Neutral Citation: 1994 ONICDRG 38
File No. A-005048
ONTARIO INSURANCE COMMISSION
BETWEEN:
GAIL BURLEY
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Gail Burley, was injured in a motor vehicle accident on June 14, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Mrs. Burley contended that she required a new, safe vehicle because of her car phobia. The Insurer refused to purchase any vehicle for the Applicant. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8.
The issue in this hearing is:
Is Mrs. Burley entitled to a new, "safe" automobile under the provisions of section 6(1)(f) of the Schedule as a result of injuries she received in the June 14, 1991 accident?
The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
The Applicant is not entitled to a vehicle.
The Applicant is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in Hamilton on January 17 and 18, 1994, before me, K. Julaine Palmer, Arbitrator.
Present at the Hearing:
Applicant:
Gail Burley
Applicant's
Jack S. Shinehoft
Representative:
Barrister and Solicitor
Insurer's
Joseph Sullivan
Representative:
Barrister and Solicitor
Insurer's Officer:
Peter Robinson
Witnesses:
Dr. Amarendra Singh, Gail Burley, Edwin L. Burley, Allan Hogg, Ellen A. Helden
The parties filed four joint exhibit books and four other exhibits at the hearing.
Evidence and Findings:
Background:
Mrs. Burley, now aged 42, was a passenger in her family car on June 14, 1991 when it was struck from behind by a tractor-trailer. Mrs. Burley had also been a passenger in the same car on June 2, 1988 when it was struck from behind by another vehicle.
Years earlier, in 1980, a school bus Mrs. Burley was driving was hit from behind, while stopped at a railway crossing. The bus was not pushed onto the tracks, but shortly afterward a train passed, and Mrs. Burley was upset by thoughts of a tragedy which might have occurred. Mrs. Burley required surgery to fuse two vertebrae in her neck after this accident. She also received treatment from a psychologist and an acupuncturist. More than two years passed until Mrs. Burley could drive again and she did not work again until about 1985, when she became employed in the retail industry. Mrs. Burley eventually became manager of a ladies wear store and was also involved in selling jewellery for another business.
After the 1988 accident Mrs. Burley developed several psychological or mental problems. She was diagnosed by a psychiatrist in January 1989 as suffering from chronic depression, anxiety, episodic panic disorder, marked car phobia, personality changes, chronic pain syndrome and post-traumatic stress disorder.
In addition to psychotherapy and drug therapy Mrs. Burley received specific treatment following the 1988 accident for car phobia. This treatment began in September 1989 and continued into June 1991, right up until the next accident. Mrs. Burley had progressed very slowly in the treatment program, but her progress was steady, until January 1991, when she appeared to regress. Extensive neuropsychological testing followed this setback. The consulting psychologist recommended that direct treatment of the car phobia be de-emphasized in favour of other aspects of the treatment.
In April 1991, Mrs. Burley's health care providers recommended more emphasis on direct treatment for car phobia once again. They considered what vehicle should be used in which to treat Mrs. Burley. Mrs. Burley believed the family car was "jinxed". Besides the 1988 and 1991 accidents, the car had been involved in several other accidents when she was not in it.
Dr. Amarendra Singh, Mrs. Burley's psychiatrist, recommended that she be provided with a different car for the treatment; he recommended a car in which she felt "safe". Dr. Singh testified at the hearing that Mrs. Burley's psychological feeling of reassurance in a vehicle would come from her knowledge that the car possessed a combination of safety features such as an anti-lock braking system, air bags, traction control, side impact beams, and front and rear crumple zones.
A "new" or "different" car was never purchased or otherwise made available for Mrs. Burley's treatment. The accident of June 14, 1991 occurred in the meantime. This accident, itself, caused additional psychological injury to Mrs. Burley.
