January 10, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Jessica Kowalski
Date of Decision: September 13, 2012
REASONS FOR DECISION
Neranjanee Singh was injured in a motor vehicle accident on June 4, 2007. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company, payable under the Schedule. State Farm terminated weekly income replacement benefits effective May 2, 2008. The parties were unable to resolve their dispute regarding Mrs. Singh’s entitlement to income replacement benefits through mediation, and Mrs. Singh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. Singh entitled to income replacement benefits in the amount of $367.38 per week from May 3, 2008 onward?
Is Mrs. Singh entitled to interest on unpaid benefits?
Is State Farm liable to pay a special award, pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mrs. Singh?
Mrs. Singh is entitled to IRBs in the amount of $367.38 per week from May 3, 2008 to June 3, 2009.
Mrs. Singh is entitled to interest on unpaid benefits.
State Farm is liable to pay a special award in the amount of $7,500.00.
EVIDENCE AND ANALYSIS:
Mrs. Singh was involved in a minor motor vehicle accident on the morning of June 4, 2007. She was rear-ended as she drove to work along 16th Avenue in Markham. It was raining and traffic was slow. The van in front of her applied its brakes, prompting Mrs. Singh to apply hers and slow down. As she slowed, her car was hit from behind.
Mrs. Singh did not realize she had been hit. Her car was still moving at the time of impact. She testified that she heard a noise, which prompted her to question whether she had been in an accident. She says that she saw, through her rear-view mirror, that a car had gone onto the curb. She pulled over, got out of her car, exchanged particulars with the driver that hit her and continued on her way.
She did not get far before she says she heard her car make a noise. She started to panic, afraid that the car would not make it to work. She pulled over and called her husband for help. He came and drove her to one collision centre, and then another, as they searched for the right collision centre where they could report the accident.
Within 1.5 to 2 hours, Mrs. Singh says she began to feel pain at the base of her head, back of her neck and down to between her shoulders. She had grown frustrated when she and her husband could not find the right reporting centre, and they finally ended up at a police station. From there, Mrs. Singh says the police sent her to hospital because of what she says was the extent of her pain.
Her husband took Mrs. Singh to Markham Stouffville hospital where her neck was checked, she received pain killers, and was discharged with a referral to her family doctor.
Mrs. Singh did not make it to work that day. She went home from the hospital. Damage to the bumper consisted of a scratch estimated at approximately $650 to repair. Mrs. Singh has not worked since.
The parties’ positions
Mrs. Singh’s position
Mrs. Singh submits that the accident changed her life. She claims that the accident caused impairments and pain that have substantially impacted her physical, psychological, social and occupational functioning. She claims that the accident had an almost immediate impact on her physical condition, with the onset of pain occurring within a very short time afterwards. In addition to chronic pain, Mrs. Singh argues that the accident has left her severely depressed and emotionally and socially withdrawn. She claims that the physical and psychological consequences of the accident have been so disabling that they have rendered her unable to return to work or to enjoy her family life, social or recreational activities. She claims entitlement to income replacement benefits from the time they were terminated to date and ongoing.
State Farm’s position
State Farm argues that the mechanism of the accident is not consistent with Mrs. Singh’s complaints, that the severity of complaints reported by Mrs. Singh after the accident makes little sense and is unlikely given the nature of the accident and the minimal property damage.
State Farm submits that Mrs. Singh had a pre-accident history of pain complaining, and of physical and psychological issues. It argues that she complained of lower back pain at least a year before the accident, and was for some time already taking the anti-depressant Paxil.
Mrs. Singh was born in Guyana in 1953. In 1983 she moved to Canada with her husband and two children, where they had a third child. Her children are all adult. Mrs. Singh’s daughter lived with her and her husband at the time of the accident. Mrs. Singh does not have formal education beyond Grade 12, but she did complete a one-year secretarial course during a break from work. She was 54 years old at the time of the accident.
When she first came to Canada, Mrs. Singh worked as a sewing machine operator. She was still at that job in 1988 when she was involved in a more serious motor vehicle accident. During the time she took off work to recover after that accident, she took a one-year secretarial course at the Toronto School of Business. She recovered fully from her injuries and driving phobia. She did not return to her previous work, but instead joined a jewelry company where she worked as a stock-keeper. She worked at the jewelry company until 2002 when she took a sick leave for depression related to job stress.
In September 2003, Mrs. Singh started working at Big Al’s Aquarium Services (“Big Al’s”) as a customer service representative. Her work was sedentary, requiring her to spend most of her time at her computer and on the telephone. She took online and telephone orders and dealt with customers who called in with questions or complaints.
By all accounts she was a valued employee who claimed to like her job. She worked continuously at Big Al’s from September 15, 2003 until the June 4, 2007 accident.
Medical History (pre-accident)
Dr. EI is one of Mrs. Singh’s two treating family doctors. His clinical notes and records disclose that Mrs. Singh did in fact have pre-accident complaints that mirrored many of her post-accident symptoms.
At least a year before the accident Mrs. Singh was complaining of low back and neck pain and headaches. Dr. EI’s notes disclose that Mrs. Singh:
“continues to have lumbar pain”
complained of bitemporal pounding headaches with neck stiffness
had knee pain and complained of dizziness
used and continued to be prescribed Paxil (20 mg)
was prescribed stretches, heat/ice for tension headaches and massage for neck pain
Mrs. Singh was also seeing Dr. BB at the Milliken Medical Centre before and after the accident.
On October 26, 2006, Dr. BB referred Mrs. Singh for physiotherapy, noting that it “may help with [unspecified] pain.”
In a referral to a gastroenterologist on October 26, 2006, Dr. BB wrote that Mrs. Singh had a prior medical history of “Anxiety/Depression”, and that, among other medications, she was taking Paxil. Dr. BB also noted that Mrs. Singh complained of lower back pain, for which he prescribed physiotherapy.
The parties did not argue how or even whether the accident might have aggravated any pre-existing condition. Mrs. Singh argued that the accident was simply the cause of all her current impairments; she testified that her health before was “perfect.” She acknowledged having been prescribed Paxil in the past, but says that in recent years she came to use it only occasionally as a sleep aid.
