REASONS FOR DECISION

Transcription

1 Financial Services Commission of Ontario Commission des services financiers de l Ontario BETWEEN: RANJAN KANAGALINGAM Applicant and ECONOMICAL MUTUAL INSURANCE COMPANY Insurer REASONS FOR DECISION Before: Heard: Appearances: Arbitrator Andrew M. Diamond In person at ADR Chambers on November 3, 4 and 5, 2014 and by written submissions completed on November 10, 2014 Mr. Darren Kirupa for Mr. Ranjan Kanagalingam Mr. Benjamin Tinholt for Economical Mutual Insurance Company Issues: The Applicant, Mr. Kanagalingam (the Applicant ), was injured in a motor vehicle accident on April 21, 2010 and sought accident benefits from Economical Mutual Insurance Company (the Insurer ), payable under the Schedule. 1 The parties were unable to resolve their disputes through mediation and Mr. Ranjan Kanagalingam, 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. 1 Effective September 1, 2010, the Statutory Accident Benefits Schedule Effective September 1, 2010 (the ''New Regulation'') came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule Accidents on or after November 1, 1996 (the ''Old Regulation'') shall be paid under the New Regulation, but in amounts determined under the Old Regulation. As a result, both the Old Regulation and the New Regulation are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and both should be considered.

2 The issue in this Hearing is: 1. Is the Applicant entitled to Income Replacement Benefits pursuant to sections 5(1) and (2) of the SABS? Result: 1. The Applicant is entitled to Income Replacement Benefits pursuant to sections 5(1) and (2) of the SABS. EVIDENCE AND ANALYSIS: This is an application for Income Replacement Benefits (IRBs) pursuant to sections 5(1) and 5(2) of the Statutory Accident Benefits Schedule, O. Reg. 403/96 (the SABS ). The Applicant was a passenger in a vehicle that was involved in a collision on April 21, 2010 and claims that as a result of that accident, he is unable to perform the essential tasks of his pre-accident employment or suffers from a complete inability to engage in any employment for which he is suited by education, training, and experience. The Insurer disputes the Applicant s claim that his disability, if any, was caused by the accident. In the alternative, the Insurer submits that the Applicant has misrepresented material facts with respect to the application for benefits and should, therefore, not be entitled to any benefits pursuant to section 48 of the SABS. 2 For the reasons that follow, I find that the Applicant is entitled to Income Replacement Benefits pursuant to sections 5(1) and (2) of the SABS. The Tribunal had the benefit of oral testimony from the Applicant; Dr. Damji, who has been the Applicant s family doctor since approximately 1998; Dr. Pruzanski, a Rheumatologist who was 2 Now section 52. 2

3 retained by the Applicant to provide expert evidence; and Dr. Scherer, a Rehabilitation and Vocational Psychologist, who was also retained by the Applicant. The Insurer called no viva voce evidence, but did file a number of reports including a surveillance report and accompanying video; a Physiotherapy Assessment Report; an Occupational Therapists In-Home Examination; an Occupational Therapist s Job Site Evaluation Report; a Physiatry Report; a Psychological Assessment Report; and a Functional Abilities Evaluation Report. The parties agree on the following facts: The Applicant was a passenger in a vehicle that was involved in a collision on April 21, 2010 in which the van he was riding in rear-ended another van; On April 27, 2010, the Applicant went to see his family doctor, Dr. Damji, complaining of severe low back pain and knee pain; The Applicant had made one previous complaint of back pain to Dr. Damji on September 29, 2008; and The Applicant suffers from both psoriasis and psoriatic arthritis. Insurer s Suspicions The Insurer has suspicions about the legitimacy of the Applicant s claim. These suspicions have been raised in part by the fact that every one of the OCF-3 disability certificates as well as five out of seven of the OCF-18 treatment plans submitted on behalf of the Applicant were from clinics or associated addresses that were subsequently investigated as part of Project Whiplash and shut down after criminal fraud convictions were obtained. In an Assessment of Attendant Care Needs Report prepared by one of the suspect clinics and dated June 12, 2010, the Applicant s occupation is listed as a general helper in a store ; in an OCF-18 dated September 28, 2010, the physiotherapist comments that the Applicant works as a general labourer. He is required to drive for prolonged periods ; and in the two OCF-2s, the 3

