Neutral Citation: 1995 ONICDRG 115

File No. A-008825

ONTARIO INSURANCE COMMISSION

BETWEEN:

MAGDALENA CACERES

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Magdalena Caceres, was injured in a motor vehicle accident on August 25, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Weekly benefits were terminated by the Insurer on February 15, 1992. Ms. Caceres applied for further weekly benefits until December 8, 1992 but the Insurer declined to pay. The parties were unable to resolve their disputes through mediation and Ms. Caceres applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is Ms. Caceres entitled to weekly benefits and benefits under section 13(4) of the Schedule from February 16 to December 8, 1992, as a result of the injuries she received in the motor vehicle accident of August 25, 1991?

The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. Ms. Caceres is entitled to weekly benefits under the provisions of sections 13(1) and 13(4) of the Schedule for the period February 16 to December 8, 1992.

2. Ms. Caceres is entitled to interest and to her expenses incurred in respect of the arbitration.

Hearing:

The hearing was held in North York on April 10, 1995, before me, K. Julaine Palmer, arbitrator. On that date, the hearing adjourned before the lawyers began their submissions. Written submissions were received from the parties until July 31, 1995.

Present at the Hearing:

Applicant:

Magdalena Caceres

Applicant's

Altor Shields

Representative:

Barrister and Solicitor

(At the hearing on April 10, 1995)

Thereafter, Ms. Caceres was represented by George Juda

Personal Injury Consultant

Insurer's

William McClelland

Representative:

Barrister and Solicitor

Witness:

Maria Magdalena Caceres

Ms. Caceres' testimony was given through an interpreter of Spanish and English, Mr. Nelson Sandoval. The parties filed two document briefs as exhibits at the hearing.

Evidence and Findings:

Ms. Caceres testified that on August 25, 1991 she was a passenger in a motor vehicle which was hit on its passenger side by another vehicle which went through a red light. Ms. Caceres hit her head and the right side of her body on the car door. Within five hours of the accident, Ms. Caceres attended at the Emergency Department of York Central Hospital.

Until the day of the accident, Ms. Caceres had been caring for her two children full-time at home. At the time of the accident, her son was almost three years old and her daughter was 15 months old. Ms. Caceres described her duties around the home and in attending to her children's needs. She described making breakfast and lunch for the whole family, making beds, vaccuuming, cleaning the two-bedroom home, doing laundry in a local laundromat, shopping, and taking the children for medical appointments as part of her essential tasks as a homemaker.

Accordingly, then, we must look at Ms. Caceres entitlement to benefits under section 13 of the Schedule:

Benefit if No Income

13.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

(2) The following qualifications apply to an insured person who claims weekly benefits under subsection (1):

1. He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks in which he or she would normally engage.

2. He or she must not be entitled to receive a benefit under section 12 at the time the payment of a benefit under that section or, if entitled to a benefit under this section, he or she must be a primary caregiver as described in subsection (4) and have only income from self-employment from work in his or her home.

3. He or she must attain the age of sixteen years before being eligible to receive the weekly benefit.

(3) The weekly benefit under subsection (1) will be $185 less any payments for loss of income, except Unemployment Insurance benefits,

(a) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan; or

(b) received under any sick leave plan.

(4) The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1), or who but for section 17 would be entitled to the weekly benefit, a benefit of $50 per week if Optional Benefit 3 has not been purchased, or $100 per week if it has been purchased, for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.

The evidence at the hearing focussed on Ms. Caceres' ability to care for her children and perform household tasks. Ms. Caceres was the sole witness at the hearing, however, numerous medical and psychological reports were filed by the parties. It is important to note that the claim for weekly benefits in this matter relates to the period February 16 to December 8, 1992 only. Much of the evidence, including the medical reports, focussed on different periods of time, outside the relevant period in 1992.

Ms. Caceres testified that her experience of constant pain in her body and severe headaches disables her from her essential household and childcare tasks. She testified that she has no strength to lift anything, no ability to bend, no agility to pick up her daughter nor to put in, take out, or fold laundry. She testified that she cannot vaccuum, do shopping nor bathe her children. Ms. Caceres testified that she has pain in her low back and spine and in her shoulders and right side. Her sleep is disturbed after two to four hours unless she takes sleeping pills. Ms. Caceres testified that she has full-time help at home to care for her children and her home.