Although Mrs. Singh had prior episodes of being off work (after the 1988 accident and later for work-related stress leave) and a history of some pain complaints and depression, the uncontroverted fact is that from the time she started working at Big Al’s in September 2003 until the accident, she worked without interruption. According to a letter from her supervisor at Big Al’s, DH, dated April 5, 2011, Mrs. Singh was considered an excellent worker, punctual, diligent and needed very little supervision.
Entitlement to Benefits – The first 104 weeks after the accident
In his first Disability Certificate (OCF-3) dated June 14, 2007, Dr. EI wrote that Mrs. Singh experienced onset of neck and back pain within about an hour of her accident and diagnosed her with a Whiplash Associated Disorder II (WAD II).
He opined that she was substantially unable to perform the essential tasks of her employment as a result of the accident, that her limitations included pain with prolonged sitting at the computer, and prognosticated a disability of 5-8 weeks in anticipated duration, even on modified hours or duties. He also noted that Mrs. Singh’s symptoms had gotten worse, and that she was completely unable to carry on a normal life because of difficulty doing physical tasks.
A July 16, 2007 x-ray of Mrs. Singh’s cervical spine suggested that she had muscular spasm. The report by Dr. C, MD also noted that flexion and extension were mildly restricted and lordosis was mildly exaggerated in the lumbar spine.
In his second Disability Certificate, dated October 11, 2007, Dr. EI revised the duration of Mrs. Singh’s anticipated disability to more than 12 additional weeks. This time, he diagnosed her with Whiplash Associated Disorder, and noted that she had pre-existing C5/6 disc disease that had been aggravated by the accident, and that her neck and shoulder pain was aggravated by movements of her head when sitting at a computer.
However, despite the extended duration of her anticipated disability from the essential tasks of her pre-accident employment, Dr. EI noted that by this time Mrs. Singh could return to work on modified hours and/or duties, answering “yes” to that particular question. He also noted that he had referred Mrs. Singh to a physiatrist, Dr. K, “to develop a return to work programme.”
Dr. K also completed a Disability Certificate (November 6, 2007) in which he diagnosed Mrs. Singh with a WAD II impairment. He noted that Mrs. Singh was unable to sit or stand, and opined that Mrs. Singh was substantially unable to perform the essential tasks of her employment. He prognosticated a further anticipated duration of her disability for another 9-12 weeks. Under medications that Mrs. Singh was taking for injuries related to the accident, Dr. K did not mention anti-depressants.
In a report dated November 6, 2007, Dr. K noted numerous symptoms, diagnosed a whiplash (at Left C6), greater occipital neuralgia headaches, TMJ disorder, discogenic back pain, and depression with sleep difficulties. Further investigations were recommended, including psychological assessment and intervention. Notably, in his report, Dr. K wrote that Mrs. Singh described the accident to him as a “high impact” rear-end collision.
Dr. K referred Mrs. Singh to the Rehab Centre which set up a functional abilities evaluation (“FAE”). Chiropractor Dr. Mohsen M reported on Mrs. Singh’s various limitations on November 21, 2007.
Dr. EI, Dr. K and Dr. M continued to assess Mrs. Singh into the early part of 2008. In a February 13, 2008 Disability Certificate, Dr. K wrote again that Mrs. Singh was unable to perform the essential tasks of her employment and that she could not return to work on modified hours and/or duties. He did not prognosticate an anticipated duration of disability, but he did write that Mrs. Singh’s limitations included an inability to lift, carry or bend.
In a June 2, 2008 Disability Certificate, Dr. K prognosticated that Mrs. Singh would be substantially unable to perform the essential tasks of her employment for a further 9-12 weeks, and that she could not return to work on even modified duties or hours. He noted that she was “unable to do heavy lifting [and] bending.”
Lifting, heavy lifting, carrying or bending were not essential to Mrs. Singh’s work and not part of her job duties.
Dr. K also referred Mrs. Singh to Dr. DK, a psychologist. His report following his assessment of March 11, 2008 noted a diagnosis of a Major Depressive Disorder, Severe, and a Pain Disorder. He conducted tests suggesting a severe level of anxiety symptoms, the most severe of which appeared to be depressive. He noted that Mrs. Singh continued to be treated for accident-related pain.
In his report, Dr. DK described Mrs. Singh as suffering from a pain disorder, that she often worried about her pain and that “pain is central to her thinking.” According to Dr. DK, Mrs. Singh avoided activities that could increase her pain, but that, by her Pain Inventory scores (where he found her to have above average scores for a pain patient), Dr. DK found a “high level of somatization” and trouble coping with her pain.
Around this time, State Farm sent Mrs. Singh to a physiatry assessment with Dr. AC, who prepared a report dated April 9, 2008. Just before State Farm terminated her income replacement benefits, Dr. AC opined that Mrs. Singh had symptoms and clinical findings suggesting lumbar radiculopathy. His diagnostic impression included a WAD II disorder with limited range of motion in the cervical spine (with no radicular symptoms or signs). He also described her mood as depressed and approved some treatment.
Termination of benefits
State Farm terminated Mrs. Singh’s income replacement benefits on the basis of an earlier physiatry report by Dr. FI dated January 28, 2008 and an FAE by CE, a kinesiologist, dated November 16, 2007. By way of an OCF-9 (Explanation of Benefits Form) dated April 28, 2008, State Farm notified Mrs. Singh that it felt she no longer suffered a substantial inability to perform the essential tasks of her pre-accident employment as a customer service representative on the basis of those reports, and that it was terminating payment of income replacement benefits effective May 2, 2008. The OCF-9 invited Mrs. Singh to “submit a rebuttal examination report for consideration” should she disagree with State Farm’s decision.
At the time her benefits were terminated, Mrs. Singh:
had received occipital injections, soft tissue and epidural steroid injections
was obtaining psychotherapy treatments approved by State Farm
had been diagnosed with a fear of driving, major depressive episode, severe, and a pain disorder with psychological factors and a general medical condition
was approved for 13.66 hours of attendant care and 10 hours per week of housekeeping assistance
had been diagnosed as having symptoms of lumbar radiculopathy by another insurer physiatrist, Dr. AC
had been off work for approximately 11 months
The Arbitrator found that State Farm’s termination of benefits was premature and unsupported by the two reports referenced in the OCF-9. At the time of stoppage, State Farm had evidence of ongoing disability, including depression, which it failed to consider in terminating Mrs. Singh’s income replacement benefits. For the reasons that follow, the Arbitrator found that the FAE and physiatry reports on which State Farm relied were deficient and could not reasonably have supported a termination of benefits in the circumstances.
