumstances have changed is supported by the evidence of Dr. Kanagaratnam (Mr. Nadesu’s psychologist), who diagnosed Mr. Nadesu with an Anxiety Disorder in 2016 (although anxiety had been an element of Mr. Nadesu’s psychological complexion as mentioned in the Arbitrator’s order).²⁰ I will discuss the reports of Dr. Kanagaratnam and others in more detail later.

(ii) The Respondent’s evidence

The evidence of Angela Fleming and the medical reports and critiques of Dr. Hershberg and Dr. Ranalli suggest there has been little or no change in circumstances in the Applicant’s condition. The Respondent’s argument is that most, if not all, of the Applicant’s current presentation is unchanged from what was determined in the Arbitrator’s order.

In particular, much of this argument is based on the evidence of the surveillance videos²¹ of Mr. Nadesu’s activities in public in the summer and early fall of 2017, and observations of Mr. Nadesu made by Angela Fleming during her visitation at the Nadesu home, which led her to conclude Mr. Nadesu was not nearly as disabled as he appears or presents before his treating practitioners and others.

(iii) Analysis

Overall, I found the Cullen and Kanagaratnam reports²² less probative than the reports of the Respondent. In many instances, the Applicant’s reports merely repeated details of the Applicant’s symptomology and past events, which were noted and present in the evidence before the Arbitrator at his arbitration. As such they would not be considered a “change in circumstances.”

Further, those reports often demonstrated a simple acceptance of the Applicant’s symptoms as described by him or Ms. Nadesu, and an almost total lack of validity testing.

In contrast, I found the observations of Angela Fleming, coupled with the Applicant’s own presentation on surveillance videos, presented a much more objective, balanced, and nuanced picture of the Applicant’s abilities than that suggested by his treating medical practitioners and by his physical appearance before me.

The Arbitrator had already noted the many references to the Applicant’s symptom magnification, pain magnification, pain-focused behavior, although not necessarily suggesting conscious exaggeration or malingering.²³

Before me, I noted the Applicant’s score in the MOCA examination (0/30), one of the few cognitive tests he completed.²⁴ Dr. Cullen agreed this test had no internal validity check, and that the average score of an Alzheimer’s patient was 11.4/30 - 21/30 , and that of a dementia patient was 16.2/30. On cross-examination, Dr. Cullen agreed there was no evidence the Applicant suffered from Alzheimer’s or dementia, and agreed she had not done validity testing, but did acknowledge the discrepancy in the score she obtained and those obtained by Dr. Majl (neurologist) several weeks later in the Mini Mental Status Exam.²⁵

Dr. Kanagaratnam’s reports suffered from the same problem: few of the tests she applied had any validity measures. She stated on cross-examination that she interpreted his scores on the MMCI-II test as a “cry for help.”

I find Mr. Nadesu continues to manifest the psychological profile he did before the Arbitrator, and that pain magnification, symptom magnification and pain-focused behavior, (although not necessarily conscious) remain part of his presentation. Based on the observations made in the Fleming documents and the presentation of the Applicant on the surveillance videos, I find Mr. Nadesu is far less disabled than he manifests or as set out in the reports of his treating practitioners and in the Form 1s provided by the Applicant.

Nevertheless, with some specific and important exceptions (which I will address later), Ms. Nadesu’s evidence was also credible. She had more exposure to Mr. Nadesu and spent more time with him than any other witness.

Although I find she often overstated the extent and severity of Mr. Nadesu’s symptoms, I accept her testimony that Mr. Nadesu’s mental and behavioral disorders have worsened since the Arbitrator’s decision.

This worsening may be due in part to his newly diagnosed anxiety disorder or simply a deterioration of the mental and behavioral disorders already determined, but I find they amount to a change in circumstances for Mr. Nadesu.

Overall, I also find this change in circumstances is “material” because it has had a significant impact upon Mr. Nadesu’s entitlements to accident benefits.

IV. CALCULATION OF ATTENDANT CARE BENEFIT

Having decided Mr. Nadesu has experienced a material change in his circumstances, I turn now to an examination of the quantum and type of attendant care to which Mr. Nadesu might now be entitled.

