Kolapully and TTC Insurance

May 09, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Kolapully and TTC Insurance

Decision Date: March 3, 2018
Heard Before: Adjudicator Louise Barrington

NEBS: applicant’s testimony unreliable but evidence shows entitlement to NEBs and assessments; LAT hearing will determine CAT status; CAT and NEB are decided on different criteria

Mrs. Shoba Kolapully was injured on March 6, 2012 in an accident with a TTC bus while she was a pedestrian walking across the street at a corner crossway.  She sought benefits under the SABS from the TTC but when the parties were unable to resolve their disputes through mediation Mrs. Kolapully applied to the FSCO.

ISSUES  

1. Is Mrs. Kolapully entitled to receive a non-earner benefit at a rate of $185.00 per week for the period from November 20, 2012 to date and ongoing?
2. Is Mrs. Kolapully entitled to receive a medical benefit in the amount of $4090.61 for a treatment plan dated June 21, 2012?
3. Is Mrs. Kolapully entitled to payments for the cost of examinations for neuropsychological assessments provided broken down as follows:
   1. $2275.92 for an assessment dated October 24, 2012,
   2. $2275.92 for an assessment dated October 24, 2012, and
   3. $2275.92 for an assessment dated October 24, 2012?
4. Is TTC liable to pay Mrs. Kolapully’s expenses in respect of the arbitration?
5. Is Mrs. Kolapully liable to pay TTC’s expenses in respect of the arbitration?
6. Is Mrs. Kolapully entitled to interest for the overdue payment of benefits?
7. Is Mrs. Kolapully entitled to a special award?  

RESULT

1. Mrs. Kolapully is entitled to receive a non-earner benefit at the rate of $185.00 per week for the period from November 20, 2012 to date, and ongoing.
2. Mrs. Kolapully is entitled to receive a medical benefit in the amount of $4090.61 for a treatment plan provided by Scarborough Physio dated June 21, 2012, less any sum already paid by TTC with respect to that treatment plan.
3. Mrs. Kolapully is entitled to payment for the cost of neuropsychological assessments provided broken down as follows:
   1. $2275.92 for an assessment dated October 24, 2012,
   2. $2275.92 for an assessment dated October 24, 2012, and
   3. $2275.92 for an assessment dated October 24, 2012.
4. TTC is liable to pay Mrs. Kolapully’s reasonable expenses given her degree of success. In the event that the parties are unable to agree on the quantum of the expenses of this matter, pursuant to section 282(1) of the Insurance Act, the parties or one of them may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
5. Mrs. Kolapully is entitled to interest for the overdue payment of benefits, calculated from the date each fell due until September 6, 2016.
6. The claim for a special award is denied.

THE POSITIONS OF THE PARTIES

The parties agree on the circumstances of the accident.  Mrs. Kolapully was hit by a turning TTC bus and sustained both orthopaedic injuries and a traumatic brain injury.  She alleges that as a result of the accident she suffers from post-concussive symptoms, severe depression, anxiety and a pain disorder.  She claims that the trauma of the accident has provoked ongoing cognitive and memory impairments, lack of motivation, frustration, irritability, sadness, anxiety and chronic pain.  She claims NEBs and medical benefits for assessment and treatment.

TTC’s submission is that Mrs. Kolapully does not meet the test for a non-earner benefit under section 12 of the SABS, and that she has failed to discharge her burden of proving that the injuries and their sequelae “continuously prevent[s] her from engaging in substantially all of the activities in which [she] ordinarily engaged before the accident.”  TTC’s position is that the medical benefits were properly denied.  TTC also argues that Mrs. Kolapully is untruthful and prone to exaggeration, over-reporting her impairments to the medical assessors.  TTC denies that Mrs. Kolapully is entitled to a special award.

The Adjudicator reviewed the law and the claims.

Section 12(1) of the SABS provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

a.       The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

To succeed in a claim for NEBs an Applicant must establish that the accident caused changes impairing some of the activities she enjoyed prior to the accident and continuously prevented her from engaging in substantially all of her pre-accident activities.  To determine whether a claimant’s ability to “engage in substantially all” of her pre-accident activities, all of the pre-accident activities in which she had ordinarily engaged should be considered, but with greater weight being assigned to those activities which the claimant identifies as being important to her pre-accident life.