Improper reliance on report of CE, kinesiologist
Mrs. Singh participated in an insurer FAE on November 16, 2007 with kinesiologist CE (at Health Impact Multidisciplinary Assessment Centre). She did not complete the assessment.
In his November 16, 2007 report, Mr. CE wrote that Mrs. Singh “requested to discontinue the assessment after attempting neck range of motion testing in sitting due to right hand ‘cramp’ sensation, neck pain extending to her shoulders and mid back pain.”
Mr. CE’s report also states that:
…due to Mrs. Singh requesting to discontinue the assessment early the examiner is unable to comment on her current standing, walking, climbing, stooping, kneeling, crouching, forward reaching, handling, lifting, carrying, pushing and pulling tolerances.
Mr. CE was also “unable to comment on [Mrs. Singh’s] current ability to perform housekeeping and home maintenance services.” He rated Mrs. Singh’s self-perceived work capacity as below the sedentary level. He rated her consistency in reporting as reliable.
In the Job Demands Analysis, meanwhile, he assessed only 2 out of 15 tasks. The remaining 13 could not be rated. With respect to Consistency/Validity and Behavioural Analysis, Mr. CE noted that only 2 of 9 tasks could be rated.
The Arbitrator found that CE’s report was incomplete and inadequate for the purpose of forming the basis for any decision to be made by State Farm on Mrs. Singh’s continued entitlement to benefits. In view of the contemporaneous medical evidence available to it suggesting unresolved symptoms, it was unfair for State Farm to rely on Mr. CE’s report without at the very least giving Mrs. Singh the opportunity to complete the assessment.
Improper reliance on report of Dr. FI, physiatrist
In late 2007, State Farm set up an assessment with physiatrist Dr. FI that took place on January 28, 2008.
In State Farm’s initial referral letter dated October 22, 2007, State Farm requested that Dr. FI have a maximum 30 minute telephone consultation with Mrs. Singh’s treating doctor. The letter asked him to provide a summary of the discussion or, if such a consultation did not take place, the reason.
Dr. FI’s report of January 28, 2008 contains no report of a consultation with Dr. EI, nor does he explain why no such consultation ever took place.
It does not appear that Dr. FI had reviewed all of the contemporaneous documentation, including Dr. M’s FAE that took place around the same time as the FAE with CE. Dr. FI got the referral in October 2007 and it does not appear that the November 21, 2008 FAE report was available or forwarded to him before his own report.
Dr. FI apparently relied on CE’s incomplete FAE in which Mr. CE was unable to comment on a number of Mrs. Singh’s tolerances for activity. Mr. CE’s FAE is however not part of the Appendix to Dr. FI’s report. When asked under cross-examination whether there was anything odd about that FAE report, Dr. FI responded that there was nothing odd about it, notwithstanding that Mr. CE made conclusions without actually having completed the assessment.
Dr. FI’s assessment interview with Mrs. Singh lasted only 36 minutes. Given that State Farm used it to terminate income replacement benefits, the report lacks a detailed or accurate description of Mrs. Singh’s job demands, including hours worked, earnings, the extent of customer interaction, specific job stressors, her travel to and from work, how she would commute, physical demand, or other details such as breaks. In fact, Dr. FI believed Mrs. Singh worked eight hours a day, Monday to Friday, when the evidence is that, well before the accident, she was working a four-day week, Monday through Thursday, ten hours per day.
There are other deficiencies in Dr. FI’s report that the Arbitrator noteworthy:
He did not complete a thorough examination of Mrs. Singh’s right upper extremity due to her report of right-sided cervical and shoulder pain. He did not relate the complaint of neck pain to Mrs. Singh’s reported use of the telephone while at work.
Dr. FI referred to an MRI scan having been done, but it was unavailable during his assessment. Dr. FI agreed on cross-examination that a copy of the MRI could have been obtained from a consult with Mrs. Singh’s treating doctor (as State Farm asked him to do), and could be relevant to Mrs. Singh’s status.
He incorrectly quoted a disc bulge.
Dr. FI made reference to Mrs. Singh’s use of Paxil twice daily, but did not know or inquire about the dose.
At the time of Dr. FI’s January 28, 2008 report, State Farm had received various documents suggesting a psychological disability. In the months that followed, State Farm received reports from Mrs. Singh’s assessors recommending psychological treatment that State Farm approved. During cross-examination, Dr. FI testified that a person could be able to work from a physiatric perspective but disabled from a psychological one.
When it terminated benefits some three months after receiving Dr. FI’s report, State Farm made no reference to reviewing or even considering the psychological component of Mrs. Singh’s disability at that time. State Farm had multiple opportunities to send Mrs. Singh for section 42 assessments to review her psychological complaints. Even State Farm’s physiatrist Dr. AC, who completed his assessment much closer to the stoppage than Dr. FI’s, noted depression and other impairments. State Farm ignored those findings and failed entirely to consider Mrs. Singh’s ability to work from a psychological perspective.
State Farm did eventually set up a section 42 assessment, available “to assist an insurer to determine if an insured person is or continues to be entitled to a benefit”, with a psychologist, Dr. FS on August 5, 2010. Although they retained Dr. FS for a psychological assessment more than three years after the accident, State Farm asked him to consider whether Mrs. Singh met the test for income replacement (and housekeeping) benefits up to the two-year mark. Based on State Farm’s log notes the report was commissioned after a meeting that took place with counsel and was apparently not served until February 2011. While there was ample evidence that State Farm could have done this within the first 104 weeks post-accident, it did not do so until the file had escalated to litigation/arbitration.
Because of incomplete and defective reports, the Arbitrator found that State Farm unreasonably denied payment of income replacement benefits to which Mrs. Singh was still entitled at the time of the stoppage. As a result, State Farm is liable to pay a special award, discussed below.
