CAT Designation approved on basis of medical evidence and credibility

October 25, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Sanmugarajah and Nordic

Date of Decision: September 20, 2017
Heard Before: Adjudicator James Robinson

CAT IMPAIRMENT: pre-existing conditions were worsened; treatment plans reasnoable and necessary; credibility of witness good

Issues:

Mr.  Ananth Sanmugarajah, was injured in a car accident on November 9, 2006, and when the parties were unable to resolve their disputes through mediation he applied for arbitration at FSCO. He was injured. He was hurt in a second car accident on February 2, 2007, and applied for and received statutory accident benefits from Nordic however when disputes arose about benefit entitlement he applied to FSCO.

Procedural Issues:

Attendant Care Claims

1. Nordic claims that it has a section 32 defence with respect to the claim for attendant care benefits arising from the 2006 accident and the 2007 accident.

 Housekeeping and Home Maintenance Claims

1. Nordic claims that it has a section 32 defence with respect to the claim for housekeeping and home maintenance benefits arising from the 2006 accident and the 2007 accident.

Substantive Issues:

1. Did Mr. Sanmugarajah suffer a CAT impairment as a result of the accident which occurred on November 9, 2006?
2. Did Mr. Sanmugarajah suffer a CAT impairment as a result of the accident which occurred on February 2, 2007?
3. Is Mr. Sanmugarajah entitled to attendant care benefits in the following amounts:
   1. $2,567.00 per month from November 9, 2006 to February 1, 2007 – (First Motor Vehicle Accident);
   2. $4,026.57 per month from February 2, 2007 to April 14, 2008 – (Second Motor Vehicle Accident);
   3. $4,032.21 per month from April 15, 2008 to date and ongoing.
4. Is Mr. Sanmugarajah entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from February 2, 2009 to date and ongoing?
5. Is Mr. Sanmugarajah entitled to payments for medical benefits in the following amounts:
   1. $5,784.25 – Occupational therapy and assistive devices denied on March 8, 2013;
   2. $760.00 – TENS unit denied on March 28, 2013;
6. $3,259.74 – Psychological treatment provided pursuant to OCF 18 dated June 3, 2013.
7. Is Mr. Sanmugarajah entitled to payments for the cost of examinations as follows:
   1. $1,038.90 – Nutritional assessment denied on March 8, 2013.
8. Is Mr. Sanmugarajah entitled to a rehabilitation benefit as follows:
   1. $2,486.25 – Rehabilitation consulting denied on March 8, 2013.
9. Is Nordic liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Sanmugarajah?
10. Is Mr. Sanmugarajah entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Sanmugarajah did not suffer a CAT impairment as a result of the accident which occurred on November 9, 2006.
2. Mr. Sanmugarajah did suffer a CAT impairment as a result of the accident which occurred on February 2, 2007.
3. Mr. Sanmugarajah is not entitled to attendant care benefits.
4. Mr. Sanmugarajah is not entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from February 2, 2009 to date and ongoing.
5. Mr. Sanmugarajah is entitled to payments for medical benefits as follows:
   1. $5,784.25 – Occupational therapy denied on March 8, 2013;
   2. $760.00 – TENS unit denied on March 28, 2013;
   3. $3,259.74 – Psychological treatment pursuant to OCF 18 dated June 3, 2013.
6. Mr. Sanmugarajah is entitled to payments for the cost of examinations as follows:
   1. $1,038.90 – Nutritional assessment denied on March 8, 2013.
7. Mr. Sanmugarajah is entitled to a rehabilitation benefit as follows:
   1. $2,486.25 – Rehabilitation consulting, denied on March 8, 2013.
8. Nordic is not liable to pay a Special Award.
9. Nordic is liable to pay Mr. Sanmugarajah’s expenses in respect of the arbitration.
10. Mr. Sanmugarajah is entitled to interest in accordance with the Schedule for the overdue payment of benefits.