The Applicant submitted various Form 1s,²⁶ and reports, including those of Dr. Cullen and Dr. Kanagaratnam, which advocated for a heavy increase in the attendant care benefit, including 24-hour “around-the-clock” care.

The Respondent countered with a report and critique of Angela Fleming, who also testified before me, and other reports, including those of Dr. Hershberg²⁷ and Dr. Ranalli.²⁸

Overall, I preferred the evidence of Angela Fleming, whose initial report²⁹ and critique³⁰ were based on observations made during her interview and the surveillance evidence. She did not take Mr. Nadesu’s or Ms. Nadesu’s comments at face value, and her evidence on his functionality and range of motion were based on her own observation of his movements and responses to her questioning. I find her conclusions were more objective than those in the Applicant’s reports.

I give the Fleming evidence more weight than any of the Form 1s provided by the Applicant.

I also find her comments and conclusions were consistent with the surveillance evidence presented at the hearing. I will discuss that in more detail later, but as mentioned, the surveillance convinces me Mr. Nadesu is far less disabled than his treating practitioners believe.

Once again, this is consistent with observations and determinations of the Arbitrator at his arbitration:

In contrast to Ms. Bielawaski, Ms. MacDonald took an objective, balanced and nuanced approach to her assessment. She recognized the record showed that Mr. Nadesu did not require any attendant care as a result of his physical limitations. She recognized that Mr. Nadesu’s needs were centered around his lack of motivation as a result of his mental status.³¹ [italics mine]

This continues to be the current situation. There is no convincing evidence of any organic cause related to the Applicant’s pain issues and mental and behavioral disorders. There is no convincing evidence of any organic origin to his apparent reliance on a walker or many of his disabilities he manifests in other aspects of his life. I also accept and endorse the statements of Dr. Hershberg, who commented as follows:

However, excessive involvement of treatment providers and caregivers that encourage greater dependency and less motivation to be self-reliant tend to foster a disability role. In my opinion, further such supervisory care [24-hour attendant care] would put Mr. Nadesus at risk of regressing into an even more sick and disabled role.³² [italics mine]

Bearing these comments in mind, I turn now to a calculation of the amount and type of Attendant Care to which the Applicant might be entitled.

In doing so, I also endorse the words of Delegate Feldman:

Calculation of attendant care benefits, despite the requirement that it be done in accordance with the rates set out in the Form 1, is more of an art than a science.³³

Thus, rather than undertake a microscopic examination, description, and prescription of every task required for attendant care, I find, as suggested in the Fleming critique, that most, if not all, of Mr. Nadesu’s attendant care requirements resulting from the material change in his circumstances stem from an increased need for emotional support, cuing, or other motivational factors.

Accordingly, I accept most of the comments made in the Fleming critique.³⁴ I find Mr. Nadesu is entitled to the following attendant care benefits in addition to that already allotted to him in the decisions of Arbitrator Rogers and Delegate Feldman:

Attendant Care on an Intermittent Basis (encompassing consideration for “Ensures Comfort, Safety and Security”): This motivational and emotional support is reasonable and necessary as a result of a change in circumstances related to his anxiety disorder and a general worsening of his previously diagnosed mental disorders.

--90 minutes per day for emotional support, grounding, or encouragement (Level 2): 90 min x 7 days x 1/60 = 10.5 x 4.3 = 45.15 x $7.00 = $316.05

Cuing for meals and eating:

--30 minutes per day for cuing for feeding (Level 1): 30 min x 7 days x 1/60 = 3.5 x 4.3 = 15.05 x $9.00 = $135.45. As noted by Mrs. Fleming, Mr. Nadesu had previously been allotted 30 minutes per day for feeding. Based on the testimony of Ms. Nadesu, I find it appropriate to increase this amount by another 30 minutes per day. $135.45

Cuing and monitoring for medication:

--10 minutes per day for medication (Level 3): 10 min x 7 days x 1/60 = 1.2 x 4.3 = 5.01 x $15.00 = $75.25. Mr. Nadesu had been allotted 60 minutes per week for medication. I increase this by another 10 minutes per day. $75.25

Cuing for bathing:

--30 minutes for bathing once a week (Level 3): Mrs. Nadesu reported outside help in this regard five days per week. 30 min x 1 day x 1/60 = 0.5 x 4.3 = 2.15 x $15.00 = $32.25

Cuing for Grooming:

--10 minutes per day for grooming (Level 1): 10 min x 7 days x 1/60 = 1.2 x 4.3 = 5.02 x $9.00 = $45.15 He had been receiving attendant care under this heading previously (10 minutes per day) and I am thus increasing the amount by a further 10 minutes per day.