Entitlement to Benefits – Post-104 weeks
Based on Mrs. Singh’s evidence, including x-rays, an MRI and comments by her treating health practitioners after 104 weeks, and especially her own testimony and that of her treating psychologists, the Arbitrator found that Mrs. Singh does not meet the complete inability test. She has not proved, on a balance of probabilities, that she can do no work for which she is reasonably suited by education, training or experience. The Arbitrator found that by 104 weeks after the accident, Mrs. Singh was able to return to her pre-accident employment as a customer service representative.
In the decision Mrs. S. and Non-Marine-Underwriters Mbrs. Of Lloyd’s (August 3, 2004), the arbitrator held that “an applicant cannot satisfy the weightiness of the post-104 week test by simply presenting bald, unsubstantiated medical opinions.”
By the 104-week mark and beyond, the evidence regarding physical impairments included the following:
Mrs. Singh did not deny that she told Dr. JB, a chiropractor who completed an insurer examination, that she had achieved overall 40-50% improvement in her injuries within a year of the accident.
Mrs. Singh did not deny that she told occupational therapist NT during an assessment that she could climb stairs to the second level.
On December 15, 2009, registered massage therapist PdB of Back in Action Physiotherapy wrote to Dr. BB asking for an MRI on Mrs. Singh’s hip area because of hip complaints allegedly since the accident. In his letter, he wrote that “there has been relief in Mrs. Singh’s neck and shoulders….since I began treating her.”
An MRI of Mrs. Singh’s spine on January 7, 2010, requisitioned by her family doctor, noted mild degenerative changes, but no disc herniations or spinal stenosis. He concluded that, “I do not see a cause for patient’s symptoms.”
On March 9, 2010, Mrs. Singh had an ultrasound of her right knee that was normal, with no significant bone, joint or soft tissue abnormality demonstrated.
An ultrasound of her shoulders on July 29, 2010 showed no rotator cuff tear and identified no tendinosis. Dr. C, who signed the imaging report, suggested an MRI if Mrs. Singh’s symptoms persisted.
An x-ray of her right shoulder on October 28, 2010 was normal. The soft tissues were unremarkable and the joints were normal.
Although Dr. EI referred Mrs. Singh to a back-to-work program with Dr. K, there is no evidence that Mrs. Singh participated in any such program or what attempts were made to facilitate her return to work. There is no reference to a return to work program in Dr. K’s November 6, 2007 intake assessment despite Dr. EI’s recommendation.
Mrs. Singh argues that her condition has progressed to the point that she has now been diagnosed with chronic pain. Dr. Kevin Rod, MD, of the Toronto Poly Clinic, completed a chronic pain assessment dated February 25, 2010. In that report he noted that Mrs. Singh was restricted with respect to prolonged standing/walking/sitting, lifting/carrying, pushing/pulling, bending/ squatting/twisting, and memory. Apart from sitting and maybe memory, these were not elements of her sedentary job.
The Arbitrator found that on the whole, Mrs. Singh has exaggerated her physical limitations and impairments. The Arbitrator does not accept that Mrs. Singh suffers a complete inability to work at any employment for which she may be reasonably suited on the basis of any ongoing physical impairments.
State Farm called Dr. Gerald Y for cross-examination on a report he authored dated April 15, 2010. Dr. Y was Mrs. Singh’s treating psychologist, although Mrs. Singh was referred to him by her lawyers. Mrs. Singh called psychologist Dr. ND who gave evidence as a psycho-vocational expert.
The Arbitrator found that Mrs. Singh did not fully disclose her work situation to either psychologist who, based on her complaints, opined that she had been rendered completely unemployable and had few job prospects as a result of severe depression because of the accident. It is apparent from the reports of Drs. Y and ND that Mrs. Singh was reporting to them that she could not go back to work.
Apart from what Mrs. Singh described as her “pain and suffering”, she submits that she is depressed, stressed, anxious, has become quick-tempered, irritable, and lashes out at home. She claims to have withdrawn from people and fears lashing out at customers, which in turn, in part, makes any return to work unfeasible in her view.
By way of background, it is important to note Mrs. Singh’s employment situation at the time that she was assessed by Drs. Y and ND.
In his letter dated April 5, 2011, DH, Mrs. Singh’s supervisor at Big Al’s, wrote that “Currently [Mrs. Singh] has a position at our company when she is able to return.” He described Mrs. Singh as:
…an excellent worker, she was a punctual and missed very little work. [sic] Her job performance was excellent, she was diligent and needed very little supervision. I was very happy with [Mrs. Singh’s] work and thought she had a long carrier [sic] ahead of her at Bigalsonline. [sic]
Mr. DH testified that he spoke with Mrs. Singh once or twice per year by telephone since the accident, but that she never asked him about going back.
Her employer remained willing to take her back and to provide such reasonable accommodation as she might require, including accommodation for alternating standing and sitting and potentially longer breaks.
Dr. GY, psychologist
Dr. Y began to see Mrs. Singh in April 2010, almost three years after the accident, after Mrs. Singh testified that she asked her lawyers for a referral to someone she could talk to about her feelings. Her counsel asked Dr. Y to assess her.
Dr. Y prepared a report dated April 15, 2010 in which he diagnosed Mrs. Singh with, among other things, major depressive disorder, severe. He concluded that “In terms of a psychological work disability, it is clear that she is unable to work due to the psychological effects of the accident.”
Dr. Y was under the impression in his report that Mrs. Singh had no pre-accident health issues of any significance. He wrote that Mrs. Singh told him she had been on anti-depressants but had stopped taking them since her new job (at Big Al’s). This is inconsistent with Dr. EI’s notes and with Dr. BB’s referral in the fall of 2006 to a gastroenterologist where he noted that Mrs. Singh was taking Paxil. This is also inconsistent with Mrs. Singh’s own testimony that she continued to take Paxil, although only occasionally as a sleep aid and to relax (and absent any evidence that it was ever prescribed for use in this way).
Dr. Y also wrote that:
that Mrs. Singh exaggerated
Mrs. Singh had a “pattern of symptom exaggeration and repeatedly described Mrs. Singh’s situation as demonstrating “a cry for help”
Mrs. Singh’s personality contributes to her pain experience and mood impairments through her “catastrophizing”
Dr. Y reported (and admitted during cross-examination) that Mrs. Singh failed 3 out of 5 symptom validity tests he administered in assessing her.