Moreover, the prevention of “substantially all” requires significant impairment of more than a few activities or a goodly number of activities or even a majority of pre-accident activities.  NEB test is onerous, in that it requires impairment of almost all, although not necessarily 100% of, accident activities.

TTC challenged the veracity of Mrs. Kolapully both in cross-examining her and in presenting surveillance video evidence.  TTC’s Counsel referred to the case of Watson v. TTC Insurance Co., in which the Divisional Court held that an arbitrator is to weigh the issues of credibility in the context of the evidence as a whole, and is entitled to believe all, some or none of what a witness [has] said.

The Evidence on behalf of Mrs. Kolapully

Mrs. Kolapully testified at length and was thoroughly cross-examined on her activities before and since the accident.  After stepping off the curb, she has no memory of the accident itself until she found herself in an ambulance on a stretcher at the hospital.  She described her injuries – fractures of both legs and facial injuries requiring some stiches.  She also described the various impairments which she alleges were caused by the accident, and their impact on the various activities of her daily life.  Her younger daughter, Shalini Prakash, now 21 years of age, also testified in support of her mother.  Shalini testified that she had lived with her mother in Dubai immediately before they came to Canada to join her elder sister in 2011.  In 2014, according to her testimony and that of her daughter Shalini, Mrs. Kolapully moved to Fort McMurray to join her husband, whose job is there.  Both daughters remained in Ontario, although Shalini did spend much of 2016 with her parents while doing a co-operative work assignment for school.  Mrs. Kolapully continues to reside in Fort McMurray with her husband.

Mrs. Kolapully testified that she had had some experience after graduating, working as a receptionist/clerk for two companies owned by her father during the period between 1991 and 1993.  Then she became a full-time homemaker, caring for her two daughters.  After some time in Dubai, she came to Canada in 2011 to join her husband and her elder daughter, who was by then a university student.  Once in Canada she enrolled in a class with a view to obtaining employment.  As a first step she began volunteering at a retirement centre in February of 2012, both for the personal satisfaction and to build confidence for her job search.  The accident occurred when she had volunteered on only few occasions; her injuries put an end to her job search at the time.  She claims that she continues to suffer pain and psychological problems which make entry into the Canadian workforce impossible.

Housekeeping and Cooking

According to Mrs. Kolapully, prior to the accident, as a stay-at-home homemaker she was solely responsible for household chores and she was responsible for keeping the home running, including laundry and ironing, shopping, cleaning and garbage removal and financial management for the family.  Shalini estimated that her mother spent three to five hours in the kitchen daily, as well as going out to the community centre once or twice each week. 

After the accident, Mrs. Kolapully’s movements were inhibited for some months by the casts.  The two daughters had to take over all the household chores, under their mother’s supervision.  Once out of the casts, said her daughter, Mrs. Kolapully began to do a little work around the house, but had great difficulty as she couldn’t stand for long, so the two daughters continued to perform the household tasks, with instructions from their mother.  Shalini’s testimony was that her mother now does some baking, but needs help as she cannot do it alone.  Everything takes her mother much more time to accomplish.  Her cooking is much simpler and uncomplicated as she cannot stand for extended periods or bend to use the oven and does not have the energy and suffers from pain when she overdoes it.  The cognitive problems interfere with her cooking as well, as she forgets things on the stove and burns food.

Mrs. Kolapully tried to resume her chores such as shopping, but her daughters discouraged her from doing so.  Shalini’s testimony was that the daughters were concerned not only about the pain that their mother suffered when she over-exerted herself, but also because she gets lost.  “She was really sharp before the accident”, said Shalini, “but now she gets lost.”

Since moving to join her husband in Fort McMurray, Mrs. Kolapully has, according to her daughter, resumed housekeeping, but instead of preparing complicated dishes, heats food in the microwave.  “She does everything, but a lot slower now…. If she works too hard, she may have to spend the whole next day in bed.” Mrs. Kolaplly now manages the couple’s finances.

Both Mrs. Kolapully and Shalini testified that mother and her two daughters were very close.  When her husband was at home, Mrs. Kolapully considered that the couple had a good relationship.  The Enhanced English language class helped her learn about Canadian life and to prepare her to look for work.  Volunteering at the seniors’ residence was a way to be part of the community and to gain confidence when seeking employment. Shalini described her mother before the accident as an active, social person, wanting to maintain connections with India and eager to participate in her new community in Canada.  Her mother was active in the parent-teacher association at her school and encouraged her to do well at school.  Her mother knew all Shalini’s friends, frequently inviting them to their home.  She was also getting to know other people in their apartment building and meeting other people from the same area of India.