Cuing for Dressing/Undressing:

--10 minutes per day (Level 1): 10 min. x 7 days x 4.3 =301/60 = 5.02 x 9.00 = $45.15

--Total: $649.30/month

I see no reason to vary the Arbitrator’s order for anything else set out in the Applicant’s Form 1s, including further provisions for help with financial affairs. Although Dr. Cullen and Dr. Kanagaratnam mentioned his cognitive issues, I accept the Respondent’s submission that the lack of any real action taken in regard to capacity testing or the obtaining of a power of attorney for Mr. Nadesu demonstrates attendant care in this category is neither reasonable nor necessary.

I turn now to the issue of 24-hour or 24 X 7 around-the-clock care.

V. AROUND-THE-CLOCK OR 24 X 7 ATTENDANT CARE

This issue was raised at the previous arbitration, and the Arbitrator determined this level of attendant care was neither reasonable nor necessary. He noted many of the Applicant’s treating medical practitioners, including Dr. Miller (his psychologist), did not suggest or recognize the need for such care, and the Arbitrator rejected the Form 1 of Sophie Bielawski, the Applicant’s occupational therapist.

The Applicant’s medical history shows from 2010 to mid-2016, he received little in the form of psychiatric or psychological treatment or consultations.³⁵ As mentioned, following the catastrophic designation in the Arbitrator’s decision of May 2015, the Applicant became entitled to enhanced medical and rehabilitation benefits, which included the services of a case manager (Barbara Huisman), occupational therapy, and a Rehabilitative Support Worker. Further, he also became the recipient of publicly funded care in the form of Personal Support Workers who attended at his home.

After the Arbitrator’s decision, the Applicant replaced many of his health practitioners, including Dr. Miller, his former psychologist who opined that he did not require 24 x 7 attendant care. Dr. Shew (family physician), Dr. Kanagaratnam (psychologist), Dr. Egbewunmi (psychiatrist), and Dr. Cullen (physiatrist) are now treating the Applicant. Most of these new practitioners recommend that he receive 24 X 7 or “around-the-clock” attendant care.

(I) Dr. Shew

This issue of 24 X 7 care was mentioned early in the clinical notes and records of Dr. Shew (April 8, 2016).

Lawyer requires report indicating that patient requires 24 Hr. attendant care—reviewing patient chart, Dr. Edmund Lo [the Applicant’s former family doctor] did not mention anything of the sort in the chart – will be meeting with Dr. Barbara Husiman, [the Applicant’s case manager] which indicated in her report about this issue, to further inquire about patient’s health before replying to lawyer.³⁶

Dr. Shew did not testify before me, but his note certainly convinces me he had been asked to prepare a report documenting the Applicant’s need for 24-hour attendant care, when that need had not previously been recognized by the Applicant’s former family physician.

Dr. Shew began treating the Applicant in January 2016. His report³⁷ of August 5, 2016 recommended 24 X 7 attendant care. The report noted the Applicant’s following symptoms: features of psychosis, auditory hallucinations, with hearing multiple unidentifiable voices constantly, new symptoms of psychosis with delusions of persecution and feeling fearful, fleeting thoughts of being physically aggressive [without any action], visual hallucinations, major depression, problems with sleep maintenance, very low appetite, psychomotor slowing, type II diabetes, and memory difficulties. “His memory issues, coupled with his major depression, risk of hypoglycemia, and active psychosis, in my medical opinion, would require 24-hour attendant care.”³⁸

Although this list of symptoms is long and serious, it is hardly new. In fact, almost every symptom noted by Dr. Shew was in place at the time of the previous arbitration and detailed in the Arbitrator’s decision or in Dr. Miller’s report, which the Arbitrator endorsed.