Notwithstanding that in 2010 Dr. Y became Mrs. Singh’s treating psychologist, the Arbitrator did not find his evidence helpful in considering whether Mrs. Singh could return to work. His oral evidence especially was general and lacked specifics about Mrs. Singh’s vocational prospects in particular.
Dr. Y opined that a return to work was premature for Mrs. Singh. He admitted, however, that one of the goals in treatment would have been to return a person to productive work. He conceded that if it was within their capabilities people who return to work benefit psychologically. He testified that it would be “excellent” if a person “has a job they like and are good at and have the capacity to return.”
Based on the evidence from Mrs. Singh and her employer, Mrs. Singh fit all of these criteria.
Apart from reference to breathing or stress relief techniques, Dr. Y gave no evidence about whether or how a return to work was a goal in Mrs. Singh’s treatment.
Dr. Y did not testify about Mrs. Singh’s job specifically or that she had a job she apparently liked, where she was valued, and to which she could return at any time, with reasonable accommodation. He testified that a premature return to work by an injured person could be like stepping into a “trap” if an employer wanted, say, to “get rid of” an employee, and that a failed return to work could result in even greater setbacks. There was no evidence that this was the case with Mrs. Singh.
While he opined that Mrs. Singh was and is functionally disabled from work, he gave no evidence that he even explored with Mrs. Singh what accommodations, if any, could make a return to her work at Big Al’s (where her work was available) possible.
There was no evidence that Mrs. Singh even told Dr. Y that Big Al’s was keeping her job open, or that she discussed going back with accommodation that Big Al’s was willing to provide.
Instead, Dr. Y testified about general risks of trying and failing, and made no mention (and apparently did not consider) how, with (or with what) accommodation, Mrs. Singh might be helped to succeed or phased back into her job.
There was no support to believe that Mrs. Singh’s employer wanted to get rid of her or that she would be returning to “a trap”, as Dr. Y mused. During cross-examination Dr. Y conceded that he had no evidence that this was the case. On the contrary: Big Al’s described Mrs. Singh in glowing terms and committed to paper that her job was waiting for her. The evidence of a trap, or of the doom and failure that Dr. Y described was simply not there.
Although he testified that failing 3 of 5 tests was not enough for him to condemn Mrs. Singh as someone who was lying or malingering, he did concede that she exaggerated and catastrophized and that she came to the accident as a person who sees the worst in a situation.
In a progress report dated October 14, 2010, Dr. Y noted that Mrs. Singh’s “personality does seem to be contributing to her experience of pain and to her reported psychological symptoms. She tends to catastrophize (she believes the injuries could kill her, she investigated funeral costs, her thought disorder score was elevated, she appears responsive to insurance process stresses, etc.)…”
Dr. Y went on to question in that report that “[t]his being said, there was no evidence of a personality disturbance or disorder that would explain the degree of residual symptoms of the accident.”
Dr. ND, psycho-vocational assessor
Dr. ND conducted a psycho-vocational assessment of Mrs. Singh. He concluded that the accident and its sequelae rendered Mrs. Singh completely unemployable, that she will remain so, and that she has negligible future earning capacity.
Dr. ND gave little meaningful consideration to Mrs. Singh’s particular work circumstances. Like Dr. Y, he too was apparently unaware when he assessed Mrs. Singh that she had a job she purportedly liked, where she was valued, and that her employer was willing to take her back and accommodate her.
Instead, Dr. ND testified that he was not optimistic that something suitable would be found or that Mrs. Singh would find something and return to work. He testified that if something did have potential, there was “merit to exploring it.” If a job could be modified sufficiently, he said that it too, would be worth exploring. He did not volunteer what modifications he thought might assist Mrs. Singh, except to say that very part-time would be ideal, but that very part-time would no longer be considered gainful employment.
Because of her age, pain history and absence from the work force, Dr. ND testified that he could not conceive of any new employer hiring Mrs. Singh when younger, able-bodied, more-skilled workers would be available. He stated that if a job were offered and tailored to minimize the impact on Mrs. Singh’s vulnerabilities, he would suggest it “absolutely” be explored.
When Big Al’s comments about Mrs. Singh were put to him, Dr. ND testified that if her employer thought so highly of her that they were willing to make “considerable job modifications” to accommodate Mrs. Singh, that too was worth exploring.
Dr. ND did not specify what he thought those “considerable” modifications could be. His comments suggest he never seriously (if at all) canvassed them with Mrs. Singh and was apparently unaware at the time he assessed her that Mrs. Singh had an employer willing to accommodate her on terms he conceded at the hearing were “worth exploring” (but that he did not explore with her).
It was not until the hearing that Dr. ND testified that Mrs. Singh’s only real prospect was her own employer willing to take her back and accommodate her, but that it was unknown whether Big Al’s offer extended to taking her back with the “considerable modifications” Mrs. Singh may require, again suggesting that he was wholly unaware of her work circumstances at the time he assessed her.
When pressed, Dr. ND reluctantly conceded during his testimony that job modifications necessary for Mrs. Singh’s return to work would be the provision of sedentary work with allowance for sitting and standing as needed, together with minimal use of the upper extremities. He queried during his testimony whether an employer would actually take Mrs. Singh back and accommodate her. It is clear that he gave little, if any, consideration to the modifications to her job that Mrs. Singh might actually need. The Arbitrator found this odd given that he conducted a psycho-vocational assessment.
Dr. ND’s report was also problematic. In summarizing Dr. Y’s report, Dr. ND did not mention or discuss the 3 out of 5 symptom validity tests that Mrs. Singh had failed. He also incorrectly concluded that “it is quite clear that [Mrs. Singh] was essentially pain free before” the accident. His conclusion ignores the references in Dr. EI’s notes of headaches, neck and lower back pain, physiotherapy, massage, or hot/cold packs for her pain.
He wrote that, in addition to whiplash, Mrs. Singh sustained a temporomandibular joint disorder and spinal canal stenosis at L4-L5 in the accident.
