Applicant's case hinges on credibility which she lacks - Bhandal and State Farm

June 27, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Bhandal and State Farm

Decision Date: April 26, 2018
Heard Before:  Adjudicator Jeffrey Musson

CAT IMPAIRMENT: applicant lacks credibility; assessments show applicant is self limiting her abilities; applicant not reliable;

Ms. Chhinderpal Bhandal was injured in a car accident on January 21, 2009.  She applied for accident benefits from State Farm payable under the Schedule but when the parties were unable to resolve their disputes through mediation Ms. Bhandal applied to FSCO for arbitration.

Issues:

1. Are Ms. Bhandal’s injuries catastrophic as defined under the SABS as a result of the MVA on January 21, 2009?
2. Is Ms. Bhandal entitled to attendant care benefits from February 23, 2010 until March 13, 2013 in the amount of $645.30; and from March 14, 2013 and on-going in the amount of $3,039.33 per month?
3. Is Ms. Bhandal entitled to caregiver benefits in the amount of $300.00 per week from February 23, 2010 to date and on-going?
4. Is Ms. Bhandal entitled to medical benefits in the amount of $2,155.88 for a chiropractic treatment plan from Complete Rehab dated May 19, 2010?
5. Is Ms. Bhandal entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from February 23, 2010 to date and on-going?

Result:

1. Ms. Bhandal’s injuries are not catastrophic as defined under the SABS and this claim is denied.
2. Ms. Bhandal is not entitled to attendant care benefits from February 23, 2010 until March 13, 2013 in the amount of $645.30; and from March 14, 2013 and on-going in the amount of $3,039.33 per month and this claim is denied.
3. Ms. Bhandal is not entitled to caregiver benefits in the amount of $300.00 from February 23, 2010 to date and on-going and this claim is denied.
4. Ms. Bhandal is not entitled to medical benefits in the amount of $2,155.88 for a chiropractic treatment plan from Complete Rehab dated May 19, 2010 and this claim is denied
5. Ms. Bhandal is not entitled to housekeeping and home maintenance benefits in the amount of $100.00 from February 23, 2010 to date and on-going and this claim is denied.

Ms. Bhandal was born in Punjab, India and was approximately 35 years old at the time of the accident.  She is divorced with 2 sons, ages 9 and 13.  Ms. Bhandal has a Grade 12 education which she completed while she lived in India and subsequently completed 2 years of personal support worker courses.  Her English skills as they relate to writing, reading and speaking are weak.  Ms. Bhandal immigrated to Canada in 2001 and has lived in the greater Toronto area since 2004.

All of Ms. Bhandal’s pre-accident employment involved labour intensive jobs.  She was on maternity leave at the time of the accident, however, was planning on returning to the workforce.  There was a significant pre-existing medical history including being a victim of spousal abuse prior to the accident. 

Ms. Bhandal’s vehicle was struck while making a left-hand turn at an intersection.  She was transported by ambulance to the hospital where she subsequently was found to have a broken tibia/fibular in her left leg.  Ms. Bhandal also suffered some soft tissue injuries as a result of the accident.  She has not returned to work since the accident took place.

Ms. Bhandal testified on her own behalf at the Hearing.   She said that after the impact of the accident, she hit her head on the steering wheel and that she momentarily blacked out.  When she awoke, she saw that her leg was broken and was dangling with her muscle showing.  She was not able to turn around to see her son who was crying in the back seat.  Ms. Bhandal testified that she thought both her and her son’s life were ending.  She confirmed that she was taken to the hospital by ambulance where her broken leg was attended to.  Ms. Bhandal’s fracture was a closed, mid shaft fracture.  She confirmed a subsequent operation was completed on her leg on January 24, 2009 at William Osler Hospital where a rod was installed in her leg to assist with the healing and provide additional support. Ms. Bhandal filed her OCF-1 on January 25, 2009.

Prior to the accident she testified that she was in good health except for a few issues related to the pregnancy of her second child.  In terms of the abuse that she suffered from her husband, she said that it was a bad time in her life, but that it had nothing to do with the physical and psychological issues that she is facing now.  Up until her maternity leave, Ms. Bhandal testified that she was working.  Since the accident, she testified that she no longer works at any job.  In February of 2010, Ms. Bhandal, due to strained relations with her in-laws, moved into a government subsidized apartment.  She testified that she applied for ODSP benefits and confirmed that she was approved and began receiving ODSP benefits in December of 2010.