Further, Dr. Shew’s clinical notes and records document the absence of suicidal ideation, and any incidents of self-harm or harm inflicted on others up to October 15, 2018. This would be an improvement in the Applicant’s circumstances, since the Arbitrator had accepted evidence that the Applicant had assaulted his wife in the past, and had been a danger (both to himself and others) to the point he was hospitalized on three previous occasions.

(II) Dr. Cullen

Dr. Cullen, physiatrist and specialist in traumatic brain injury, testified before me. She submitted numerous reports, and treated the Respondent from September 2016 to February 2018. Her first clinical note of September 1, 2016 stated that the Applicant’s temper was “poorly regulated,” but was “improving over time.” On physical exam, he was “alert and oriented to person.” His balance was “… impaired, … and he walks with a Rollator… He should continue to be on 24 hour care as he is unsafe to make decisions.”³⁹ [italics mine]

The requirement for 24-hour attendant care or supervision was repeated in some of her later documents⁴⁰. Her clinical note of December 8, 2016 stated the Applicant needed “supervision for safety reasons,”⁴¹ but her clinical note of February 2018 made no recommendation for 24-hour supervision at all.⁴²

Overall, I found Dr. Cullen’s evidence and reports were weakened by a general lack of validity testing in her examinations of the Applicant.⁴³ She performed no manual muscle testing, no sensory testing, no balance testing, no range of motion testing, and no Waddell testing. She admitted on cross-examination that she had tried to do testing, but the Applicant would not or could not co-operate or participate.

In addition, although Dr. Cullen’s notes occasionally recorded the Applicant had experienced falls, these were always second-hand reports from Ms. Nadesu or others. None of the reported falls ever resulted in any injury whatsoever, and Dr. Cullen’s notes of falls were cursory and lacking in detail.⁴⁴

She also hypothesized that the Applicant might have suffered a traumatic brain injury from the 2003 accident, but acknowledged the MRI of his brain was normal.⁴⁵ More importantly, the Arbitrator did not determine that the Applicant had suffered a traumatic brain injury, and there was inconclusive evidence at his arbitration as to whether the Applicant had lost consciousness or even struck his head in the accident. As mentioned, the Arbitrator had determined there was no organic cause for the pain and Mr. Nadesu’s loss of function. The impairment was due entirely to diagnosed mental disorders.

Although Dr. Cullen opined that the Applicant required 24-hour care and supervision for “safety reasons,” she never clearly indicated who was at risk. Her reports never documented any physical injuries to the Applicant, suicidal ideation, or threats of harm to himself or others. She never made any suggestion of admitting the Applicant to hospital on a Form 1.⁴⁶ She did not document any intervention that had been initiated by an Assertive Community Treatment Team.

Her testimony was that she felt the Applicant was safe when he was in the “presence of another person,” and that “he needed someone to ensure his own safety,” and he was “unsafe to make decisions,” but she never initiated or suggested a capacity assessment or any other process that would help protect the Applicant from the decision-making process she mentioned.

When viewing the surveillance evidence, Dr. Cullen agreed that it showed the Applicant ambulating alone on occasions in September 2017, without difficulty and without assistance or any assistive devices whatsoever (although he had always presented before her with a walker).

In the surveillance, the Applicant demonstrated no loss or lack of balance and walked for more than six minutes consecutively in one video. The Applicant also exited and entered a car by himself, opening and shutting the door at his own initiative, without any prompting or assistance whatsoever. He could rise to his feet unaided from a seated position and return to a seated position. He walked alone in an oriented manner, along a sidewalk curb, in a parking lot, and approached and opened the door to a building, shaking the hand of another person before entering. He could eat by himself without prompting or being fed. Dr. Cullen admitted she had never seen him ambulate without his walker, and her response to this surveillance footage was that function and pain levels could fluctuate from day to day.