The significant increase in Mrs. Burley's anxiety following the 1991 accident is documented in the reports of her psychiatrist, Dr. Singh; her family doctor, Dr. Khambalia; her car phobia treatment provider, Ellen Helden of Future Health Inc.; in the records of Hamilton General Hospital; and in the oral testimony of Mrs. Burley, her husband, Dr. Singh, and Ellen Helden.
Dr. Singh testified that Mrs. Burley's condition deteriorated significantly after the 1991 accident. He testified that, in his opinion, Mrs. Burley's panic disorder and car phobia are a layered condition. Each successive accident reduced her capacity to cope. He likened her condition to receiving one punch after another or being hit again as you try to get up from a chair--each time you are hit you fall a little harder because you are not as strong as before.
Dr. Singh's view of the relationship of subsequent accidents is supported by the opinions of Dr. Harvey C. Stancer, a psychiatrist who examined Mrs. Burley for an insurer in relation to the 1988 accident. Dr. Stancer wrote:
...it is more frequent to find, in cases where there are multiple motor vehicle accidents, that subsequent accidents make an individual feel more vulnerable causing increased symptomatology. In fact, Mrs. Burley admitted this notion in another regard, when she said that the increasing number of accidents that had occurred with her husband's car made her feel more vulnerable within it, making it more difficult for her to learn to drive using that vehicle.
...I would have to accept that the major problem appears to be a car phobia or which is otherwise called a Post-Traumatic Stress Disorder....psychological measures such as Behaviour Modification are the most common recommended long term forms of treatment.
...I believe the objective evidence, particularly of the notes of the family practitioner suggested that the Post-Traumatic Stress Disorder arose prior to the accident of June 2, 1988 and was exacerbated by this event. It was further exacerbated by the accident of June 1991.
In reviewing the medical, psychological, and rehabilitation reports relating to Mrs. Burley, I note that she has maintained a constant relationship with her family doctor, Dr. Khambalia, since at least 1980. She has been treated by psychiatrist Dr. Singh and was tested extensively by psychologist Dr. Joel O.
Goldberg in relation to the program of rehabilitation she was receiving through Future Health Inc. Dr. R. McKnight, a physical medicine specialist, was involved in her care through Future Health Inc. as well. In addition, Mrs. Burley has been examined or treated by two other psychiatrists, two other psychologists, two orthopaedic surgeons, a neurologist, a rheumatologist, an internal medicine specialist, an acupuncturist and a chiropractor.
Edwin Burley testified at the hearing. He has been married to Gail Burley for 24 years. He testified that in 1991, Mrs. Burley was attending school for training as a travel consultant and was looking forward to gradually starting to work at the travel agency which they had purchased in partnership with Mrs. Burley's brother. He stated that he believed the 1991 accident set his wife back quite far from where she had come in her treatment for car phobia. Mr. Burley believes his wife has a lot of bad memories of the family car, a 1983 Caprice, which affect her ability to feel comfortable in the car, to relax and to control her feelings. Mr. Burley testified he intended to try to keep the car going for 12 or 13 years, until 1995 or 1996.
Findings:
Mrs. Burley suffered a serious psychological injury in the 1991 accident. At the very least, one might characterize her trauma as the serious aggravation or intensification of a pre-existing condition. Accordingly, this Insurer is responsible, under the terms of section 6(3) and (8) of the Schedule for ten years' of supplementary medical and rehabilitation benefits for "all reasonable expenses resulting from the accident" under six subheadings, to a maximum of $500,000. I emphasize the words "all" and "reasonable".
The words "resulting from the accident" pose complications of their own. The principal difficulty here is the problem of causation. It could be argued that Mrs. Burley's case is an example of a doctrine known in law as the "thin-skull rule". In ordinary tort law a defendant is not relieved of any liability merely because the plaintiff happens to be unusually susceptible to the kind of damage sustained. In the case of Pineda v. Cooperators Group Ltd., 1985 CanLII 2094 (ON HCJ), 51 O.R.(2d) 787, Justice Cromarty stated in the context of a no-fault benefits case,
I am content that if a claimant can establish that the injury caused by the motor vehicle accident would in and by itself have been sufficient to cause substantial inability within the 30 day period, then that claimant should succeed.
