May 24, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: January 19, 2015
Heard Before: Adjudicator Andrew Diamond
REASONS FOR DECISION
Mr. Kanagalingam was injured in a car accident April 21, 2010 and sought accident benefits from Economical. The parties were unable to resolve their disputes through mediation and Mr. Kanagalingam, applied for arbitration at the Financial Services Commission of Ontario.
The issue in this Hearing is:
Is Mr. Kanagalingam entitled to Income Replacement Benefits (IRBs) pursuant to sections 5(1) and (2) of the SABS?
Mr. Kanagalingam is entitled to Income Replacement Benefits pursuant to sections 5(1) and (2) of the SABS.
EVIDENCE AND ANALYSIS:
Mr. Kanagalingam 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”.
Economical disputes Mr. Kanagalingam’s claim that his disability, if any, was caused by the accident. Economical submits that Mr. Kanagalingam 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.
The parties agree on the following facts:
Mr. Kanagalingam 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, Mr. Kanagalingam went to see his family doctor, Dr. D, complaining of severe low back pain and knee pain;
Mr. Kanagalingam had made one previous complaint of back pain to Dr. D on September 29, 2008; and
Mr. Kanagalingam suffers from both psoriasis and psoriatic arthritis.
Economical has suspicions about the legitimacy of Mr. Kanagalingam’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 Mr. Kanagalingam were from clinics or associated addresses that were subsequently investigated as part of “Project Whiplash” and shut down after criminal fraud convictions were obtained.
Economical notes that the nature of Mr. Kanagalingam’s occupation is described differently in several OCF-2 and OCF-18 forms from the clinics, and that surveillance reports show a person who is not as physically impaired as he presents to doctors and the Tribunal; and that the surveillance reports suggest that Mr. Kanagalingam is engaged in post-accident employment of driving a number of people to work in a factory. Economical also argues that there is $30,000 worth of deposits to Mr. Kanagalingam’s bank accounts which they believe came from post-accident employment.
Mr. Kanagalingam 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. He 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. Expert testimony indicated that trauma can induce arthritis.
Economical provided written reports refuting the opinion of Mr. Kanagalingam’s orthopedic surgeon that his arthritis onset was consistent with the accident. The surgeon responded that those assessors did not have access to the nuclear bone scans that were done, and if they had seen them they would have concurred. None of Economical’s medical assessors were present to testify.
It is the orthopedic surgeon’s opinion that in his present condition, Mr. Kanagalingam is “totally incapacitated from the physical point-of-view and cannot perform any duties at work, domestic chores, social life or sports.” Video surveillance evidence shown at the hearing of Mr. Kanagalingam did not change the orthopedic surgeon’s opinion.
Following his examination of all the evidence provided at the hearing the Arbitrator found on the balance of probabilities, the collision in issue caused Mr. Kanagalingam’s pre-existing, non-symptomatic arthritis to become symptomatic.
Economical submitted that Mr. Kanagalingam was exaggerating his symptoms and malingering, however testimony by Mr. Kanagalingam’s experts concluded that he was not malingering. Economical provided expert testimony but the Arbitrator did not prefer it.
Economical intimates in its submissions that there is a question as to whether Mr. Kanagalingam was actually working prior to the collision. The Arbitrator did not find it necessary to review the estoppel argument put forward by Economical, and ruled in Mr. Kanagalingam’s favour on this point. Not only did Mr. Kanagalingam provide pay records, which were not challenged as evidence by Economical, but Economical conducted a Job Site Evaluation Report “at one of the commercial buildings that [Mr. Kanagalingam] worked prior to the accident”.
The Arbitrator found on a balance of probabilities, that Mr. Kanagalingam worked as a cleaner for JN Janitorial Services prior to the accident.
Economical raised two pieces of evidence which it argues could show Mr. Kanagalingam 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, Mr. Kanagalingam was seen leaving his house, driving to various other houses and picking up women and driving them to a factory.
The Arbitrator reviewed the banking evidence and the surveillance videos and concluded that Mr. Kanagalingam’s explanation that one of the deposits to his account were loans from friends to live on was logical. Other transactions of large sums of money being deposited then withdrawn from his account didn’t show any benefit to Mr. Kanagalingam. Surveillance video showing Mr. Kanagalingam picking up women and taking them to work on two days was satisfactorily explained to the Arbitrator and lacking evidence to the contrary was accepted.
Economical challenged Mr. Kanagalingam with a section 48 defence. By doing so Economical conceded the onus of demonstrating that Mr. Kanagalingam made a misrepresentation and that the misrepresentation was wilful and material.
The Arbitrator concluded that while Mr. Kanagalingam did not always provide his assessors with fulsome statements, and while Mr. Kanagalingam was evasive and lacking in credibility at points in his testimony those misrepresentations where not material to the claim at hand.