May 11, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Ponniah and Northbridge General Insurance
Decision Date: March 15, 2018
Heard Before: Adjudicator Jeffrey Musson
ARBITRATION, FINAL DECISION, APPEAL PENDING
CATASTROPHIC IMPAIRMENT: applicant conceals he is on ODSP; applicants wife not credible; family doctor’s testimony lacks the ring of truth; applicant’s two daughter lack credibility;
When he was injured Mr. Mylvaganam Ponniah was 58 on August 29, 2012, and in Detroit, Michigan at the customs area of the Ambassador Bridge. Mr. Ponniah was pinned against a wall by a transport truck that reversed and did not see him. He was sent by ambulance to Detroit Receiving Hospital. As a result of being pinned against the wall, Mr. Ponniah suffered multiple broken ribs and a broken ankle.
He applied for SABs from Northbridge but when the parties were unable to resolve their disputes through mediation Mr. Ponniah, applied for arbitration at the FSCO.
- Are Mr. Ponniah’s injuries catastrophic as defined under the Schedule as a result of the MVA on August 29, 2012?
- Is Mr. Ponniah entitled to attendant care benefits from October 1, 2013 until July 10, 2015 in the amount of $1,193.11; and from July 11, 2015 and ongoing in the amount of $3,664.75 per month?
- Is Mr. Ponniah entitled to medical benefits in the amount of $1,979.36 for an assessment and treatment plan dated October 29, 2013?
- Is Mr. Ponniah entitled to medical benefits in the amount of $1,283.29 for an assessment and treatment plan dated February 14, 2014?
- Is Mr. Ponniah entitled to medical benefits in the amount of $1,850.00 for an assessment and treatment plan dated August 26, 2015?
- Is Mr. Ponniah entitled to medical benefits in the amount of $1,763.60 for an assessment and treatment plan dated October 7, 2015?
- Is Mr. Ponniah entitled to interest for the overdue payment of benefits?
- Mr. Ponniah’s injuries are not catastrophic as defined under the Schedule and this claim is denied.
- Mr. Ponniah is not entitled to attendant care benefits from October 1, 2013 until July 10, 2015 in the amount of $1,193.11; and from July 11, 2015 and ongoing in the amount of $3,664.75 per month.
- Mr. Ponniah is not entitled to medical benefits in the amount of $1,979.36 for an assessment and treatment plan from Dr. Andrew Shaul dated October 29, 2013.
- Mr. Ponniah is not entitled to medical benefits in the amount of $1,283.29 for an assessment and treatment plan from Daphne Lin dated February 14, 2014.
- Mr. Ponniah is not entitled to medical benefits in the amount of $1,850.00 for an assessment and treatment plan from Shelia Lin dated August 26, 2015.
- Mr. Ponniah is not entitled to medical benefits in the amount of $1,763.60 for an assessment and treatment plan from Shelia Lin dated October 7, 2015.
- Mr. Ponniah is not entitled to interest for the overdue payment of benefits.
Mr. Ponniah returned to Canada for treatment after the accident and was discharged from The Scarborough Hospital on September 5, 2012 and was scheduled for follow up surgery at that time. He returned for follow up visits on September 7 and September 13, 2012 to check the progress of his recovery. Mr. Ponniah was involved in a prior accident in 2011.
Mr. Ponniah’s wife was the first witness to testify at the Hearing. The Adjudicator found her testimony to contradictive, unreliable and ultimately based on fiction instead of fact. All of this sowed the seeds of doubt in terms of the credibility of her testimony.
When asked about Mr. Ponniah’s health prior to the accident, Ms. Ponniah testified that Mr. Ponniah had previous medical issues, but that his medical issues were all resolved by the time of the MVA. She also testified that Mr. Ponniah had some issues with kidney stones, but again, they had all resolved by the time of the MVA. She stated that Mr. Ponniah was able to play sports, was active and able to do heavy work prior to the accident. She testified that Mr. Ponniah has not had any paid employment since the accident because he is a danger to himself and others based on his current medical condition. She said that Mr. Ponniah has only driven once since the accident and his trucking license has been revoked. She said that she has to lockup the keys to the car, but Mr. Ponniah tries to break into the cabinet to attempt to get them.