Unfortunately, Justice Cromarty in that case was not dealing with the aggravation of a pre-existing condition so much as a flexion-extension injury to the neck and upper back from a car accident superimposed on a disabling low back, work-related injury.
I am satisfied, in Mrs. Burley's case, that she suffered serious injury in the accident of June 14, 1991.
However, Mrs. Burley can only expect this Insurer to respond, under the terms of the Schedule, for injuries "resulting from the accident" of June 14, 1991. Already, at the time of this accident, she was undergoing treatment for a serious car phobia. It would follow, then, that she can expect rehabilitation paid by this Insurer to put her back, so far as is possible, into the physical and psychological or mental condition she was in prior to the accident of June 14, 1991.
What was Mrs. Burley's condition just before this accident? On April 18, 1991 Dr. Robert A. McKnight wrote to the Applicant's solicitor, following the meeting of care-giving personnel and others that same day:
The greater concerns in relation to her current status related to psychological issues and in particular her driving phobia and predisposition to panic attacks. Dr. Singh felt that additional treatment in this area was required before Mrs. Burley could be challenged in terms of driving in particular, and more broadly in her self-care in relation to her injuries and dysfunction. The view was expressed that she should be funded by the relevant insurer for the acquisition of a new automobile and that driving should be performed by family members or members of the Future Health team with gradual re-introduction of Mrs. Burley to driving, when deemed appropriate by Dr. Singh in dialogue with the relevant care-givers.
The last monthly progress report of Future Health Inc. was dictated one day prior to the accident of June 14, 1991. The report was written by Ellen A. Helden, the Managing Director, who also testified at the hearing.
The main focus of Gail's treatment at this time was to be driving desensitization. In order to best assist Gail, a meet [sic] with Dr. [Joel O.] Goldberg was arranged so that he may discuss his views on the best method of treatment for Gail. He suggested shifting the locus of control to Gail and also suggested specific treatment ideas.
A subsequent meeting was held with Gail to discuss her treatment over the next few months. This was attended by Gail, Ellen Helden and Kelley Boettcher. Gail's main concern was that she have a vehicle that she felt safe, secure and comfortable in. It was discovered that she had looked at different cars and found that the Acura Legend or a Pontiac Bonneville to be the most comfortable for her. Various specifics regarding our involvement in Gail's treatment were also discussed.
Another meeting with Gail and the Activation Consultant provided a fairly specific driving desensitization program. However, Gail became noticeably upset while discussing this and stated that she could provide further specifics regarding this treatment plan once the type of vehicle she would be using was identified.
Prior to the June 14, 1991 accident it appears that Mrs. Burley's husband and her sister-in law as well as the Activation Consultant frequently drove Mrs. Burley to school and other appointments. She had not yet resumed driving herself, but was on the point of recommencing a program which would lead to her doing so, once the question of the vehicle was resolved. She was looking forward to her graduation from the travel consultant course and to resuming regular employment.
Those longest involved in Mrs. Burley's treatment agree that after the 1991 accident, Mrs. Burley regressed and her symptoms relating to car phobia intensified. In October 1991 this Insurer arranged for her to meet with the psychologist, general internist and psychiatric team at the medical rehabilitation service of the Goldberg, Gibson clinic. She also received three field visits by a member of their field consulting team, and her extensive medical file was reviewed. A desensitization program was initiated and by the end of January 1992 she was sitting in her car in the driver's seat.
