February 25, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Eban Bayefsky
Decision Date: February 3, 2009
Thavendirarajah Tharmalingam was injured in a motor vehicle accident on February 20, 2003. He applied for and received statutory accident benefits from TD Home and Auto Insurance. TD Home terminated weekly income replacement benefits on August 3, 2005. The issue of the hearing was to determine if Mr. Tharmalingam was entitled to receive income replacement benefits from August 3, 2005, at a rate of $353 per week, with interest, pursuant to section 5 of the Schedule.
Pursuant to section 5(2) of the Schedule, TD Home was not required to pay Mr. Tharmalingam an income replacement benefit for any period longer than 104 weeks of disability, unless as a result of the accident, Mr. Tharmalingam suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience. Mr. Tharmalingam bore the onus of demonstrating, on a balance of probabilities, that he suffered the requisite degree of disability.
Mr. Tharmalingam was injured in a motor vehicle accident on February 20, 2003 when the car he was driving on Highway 400 was rear-ended as he exited onto Highway 401 in Toronto. Mr. Tharmalingam testified that his car was hit twice in the process, the first being a heavy blow and the second one only causing a slight movement of his body. He said that he was in great shock, was nervous and shivering after the accident. The police attended and Mr. Tharmalingam told them he was okay. The police told him to take his car to a collision reporting centre, which he did, and he then drove home. Mr. Tharmalingam testified that damage to the rear bumper of his car was $1,500.
The following day, he woke up with only a slight pain in his back and he went to work. He said that he did his regular job (as a spot welder) and that his pain started slowly. He took his morning break, after which he could not get up from his seat. He said that he told his supervisor about his pain and that he would go to see his doctor if his pain worsened. He said that, by his lunch break, his pain was very heavy and that he told his supervisor, who said he should go to see the doctor. Mr. Tharmalingam testified that he had lower back and neck pain at work, and that he could not bend or straighten up properly, although he acknowledged his statement on February 7, 2006 to Dr. G.D.G., a pain specialist, that his neck pain, in fact, began 2 to 3 months after the accident. He said that while he could not finish work that day, he did not go to his family doctor, Dr. E.G., since she had left for the afternoon. He said that he saw Dr.E.G. (family doctor) the following day. Dr. E.G. (family doctor) referred Mr. Tharmalingam to a pain specialist, Dr. C.
Mr. Tharmalingam's wife, Anoja Thiagarajah, testified that her husband complained of pain the morning after the accident and that he returned home that afternoon.
Mr. Tharmalingam's pre- and post-accident medical condition
Mr. Tharmalingam testified that, prior to the accident, he was a happy and healthy man who enjoyed life, was hard working and could support his wife, children and mother. Mr. Tharmalingam had two children, a daughter who was 5 years old and a son who was 8 years old at the time of the accident. Mr. Tharmalingam's son was autistic and had attention deficit hyperactivity disorder. Ms. Thiagarajah testified that, prior to the accident, her husband was an active, supportive and hard-working person, doing various household tasks and helping her with their son. Ms. Thiagarajah said that she had been overwhelmed with the stress of taking care of her son and that, on the advice of a doctor, her husband quit the part-time job he was doing at the same time as his full-time welding job in order to spend more time at home helping around the house.
Mr. Tharmalingam stated that, since the accident, he had suffered excruciating low back and neck pain, and had seen many doctors. He also said that his whole body had been painful, and that he had been unable to walk, stand or sit. He stated that he would get angry, was dizzy all the time, had troubling sleeping and could not concentrate on anything. He said that the various medications he took did not help him, and that he only received relief for approximately 30-40 minutes. He said that he could not help his wife and children, that he depended on his wife for everything and that he was very frustrated. Following the accident, he had to sell his condominium and he declared bankruptcy. He said that he could no longer feed his family.