Ms. Bhandal testified that her niece and other family members helped her with her personal care needs as well as taking care of her children after the accident.  However, she testified that these living conditions were not ideal, and Ms. Bhandal had her mother come over from India in May of 2009 to take care of her and her children at that time.  In 2015, the Canadian government granted her mother permanent residency based on compassionate grounds of her mother assisting her with post-accident care. Since the accident, Ms. Bhandal testified that her mother has taken care of all of Ms. Bhandal’s attendant care needs as well as housekeeping and care giving for Ms. Bhandal’s 2 sons.  Ms. Bhandal confirmed that she has not driven since the accident and she testified that she pays people to drive her children to school now.  When she needs to travel, she said that she either makes an appointment for wheel-trans transportation or most of the time she gets rides with her friends.

Ms. Bhandal testified that it has been a slow process.  She was referred to a psychiatrist for her psychological injuries caused by the accident, but her attendance has been sporadic.  In terms of physical injuries, Ms. Bhandal testified that she still suffers from injuries to her head, back (both upper and lower), both legs, neck, shoulders and a general pain that is felt throughout her body. Ms. Bhandal also stated that she now suffers from migraines since the accident.  Further, there is numbness in her leg and she now has an overall fear of falling.  As a result, she now uses a walker/assistive device to walk around. She testified that all of these issues have now manifested in giving her pain throughout her entire body which is making it difficult for her to function on a daily basis.

Her Family doctor testified that he has been Ms. Bhandal’s family physician since 2004. He testified that he has treated Ms. Bhandal for pregnancy related issues (gestational diabetes with her second pregnancy) but other than that, her health has been good.  He testified that Ms. Bhandal had normal mental and physical health prior to the accident.

When asked about the entries in his notes related to Ms. Bhandal being a victim of spousal abuse, he said that Ms. Bhandal only suffered from superficial cuts and bruises.  However, once shown Ms. Bhandal’s clinical notes and records, he confirmed there was an entry in the notes documenting that he sent Ms. Bhandal for a CT scan because of her bleeding scalp which she suffered as a result of the physical abuse.   His evidence contradicted clinical notes several times, and when questioned, he could not explain the.  In 2010 he filled out the medical forms of Ms. Bhandal’s ODSP application which was subsequently approved in December of 2010.  He also testified that he diagnosed Ms. Bhandal with fibromyalgia and chronic pain syndrome post-accident which he said is directly related to the injuries she suffered in the accident on January 21, 2009.

Post-accident, the doctor testified that in addition to fibromyalgia and chronic pain syndrome, he diagnosed Ms. Bhandal with migraines, depression and post-traumatic stress disorder as a result of the accident.  He also testified that Ms. Bhandal to the best of his recollection did not suffer from any of these issues prior to the accident.  He was asked to explain the contradictions with his notes.  Under cross examination, he commented on Ms. Bhandal’s migraines prior to the accident, stating that Ms. Bhandal’s pre-accident migraines were normal headaches, but her post-accident migraines are persistent and chronic which is completely different.  In addition, her migraine headaches are also more severe post-accident.  He testified that he has prescribed medication and treatment for these migraine episodes for Ms. Bhandal, but none of the medication or treatment has worked up until this point. 

In 2015 Ms. Bhandal was referred to a Neurologist, but there was no relief from the migraines after attempting treatment and prescribed medications.  He testified that Ms. Bhandal’s depression is chronic, unrelenting and difficult to treat.  It also affects Ms. Bhandal by increasing fatigue, pain and insomnia all of which are interrelated.  He stated that he admits he’s an advocate for Ms. Bhandal. Ultimately, he said that he believes Ms. Bhandal is both physically and mentally disabled as a direct result of the accident. 

A psychologist stated that Ms. Bhandal from a psychological standpoint has been suffering from the same problems since 2010, one-year post-accident.  He concurred with Ms. Bhandal’s family doctor that Ms. Bhandal cannot function with the activities of daily living and this is also a reason why he supported Ms. Bhandal’s mother’s application to immigrate to Canada in order to take care of Ms. Bhandal. After the initial visit, Ms. Bhandal had a follow up visit with him in 2011 when he wrote a letter of support for Ms. Bhandal’s mother’s immigration application.  Ms. Bhandal did not see him again until May of 2014, which is 5 years post-accident.  He testified that it is hard to treat a patient who is non-compliant with a treatment program and having sporadic appointments does not help a patient’s recovery.  He saw Ms. Bhandal for approximately a total of 5 hours in 9 visits over a 9-year period.