By mid-February she could sit behind the wheel with the motor on for 10 minutes each day. In early March, Mrs. Burley regressed to a point where she was unable to sit in the driver's seat with the motor on. Her headaches and nightmares also increased. Dr. Anchel, the psychologist in charge of her program, attributed this regression to the examinations for discovery in a law suit related to the 1988 accident. Dr. Anchel and Dr. Goldberg wrote on March 5, 1992 to the Insurer:
In our opinion and supported by the data we have collected during our involvement with Mrs. Burley, it is highly unlikely that a new vehicle would significantly diminish her symptoms. For example, the field consultant reports that Mrs. Burley does not have an easier time sitting in the driver's seat of the consultant's car as compared to the Burley's own vehicle.
Dr. Anchel observed when he next reported on March 31, 1992 that throughout the month of March, in contrast to the data obtained in earlier stages of the program, "there has been a significant difference with Mrs. Burley being able to sit in the field consultant's car significantly longer than in her own car." He could not account for this development.
At the end of March 1992, the field consultant met with Mrs. Burley to outline desensitization training she could carry out on her own over the next three months. Dr. Anchel agreed to re-institute the group's involvement in her program if she could achieve the goal of comfortably sitting behind the wheel for 20 minutes with the motor on. Mrs. Burley never received further treatment from this group.
In April 1993, Mrs. Burley was referred, once again, by this Insurer to a psychological and rehabilitative service. This partnership, known as Schneider-Dvali, performed an assessment and provided a treatment plan. They estimated the treatment duration to be 14 to 20 weeks including the services of a professional driver trainer with a dual controlled vehicle for up to 10, one and a half hour sessions. Mrs. Burley would be accompanied for those sessions by the therapist, a registered nurse. This plan was recommended whether or not a replacement car for Mrs. Burley was negotiated with the Insurer.
In so far as I have been able to ascertain the state of Mrs. Burley's progress with respect to her treatment for car phobia just prior to the June 14, 1991 accident, I believe it could be stated that her situation was one of being "in limbo" at the time of this accident. She knew that her treating professionals had recommended that she be given the opportunity to take further training in a different or new vehicle, one in which she felt she would feel more safe. She also knew that the Insurer then involved had not stated whether it would finance the cost of a new vehicle as part of the treatment program.
I believe that this Insurer will have adequately performed its rehabilitation obligations to Mrs. Burley when it returns her, so far as is possible, to the state she was in just prior to the accident in which she was involved in 1991.
Mrs. Burley does not require a new, safe, or different car as a result of this accident. On June 14, 1991 she already suffered from a serious car phobia. This condition was exacerbated by the 1991 accident and State Farm Mutual Automobile Insurance Company must participate in Mrs. Burley's rehabilitation. In my view, however, the Insurer's obligations, in this case, do not extend to purchasing for Mrs. Burley a new, safe, or different car.
That is the extent of what I have been asked to decide in this hearing. However, I wish to make the following additional comments. The Insurer here has rehabilitation and treatment obligations. Any rehabilitation program must take into consideration the fact that the 1991 accident markedly increased or intensified Mrs. Burley's car phobia. It appears that if Mrs. Burley commences a program, she is able to progress to a point then baulks when she contemplates actually driving the family car. Her fear of driving this particular vehicle was exacerbated by the 1991 accident. The Schneider-Dvali program proposes using a driver training car as part of its plan, but also needs Mrs. Burley to participate in her own vehicle. In my opinion, the Insurer's rehabilitation obligations in this case extend to providing a car in which Mrs. Burley can be comfortable for the duration of her training, so that the entire treatment can be worthwhile. In my estimation, however, ultimately Mrs. Burley will either have to come to terms with driving the present family car or take her own steps to replace it. In either case, her personalized rehabilitation program can focus on the situation that then exists.
Expenses:
The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In the Ralph McCormick and Economical Mutual Insurance Company, October 21, 1991, OIC File No. A-000139, case, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero v. The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
The Applicant is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
The Applicant is not entitled to a vehicle.
The Applicant is entitled to her expenses of the arbitration.
April 29, 1994
K. Julaine Palmer
Arbitrator
Date