From Ms. Ponniah’s testimony, it was clear that regardless of her credibility, Mr. Ponniah did have significant medical issues prior to the accident. At various points, her testimony was inconsistent and contradictory when compared to medical evidence submitted at the Hearing. Further, Ms. Ponniah stated that all of Mr. Ponniah’s financial and medical issues were a direct result of the accident. The evidence shows that this was not the case.
Mr. Ponniah’s daughter testified that this accident changed Mr. Ponniah for the worse. Prior to the accident, she said that Mr. Ponniah had no problems working. She also said that he did not have any pre-existing medical conditions. Ms. Vithusha Ponniah was asked if she was aware that Mr. Ponniah was receiving ODSP benefits at the time of the accident. She testified that she had no idea. She confirmed that Mr. Ponniah attempted suicide on three separate occasions. Mr. Ponniah attempted to dig a hole and bury himself. An ambulance was called and she rode with Mr. Ponniah to the hospital. She also testified that he also attempted to overdose on Tylenol 3 when he dug the hole. Since the accident, she says people mistake her dad as her grandfather and he is a completely changed person.
Dr. Dr. PK, Clinical Psychologist was called by Mr. Ponniah to testify in regards to Mr. Ponniah’s psychological health. She is Mr. Ponniah’s treating psychologist. Dr. PK testified that she provided mainly supportive therapy to Mr. Ponniah. She stated that Mr. Ponniah’s attendance for his sessions could best be described as sporadic. Dr. PK testified that she was not given any pre-accident clinical notes and records nor any other medical reports to review when she prepared her reports. She also testified that she was not aware of Mr. Ponniah’s ODSP file or substantial pre-accident medical history. As part of her first session when she sees a patient, she testified that she takes a personal inventory of that patient. Her conclusions and diagnoses in her report were made only for the purposes of treatment, and not for the purposes of determining entitlement to benefits or causation. She concluded that Mr. Ponniah suffered from major depression, severe psychotic features, post-traumatic stress disorder including specific in-vehicle phobia, pain disorder associated with both psychological/medical factors among other diagnoses. As a result of these findings, she testified that she began a course of psychological treatment sessions from March 18, 2015 through June 30, 2016. She wrote a treatment progress report dated March 27, 2016. Dr. PK stated that Mr. Ponniah continues to suffer from major challenges in his daily functioning due to chronic pain, physical disabilities, psychological symptomology and personality changes.
Dr. RG is an expert psychiatrist. He has practiced as a psychiatrist for over 30 years and taught at McMaster University. Dr. RG conducted the catastrophic assessment (OCF-19) on behalf of Mr. Ponniah. He completed his initial assessment of Mr. Ponniah on July 18, 2016 and wrote the subsequent report on August 30, 2016. He also completed a second OCF-19 dated September 7, 2016. He testified that he diagnosed Mr. Ponniah with major depression severe; chronic pain syndrome with psychological factors and a general medical condition; acquired brain injury with personality change, apathetic sub-type. Dr. RG testified that at the assessment, Mr. Ponniah had reported pain in his back, shoulders, lower back, head, shoulders, rib pain and that he had trouble keeping balance. Mr. Ponniah also reported that his sleep was impaired and that he had flashbacks of the accident on a daily basis, all of which left him housebound. Dr. RG testified that Mr. Ponniah told him he wanted to die and that he felt diminished as a partner and as a parent.
As part of cross-examination, Dr. RG was presented with Mr. Ponniah’s pre-accident medical history as well as Mr. Ponniah’s ODSP file showing that he had been found to be disabled for the purposes of collecting ODSP, and this was prior to the accident. Dr. RG testified that this was the first time that he had been told this information. He stated that this information would have had been nice to have prior to conducting the assessment of Mr. Ponniah because it would have given him a better overview of Mr. Ponniah’s medical situation. Having said this, after being presented with Mr. Ponniah’s pre-accident and ODSP medical history, he concluded that it would not have changed his opinion. He stands by his diagnosis that Mr. Ponniah is catastrophically impaired as a result of the MVA.