EVIDENCE AND ANALYSIS

A.   Procedural Issues

Attendant Care Claims

Pursuant to a written order dated December 3, 2015 and for reasons there given two sworn Affidavits of Usha Ramayanam.  Mr. Ramayanam had closed his case, possibly in reliance upon counsel for Nordic calling Ms. Ramayanam as a witness.  In the event, Insurer’s counsel did not do so.  The facts contained in Ms. Ramayanam’s Affidavits therefore went into evidence and were uncontradicted.

Counsel for Nordic relied upon those facts in support of his argument that Mr. Ramayanam’s claims for attendant care were statute-barred pursuant to section 32 of the Schedule.

In the present case, the Arbitrator found upon the basis of the uncontradicted Affidavit evidence of Usha Ramayanam that Nordic did not receive any claim for attendant care benefits from Mr. Ramayanam with respect to either the 2006 accident or the 2007 accident at any time prior to receiving the Application for Mediation dated November 1, 2012.  At no time prior to receiving such Application for Mediation did Nordic receive an Assessment of Attendant Care Needs from Mr. Ramayanam, as required under section 39(1) of the Schedule.  On the evidence before me, Mr. Ramayanam at no time provided reasonable excuse for failing to comply with subsection 32(1.1) and section 39 of the Schedule.

The Arbitrator found no jurisdiction existed under the Schedule to conduct a mediation on the issue of attendant care benefits.  The purported mediation of the claims for attendant care benefits was a nullity.  Because there was no mediation of the issue of attendant care benefits, Mr. Ramayanam’s claims for such benefits could not proceed under either Application for Arbitration commenced by Mr. Ramayanam.  Mr. Ramayanam’s claims for attendant care benefits must accordingly be dismissed.

Housekeeping and Home Maintenance Claims:

The Affidavits of Usha Ramayanam sworn June 17, 2015 confirm that Mr. Ramayanam was formerly paid those benefits up to December 24, 2007 for both motor vehicle accidents.  The evidence shows that, pursuant to an OCF-9 Explanation of Benefits dated December 3, 2007 delivered to applicant and his present counsel, such Housekeeping and Home Maintenance benefits were cancelled effective December 25, 2007.  This was followed by a further OCF-9 dated February 27, 2008, also delivered to applicant and his counsel, confirming that such cancellation related to both motor vehicle accidents. The evidence also confirms that the only Application for Mediation received from Mr. Ramayanam thereafter was dated November 1, 2012.  In such application Mr. Ramayanam claimed entitlement to Housekeeping and Home Maintenance benefits from February 2, 2009 to date and ongoing, i.e. from the two-year date of the second motor vehicle and onwards.

It appears on the basis of the available evidence that Mr. Ramayanam failed to comply with subsections 32(1) and 32(1.1) of the Schedule.  Because the mediation was a nullity in this respect, it follows by operation of law that no valid arbitration could proceed on these claims. Mr. Ramayanam’s claims for Housekeeping and Home Maintenance must accordingly be dismissed.

Applicant’s Background

Mr. Ramayanam was born in Sri Lanka on December 24, 1970.  He completed high school and worked there for about four years before emigrating to Canada in 1992.  After attending ESL classes for approximately six months he took employment as a restaurant worker.  Except for a year he later spent as a deliveryman, Mr. Ramayanam worked in the food services industry in various capacities from the 1993 period until late 2006. He has three children and is married.

CAT Impairment

Two related applications proceeded before the Arbitrator.  In the first, it is claimed that Mr. Ramayanam suffered a CAT impairment in a car accident on November 9, 2006.  In the second, it is claimed that Mr. Ramayanam suffered a CAT impairment in a car accident on February 2, 2007.  A third accident (which occurred on April 15, 2008 and for which another insurer was on risk) was not in issue before me although the Accident Benefits file of that insurer, Economical Mutual, was produced in evidence and occasionally referred to in testimony.