4 first dated July 13, 2010 and a second in 2011, the Applicant s employment is listed as that of a cleaner with JN Janitorial Services. The Insurer submits that the surveillance reports show a person who is not as physically impaired as he presents to doctors and in fact, this Tribunal; and that the surveillance reports suggest that the Applicant is engaged in post-accident employment of driving a number of people to work in a factory. Furthermore, the Insurer brought the Tribunal s attention to the Applicant s bank records for the first year post-accident which show approximately $30, worth of deposits for which they argue the Applicant does not have a sufficiently sensible explanation as to their source. The Insurer therefore speculates that these funds maybe from post-accident employment. Arthritis The Applicant claims that he suffers from psoriatic arthritis that has caused a complete inability for him to engage in any employment for which he is suited by education, training, and experience. The Applicant submits that his psoriatic arthritis was asymptomatic prior to the accident and that it is the trauma of the accident which induced his arthritis to become symptomatic; which is why, in the language of section 5(2) of the SABS; he is completely unable to engage in any employment for which he is suited by education, training, and experience. In support of this position, Dr. Pruzanski, who is a leading authority on arthritis, testified that 30% of people with psoriasis eventually develop psoriatic arthritis. Dr. Pruzanski further testified that approximately 8 to 9% of those patients symptomatic psoriatic arthritis is induced by trauma. Trauma induced symptoms are known as the Deep Köbner Phenomenon. In preparing his report, Dr. Pruzanski reviewed the clinical notes and records of other attending physicians as well as existing independent medical reports, and the results of both the nuclear bone scan and MRI conducted on the Applicant. Dr. Pruzanski reported that the nuclear bone scan 4

5 showed that there was a suspicion of sacrolitis and an increased uptake in many joints including the third MCP, some other MCP s, DIP, PIP s wrists, knees, right shoulder, left ankle, and toes of the right foot. He also reported that the MRI showed spondyloanthropathy, likely psoriatic, and changes in sacroiliac joints. These results, he testified, are consistent with someone suffering from psoriatic arthritis. As Dr. Pruzanski commented, this is objective evidence of the Applicant s condition. Dr. Pruzanski s diagnosis of Deep Köbner Phenomenon was based on the fact that the Applicant had not complained of back pain except for one incident a year and seven months prior to the accident and so he concluded that the Applicant s arthritis was dormant. Dr. Pruzanski admitted on cross-examination that if he was not aware of the trauma of the collision, he could not have made the diagnosis he did and conversely, if he was unaware of another trauma, then there might be an issue with his conclusion that the accident caused the arthritic condition to become symptomatic. Dr. Pruzanski was never asked about any other incidents of trauma other than the Applicant tripping, falling, and breaking his toe. However, Dr. Pruzanski in his report clearly considers that: On August 13, 2010 [the Applicant] was examined by Dr. A. Quinn, an orthopaedic surgeon. He was examined in the Fracture Clinic of William Osler Health Centre. The reason for consultation was that the patient had a fall after missing a step. He developed pain in the left foot. There was significant soft tissue sprain of the mid-foot. Indeed, x-ray of the left foot, performed on August 4, 2010, showed fracture of the distal phalanx of the great toe and some erosive changes in the joint. The patient s foot was put into a cast. As a result, I must infer that in coming to his conclusion that the collision at issue induced the arthritic symptoms in the Applicant, Dr. Pruzanski took into consideration the trauma of this fall. Furthermore, Dr. Pruzanski was never specifically asked if the trauma from this fall could have caused the Deep Köbner Phenomenon. 5

6 Dr. Pruzanski was also asked about the independent assessments which had been commissioned by the Insurer and specifically, Dr. Heitzner s conclusion that the KANAGALINGAM and ECONOMICAL Applicant s current presentation is not consistent with any objective pathology to account for his level of symptoms or reported function. and the conclusion of the Occupational Therapist, Mathew Rose that: There was globally reduced range of motion and pain-focused behaviour that did not appear to have its genesis in any orthopaedic pathology; however, there is no clear musculoskeletal rationale based on the mechanism of injury and the initial injury sustained to explain the high level of guarding observed. Dr. Pruzanski noted that neither of these Assessors had access to the nuclear bone scan or MRI and if they had, they would have changed their opinions. While I assume that both Mr. Rose and Dr. Heitzner were available as witnesses, neither of them were called so that questions about the scans could not be put to them. A review of the Insurer s independent evaluations makes it clear that they are all of the opinion that the pain being reported by the Applicant is inconsistent with the types of soft tissue injuries that they believed the Applicant would have suffered as a result of the collision. None of the Insurer s independent evaluations consider the effect of arthritis at the level that Dr. Pruzanski finds and none of the Insurer s experts were called as witnesses to refute Dr. Pruzanski s findings. It is Dr. Pruzanski s opinion that in his present condition, the Applicant is totally incapacitated from the physical point-of-view and cannot perform any duties at work, domestic chores, social life or sports. On cross-examination, Dr. Pruzanski was shown surveillance video of the Applicant which shows the Applicant walking, walking up stairs, driving, carrying a shopping bag, fuelling vehicles, and bending over to fill and then pick up a gas can and was asked if the surveillance was inconsistent with his conclusion of total incapacitation. Dr. Pruzanski testified that the video did not change his 6