Ms. Thiagarajah testified that her husband's condition gradually worsened following the accident and he complained of lower back and neck pain, as well as pain in his knee, hand and right leg. She said that, since the accident, her husband lost concentration and had been angry, unhappy and listless. She said that her husband no longer had the patience to help with their son.
Mr. Tharmalingam said that, in a typical day, he would sit in a special chair, take medication and sleep. He said that he saw his son off on the school bus each day and was able to drive his daughter to school, which was less than a kilometre from their home. He said that, during the night, he woke up in pain, walked around and tried to go back to sleep either in his chair or on the floor. He said that he never felt rested upon waking the following day.
Mr. Tharmalingam's pre- and post-accident education and employment situation
Mr. Tharmalingam immigrated to Canada in 1989 from Sri Lanka. He had a Grade 12 education in Sri Lanka. He stated that he had a limited ability to speak and read English, and could not write in English. He gave his testimony through a Tamil interpreter. Prior to immigrating to Canada, Mr. Tharmalingam was a mathematics tutor for students in grades 6 to 10.
Approximately six months after arriving in Canada, Mr. Tharmalingam obtained a job as an order packer at Grote Manufacturing Ltd., where he worked until 1991. In this job, he took automobile lights down from shelves, weighed them, wrapped them and placed them on a skid. He said he had to read invoices in this job.
Mr. Tharmalingam then held jobs at a gas station for a few months (pumping gas and working the cash register) and as a bus-boy at a restaurant for approximately 2 years.
Mr. Tharmalingam testified that, from 1993 to 1998, he worked full-time as a spot welder at William Brothers Company, where he stood in one place at a machine welding metal pieces. He said that, for approximately 7 to 8 months while working at William Brothers, he worked a second full-time job cutting wood sheets at a "wood tape" company. At another time during his employment with William Brothers, he worked part-time delivering newspapers.
Mr. Tharmalingam testified that, from 1998 to the time of the accident, he worked full-time as a "mig welder" at PSC Cleaning Systems Inc., where he welded steel pieces to build the bases of pressure washing machines. He said that he had to follow blue-prints precisely in doing this job. He testified that he and a co-worker would carry sheets of metal to a place in the shop where he would cut them and weld them. He said that it was very physical work, involving carrying large pieces of steel (weighing at least 50 pounds), moving and bending while cutting, grinding and welding the pieces, and transferring the finished bases to skids (the bases weighing from 40 to over 100 pounds). Mr. Tharmalingam testified that he thoroughly enjoyed this work, due in large part to the congenial and supportive environment provided by management.
He said that he had not looked for work since the accident because he was in constant pain, did not get enough sleep and could no longer concentrate.
Medical Assessments of Mr. Tharmalingam
Mr. Tharmalingam underwent numerous medical assessments following the accident.
On August 12, 2003, Dr. A.K., a physiatrist to whom Dr. C. (pain specialist) had referred Mr. Tharmalingam, diagnosed right SI joint instability, ligamentous injury, symphysis pubis diastasis and mild residual whiplash. Dr.A.K. (physiatrist) recommended a course of active rehabilitation, supportive devices, pain injections and medication.
Dr. L. (rehab specialist) re-examined Mr. Tharmalingam on January 26, 2004 and reported that Mr. Tharmalingam had suffered a soft-tissue injury to his cervical and lumbar spine as a result of the accident. Dr. L. (rehab specialist) stated there was no organic basis for the majority of Mr. Tharmalingam's symptoms and that he was capable of returning to work.
On February 2, 2004, at the request of TD Home, Mr. Tharmalingam underwent a functional abilities evaluation by Ms. K.S., a certified ARCON evaluator. Ms. K.S. (ARCON evaluator) reported that Mr. Tharmalingam did not demonstrate the ability to perform all the tasks required for a Welder Ms. K.S. (ARCON evaluator) stated that Mr. Tharmalingam provided some effort throughout the evaluation, although there were signs of self-limitation on specific validity measures and that the assessment results were, therefore, considered to be a somewhat accurate representation of his current abilities and limitations.