Since the accident, according to Shalini’s account, she shares less with her mother. Dad takes care of things now instead of Mom.”  Her mother also no longer goes to the community centre and doesn’t keep in contact with people she had met there.  “After the accident, family and friends came and brought food, but now they think she is okay and she avoids them to avoid their questions.”  Now in Fort McMurray, Mrs. Kolapully has lost her interest in making new friends and is, in the words of Dr. Becker, “Limited in her ability to interact with friends… due to pain and associated difficulties.”

Shalini described the change in her mother after the accident.  She said her mother loathed herself. She encouraged her mother to get counselling after a suicide attempt in 2015.  “Before that,” she said, “we just thought her bad mood was because of pain.”  She testified that she cannot think of her mother enjoying things now.  She used to bake for the family or visitors but has stopped baking now and has no more contact with these people.  Before the accident, it was Mom who took care of Dad.  Now it is the reverse, and the two sisters manage their own affairs.

Personal Care

Prior to the accident she had enjoyed styling her hair and wearing makeup and looking smart.  Since the accident, she stated that she lacks both motivation and energy to take interest in her personal appearance.  She has lost interest in her personal appearance and in shopping for herself, her daughters and her husband.

Exercise and Sleep

Up until the accident, Mrs. Kolapully had no unusual physical limitations or sleep problems.  She was an avid walker and practiced yoga regularly, both for exercise and as part of her religious practices.  Afterward, her leg injuries limited her mobility and she went from immobility and casts and crutches to walking unaided, but still with pain.  The immobility caused by her injuries required CCAC personal support care for two months.  Continuing pain still limits her walking.   In the years since the accident, her lack of exercise has contributed to weight fluctuations.  She is no longer able to take the long walks she previously enjoyed.

Aside from her physical injuries and the impairments they caused, Mrs. Kolapully testified that she also suffers from disturbed sleep, with nightmares, frequent waking and chronic worrying.  This results in chronic fatigue and low morale. Her daughter Shalini reported that her mother was often up very late at night and complained of difficulty sleeping.  In the morning she tried to be awake before her daughters left, but sometimes would sleep through the morning or at odd times during the day. In 2015, roughly a year after moving to Fort McMurray, Mrs. Kolapully overdosed on her anti-depressant medication, was taken to hospital and admitted to the psychiatric ward.  Her testimony was ambiguous as to whether this incident was an attempt at suicide or a medication error, but she admitted telling two different versions of the incident and said that she was referred to a therapist for twelve counselling sessions.

Religious Practices

Mrs. Kolapully testified that practicing her religion was a very important part of her life; she would attend Temple on her own during the week, and with her daughters on weekends.  Her daughter Shalini said that her mother attended Temple at least once a week for a daily prayer group.  The group’s practice included deep bowing and sitting cross-legged on the floor, usually for 45 minutes to an hour at a time.  Since the accident, Mrs. Kolapully testified that she cannot perform the yoga poses or sit on the floor as she did prior to the accident.  Her yoga is thus now limited to breathing exercises and chanting. After the accident, Mrs. Kolapully returned to Temple on a much less frequent basis.  According to Shalini, “Mom doesn’t go to Temple as often now.  We would walk in and spend five minutes there.  She doesn’t want to sit on a chair because only old people sit there.”

Transportation

Mrs. Kolapully did not drive a car, but prior to the accident would get around the neighbourhood either on foot or by public transit which she used regularly.  She testified that she sometimes gets lost or confused due to cognitive difficulties, feels guilty having to take a seat from an elderly or visibly disabled person, and feels “so my anxiety [sic]  as a pedestrian.”

Hobbies

Mrs. Kolapully testified that prior to the accident she was an avid walker.  Her daughter confirmed this, saying that at times she used to struggle to keep pace with her mother.  Now her mother walks slowly and carefully.  Mrs. Kolapully also stated that prior to the accident she read a great deal for enjoyment.  Her daughter’s testimony was that her mother had loved to read all kinds of stories, both fiction and non-fiction, but especially inspirational stories about life changes.  She has returned to reading but no longer derives the same pleasure from it, tending to read “dark stories”, according to Shalini.  She no longer goes to the library on her own, relying on her husband to accompany her.  She has no interest in going to the community centre in Fort McMurray.