According to Dr. ND’s report, Mrs. Singh believed that she could not return to work. Dr. ND wrote that she told him she never returned because she felt it would have aggravated her pain and that she felt she would have difficulty dealing with people. He also wrote that “In her opinion, she is not capable of working at anything” but also that “[Mrs. Singh] sees no need for her psychotherapy to continue.”
Credibility and post-104 IRBs
From the time that her benefits stopped within the first two years post-accident, Mrs. Singh continued to seek treatment. By mid to late 2009, and into 2010, there was a clear disconnect between objective medical findings regarding Mrs. Singh’s physical complaints and the severity of her reported symptoms. Even her own treating doctors questioned the severity of her reported symptoms.
In Quattrocchi and State Farm Mutual Automobile Insurance, (OIC A-006854, September 29, 1997), the arbitrator held that, where the objective evidence of impairment does not explain the degree of pain reported by the insured person, the insured’s credibility becomes important.
In this case, there is minimal objective evidence to substantiate the various physical pains that Mrs. Singh purported to have. Her credibility is therefore especially important.
For the reasons that follow, the Arbitrator found Mrs. Singh’s evidence during the hearing not to be credible, particularly as it related to her inability to work in any employment.
By the time of Dr. R’s February 2010 chronic pain assessment, Mrs. Singh was exaggerating her job duties to include having to “pull, bend, squat, twist and sit for prolonged periods of time.”
Dr. M, her chiropractor, wrote in April 2008 that Mrs. Singh experiences pain while “carrying, lifting, pulling, pushing and excessive use of the upper extremity” – none of which were major components of her sedentary job. Dr. M went on to say that Mrs. Singh reported limited range of motion of her right shoulder “upon abduction, circumduction, posterior reach, lateral reach and medial reach.” Again, not components of her job. He wrote that she was reporting lumbar pain that was aggravated upon bending and walking, and on activities of bending, lifting, carrying, pulling, pushing, prolonged walking, standing, climbing stairs, getting in or out of a car, and exertion of any form. Meanwhile, Mrs. Singh’s work consisted of mostly sitting, telephone work (for which she said she had a headset and could get a better one), and some keyboarding, with limited filing. At most, she described some limited bending.
There was no evidence that her work was physically demanding or that it was particularly stressful. In fact, Mrs. Singh testified that she had very little work stress at Big Al’s apart from a single incident with a former supervisor that was ultimately resolved.
The Arbitrator found that Mrs. Singh was likely unable to do her pre-accident job exactly as she had done it before the accident. But her employer was willing to accommodate her inability to sit or stand for prolonged periods. Mr. DH could order a better headset and was prepared to let her take longer or more frequent breaks. He could not provide more specific details for accommodation because neither Mrs. Singh nor her treating doctors had ever initiated discussion of what Mrs. Singh might actually need.
The Arbitrator had no reason to find that Big Al’s offer to accommodate was hollow. They had accommodated Mrs. Singh in the past when a previous move by the company from Markham to Woodbridge extended Mrs. Singh’s commute. She asked for and was granted a four-day work week, shaving a day’s commute off each week.
The Arbitrator had other concerns with Mrs. Singh’s credibility that bear noting.
On March 4, 2010, at an insurer psychological assessment before Dr. Gordon Lau for review of a March 12, 2010 treatment plan, Mrs. Singh was sitting in a wheelchair.
Similar to her comments to Dr. ND, and despite the psychological vulnerabilities that Mrs. Singh claimed prevented her from returning to work, she told Dr. L that she “did not see that there was any need to continue seeing the psychologist” (to whom Dr. K had referred her).
Two days later, when she went to another insurer examination before Dr GG, MD, Mrs. Singh was greeted in the waiting room sitting on a walker.
Dr. GG wrote in his May 6, 2010 report that “[Mrs. Singh] sat in the walker and was wheeled in by her husband” and that “[p]revious records do not indicate any walker usage.” He also wrote that Mrs. Singh had denied any previous back or neck problems, despite Dr. EI’s records of both before the accident.
Dr. GG wrote in his report that Mrs. Singh’s “[c]ervical spine range was observed to be full on informal observation”, but that on formal testing Mrs. Singh “produced minimal extension only.” He noted her to be self-limiting and pain focused with pain behaviours.
Dr. C, a psychiatrist who assessed Mrs. Singh wrote in his report dated November 26, 2010 that Mrs. Singh told him that she “used to use” a wheelchair, then a walker, and then a cane, absent any evidence of a prescription by anyone for these assistive devices.
Mrs. Singh admitted that no wheelchair or walker were ever prescribed for her. About the wheelchair at the appointment with Dr. L, she testified that “by the time they were done with me I was in a wheelchair.” But she also testified that she saw it in the waiting room and decided to use it.
As for the walker, Mrs. Singh testified that she could not walk to the appointment so Mr. Singh got her a walker.
Mrs. Singh’s lack of genuine effort to return to work
Mrs. Singh testified that the accident forced her to move from her two-storey Markham home, which she testified was the epicentre of her social, work and family life, to a bungalow in Ajax, where she testified she is isolated from friends, family, and work. Mr. and Mrs. Singh made the decision to sell the house in the spring of 2010.
Mrs. Singh testified that two factors prompted the decision. The first was financial. After State Farm stopped paying IRBs, and after Mr. Singh’s employment insurance benefits ended (following a lay-off from work), they could no longer maintain the $48,000 mortgage on the home. They sold it for $377,000 and purchased the bungalow for $301,000.
The second reason, according to Mrs. Singh was that she could no longer ambulate stairs.
Mrs. Singh testified in chief that her pain forced her to sleep on the sofa for more than a month because she could not use the stairs. She testified that her husband and son (who did not live with Mrs. Singh at the time) had to carry her up and down the stairs.
Mrs. Singh testified that this was “not a one-time thing.” On cross-examination, she was absolute that she spent 100% of an entire month in bed. When asked how she used the bathroom, Mrs. Singh answered that her husband carried her. She also testified that for almost five months in 2010, she could not walk at all: three weeks in February 2010, three months starting in May 2010 (May, June and July), and again in December 2010.
Mr. Singh testified that his wife did indeed have some stretches where she stayed in bed. When they came, he said, Mrs. Singh might be in bed for two to three days.