On March 9, 2004, Dr. R.D., a psychologist to whom Mr. Tharmalingam had been referred by Dr. A.K. (physiatrist), reported that Mr. Tharmalingam met the DSM-IV criteria for a Major Depressive Episode. Dr. R.D. (psychologist) stated that he had no reason to doubt the credibility of the client's self-report.
Dr. L. (rehab specialist) testified that he thought that Mr. Tharmalingam had pain, but that he should have been functioning at a higher level. Dr. L. (rehab specialist) stated that Mr. Tharmalingam had pre-existing abnormalities in his spine that would have little problem absorbing a minor impact. However, Dr. L. (rehab specialist) acknowledged that Mr. Tharmalingam was asymptomatic before the accident. Dr. L. (rehab specialist) also acknowledged that pain and limitations could have stemmed from non-organic problems, that pain could have continued after soft-tissue injuries resolved and that one could be both pain-focussed and in pain.
In April 2005, Mr. Tharmalingam underwent a multidisciplinary post-104 week disability DAC assessment. Dr. P. (DAC assessor) stated that he did not identify any accident-related injury that would restrict standing, walking, bending, stooping, crouching, reaching, gripping, lifting, carrying or pushing/pulling. Dr. P. (DAC assessor) concluded that Mr. Tharmalingam did not suffer a complete inability to engage in any occupation for which he was reasonably suited by education, training or experience.
The psychiatric DAC assessor, Dr. L.R., reported that Mr. Tharmalingam was not suffering from a Major Depressive Episode, an Adjustment Disorder with Depression and/or Anxious Mood, Post-Traumatic Stress Disorder, Pain Disorder or a mild traumatic brain injury. Dr. L.R. (psychiatric DAC assessor) stated that, from a psychiatric perspective, Mr. Tharmalingam was not disabled from returning to work as a spot welder or other job for which he was reasonably suited.
The psychological DAC assessor, Dr. N.E.M., reported that Mr. Tharmalingam was suffering from psychological or emotional impairments consequent to his motor vehicle accident but that his emotional difficulties did not appear to meet the disability test to render him completely disabled from engaging in any employment for which he was suited by education, training, or experience.
Dr. N.E.M. (psychological DAC assessor) prepared an integrated vocational profile in which he recommended the following occupations as guardedly offered as potentially suited for Mr. Tharmalingam (given the likelihood that his vocational aptitudes were higher than indicated in his test results): Food Service Counter Attendant and Food Preparer, Gas Bar Attendant, Parking Lot Attendant. Dr. N.E.M. (psychological DAC assessor) indicated that it would still need to be determined whether these positions were comparable in remuneration to Mr. Tharmalingam's pre-accident employment. Dr. N.E.M. (psychological DAC assessor) suggested that, from a psychovocational perspective, Mr. Tharmalingam was capable of returning to the positions in which he had previously had experience.
As a general matter, the arbitrator found Mr. Tharmalingam to be a credible witness, testifying in a straightforward and reliable manner. In both his oral and written evidence, Mr. Tharmalingam consistently described the circumstances of the accident, the development of his symptoms following the accident and the general extent of his disability. Mr. Tharmalingam's wife also testified in a consistent and straightforward manner, corroborating his testimony concerning the onset of his symptoms and his daily routine following the accident. The arbitrator found it significant (and saw no reason to doubt) that Mr. Tharmalingam's life deteriorated to such an extent following the accident that he had to sell his house and declare bankruptcy.
While Mr. Tharmalingam's evidence contained some discrepancies, the arbitrator found that they were relatively minor and did not affect the overall veracity of his testimony.
The medical evidence supported the view that Mr. Tharmalingam credibly reported the nature and extent of his impairment. Only a few of the medical practitioners who examined Mr. Tharmalingam questioned the veracity of his complaints, and of these, their opinions either failed to consider the non-organic nature of Mr. Tharmalingam's condition or acknowledged the legitimacy of Mr. Tharmalingam's pain and limitations.