Shalini testified that right after the accident her mother seemed to be in shock for about two months.  She didn’t know what was happening and didn’t remember.  She described her mother’s situation as “starting all over again”.  But she “never got back” to what she was before.

The demeanour of Mrs. Kolapully during her testimony merits some comment.  During her testimony, which extended over parts of two days, her attitude vacillated between lassitude, to the point of apparent disinterest in the proceedings, and extreme confusion, frustration and irritability when she was pressed to remember details.  She provided conflicting answers on many occasions, which made it difficult to assess which of her responses were accurate and which were either unsuccessful attempts at remembering, or simply guesses or fabrications in response to questions by her own counsel or counsel for TTC.

Medical Evidence

Mrs. Kolapully relied on medical reports  that outlined Mrs. Kolapully’s injuries, including an open fracture of the lower end of the left tibia and fibula and a concussion with moderate loss of consciousness without an interactive cranial wound. In October 2012 the diagnosis of a left medial malleolar fracture requiring surgery and internal fixation, soft tissue injuries to the right leg and strain of the left knee was made.  There was a note of limited strength and mobility due to residual symptoms of her injuries.

Following the removal of her casts in June 2012 she continued to experience pain in the left leg, where her injuries were more serious. Mrs. Kolapully suffered from severe bilateral knee pain, aggravated by standing.  In September and October 2013, despite generally good recovery, Mrs. Kolapully continued to experience pain in her left knee, and underwent surgery for a meniscal tear.  Medical records in November 2013 and January 2014, record that Mrs. Kolapully was still suffering from pain including arthritis; various treatment alternatives were considered.

The neuropsychologist who provided the three assessments of October 24, 2012 which are in issue in this Arbitration, presented his evidence at the Hearing in part via a video presentation.  He noted that the accident’s impact caused facial injuries, Mrs. Kolapully suffered from an interrupted degree of awareness following the accident, was in hospital for nine days, and required a blood transfusion.  Mrs. Kolapully presented symptoms of headache, fatigue, weakness, and attention and memory deficits when Dr. G saw her in January 2013.  He classified her on the Glasgow scale as 13-15.  A score of 15 is fully conscious whereas score of 1.5 is comatose. Thus, there was a mild impairment to Mrs. Kolapully’s awareness.

At the Hearing, Dr. G explained that the impact to Mrs. Kolapully’s head had caused microscopic injuries, vascular contusions in the brain.  These injuries are so tiny as to be invisible by x-ray or CT scans, but are nevertheless real.  He stated that in 85% of cases the situation resolves but 15% of patients have residual impairments which can be disabling.  Neuro-psychological evaluations can identify a Total Brain Injury Score (“TBIS”) to see if there is cerebral compromise.  Dr. G found Mrs. Kolapully’s TBIS to be 43, equivalent to moderate brain injury.  According to Dr. G, Mrs. Kolapully is unlucky to be among the “miserable minority”, the 15% of patients who have residual effects and ongoing symptoms long after they would expect to have healed.  He noted in his oral testimony that Dr. RLB got the same results regarding working memory and divided attention, but did not use a TBIS.  When questioned about Mrs. Kolapully’s memory problems, Dr. G referred to the psychometric report which disclosed losses in both visual working memory and perceptive reasoning.  He also explained that some people may appear to exaggerate their symptoms while in fact the honest exaggeration may be the result of a visceral response, where fear and anxiety produce an autonomic reaction.  It can be difficult to tell whether a person who appears to be malingering is feigning symptoms or is having a visceral reaction.  Dr. G also testified that Mrs. Kolapully has a language disorder, a difficulty in naming things.  Testing showed that she knew certain words but could not retrieve them.  Her score on this test was -2, where a score of -1.5 is impaired and a score of -3 is very impaired.  The only practically available treatments in Canada are speech therapy and occupational therapy.