Mr. Singh gave no evidence that either he or their son carried Mrs. Singh up or down the stairs, or that he carried her into the bathroom at all, much less for a month or more.
Further, two years before the move:
The OT report of NT dated April 22, 2008 indicates that, as of March 31, 2008, Mrs. Singh was ambulating without an assistive device and that “She is able to climb stairs leading to second level but with difficulty and discomfort.”
On April 9, 2008, Mrs. Singh told Dr. AC that by November 2007 she was reporting 50-60% improvement and that she remained independent with regard to personal care tasks but sometimes needed help showering.
An OT attendant care report by EMQ dated June 3, 2008 indicates that as of May 27, 2008, “[t]here are no accessibility barriers for the client, as she is independent with stair climbing and mobility; she demonstrates as able to access all areas within her home independently.”
Mr. and Mrs. Singh testified that Markham was their comfort zone, close to friends, family, and work. They gave no evidence that they considered bungalows or suitable housing alternatives in or nearer to Mrs. Singh’s work. Mrs. Singh may understandably have been unable to maintain the mortgage payments on the two-storey home in Markham after her income replacement benefits were stopped and after Mr. Singh was laid off, but neither she nor Mr. Singh explained why they moved as far away as Ajax. They gave no insight into the choice, or that they looked for something affordable or suitable that was closer to Mrs. Singh’s work.
For this reason, the Arbitrator found that the move had the result of a self-imposed barrier that affected Mrs. Singh’s ability to return to work, even if she wanted to. She reported a fear of driving because of the accident, yet she allowed herself to become physically removed from even the prospect of getting to work.
Apparently, Mrs. Singh decided that commuting to her old job was pointless and too costly. When asked on cross-examination how she would get to work if she were to go back to Big Al’s, Mrs. Singh tellingly answered “What’s the point, with the price of gas, wear and tear?” She did not explore other work.
Return to work “attempt”
In the four years between the accident and the start of the hearing, Mrs. Singh made no efforts whatsoever to return to Big Al’s (even while she still lived in Markham). Mr. DH confirmed that during their once or twice-yearly phone chats, Mrs. Singh not once asked about going back.
Only after she was cross-examined about her failure to make reasonable efforts to return to work, and after hearing State Farm’s submissions in this regard, did Mrs. Singh go back to work for 1.5 hours over two days during a break in the hearing. She asks the Arbitrator to find that this was a good faith, honest effort.
If Mrs. Singh had any desire to even try to work, she had every opportunity to do so in the four years between the accident and State Farm’s submissions. She was in contact with her employer once or twice a year. She had the opportunity to talk candidly with her assessors about her job situation. She could have turned her mind to, or asked for help in considering what accommodation could help her get back to work. She was welcome back whenever she was ready. She described no work stress at Big Al’s, and as noted above, there is no evidence that her job was any more stressful than one might reasonably expect of a sedentary job.
Mr. DH testified that he could see from Mrs. Singh’s face that she was frustrated as soon as she walked through the door, and it appeared that she did not want to be there.
Mrs. Singh’s effort consisted of 1.5 hours spread out over two days. The Arbitrator found that her effort was not honest or remotely sustained and was designed solely to bolster her position in the arbitration.
Section 56 of the Schedule
State Farm argues that not only did Mrs. Singh fail to make an honest, sustained effort to return to work, but that she did not comply with a positive obligation to do so placed on her by the Schedule.
Specifically, State Farm argues that Mrs. Singh has not complied with subsection 56(1) of the Schedule, which provides that an applicant who is entitled to income replacement benefits must make reasonable efforts to return to the employment in which she engaged at the time of the accident.
Subsection 56(1) reads as follows:
56.(1) An insured person who is entitled to an income replacement benefit shall make reasonable efforts to,
(a) return to the employment in which he or she engaged at the time of the accident; or
(b) obtain employment for which he or she is reasonably suited by education, training or experience.
The parties did not reference subsections 56(2), (3) or (4), which say that:
(2) Subsection (1) does not apply if,
(a) employment would be detrimental to the insured person’s treatment or recovery
(b) the insured person is participating in a vocational rehabilitation program.
(3) If an insured person does not comply with subsection (1), the insurer may notify the insured person that the insurer intends to stop payment of the benefit in accordance with subsection (4).
(4) If at least 10 business days have elapsed after a notice is given under subsection (3) and the insured person is not in compliance with subsection (1), the insurer may stop payment of the benefit.
Subsections 56(3) and (4) allow an insurer to stop paying benefits on the basis of an insured person’s failure to make reasonable efforts to go back to their employment or find other work. State Farm in this case never sent Mrs. Singh a notice that it intended to stop payments based on her failure to comply with subsection 56(1). By operations of subsections 56(3) and (4), the Arbitrator found that State Farm is precluded from now raising a failure to comply with 56(1) when it never sent Mrs. Singh a notice of stoppage on the basis of that section in the first place.
At the time State Farm received Dr. FI’s January 28, 2008 report, it was in receipt of multiple documents suggesting Mrs. Singh had a psychological disability. In the months that followed, State Farm approved psychological treatment based on reports confirming psychological issues.
State Farm relied on Dr. FI’s report when it was clear from that report that Dr. FI, retained to do an insurer examination, had not followed State Farm’s referring instructions to consult with Mrs. Singh’s treating doctor or at least give a reason why he did not.
State Farm did not follow up with Dr. FI with respect to the request for a consultation with Mrs. Singh’s treating doctor. On cross-examination, the adjuster at the time only relied on Dr. FI’s report and the FAE (which was substantially incomplete and for which no opportunity to complete was offered) in making the determination to terminate benefits. Meanwhile, State Farm had comments immediately preceding the stoppage made by another of its physiatrists, Dr. AC, that referred to depression and confirmed that Mrs. Singh “continues to be symptomatic, and her symptoms involving the neck and shoulder region are consistent with soft tissue injury, including posttraumatic greater occipital nerve neuralgia. Her symptoms at that time were such that partial approval was given for a treatment plan by Mrs. Singh’s physiatrist, Dr. K, for soft tissue injections, greater occipital nerve injections, and possible epidural steroid injections.