The Arbitrator considered. Ramayanam’s physical and mental health prior to November 9, 2006, the date of the first accident (the “Pre-Accident Period”), the available evidence with respect to his physical and mental health from November 9, 2006 through February 1, 2007 (the “First Accident Period”), and finally, the available evidence with respect to his physical health from February 2, 2007 and after (the “Second Accident Period”).

Mr. Ramayanam’s evidence was that in 2002 he began to suffer from depression and from issues with anger both in the workplace and at home.   Eventually Mr. Ramayanam’s family physician referred him to a Tamil-speaking psychiatrist who saw Mr. Ramayanam over a period of years.  Copies of his clinical notes and records were produced at the hearing showing he prescribed Paxil to Mr. Ramayanam which he took from 2002 onward.

Nordic’s counsel suggested that the existence of this pre-existing psychological history cast significant doubt upon Mr. Ramayanam’s assertion that the motor vehicle accidents were the cause of a claim for CAT impairment, founded upon a disabling depression. The Arbitrator disagreed with that submission, finding that Mr. Ramayanam was a fully functioning individual prior to the two motor vehicle accidents.

Insurer’s counsel conducted a lengthy cross-examination of Mr. Ramayanan about a few incidents contained in medical notes including his unhappy relationship with his mother, that he had thrown a knife at a co-worker (Mr.Ramayanam testified that he did not remember this incident.), and general reports of being unhappy.

Medical evidence showed that Mr. Ramayanam had a number of pre-existing physical and psychological problems during the years prior to the two motor vehicle accidents.  In addition to occasional complaints of back pain, the Arbitrator found that Mr. Ramayanam had anger issues both at home and at work.  Mr. Ramayanam suffered from depression to a degree that justified the supervision of a psychiatrist and a prescription for Paxil.

Nonetheless the Arbitrator found on the balance of probabilities that Mr. Ramayanam was a functioning individual prior to November 2006.  He was gainfully employed throughout the Pre-Accident Period.  He was the sole driver in his family, contributed to the management of the household, and, from 2005 until the date of the first accident, operated a small home-based catering business.  The available medical evidence, corroborated by the testimony of Mr. Ramayanam, his wife, and his mother-in-law, amply confirmed that Mr. Ramayanam was living an ordinary life, notwithstanding the fact that he suffered from depression throughout that period and was probably a rather disinterested husband and parent.  His physical complaints were no impediment to his employment or to his activities of daily living.  Throughout the period prior to November 2006 he was equal, in every material way, to meeting the life challenges of an ordinary adult male of his age and background.

First Accident Period

Mr. Ramayanam’s first motor vehicle accident occurred on November 9, 2006.   As he drove home that day after work another vehicle made an unsafe left turn in front of him resulting in a collision.  He testified that he was frightened as a result of the accident and found himself shivering or shaking afterwards. He left with the tow truck. No one suggested to him that he receive medical attention and he did not do so.  He was subsequently provided with a rental car by Nordic which he drove while his own car was being repaired.

Mr. Ramayanam testified that he recalled hitting the back of his head in the accident.  An hour later he began to feel pain or aching.  The following day he felt pain at the back of his head, in his lower back, in both shoulders, in both legs and in both arms up to the fingers.  He began to suffer from frequent headaches.  He testified that throughout the First Accident Period he continued to have headaches, lower back pain, and tightness in his neck which resulted in serious or severe pain that increased and decreased. He testified that he was unable to lift and that from the day following the accident he consistently felt pain in the lower back which spread to both sides of the spinal column at a point about four inches below the line of his belt.   Mr. Ramayanam attended physiotherapy four times a week to relieve his symptoms.  The only pain medication he recalled receiving was Tylenol 3.

Mr. Ramayanam’s evidence was that his mental state was worse during this period.  He testified that he was crying loudly, sobbing and yelling.  He did not “feel happiness.”  He “felt sad.”  He “did not go out much.”  He “yelled” at family members.  He found himself “shouting” two or three times a day.  He did not feel like going out.  He stopped working.  He slept poorly and his sleep was disturbed with dreams of the accident.  Mr. Ramayanam’s OHIP summary did not show consultations with his psychiatrist.