In March 2013, one year post-accident Mrs. Kolapully sought care for knee pain and was prescribed Advil, and referred for an early orthopaedic appointment.  In the same month, Dr. G noted a mild to moderate neurocognitive impairment in neuropsychological functioning, which he said would prevent Mrs. Kolapully from seeking employment.  He also found reduced stress tolerance which would augment her accident-related pain complaints and related levels of anxiety and depression.

In December of 2013, the orthopaedic evaluation agreed that Mrs. Kolapully’s injuries significantly restricted her competitiveness in the workforce, noting that there was a significant risk of future surgical intervention and the development of posttraumatic osteoarthritis in the left knee.  Under “Impression and Opinion”, he noted that Mrs. Kolapully’s injuries also render her substantially unable to perform the essential tasks of her pre-accident housekeeping.  He also noted anxiety, depression and sleep deprivation post-accident.

The family doctor saw Mrs. Kolapully again on March 15, 2014.  The reason for her visit was listed as “anxiety.”  The family doctor noted that Mrs. Kolapully had a pending appointment with an orthopaedist for a possible cortisone shot.  She complained of anxiety, feeling useless, and decreased energy, but said she was not depressed. In August of 2014, over two years post-accident, The family doctor’s clinical notes report that Mrs. Kolapully appeared fatigued and in a low mood, and indicated that she felt hopeless.  The family doctor diagnosed Mrs. Kolapully with chronic pain and depression.

The following month, in September 2014 a  psychologist specialising in rehabilitation and cognitive behaviour, reported a score on the Beck Depression Inventory of 43, corresponding to the 98th percentile of perceived disability scores of individuals with persistent pain conditions.  She diagnosed a major depressive disorder of moderate severity, and a pain disorder associated with psychological factor and a general medical condition, concluding that Mrs. Kolapully’s significant distress and impairment in social and occupational functioning were inhibiting her rehabilitation and adjustment, noting that pain focus and fear of reinjury have been shown to be associated with poor rehabilitation outcome.  She recommended treatment including psychotherapy, sleep techniques, and pain management to reduce pain or pain experience.

In October 2014, Dr. Sangha, a physiatrist, did an evaluation and also noted hypertonicity in the right upper trapezius, with guarding to the right lumbosacral paraspinals, with asymmetric motion loss.  He concluded that Mrs. Kolapully had a whole person physical impairment of between 7 and 20Further medical examinations noted that Mrs. Kolapully had become afraid of reinjuring herself since the doctors couldn’t ‘fix’ anything else, and that she had become withdrawn and depressed.

The psychologist report from that period notes that at the time of the assessment Mrs. Kolapully did meet the test for NEBs.  She described Mrs. Kolapully’s current symptomology as depression, anxiety, pain, and cognitive difficulties.  She acknowledged that in psychometric testing language or cultural factors may have impacted upon Mrs. Kolapully’s performance.  Based on the information she gathered herself, including Mrs. Kolapully’s self-reporting, her own clinical observations, psychological test results, a review of the medical brief, and noted other medical reports that diagnosed a major depressive disorder, a pain disorder associated with both psychological factors and general medical condition, and generalized anxiety disorder.  She noted that Mrs. Kolapully is also reporting panic attacks.  In her conclusion she wrote:

 It appears reasonable to conclude that the subject accident has materially contributed to current psychological symptoms and associated impairments and functioning.  It should, however, be noted that reported difficulties integrating into a new community would have made her more vulnerable to the deleterious effects of the subject accident.  With respect to mental and behavioural impairments, Mrs. Kolapully’s condition may not be stable…

Psychological treatment was recommended noting that Mrs. Kolapully seemed interested in this type of treatment.  Dr. Becker spoke of Mrs. Kolapully’s post-accident functioning, noting that she had not returned to volunteering, did not go to work because of fatigue, cognitive difficulties, low self-esteem, etc.  She seemed unwilling to engage in household chores, fearing to reinjure herself.  In evaluating a person’s engagement in the activities of a normal life Dr. Becker emphasized that not only must the person do an activity but be engaged in it.  If a person can only do an activity with great pain, that person cannot be seen to be “engaging”.  Depression, fear and anxiety, pain disorder, and cognitive problems which became noticeable one year post-accident, impact the quality of Mrs. Kolapully’s activities, and bring about changes in the quality of her relationships which then brings about decreased stress tolerance.  Thus, Mrs. Kolapully’s impairments showed at the high-end regarding daily living and adaptation.  In assessing the credibility of a subject the psychological tests have validity indicators and there were no concerns regarding Mrs. Kolapully’s credibility, which was consistent over time.  This report is particularly valuable as she examined Mrs. Kolapully as an independent assessor at the request of TTC, and appeared to have an excellent grasp of the various evidence and opinions on which she had based her evaluation.