Equally concerning is that Dr. FI’s report is dated January 28, 2008. According to the adjuster’s log notes, it was faxed to State Farm on February 5, 2008. State Farm did not, however, provide the report to Mrs. Singh until April 28, 2008, well beyond the five days prescribed by subsection 37(5) of the Schedule.
Although the April 28, 2008 OCF-9 that terminated benefits informed Mrs. Singh that she could submit a rebuttal examination report for State Farm’s consideration if she disagreed with the stoppage, the Arbitrator was not persuaded that State Farm considered such a rebuttal when it was submitted. Dr. K prepared a rebuttal report dated June 2, 2008, one month after benefits were stopped.
At the hearing, there was an issue as to whether or not State Farm actually received the report. The Arbitrator was satisfied that it was sent to State Farm based on the fax confirmation sheet from Mrs. Singh’s counsel that was tendered as an exhibit. State Farm could not say for certain whether it received the whole report, but if the fax was incomplete, no one followed up to request the whole fax. State Farm’s adjuster acknowledged in his evidence that the report might have arrived but been misplaced by the filing system.
Dr. FI testified that he would have considered the rebuttal had he seen it. On balance, the Arbitrator found that he did not.
During cross-examination, adjuster PK conceded that it would have been fair to have done a psychological assessment of Mrs. Singh in adjusting her income benefits claim at the relevant time.
The explanation offered by the adjuster, HF, for not reconsidering Mrs. Singh’s entitlement to income replacement benefits was that she would only reconsider if Mrs. Singh had submitted another Disability Certificate.
This approach has no support in the Schedule. In Lee and Certas Direct, Arbitrator Alves held that an insurer is required to consider further medical evidence provided by an insured and not simply whether or not a disability certificate is submitted. This notwithstanding, Mrs. Singh submitted two disability certificates after State Farm terminated benefits. The first was Dr. K’s dated June 2, 2008, which State Farm received on June 18, 2008. The second one, received by State Farm on January 19, 2009, was dated January 16, 2009. If additional disability certificates were in fact required, Mrs. Singh submitted them. It would seem that they were either not considered, not forwarded to State Farm’s assessors, or both.
The Arbitrator therefore agreed with Mrs. Singh’s submission that State Farm had no reasonable answer for not reconsidering benefits in the time after May 2, 2008, when it had received a rebuttal, additional disability certificates, and had based its termination on defective or incomplete assessments (without having given Mrs. Singh the opportunity to return to complete, in the case of the FAE).
The Arbitrator found that State Farm, perhaps because of the minor nature of the accident, ignored Mrs. Singh’s psychological complaints in determining that benefits ought to be terminated because there was minimal objective verification to substantiate Mrs. Singh’s physical complaints. State Farm concluded that, at most, this was a case of minor soft tissue injuries, and that Mrs. Singh could not have sustained the injuries complained of in an accident so minor. Even if true, instead of obtaining complete and sound reports that might have supported its conclusions, once it received the FAE and Dr. FI’s reports (however deficient) State Farm simply ran with them without considering the evidence as a whole. This conduct by State Farm suggests more than mere omission, but an unwillingness to consider the evidence as a whole so that the file was not adjusted in a balanced way.
State Farm also failed to comply with subsection 37(5) of the Schedule and without explanation delayed in issuing the OCF-9 that advised Mrs. Singh of the stoppage of IRBs. Subsection 37(5) requires that a report under section 42 shall be given to the insured person within five business days of receiving a report, along with the “insurer’s determination with respect to the specified benefit…” Meanwhile, State Farm obtained reports from November 2007 (the FAE) and January 2008 (Dr. FI’s physiatry assessment), but waited until April 9, 2008 to issue the OCF-9.
The Arbitrator found that the delay was not only contrary to the Schedule, but put Mrs. Singh in the position of responding to stale-dated reports. It would appear that State Farm selectively relied on reports, even defective and incomplete, that supported termination of benefits 11 months after the accident without having considered all of the evidence available to it at the time, including reports of its own assessors (but that disputed termination of benefits). It should have been apparent to anyone at State Farm reviewing the FAE and Dr. FI’s report that they were defective and incomplete.
In Cowans and Motors, the Arbitrator held that an “Insurer in making a determination cannot ignore credible evidence that is available to it. An Insurer has an obligation to assess and critically examine these opinions, and not simply pretend they do not exist.”
In this instance, little was done until well into arbitration and more than three years after the accident, at which time State Farm requested a psychological insurer’s examination, under the guise of a section 42 report, to support its pre-104 week determination. In the meantime, it appears that State Farm was perfectly content to ignore even its own assessors’ findings of disability during the first 104 weeks after the accident, in favour of defective reports. This conduct suggests that State Farm made up its mind that this was a minor accident and that the injuries complained of were incredible.
Although the Arbitrator found that State Farm unreasonably withheld IRBs from May 3, 2008 to June 3, 2009, the Arbitrator did not find State Farm’s conduct to be as egregious as in other cases that have warranted a significant special award. Closed-minded and sloppy adjusting, with little attention paid to all the evidence available to State Farm at the time of stoppage, are what give rise to the special award in the circumstances.
The absolute dollar amount of the special award that could be awarded in this case is limited by the maximum permissible special award calculated as follows:
50% x (benefits that were unreasonably withheld or delayed + interest on these benefits calculated under the SABS + compound interest calculated according to s.282(10)).
In Mrs. Singh’s case, the amount that was unreasonably withheld is approximately $20,940. To arrive at the maximum special award that the Arbitrator could add interest pursuant to the Schedule and compound interest pursuant to subsection 282(10) of the Insurance Act. The maximum special award would be 50% of this total. The Arbitrator did not know the exact total that these calculations would generate. However, given the amount in issue and taking into account the nature of State Farm’s conduct, the Arbitrator set $7,500.00 to fall comfortably within the range of permissible awards and represents an appropriate amount of the special award in this case.
For the reasons set out above, the Arbitrator found that Mrs. Singh is entitled to income replacement benefits in the amount of $367.38 per week from May 3, 2008 to June 3, 2009, with interest thereon in accordance with section 46 of the Schedule, plus a special award in the amount of $7,500.00 pursuant to subsection 282(10) of the Insurance Act.