Second Accident Period

Mr. Ramayanam’s second motor vehicle accident occurred on February 2, 2007.  His evidence was that he was driving on when an eastbound car suddenly made a u-turn in front of him.  He testified that the accident was “more severe” than the 2006 accident.  His body was propelled forward against his seatbelt and then back against his seat.  At the scene the entire left side of his body felt “frozen” and he was unable to move his hand or turn his head.  He left the scene in an ambulance, the attendants having applied icepacks to his injuries.  He was at the hospital from 12:45 a.m. to 6:30 a.m.

In the days after the second accident he testified that his “entire body hurt more,” including the back of his head, his shoulders, and his left leg.  Comparing the two accidents, he testified that his pain was more severe after the second accident, with more pain in his back and in the neck.  When questioned by his counsel, Mr. Ramayanam did not comprehend the idea of a one-to-ten scale to describe the intensity of his pain.

Mr. Ramayanam seemed to qualify his testimony by reporting that he had “a little bit more pain” after the second accident and that his mental state became “a little bit worse” after the second.  He described shouting, yelling and sleeplessness in this period.  His evidence was that “I didn’t like hearing noises” and “I wanted to stay at home.”  Again, he testified that “I tried to go but was afraid.”  He lost interest in talking to others and “didn’t feel any happiness.”  He then testified that his problems began “after the first accident.”

Mr. Ramayanam testified of his relationship with his wife and family that “I had a habit of getting angry with them” and that this started after the second accident.  His evidence was that his symptoms after the second accident were more severe because of his inability to sleep. He testified that he underwent a course of physiotherapy for the year subsequent to the second accident and ultimately underwent treatment consisting of a series of injections at the back of his head to alleviate his headache symptoms.

Rayanam was questioned broadly by insurer’s counsel with respect to the circumstances of his life after the first and second accidents.  The testimony of Mr. Ramayanam was after the first accident in November 2006 he never worked again and, in addition, that he immediately ceased operation of his home-based catering business by cancelling any unfulfilled orders. He testified that he continued to drive after the first accident and was never advised by his doctor not to drive. After the second accident there was a two or three month period when he did not drive, during which time he used public transit.

Credibility of Mr. Ramayanam

The Arbitrator found Mr. Ranayanam’s English to be weak. An insurer’s functional abilities assessment of Mr. Ramayanam was conducted on March 2, 2009.  The Arbitrator had noted that he was satisfied that  the requisite level of disclosure to this assessor was met when Mr. Ramayanam acknowledged his two motor vehicle accidents and that he had received physical therapy.  In other words, a pro forma intake interview should not be constituted a trap for the unwary.

Insurer’s counsel challenged Mr. Ramayanam to explain why a medical report consistently noted that Mr. Ramayanam’s pre-accident function was “independent.”  Mr. Ramayanam specifically denied that he had said any such thing to the assessor.  Upon a review of the report, there are a number of inconsistencies that troubled the Arbitrator.  The Arbitrator noted that given Mr. Ramayanam’s forthright disclosure of his pre- accident medical issues, inconsistencies were likely unintended inattentiveness on the part of the medical staff.

On the issue of Mr. Ramayanam’s credibility, the Arbitrator found that that the difficulties and inconsistencies that occasionally issued in his testimony proceeded from challenges issuing from his poor memory rather than from any conscious intention to mislead. There was nothing in the testimony of Mr. Ramayanam to suggest that he was engaged in deliberate falsehood or maintaining a façade in order to obtain some economic benefit.  On the material points of his testimony, corroborating evidence was available from the notes and reports of treating professionals and from the testimony of his wife and family.

The Arbitrator then reviewed the CAT assessments, rebuttals, and all of the lengthy medical evidence. The Arbitrator noted that the IE CAT assessments were problematic and unorthodox. The Arbitrator preferred the CAT Impairment Report submitted by Mr. Ramayanam as they are consistent with the behaviour and demeanour of Mr. Ramayanam. 

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