In late October of 2014, Mrs. Kolapully had moved to Fort McMurray and her new family doctor assessed her with anxiety.  He saw her again in January to discuss laboratory results and “empty nest syndrome”.  In April she questioned her doctor about fibromyalgia.  He prescribed low-dose amitriptyline and in May confirmed the fibromyalgia diagnosis. 

In June 2015, the incident of the overdose took place.  Hospital records note that the patient denied trying to kill herself and had made a mistake with her medications in the dark.  Mrs. Kolapully returned to the family doctor in July and August again with anxiety and depressed feelings.  She saw her family doctor in August and September regarding unrelated complaints but returned in November with persistent anxiety.  Other medical records from Fort McMurray appear to be for unrelated complaints.

In April of 2016 Dr. LG, a psychiatrist, assessed Mrs. Kolapully in connection with her claim of catastrophic impairment.  In his view, she met the criteria for a chronic pain disorder associated with psychological factors and a medical condition, a chronic severe major depressive disorder and a phobia of crossing the street.  He also suspected a cognitive disorder and personality changes associated with mild traumatic brain injury.  He classified Mrs. Kolapully as catastrophically impaired, having met the criteria for a Class 4 determination in three of the four categories, with at least moderate and possibly marked impairment in the fourth.

The Evidence on Behalf of TTC

Unsurprisingly, the evidence presented on behalf of TTC paints a rather different picture.  The Respondent argues that Mrs. Kolapully cannot demonstrate that she is unable to engage in substantially all of the activities she engaged in prior to the accident and that contemporaneous medical records and surveillance do not support her allegations.  On behalf of TTC, Ms. B, occupational therapist, and Dr. RLB, psychologist, testified at the hearing, as did Dr. BP, orthopaedic surgeon.  The TTC accident benefit adjuster responsible for administering Mrs. Kolapully’s claims, attended, with surveillance video recordings.

Dr. BP saw Mrs. Kolapully and her husband in October 2012.  In his physical examination of Mrs. Kolapully which lasted about an hour, he found her gait normal but reduced stance with no lurch or ataxia.  The left leg was slightly atrophied but other than that she looked “pretty normal”.  As to functional ability, she reported that it takes her longer to do everything than before and that she can do light chores like dishes, but not laundry or cleaning the bathtub. In his report Dr. BP remarked,

In my experience, individuals with these types of fractures will typically show progressive symptom resolution over the course of up to two years.  Of the expected symptom improvement subsequent to an ankle fracture 80% will occur during the first six months, a further 15% improvement is then expected between six months and one year after the injury and some incremental (5%) improvement may then occur between one and two years after the date of the injury.  Discomfort that exists beyond two years is unlikely to completely resolve.

Dr. BP found that Mrs. Kolapully’s self-reported level of function was not consistent with her diagnosis nor with the duration of the time that has elapsed since the injury.  He was of the opinion that Mrs. Kolapully did not suffer a complete inability to carry on a normal life as a result of the accident.

Ms. B, an occupational therapist who assessed Mrs. Kolapully, testified that Mrs. Kolapully complained of lower back and posterior left leg pain and stiffness, right upper arm pain, bilateral knee pain, discomfort and crepitus, left ankle pain at her surgery site, and frustration and irritability.  Ms. B found Mrs. Kolapully to have a full range of movement, sitting tolerance (with legs raised on the couch) of 60 minutes, sustained standing walking tolerance of 20 minutes, decreased but functional gait and balance, limited ability to squat, inability to kneel, and ability to lift a 3-pound weight.  On cross-examination Ms. B said that lifting a 4-pound weight is enough for 90% of most normal daily tasks.  She had no problems with personal care, or medications.  Mrs. Kolapully demonstrated good effort during the testing but complained of pain in her arm and back which was aggravated by the end of the assessment.  She demonstrated reduced activity tolerance for heavy physical activities such as cleaning the bathtub, and those requiring long walking.  Ms. B acknowledged that not having a pre-accident baseline made it impossible for her to compare pre- and post-accident function, she could not give an opinion as to any change in of the quality of the tasks completed by Mrs. Kolapully but could only observe where Mrs. Kolapully did or did not presently have difficulties.