After administering many psychological tests, he has determined that Ms. Bhandal suffers from a chronic depressive disorder with associated chronic pain.  Since this condition has been present for a number of years post-accident, he testified that Ms. Bhandal will be challenged to fully recover from her psychological injuries. He stated that the car accident is only one of several contributing factors to her depressions.  He further testified that Ms. Bhandal’s symptoms of depression, post-traumatic stress disorder (“PTSD”) as well as anxiety are caused by some combination of the accident, martial dysfunction and lack of a social support network. 

The CAT assessor noted Ms. Bhandal’s pre-accident history of being a victim of spousal abuse, however, he placed little weight on that issue contributing to Ms. Bhandal’s current functioning state.  The only injury that he testified which had a long term, lasting effect on Ms. Bhandal was her deformed fingers which she now has as a result of the abuse. His testimony was confused and inconsistent. The Adjudicator did not prefer his evidence.

In the orthopedic surgeon’s expert opinion, the injury suffered by Ms. Bhandal and the operation preformed on Ms. Bhandal’s leg would take at most 12 months to fully recover. In his expert opinion there is nothing in Ms. Bhandal’s medical condition that would prevent her from attaining full recovery.  With his February 9, 2010 examination of Ms. Bhandal’s leg, there were no complications from the surgery that he detected, and Ms. Bhandal’s left leg was well aligned, straight and no other deformities were present.  He found that throughout her examination, Ms. Bhandal exaggerated the pain from even the slightest touch.  He also commented that there was no physiological reason for this unusual reaction

The IE OT conducted an occupational therapy assessment of Ms. Bhandal over a span of 2 days (October 29 and November 18, 2014) for a total of approximately 2.5 hours.  She stated that Ms. Bhandal, based on her assessment, did not have any specific medical restrictions for lack of movement.  She also said that Ms. Bhandal showed inconsistencies between the results of her formal and informal testing.  Ms. Robbins testified that in the opinion and recommendation section of her report, she found that in terms of self-care, Ms. Bhandal appears to be self-limiting. 

The Arbitrator reviewed extensive medical evidence provided by the Insurer’s IEs and concluded that a significant amount of time has lapsed between the date of the accident and the date of the Hearing.  The credibility of Ms. Bhandal also played a significant role in determining her entitlement to benefits.   

Ms. Bhandal listed her mother as not only the service provider for her housekeeping and home maintenance tasks, but also the attendant care provider as well as the person tasked with providing caregiving to Ms. Bhandal’s children.  This is quite a long list of responsibilities to thrust on a person who is in the 7th decade of her life.  Further, it goes to the credibility of this case if the service provider in fact was able to complete these tasks and most importantly, was there an agreement or promise to eventually pay for these services from Ms. Bhandal to the service provider for the services rendered?

Ms. Bhandal claimed that she did not understand the English language, but yet there were times at the Hearing where she responded to questions in English instead of her native tongue.   Further, Ms. Bhandal made submissions throughout the Hearing that she was at a severe disadvantage with her assessments because they were prejudicial to someone who doesn’t understand the English language.  Further, in Ms. Bhandal’s testimony, it was entered into evidence that Ms. Bhandal communicated with doctors, her transit drivers and others without the use of an interpreter.   The Arbitrator found that Ms. Bhandal’s English skills were on the balance of probabilities better than she professed to this tribunal.

When it came to Ms. Bhandal’s health prior to the accident, she said that other than her gestational diabetes with her second pregnancy, she was in good health.  With the clinical notes and records entered into evidence the Adjudicator found that this was not the case.  There were entries related to headaches, neck and back pain as well as injuries both physical and psychological that she sustained sadly as a victim of spousal abuse.  Ms. Bhandal was continually changing the story related to her abuse at the Hearing and its effect on her well-being.  Regardless, these issues were all present prior to the accident and many of the issues and injuries that she claimed as part of the accident were in fact present pre-accident.