7 conclusion as the Applicant is on very strong narcotic painkillers, and while it is unwise to drive, his patients often take medication so that they can do errands and then return home. From the evidence presented at the Hearing, I find on the balance of probabilities, the collision in issue caused the Applicant s pre-existing, non-symptomatic arthritis to become symptomatic. Exaggeration / Malingering The Insurer submits that the Applicant has consistently exaggerated the level of his disability. In support of this, they point not only to the surveillance video, as described above, but the report of Dawn Rodie, Registered Physiotherapist, who reported that the Applicant s range of motion demonstrated during non-formal observations was relatively increased to that demonstrated during formal observations and the report of Mathew Rose, Occupational Therapist, who reported that the Applicant was observed across a variety of tests and noted that the Applicant s presentation was highly inconsistent between tests where there should have been some consistency. Mr. Rose thus concludes that the Applicant s capacity to complete activities of daily living is functionally better than observed. Similarly, Dr. Dumitra, the psychologist that the Insurer retained to examine the Applicant in 2011, reported that the Applicant s results on the Pain Patient Profile were invalid. His results on the Structured Inventory of Malingered Symptomatology (SIMS) indicate that he had a tendency to magnify his psychological and cognitive symptoms which could have affected his responses on all psychological tests. To rebut the opinion of Dr. Dumitra, the Applicant relies on the evidence of its own Rehabilitation and Vocational Psychologist opinion of Dr. Scherer, who examined the Applicant in September As noted above, Dr. Scherer also testified at the Hearing on his conclusion that the Applicant is currently unable to return to his pre-accident employment or to any vocation for which he is reasonably suited by education, training, or experience. In his report, Dr. Scherer comments, selective item analyses of psychometric testing showed no signs of random responding or deliberate response distortion. He obtained a valid protocol on an index response 7

8 distortion. The conclusion of Dr. Dumitra with respect to his SIMS conclusion was never put to Dr. Scherer on cross-examination; however, Dr. Scherer did concede that it is natural for subjects to exaggerate their symptoms so that the Assessor clearly understands the nature of their injuries, but in his experience, this does not invalidate his assessments as subjects are constantly observed both during formal testing as well as when they are not being tested. Dr. Scherer testified that he did see some inconsistencies in the Applicant s testing, but it did not leave him with the picture that there was a deliberate intention to distort. On direct-examination, Dr. Scherer was also asked to comment on the surveillance evidence and was asked if it was inconsistent with his conclusions. His evidence on this point was that it was a small sampling and that nothing in [the surveillance] has any bearing on [the Applicant s] long term employability. Dr. Scherer also opined that based on the medication the Applicant is taking, he should not be driving, despite the video evidence that he is. Work History Pre-Accident The Insurer intimates in its submissions that there is a question as to whether the Applicant was actually working prior to the collision. In support of this supposition, they point to the inconsistencies in various reports as detailed above. However, the Applicant argues that the Insurer should be estopped from raising this issue as it originally denied the Applicant s claim for Non-Earner Benefits because the Insurer claimed he was employed. However, I do not find it necessary to review the estoppel argument to find in the Applicant s favour on this point. Not only did the Applicant provide pay records, which were not challenged as evidence by the Insurer, the Insurer also conducted a Job Site Evaluation Report at one of the commercial buildings that [the Applicant] worked prior to the accident. To arrange the evaluation, the Assessor contacted Balasubramanium Sathasivam. The Applicant has given evidence that his boss was Bala, which before me he clarified as being Balasubramanium. From the evidence provided, I find on a balance of probabilities, that the Applicant worked as a cleaner for JN Janitorial Services prior to the accident. 8