A certified kinesiologist who has been working for approximately 12 years with TTC as an accident benefits adjuster referred to Dr. T’s opinion that Mrs. Kolapully was not suffering a complete inability to carry on a normal life and wrote to Applicant’s counsel on April 26, 2012 to say Mrs. Kolapully was not eligible for NEBs.  Based on the findings of Dr. BP, Ms. B and Dr. RLB Mrs. Luk wrote to Mrs. Kolapully’s counsel that NEBs would be stopped as of November 19, 2012 but did send her the sum of $2035.00 to cover NEBs from September 4, 2012 (26 weeks post-accident) to November 19, 2012.  Mrs. Luk said he stopped the NEBs because the independent examination doctor found that Mrs. Kolapully did not suffer from a complete inability to carry on a normal life.

Mrs. Luk also identified several segments of surveillance video including three segments showing Mrs. Kolapully on three occasions, walking on the street, crossing a road, shopping for grocery items and pulling a wheeled grocery cart.  In the first video dated June 30, 2012, nine days after her casts were removed, Mrs. Kolapully was observed leaving her home.  She appeared to walk with a limp.  The limp was less evident or not evident in subsequent video clips.

Dr. RLB, a clinical neuropsychologist, assessed Mrs. Kolapully on October 24, 2012.  She observed in her report that Mrs. Kolapully when asked about memory difficulties did not report anything specific but stated that her daughter finds her to be confused. 

In April of 2015, professionals from Seiden Health re-examined Mrs. Kolapully and her medical records in the context of her catastrophic impairment claim.  Although the independent examiners acknowledged physical and psychological deficits, the consensus of their opinions was that Mrs. Kolapully did not meet the SABS criteria for catastrophic impairment.  The neuropsychologist said in his report, “[g]iven the amount of time that has passed, a greater degree of recovery would have occurred, which suggests psychological, physical or motivational/validity factors may be a contributing factor in this case.”

Dr. BP, the orthopaedic surgeon who had first examined Mrs. Kolapully in October 2012 confirmed the left leg fractures as well as a right leg undisplaced fracture, noting that instability could develop.  In his report, he had noted evidence of impairment in the functioning of the lower left leg.  He also commented, “I suspect that this lady’s failure to return to her pre-accident activities… is predominantly related to fear that she will aggravate her symptomology or reinjure herself.” Dr. BP saw Mrs. Kolapully in July of 2016.  He found Mrs. Kolapully’s whole person impairment from a purely orthopaedic point of view, well below the SABS requirement.  He noted that Mrs. Kolapully’s symptomology had appeared one-year post-accident, an observation strangely at odds with her medical history which clearly shows persistent continuing pain from the date of the accident.

The catastrophic impairment assessment is of course not the question for this Arbitration and indeed is currently being adjudicated elsewhere at the time of writing this award.  The evaluation of an Applicant in an assessment for catastrophic impairment, although connected factually, is a different test, with different criteria from the test for NEBs.  Nevertheless, the evidence of the assessments is useful to consider in the present case.

TTC questions the veracity of Mrs. Kolapully, referring to her complicity in allowing false submissions as to attendant care to be advanced by her former counsel, a claim which was later withdrawn when she retained new counsel.  According to TTC, the fact that Mrs. Kolapully remained silent in the knowledge that her counsel was advancing a fraudulent claim on her behalf raises a serious question as to the credibility of not only Mrs. Kolapully, but of also of her daughter who supported her mother’s evidence.

TTC set out instances from the transcript of the LAT hearing (on the issue of catastrophic impairment) which took place five or six weeks prior to the Hearing of this Arbitration.  From the transcript, according to TTC, Mrs. Kolapully’s testimony was inconsistent and arguably false.  Counsel for TTC also pointed out that Mrs. Kolapully seemed to have great difficulty in remembering a number of things.  For example, she did not remember whether she stopped working after the birth of her first child, or if she had complained of memory problems after the accident, or whether she complained about back or neck pain.  Nor did she remember if the physiotherapy in June of 2012 was for complaints only in her legs.  Perhaps more surprisingly, neither Mrs. Kolapully nor her daughter remembered whether she had gone to India alone in the summer of 2012, a few months after the accident.  At one point, Mrs. Kolapully turned to the Arbitrator stating, “The truth is, ma’am, I don’t remember anything from past.” Several of the incidents mentioned by TTC’s counsel may well have been due to language difficulties experienced by Mrs. Kolapully.  TTC also takes issue with Mrs. Kolapully’s claim that she avoids crossing the street and is fearful and extremely cautious in crossing the street.  Surveillance evidence showed Mrs. Kolapully crossing the street at mid-block, pulling a shopping cart, as cars passed by.