Dr. K was Mr. Ponniah’s family doctor for the past 15 years. He testified that he filled out Mr. Ponniah’s OCF-3 form on January 15, 2014. He also confirmed that he knows about the accident for which this Hearing is being conducted. Dr. K testified that prior to the MVA, Mr. Ponniah was working and his family life as far as he knew was fine. He stated that he had no concerns about Mr. Ponniah being a truck driver, specifically on long haul routes, and that Mr. Ponniah did not suffer many medical issues prior to the accident. He said that Mr. Ponniah had some blood pressure issues and asthma. At one time, he did have some sporadic back pain, but he did not have many problems pre-accident.
Dr. K was asked about a prior motor vehicle accident that Mr. Ponniah was involved in, back in 2011. He did not remember anything about this accident. Dr. K was also asked about filling out an ODSP application form to support Mr. Ponniah’s ODSP request in 2011. He stated that he knew nothing about it. However, in what can only be classified as an uncomfortable moment for the doctor, he was presented with Mr. Ponniah’s ODSP application. Dr. K confirmed that it was his signature on the ODSP form. Under cross-examination, Dr. K was asked about the validity of the information on the form. He testified that the “information included in this form must be accurate, as he would not have endorsed it if it was untrue.” In a further moment of embarrassment, Dr. K was shown Mr. Ponniah’s clinical notes and records, written by him and containing information related to Mr. Ponniah. These clinical notes and records referenced Mr. Ponniah’s prior motor vehicle accident. In addition, they showed various drug prescriptions that he had prescribed for various ailments. Further, in Mr. Ponniah’s clinical notes and records, Dr. K wrote that he diagnosed Mr. Ponniah with chronic pain prior to the accident.
Dr. K testified that he saw Mr. Ponniah one month after the August 29, 2012 accident. He stated that Mr. Ponniah’s personality changed and demeanor changed and in his words, he is not a normal person. Dr. K testified that this is why he prescribed Mr. Ponniah drugs to calm him down so that he can function. The doctor also referred Mr. Ponniah to a pain clinic because of chronic pain, neck, back and ankle pain. He confirmed that Mr. Ponniah complains of pain since the accident and now uses a cane to walk. He also said that Mr. Ponniah always attends his appointments with a family member and he doesn’t say much.
The doctor testified that he thought Mr. Ponniah was okay to be driving a truck at the time of the accident, however upon the presentation of evidence, the doctor forgot that he wrote a letter on Mr. Ponniah’s behalf to ODSP a year before the accident saying that Mr. Ponniah was in such bad shape that he could not work as a truck driver. This put a further strain on the doctor’s credibility as a witness.
The Adjudicator determined that the testimony of Mr. Ponniah’s family doctor lacks the ring of truth that one would expect from a family doctor who has known his patient for 15 years. His testimony didn’t align with the notes that he took of Mr. Ponniah. Either the doctor is a poor historian or he is strictly testifying as an advocate of Mr. Ponniah instead of presenting facts, and after hearing the doctor’s testimony, it might be a combination of both.
Mr. Ponniah filed his OCF-1 on September 10, 2012. He testified that it was his signature on the page but said he didn’t understand what the document was. He relies on his daughters, son and wife to translate his insurance documents.
Mr. Ponniah testified that his last memory prior to getting hit was of himself talking to a US Customs agent. He testified that the next thing that he remembers is waking up in the hospital in what he thought was the morgue. Mr. Ponniah explained the details surrounding the accident. He testified that following being crushed by the reversing truck, he was on the ground covered by a white cloth. His stomach was so swollen that it was touching his beard. However, the evidence showed that he told the emergency room physician at Detroit Receiving Hospital that he never lost consciousness and the ambulance report showed he had a score of 15 on the Glasgow Coma Scale on his intake chart.
Mr. Ponniah testified that he had a choice to be treated in Detroit, but he refused even though he had multiple broken ribs and a broken ankle. He stated that he was given the option of being airlifted to Toronto, driven by ambulance or to be discharged on his own. He said that he chose to be discharged on his own. He testified that his wife and two family members picked him up in Detroit in a van.
In terms of medical issues post-accident, Mr. Ponniah testified that the whole left side of his body is numb. He stated that he has bumps in his back post-accident, however, he testified that his pre-accident clinical notes and records were incorrect when they noted that he previously had bumps on his lower back.