(III) Dr. Kanagaratnam

Dr. Kanagaratnam (psychologist) also testified. She commenced seeing the Applicant in March 2016 and provided reports over the course of her treatment. Her final report is dated March 12, 2019.⁴⁷

Dr. Kanagaratnam’s first report is dated March 25, 2016. At the hearing, she stated the only document she had at the time she created the report was a document of the Applicant’s case manager, Barbara Huisman.

Dr. Kanagaratnam testified that the Applicant’s poor memory required her to take most of the initial accident and medical history from the Applicant’s wife. Dr. Kanagaratnam diagnosed the Applicant with the following:

Axis I (clinical disorders)

Major Depressive Disorder, Single Episode Severe with Psychotic Features, Pain Disorder Associated with Both Psychological and General Medical Condition, Anxiety Disorder NOS and Cognitive Disorder NOS. [underline mine]

In testimony, Dr. Kanagaratnam noted she was the first to diagnose the Applicant with an anxiety disorder, although I find anxiety had been a part of the Applicant’s overall psychological state, even at the time of the previous arbitration.⁴⁸

Dr. Kanagaratnam’s evidence was weakened by the same problem that affected Dr. Cullen’s: a lack of validity testing in regard to the Applicant’s disabilities. Dr. Kanagaratnam also tended to repeat evidence that had already been heard and considered by the Arbitrator at his arbitration, wherein he denied 24 x 7 attendant care. A prime example is her report of December 3, 2018 which is nothing more than recitation of various sources of evidence from that arbitration.⁴⁹

The report of May 2016⁵⁰ also exemplifies this: Dr. Kanagaratnam noted the Applicant’s headaches, pain in back, neck, chest, arm, and tension, but these were also noted in the Arbitrator’s hearing. She also noted the voices in his ear and his poor sleep, but psychotic episodes and poor sleep were also part of the evidence before the Arbitrator. Further, Dr. Kanagaratnam noted the Applicant’s anger and habit of throwing pillows, poor memory, and lack of social life and interaction and family support, but such evidence had also been considered at the previous arbitration.

When discussing 24 X 7 attendant care, Dr. Kanagaratnam stated he needed such care because of his “emotional liability, (impulsivity, psychotic symptoms) severe cognitive limitations, and neglect in personal care.”⁵¹

In her report of October 2018 she stated he needed full time attendant care due to psychotic features associated with severe depression, low stress tolerance/ poor affect... regulation and significant limitations in dietary functioning. “It is harmful for him to be left alone for limited time without supervision.”⁵²

Nonetheless, the January 2018 report noted some “improvement in functioning.”⁵³

In her report of February 2019, Dr. Kanagaratnam highlighted the anxiety disorder she diagnosed in 2016, and notes “… prominent anxiety with panic. His mental health is worsening due to impairments. Anxiety disorder is a considerable change in circumstances and likely to lead to supervision and assistance. Imperative to receive 24/7 attendant care.”⁵⁴

Once again, much of what Dr. Kanagaratnam describes was already present in the Applicant’s symptomology when the Arbitrator made his determination in 2015. Mr. Nadesu was already suffering from depression, had experienced psychosis and had even assaulted his wife. He was spending much of his time at home, and had few, if any friends. In addition, he did not socialize, and was not involved in the upbringing of his three children.

In cross-examination, Dr. Kanagaratnam was asked whether the Applicant could remain alone during a period of elevated feeling, but gave no answer to this question. She stated that she had concluded the Applicant was a danger to himself or his children but she never informed anyone about this. She seemed to say there was no immediate threat, and that he had learned how to deal with his anger and that there was “… nothing in his room to throw, not even a stick.”

Overall, these weaknesses detracted from the probative value of her evidence. Further, the evidence regarding incidents of violence, threats, self-harm, or harm to others leads me to conclude Mr. Nadesus has actually shown improvement in these areas. His anger control is better, and Mr. Nadesu has learned and successfully practices behaviors that actually lessen the risk he presents to others, when compared to the evidence at the previous arbitration.