For example, Dr. L. (rehab specialist) initially reported that he could not capture any physical impairment and then reported that Mr. Tharmalingam had suffered a soft-tissue injury with no organic basis for the majority of his symptoms. At the hearing, Dr. L. (rehab specialist) acknowledged that Mr. Tharmalingam had pain and that, despite potentially being pain-focussed, he could suffer pain and limitations as a result of non-organic problems.
Dr. S.found strong indications of symptom magnification and embellishment but then reported that Mr. Tharmalingam suffered from physical injuries and persistent pain, depressive symptoms and anxiety, adjustment difficulties in relation to his motor vehicle accident and was genuinely concerned about his somatic problems and functional limitations. Dr. S. also testified that Mr. Tharmalingam was reasonably concerned about his pain and that a finding of symptom magnification did not mean that Mr. Tharmalingam's symptoms were not legitimate or that he was not suffering in his own way.
In contrast, various assessors directly addressed Mr. Tharmalingam's psycho-emotional condition and found that he credibly suffered certain impairments.
The arbitrator found it significant that, while Dr.L.R. (psychiatric DAC assessor) found that Mr. Tharmalingam had not suffered from a major depressive episode, adjustment disorder with depression, anxious mood, post-traumatic stress disorder or pain disorder, Dr. N.E.M. (psychological DAC assessor) found that Mr. Tharmalingam suffered from pain disorder associated with psychological factors, adjustment disorder with mixed anxiety and depressed mood.
Finally, in respect of the credibility of Mr. Tharmalingam's physical complaints, the arbitrator found the comments of Dr. A., Dr. Al. and Mr. K. to be helpful. Dr. A. based his acceptance of the legitimacy of Mr. Tharmalingam's symptoms, in part, on the fact that he had had the advantage of seeing Mr. Tharmalingam on a number of occasions. Dr. Al. noted various indicia of the veracity of Mr. Tharmalingam's complaints, for example, pre-existing but asymptomatic degenerative disc disease, extensive post-accident use of medication, and objective muscle spasm, limited range of motion and the inability to sit in one position. The arbitrator noted that Mr. Tharmalingam got up from his chair on a regular basis during the hearing.
As noted, Mr. Tharmalingam appeared to be in considerable discomfort at the hearing, and became visibly distraught in discussing his inability to help his wife at home and with their son as a result of the accident.
There was some disagreement in the medical opinions about the severity of the impact, with Dr. L. (rehab specialist) and Dr. P. (DAC assessor) suggesting it was relatively minor, and with Drs. Al. and Dr. R.D. (psychologist) indicating it was quite significant. While the accident did not involve significant property damage to Mr. Tharmalingam's vehicle, and while he did not suffer pain immediately, the arbitrator found that Mr. Tharmalingam was subjected to considerable force in the initial impact and that he was emotionally shaken as a result of the accident. The arbitrator accepted that he began to experience pain the following morning, as both he and his wife testified. The arbitrator did not attribute any significance to the apparent discrepancy in Mr. Tharmalingam's evidence regarding the onset of his neck pain following the accident. The arbitrator was satisfied that, at the very least, he suffered sufficient back pain to require him to stop work the day following the accident.
The arbitrator, therefore, found that Mr. Tharmalingam genuinely suffered significant physical, psychological and emotional injuries as a result of the motor vehicle accident, specifically, soft-tissue injuries to his neck and back, as well as emotional trauma, which developed into chronic pain syndrome, depression and adjustment disorder. The arbitrator found it significant, as observed by a number of the health practitioners, that Mr. Tharmalingam had no pre-existing history of neck or back pain, or of psycho-emotional problems, and that he had a solid pre-accident employment history. The arbitrator acknowledged that Mr. Tharmalingam had other stressors in his life, notably, the need to assist his wife in caring for their son. It was found that the accident materially contributed to Mr. Tharmalingam's physical and emotional impairments and that his personal situation was simply compounded by his accident-related difficulties.