There is no disagreement regarding the fact that she took flights alone from Toronto to Fort McMurray and back, although her daughter accompanied her to the airport to assist her with luggage.  TTC characterized the attitude of Mrs. Kolapully as defensive and contradictory as she reviewed and commented on surveillance videos.

Mrs. Kolapully’s answers at the Hearing with respect to her drug overdose in June 2015 were inconsistent.  She apparently took about 15 amitriptyline pills in an attempt to end her life, but agreed that a few days later she might have told a hospital nurse that the overdose was accidental, that she had mistaken the amitriptyline pills for glucosamine.  In answer to Counsel’s question she said, “Yes.  I was embarrassed. I just want to get out of the -- in the ward.”

Analysis

TTC submits that Mrs. Kolapully is untruthful, prone to exaggeration, or simply does not remember elements critical to her case.  TTC characterizes the evidence of Mrs. Kolapully as “clearly self-serving, unreliable and tainted.”  TTC further urges that the three diagnoses which together would prevent Mrs. Kolapully from carrying on her pre-accident activities - ongoing neurological deficits, chronic pain and dysfunction, and depression - are not supported by the evidence.

The Adjudicator did not consider the suicide incident a reliable indication of Mrs. Kolapully’s general veracity or lack thereof.  It is quite understandable that in an attempt to get out of a psychiatric ward where she felt uncomfortable and embarrassed, she would change her story to deny suicidal ideation.  However, there are other problems with Mrs. Kolapully’s veracity.  Her silence regarding the false claim for attendant care – even accepting that it was advanced by an unscrupulous counsel – does detract from Mrs. Kolapully’s credibility, as do her admittedly serious memory problems and difficulty focusing on questions.

She appeared defensive and frustrated under cross-examination when challenged to remember events, feelings, and conversations which took place up to five years ago.  It is entirely possible that her memory has faded, because of lapsed time or cognitive degeneration, or both.  Even a person with a good memory might well experience difficulty in keeping straight the memories of multiple conversations with more than a dozen doctors over a period of five years.  An unsophisticated person such as Mrs. Kolapully, who is clearly less than comfortable in the English language, and who is mystified and frustrated at her own lack of physical progress, might well blurt out ill considered, exaggerated or incomplete responses or refuse to focus on providing an accurate recollection of the details of her life.  This does not necessarily render the evidence of Mrs. Kolapully false, but it does make it somewhat unreliable, reducing the weight that can be attached to it.

This makes it difficult to compare Mrs. Kolapully’s pre-accident and post-accident activities and the quality of her participation in them.  She has suffered real impairments which prevent her, to some extent, from enjoying activities in which she engaged before the accident.  There is ample evidence of depression, both from medical records on both sides and from Mrs. Kolapully’s aspect at the Hearing.  Doctors agree that depression exacerbates her symptoms.  The question then is whether the extent of those impairments is sufficient to have resulted in a complete inability to carry on a normal life.

As suggested by counsel for TTC, the most reliable source to seek an answer is in the medical records.  The Adjudicator found that her physical pain from the accident should by now be a distant memory.  However, her failure to recover normally has provoked a depressive state which in turn results in a severe curtailment of her enjoyment of life.  But for a sudden unexpected impact on March 16, 2012, she would most probably have continued with her plans to find a job and build a new life in Canada.  Mrs. Kolapully has lost that normal life, and found herself in a miserable life as a social recluse without hope of anything better.

After careful consideration of the evidence the Adjudicator reached the conclusion that Mrs. Kolapully has discharged the burden of proving she is unable to carry on a normal life as a result of impairments flowing from the accident.  I therefore find that she meets the requirements of the SABS and is entitled to receive NEBs from November 19, 2012 to date, and ongoing.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.