(iv) Analysis of entitlement to 24 x 7 Attendant Care

The need for 24 x 7 attendant care has been addressed at length in arbitral jurisprudence. Amongst other reasons, the decisions have held that if the claimant is a danger to himself or others, 24 X 7 attendant care or supervision may be warranted.⁵⁵

In the present case, I am not convinced the Applicant presents a danger to himself or to others. Although some witnesses discussed features of the Applicant’s psychosis (including the voices he hears), there have been few, if any, expressions of threats or harm to others. The evidence is that Mr. Nadesu does not remember what the voices say to him or the voices are not suggesting he harm himself or others. In fact, the Applicant has not harmed himself or others since the previous arbitration, and reports show he has improved his anger management.

Other case law holds 24 x 7 supervision may be warranted if a claimant is likely to commit impulsive acts, abuse drugs or alcohol, or engage in sexual escapades.⁵⁶ Although Dr. Kanagaratnam mentioned impulsivity, there is little or no evidence the Applicant will commit impulsive acts. If anything, the evidence suggests the Applicant (when at home) spends his time alone in his bed in his bedroom. He does little or nothing that puts him at risk.

The Applicant’s Form 1s also suggest he needs 24 x 7 supervision because he cannot respond in an emergency, but I find this suggestion is belied by the surveillance evidence (which I detailed above). While I accept Dr. Cullen’s evidence that functionality may certainly fluctuate with pain levels, the difference between the Applicant’s presentation at the hearing room with his walker, what his witnesses said he can do, and what the Applicant displayed on the surveillance was striking.

Neither Dr. Cullen nor Dr. Kanagaratnam specifically detailed the assistance he might need in an emergency, and the Form 1s do not convince me he needs such care. I note that Jose Bernardes, the Applicant’s Rehabilitative Support Worker, testified he always kept his hand on Mr. Nadesu’s belt when he used the stairs, but any evidence in the current record about falls was extremely vague and undetailed.⁵⁷ None of the reported falls led to injury to Mr. Nadesu.

Further, while Ms. Nadesu testified of not leaving Mr. Nadesu alone at home, the surveillance evidence clearly showed her doing just that on several occasions, including during a period on a day after an incident when a telephone had been broken at their house.

Nor am I convinced that the mental status of the Applicant is such that he needs 24 x 7 care. When questioned about the need to escape during an emergency, the Applicant understood what it meant to be in an emergency.⁵⁸ He responded that he would wait for Mrs. Nadesu’s help to escape, but this seems to go once again to his lack of motivation and tendency to exaggerate his symptoms, rather than any true inability to rise and ambulate without aid, as demonstrated in the surveillance evidence.⁵⁹

Finally, I also agree with Arbitrator Sampliner who held as follows:

These FSCO precedents have centered primarily on the claimant’s personal risk in determining whether 24/7 supervisory care is justified. A corollary principle is the tension of scheduling a number of supervised activities close enough that the continuum of events interferes with the supervisor’s normal life.

My view is that the assessment of the need for supervisory care should exclude attendant care services that can be quantified under other categories and then:

• Evaluate the applicant’s current safety risk using a historical perspective;

• Compare the reasonably effective methods to contain and/or reduce safety risks;

• Determine the frequency and time estimates for supervisory services in conjunction with other attendant care;

• Relate the estimates to the need for continuity of supervision⁶⁰

From a historical perspective, the Applicant’s current safety risk has lessened as his anger control and management have improved. I also find that certain risks may be more properly addressed through other categories of accident benefits. For instance, in this case, the Applicant alleges that he cannot use the stairs in his home, (although Ms. Fleming notes he can successfully negotiate stairs with the help of the railing). A stair glide had been approved by the Respondent in the Applicant’s home, but this has never been installed. When asked, Ms. Nadesu responded that Mr. Nadesu was afraid of the stair glide, but clearly, the device has never even been attempted.

Based on the evidence presented, I do not find the Applicant reasonably requires the 24-hour around-the-clock attendant care recommended by his treating practitioners and in his Form 1s.

VI. IS ZURICH LIABLE TO PAY A SPECIAL AWARD TO MR. NADESU BECAUSE IT UNREASONABLY WITHHELD OR DENIED PAYMENTS OT MR. NADESU?