As part of the cross-examination, Mr. Ponniah was given records that showed he was involved in a motor vehicle accident in January of 2011. The records show that he attended The Scarborough Hospital emergency ward after that accident. He reported the 2011 MVA to his family doctor, Dr. K, and he complained of tenderness with his scalp. His doctor prescribed him Tylenol 3. All of this documentation was provided in his ODSP file as support to his ODSP application; however, Mr. Ponniah testified that he didn’t know if he was involved in a motor vehicle accident in 2011. When asked other questions about the 2011 MVA, he stated that he was involved in that accident.
Mr. Ponniah confirmed that he applied for ODSP, but he testified that the reason why he applied was as a result of financial difficulties and not due to any kind of disability. Further, he then denied applying for ODSP and then stated that his wife or daughter may have applied on his behalf without him knowing. Mr. Ponniah was shown his ODSP form and despite his testimony related to this form he confirmed that it was his signature. When he was read the ODSP statement in his application that his daughter, Abhira, wrote on his behalf, he testified that the information contained in the application was accurate, but that he had recovered from all of those aliments by the time he was involved in the MVA.
Mr. Ponniah was asked to explain why there were so many inconsistencies, lies and misleading facts with the information that he told the assessors. For example, he lied to his ortho assessors about not taking prescription drugs, not being involved in a prior motor vehicle accident, and many other fabrications which were all proven to be true with other corroborating evidence at the Hearing. Mr. Ponniah was asked about his use of assistive devices. He testified that he always uses a cane. When shown surveillance of himself not using a cane, Mr. Ponniah said it must have been a good day and he didn’t need it.
On the basis of Mr. Ponniah’s testimony, the Adjudicator completely disagreed that Mr. Ponniah was healthy prior to the accident. His testimony lacked a complete ring of truth. Between not knowing dates and giving multiple explanations, it was nearly impossible to have any reliable evidence submitted as part of his testimony. As a result, very little weight was given to the testimony he provided at this Hearing.
Dr. Moddel is a neurologist who testified on behalf of the Insurer. He relied on Mr. Ponniah to provide truthful information. Mr. Ponniah never mentioned his prior accident. Dr. Moddel found Mr. Ponniah to leave important details out of his self-reporting that would have been helpful for the doctor to know. For example Mr. Ponniah didn’t inform the doctor that he was taking prescription drugs or what kind of drugs he was taking. Mr. Ponniah reported to Dr. Moddel that he had no memory of the MVA.
Dr. Watson is a clinical neuropsychologist who assessed Mr. Ponniah on behalf of the Insurer. He stated that one of the tests he administered was the SIMS (Structured Inventory of Malingering Symptomology) test. Dr. Watson testified that Mr. Ponniah had one of the highest scores ever attained which showed Mr. Ponniah was completely malingering with his testing. Dr. Watson concluded that Mr. Ponniah has not suffered any long-term medical issues directly as a result of the MVA.
Dr. JE was a psychiatrist called to testify by the Insurer. He testified that Mr. Ponniah’s lack of credibility and dishonesty made it difficult to assess Mr. Ponniah.
Dr. CH is a clinical psychologist and neuropsychologist. He assessed Mr. Ponniah twice and testified that he could not accept Mr. Ponniah’s reporting or presentation as valid or credible.
The Insurer had Mr. Ponniah filmed on surveillance for numerous hours at various times and at various locations starting three months post-accident. The surveillance is a complete contradiction of the evidence presented by Mr. Ponniah, and by his expert and lay witnesses at the Hearing.
The onus is on Mr. Ponniah to establish that on a balance of probabilities he has sustained a catastrophic impairment as a result of the MVA.
The evidence has established that Mr. Ponniah was working as a long-haul truck driver at the time of the MVA. It has also been established that Mr. Ponniah was on ODSP at the time of the MVA. What Mr. Ponniah’s ODSP file shows along with Mr. Ponniah’s significant pre-existing medical history is that Mr. Ponniah’s issues were pre-existing and Mr. Ponniah’s current injuries relate to that versus the MVA.
The Adjudicator determined that the evidence shows that on the balance of probabilities Mr. Ponniah’s current medical condition is a result of his pre-existing injuries and not from the MVA, and that he is functional as it relates to the four spheres required to be considered when determining catastrophic impairment. Mr. Ponniah had overwhelmingly failed to meet this onus.