The arbitrator found that the medical reports that found that Mr. Tharmalingam was capable of returning either to his previous job as a welder or to an alternative position did not give sufficient weight to the non-organic nature of Mr. Tharmalingam's disability and to the general credibility of his complaints.
TD Home relied on medical and vocational evidence that suggested that Mr. Tharmalingam could return to his pre-accident job as a mig welder or to the following alternatives: Food Service Counter Attendant and Food Preparer, Gas Bar Attendant/Self-Serve Gas Station Cashier, Parking Lot Attendant, Tutor, Bus Boy, Spot Welder and Order Packer. While the arbitrator noted that Mr. Tharmalingam's education, training and experience would have rendered the positions suitable from a general vocational perspective, the arbitrator did not find that they would be appropriate from a medical perspective. The arbitrator found Mr. and Mrs. Tharmalingam to be credible witnesses and accepted their evidence that Mr. Tharmalingam was severely disabled as a result of the accident, living a very limited and unproductive life. Based on their evidence, as well as the preponderance of medical evidence, the arbitrator accepted that Mr. Tharmalingam suffered significant physical and psychological symptoms as a result of the accident. As noted, these problems were compounded by the difficulties he and his wife had in caring for their son. In this context, the arbitrator found that Mr. Tharmalingam would have been incapable of performing the suggested positions.
The arbitrator found that Mr. Tharmalingam's physical pain, psycho-emotional problems, fatigue, dizziness and lack of concentration precluded him from fulfilling the physical and intellectual demands of the job on a competitive, full-time basis. He would haven been similarly incapable of performing the tasks of the other positions suggested, given the severity and multi-faceted nature of his disability. For example, in respect of the position of tutor, the arbitrator noted and accepted Mr. Tharmalingam's evidence that he was incapable of teaching his grade 5 daughter mathematics. The arbitrator also accepted Mr. Tharmalingam's evidence that his pain precluded him from performing the physical tasks of the spot welding and order packing jobs. In light of his physical and psychological problems, the arbitrator found that he would also be unable to do the food service, parking lot, gas station and bus boy positions.
While some of the positions noted were lighter in nature, the arbitrator preferred to rely on the evidence that fully appreciated the severity of Mr. Tharmalingam's problems and that concluded that he could neither retrain for nor perform the other positions. The arbitrator noted, in this regard, Dr. G.D.G.’s (pain specialist) comprehensive opinion concerning the extent of Mr. Tharmalingam's disability and his view that due to Mr. Tharmalingam's limited vocational attributes, as well as his severe pain, he could not be retrained, even for a job that was less physically demanding. Similarly, the arbitrator was persuaded by Dr. Al.’s evidence to the effect that Mr. Tharmalingam credibly described his problems and displayed objective signs of significant impairment. The arbitrator noted that Dr. Al.'s evidence was not significantly challenged on cross-examination. The arbitrator agreed with his assessment that Mr. Tharmalingam required a multi-disciplinary chronic pain management intervention and was otherwise disabled from his pre-accident position or other gainful employment.
Similarly, the vocational evidence of Ms. M. and Mr. K. was consistent with the medical evidence of the nature and degree of Mr. Tharmalingam's problems and the view that Mr. Tharmalingam was incapable of returning to his pre-accident job or a suitable alternative. The arbitrator noted and accepted, in particular, Ms. M.’s evidence to the effect that Mr. Tharmalingam's accident had a profound effect on his ability to reintegrate in the workforce and that his chronic pain, functional limitations, cognitive problems and limited English skills, education level and transferrable skills essentially rendered him unemployable.
The arbitrator, therefore, concluded that, due to the accident, Mr. Tharmalingam was rendered completely incapable of returning to any employment for which he was reasonably suited by education, training or experience. Mr. Tharmalingam was, therefore, entitled to receive income replacement benefits from August 3, 2005, at a rate of $353 per week, with interest.