To respond affirmatively to this question I must be convinced the Respondent has unreasonably withheld or delayed payment so Mr. Nadesu. I am not convinced the Respondent has done so. There was evidence in the record (including the surveillance videos, the reports of Ms. Fleming) which convinces me the Respondent could adjust and respond to the claims of the Applicant in the manner it did, without bringing it within the ambit of section 282(10) of the Insurance Act.

VII. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

Edward Lee

Director’s Delegate

May 31, 2019

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Nadesu and Zurich Insurance Company Ltd. FSCO A09-001538 May 27, 2015
3. 3Section 284 of Insurance Act
4. 4See my pre-hearing letter of February 1, 2019
5. 5I-1, Tab 7a
6. 6Page 12 of Arbitrator Roger’s decision
7. 7Page 14
8. 8Page 14
9. 9Page 4 of decision
10. 10Page 4
11. 11Page 15
12. 12Page 21 of decision of Rogers
13. 13I-1, Tab 3f, page 21
14. 14The Applicant’s date of birth is November 20, 1968
15. 15I-2, Tab 15, In-home Occupational Therapy Functional Assessment June 17, 2016; and I-3, Tab 19, Clinical Review of Attendant Care Report February 14, 2019
16. 16I-3, Tab 17
17. 17I-3, Tab 18
18. 18I-3, Tab 20
19. 19I-1, tab 3f (page 21) April 5, 2010
20. 20FSCO A09-001538, page 21
21. 21I-3, Tab 20
22. 22I-2, Tabs 9 and 11
23. 23Arbitrator Rogers’ decision at page 7
24. 24Dr. Cullen’s testimony
25. 25Ibid
26. 26I-2, Tabs 13, 14, and 15
27. 27I-3, Tab 17
28. 28I-3, Tab 18
29. 29I noted that Mr. Nadesu was also unwilling or unable to perform or demonstrate much functional testing for many others who attempted to assess him, including Ms. Kim MacDonald, whose report was accepted by Arbitrator Rogers at his arbitration, and Dr. Cullen and Dr. Kanagaratnam
30. 30Fleming, I-2 Tab 19 Clinical Review of Attendant Care February 14, 2019
31. 31Page 22 of Rogers
32. 32Hershberg page 17 February 9, 2019
33. 33Page 20 of Nadesu and Zurich Appeal order P15-00040
34. 34Clinical Review of Attendant care.
35. 35Ex. I-3 Tab 17 A, page 7
36. 36I-2, Tab 8
37. 37I-2, Tab 8a
38. 38Ibid at page 1
39. 39I-2, Tab 11a
40. 40I-2 ,Tab 11b and 11c
41. 41I-2, Tab 11b
42. 42I-2, Tab 11f
43. 43I-2
44. 44I-2, Tabs 11b, c, d, e
45. 45I-3, Tab 18
46. 46I-2, Tab 11d mentions “angry outbursts, but it seems to be better controlled by his current medications.”
47. 47A-2, T ab 62
48. 48As noted in the report of Dr. Miller April 2010
49. 49A-2, Tab 56
50. 50I-2, Tab 9
51. 51A-2, Tab 32
52. 52A-2, Tab 53
53. 53A-2, Tab 49
54. 54A-2, Tab 41
55. 55Ryan and ING Insurance Company of Canada (FSCO A07-000989, February 17, 2009), Ms. M. G. and Economical Mutual FSCO A09-002443, Tyvon White and Non-Marine Underwriter, Mbrs. Of Lloyd’s FSCO A06-000028 June 14, 2007
56. 56(FSCO A06-000399, July 26, 2012)
57. 57I-1, tab 3f, The Miller report of April 5, 2010 (at page 5) provided far more details about a fall to Arbitrator Rogers, who denied the need for 24 x 7 attendant care
58. 58Fleming report
59. 59similar to the case of Mr. S. and Economical Mutual Insurance Company FSCO A10-000970 July 28, 2011, where surveillance evidence also revealed an applicant was far more functional than claimed
60. 60J. K. and Wawanesa Mutual Insurance Company FSCO A10-001397, November 16, 2012