Ultimately, Ms. Bhandal failed to disclose her pre-existing medical condition to many of the doctors who conducted assessments on her as part of her application for accident benefits.  As a result, this suppression of information did not give the assessors a proper overview as to Ms. Bhandal’s pre-accident medical condition in which to properly assess her post-accident medical condition. 

When looking at the totality of the evidence, it shows that Ms. Bhandal has evaded truthfulness to her pre and post-accident medical history.  The assessors were at a loss as to why she was self-limiting in her movements and when looking at the reports of both the Insurer and Applicant’s doctors, it is important to determine which medical professionals’ opinions are based on sound and reasonable medical evidence and which ones are not.

The onus is on Ms. Bhandal to establish that on a balance of probabilities she has sustained a catastrophic impairment as a result of the January 21, 2009 MVA.  

Based on the experts that both the Insurer and Applicant have engaged; looking at their clinical experience, the information available at the time of the assessment and the overall credibility of the evidence; the Adjudicator preferred the reliability of the evidence of the Insurer’s assessors.  Ultimately the onus is on Ms. Bhandal to prove on a balance of probabilities that she sustained a catastrophic impairment from a psychological and physical perspective under criterion 7 and 8.  In this regard, the evidence overwhelmingly shows she failed to discharge this onus.

What is interesting to note as part of Ms. Bhandal’s claim for housekeeping and home maintenance benefits is that she was living in a different residence prior to the accident from which she was eventually evicted and is now living in a subsidized apartment. 

In order to receive housekeeping and home maintenance benefits, the onus is on Ms. Bhandal to prove that she can no longer preform the housekeeping and home maintenance services that she normally performed before the accident as per s.22 of the SABS.  These expenses must also be incurred or at the very least, a promise to pay has been acknowledged. 

Ms. Bhandal only submitted 12 expense claim forms dated from March 25, 2010 until January 21, 2011 which was exactly up to two years post-accident.  These OCF-6 forms were submitted approximately two years after that on March 12, 2013. There were no details other than the boxes ticked off, of which all boxes were checked, as it related to the services provided.  However, the most important requirement in order to claim housekeeping and home maintenance benefits is that these expenses must be incurred or at the very least, a promise to pay for these services be established.  There was no credible evidence submitted at the Hearing which showed that Ms. Bhandal promised to pay the service provider for services rendered.  Therefore, the claim for housekeeping and home maintenance is denied.

In order to qualify for caregiving benefits, Ms. Bhandal must show that she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident and continues to suffer a complete in ability to carry on a normal life, as per s. 13 of the SABS.  These caregiving expenses must also be incurred as a result of the accident.

Ms. Bhandal submitted 12 expense claim forms dated from March 25, 2010 until January 21, 2011 in relation to caregiving expenses.  These OCF-6 forms were submitted approximately two years after that on March 12, 2013.  There were no details other than the boxes ticked off, of which all boxes were checked as it related to the services provided.  Just as with the housekeeping and home maintenance benefits, the most important requirement in order to claim caregiving benefits is that these expenses must be incurred or at the very least, a promise to pay for these services be established.  There was no credible evidence submitted at the Hearing which showed that Ms. Bhandal promised to pay the service provider for caregiving services rendered.  Therefore, the claim for caregiving benefits is denied.

To qualify for attendant care benefits, Ms. Bhandal must show that the expenses are incurred as per s. 16 of the SABS.  Any amounts payable should be in accordance with a Form 1 submitted to the Insurer.

Although not called to testify, the Insurer had an occupational therapist who concluded that Ms. Bhandal required $645.30 per month in attendant care costs.

There was no credible evidence submitted at the Hearing which showed that Ms. Bhandal promised to pay the service provider for the attendant care services rendered.  From the evidence presented and based on a balance of probabilities, Ms. Bhandal has not met her onus to prove that she is entitled to attendant care benefits.

Ms. Bhandal submitted one treatment plan as part of her Application for Arbitration.  Ms. Bhandal is seeking $2,155.88 in medical benefits for a chiropractic treatment plan. There was no evidence put forward by Ms. Bhandal or the witnesses called to testify as to why specifically the treatment plan in dispute was reasonable and necessary. Therefore, with no credible evidence given by Ms. Bhandal as to the reasonableness of this treatment plan, it is therefore denied.

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