9 Work History Post-Accident The Insurer raises two pieces of evidence which it argues could lead me to find that the Applicant was employed after the accident: the first is the string of deposits into his bank account in the year following the accident; the second is the surveillance evidence that on two consecutive days, the Applicant was seen leaving his house, driving to various other houses and picking up women and driving them to a factory. I will deal with each of these in turn. The Applicant s bank records for the first year after the accident show a string of deposits ranging from a couple of hundred dollars to a couple of thousand dollars, totalling about $10, When asked about these deposits, the Applicant testified that as he had no income, he borrowed the money from friends to live on. While the regularity of the deposits could lead one to suspect that the Applicant might have been doing odd jobs to earn some money, there is no evidence to support that theory and the Applicant s explanation that he borrowed the money to live on is logical. There are two additional transactions for $10,000.00, each where money is deposited or transferred into the Applicant s bank account and then immediately withdrawn. When asked about these, the Applicant indicated that he could not remember what these transactions were but thought they might have had something to do with the deposit for a friend s house. The Applicant was evasive when answering questions about these transactions and I am not convinced that he does not recall what this money was for. These were substantial transactions where money apparently flowed through his account from one person and then on to a third. However, there is no evidence that the Applicant actually benefited from these transactions. The second piece of evidence the Insurer points to in order to suggest that the Applicant is working is the surveillance evidence that reports that on two of the three days that the Insurer conducted surveillance of the Applicant, he was observed picking up as many as seven women from various locations early in the morning and driving them to a factory, where it is assumed they work. The Insurer argues that this suggests that the Applicant is employed as a driver for these women. When asked about this, the Applicant testified that one of the women is the wife of 9

10 a friend of his and that that friend normally drives her and others to work but that five or six times a year, he asks the Applicant to help him. Absent other evidence to the contrary, this is as logical an explanation as any. There simply just is not enough evidence to suggest that the Applicant was employed as a driver or in any other role. Section 48 Material Misleading The primary thrust of the Insurer s defence is section 48 of the SABS. As the Insurer s counsel argued in his closing, credibility is key. Section 48 of the SABS states that: 48. (1) If an insured person has wilfully misrepresented material facts with respect to an application for benefits, the insurer may terminate payment of the benefit. (2) The insurer shall not terminate payment under subsection (1) unless the insurer provided the insured person with notice of the reason for terminating payment. In relying on a section 48 defence, the Insurer concedes that it has the onus of demonstrating that the Applicant made a misrepresentation and that the misrepresentation was wilful and material. The Insurer then sets out a number of representations made by the Applicant which it says satisfy the test in section 48(1) of the SABS including failing to advise the medical Assessors of another motor vehicle accident 10 years earlier; refusing to participate in various evaluative tests; exaggerating the level of his pain to his Assessors and advising that it was constant; when he testified before this Tribunal that he had better days and worse days, he misrepresented his limitations including the fact that he has given up driving and can only drive for a short period of time when the surveillance shows almost nothing but the Applicant driving and being in his car; he misrepresented his relationship with his wife on an assessment saying it was close and loving and testifying that they were separated (although living in the same house); and that he has difficulty walking upstairs and downstairs, bending and shopping, and yet the surveillance shows him doing all of these things. 10

11 I find that the Applicant did not always provide his Assessors with fulsome statements. Furthermore, during his testimony, I found the Applicant to be evasive and lacking in credibility. However, the question for the Tribunal is: are those misrepresentations material? Cases involving soft tissue injuries rely heavily on the subjective evidence of an Applicant. However, in this case, we have objective medical evidence which supports Dr. Pruzanski s conclusion that the Applicant does satisfy the criteria set out in sections 48(1) and (2) of the SABS. As a result I find that the Applicant s omissions and exaggerations are not material to the finding that the Applicant is entitled to lost income benefits under the SABS. EXPENSES: Counsel have advised me that there has been an exchange of offers which may be relevant to a determination of expenses. As a result, if the parties cannot come to an agreement on expenses, I may be spoken to. Andrew M. Diamond Arbitrator January 19, 2015 Date 11

12 Financial Services Commission of Ontario Commission des services financiers de l Ontario BETWEEN: RANJAN KANAGALINGAM Applicant and ECONOMICAL MUTUAL INSURANCE COMPANY Insurer ARBITRATION ORDER Under section 282 of the Insurance Act, R.S.O. 1990, c.i.8, as amended, it is ordered that: 1. The Applicant is entitled to Income Replacement Benefits pursuant to sections 5(1) and (2) of the SABS. Andrew M. Diamond Arbitrator January 19, 2015 Date