Ms. Caceres has been examined by a number of physicians and specialists. Her family doctor from June 3, 1991 until October 27, 1992 was Dr. P. Batay-Csorba. Dr. Batay-Csorba was able to understand Ms. Caceres when she spoke Spanish slowly. Ms. Caceres then started seeing Dr. Nestor Fernandez, who is fluent in Spanish, in December 1992. He remains her family doctor.

At the request of the Insurer, Ms. Caceres was first examined by a specialist, an orthopaedic surgeon, Dr. M.K. Joseph Kwok on January 17, 1992 at Riverfront Medical Services, Ltd. She was next seen by a neurologist, Dr. Michael Kronby in Hamilton on November 24, 1992. On both occasions she was assisted by a professional interpreter.

She was examined by a Spanish-speaking specialist, psychiatrist Dr. Ruben Arbitman in May 1993 who reported to her lawyer that he diagnosed "a post traumatic stress disorder, chronic type, precipitated by the motor vehicle accident."

The Insurer next arranged for Ms. Caceres to be seen by Dr. Michele Macartney-Filgate for a neuro-psychological evaluation on July 26, 1993. Dr. Macartney-Filgate had reviewed many of the previous reports, including those of Dr. Batay-Csorba in 1991, Dr. Kwok, Dr.Kronby, Dr. Fernandez and Dr. Arbitman. Dr. Macartney-Filgate recommended Ms. Caceres be seen for a formal psychiatric evaluation by a Spanish speaking psychiatrist. She expressed no comment with respect to Dr. Arbitman's diagnosis. To my understanding, Dr. Arbitman is a Spanish speaking psychiatrist. Dr. Macartney-Filgate observed as follows:

Even on the basis of interview it was difficult to determine her status, specifically because she appeared to not comprehend questions posed through the translator. There were numerous inconsistencies and bizarre features in her presentation on interview and testing, and a number of factors suggest major motivational problems and exaggeration of disability. It was not possible to determine to what extent there might be an element of depression or other emotional difficulties underlying her bizarre presentation. I do not believe there is any history to indicate a significant head injury as possibly contributing to her problems, and although the accident appears to have been rather frightening in nature, her current symptom presentation is not consistent with post-traumatic stress disorder. There could possibly be a co-existing psychiatric disorder, unrelated to the accident. There is not enough information available to make any determination as to whether there may be marital stresses contributing to her current presentation.

I did not observe evidence of frank thought disorder, and her attentional problems had more of a histrionic quality. I also do not have any indications that any previous history of significant trauma or stress may have been reactivated by that accident. It is not clear to what extent cultural factors might be influencing her symptom presentation, but I would not expect that account for all of the observed disturbance in her behavioural presentation.

On December 2 and 3, 1993, Ms. Caceres underwent a standardized Canadian Back Institute Functional Capacity Evaluation. The examiners found that Ms. Caceres was very difficult to assess as she did not perform any testing on the second day and performed the work simulation task for only one minute.

The Insurer sent Ms. Caceres to a Spanish-speaking psychiatrist, Dr. Jack Barabtarlo on January 12, 1994². He diagnosed a "post traumatic stress disorder associated with a depressive episode which clearly resulted from the motor vehicle accident she was involved in." Dr. Barabtarlo increased Ms. Caceres antidepressant medication.

Dr. Macartney-Filgate was consulted again after Dr. Barabtarlo's examination. She questioned Dr. Barabtarlo's diagnosis in the light of the fact that he had only the subjective reports of the Applicant at the time of his examination. She stated:

There are now two independent assessments which contain strong indications of symptom exaggeration. Dr. Barabtarlo made his diagnosis of post-traumatic stress disorder on the basis of Ms. Caseres' subjective report, but I think her report is open to question, and the more prominent symptoms that were presented at the time of my evaluation were of pain, and not symptoms of post-traumatic stress disorder. In this case, I do not think it is wise for a diagnosis to be made on the basis of subjective symptom report alone, and you may wish to determine whether she demonstrates the types of physiological responses that are associated with post-traumatic stress disorder, which would either confirm or disconfirm this diagnosis. I cannot completely rule out an emotional disorder related to the accident, but I think it is more likely that here symptoms are in response to other life stresses or difficulties, if they are not due solely to an exaggerated presentation. Even if she does have some residual physical difficulty as a result of soft tissue injury, I do not see why this would preclude her from performing her routine activities of daily living. In fact, many individuals with quite severe soft tissue injuries are able to pursue their usual household responsibilities, including child care. I cannot, on the basis of the currently available information, conclude that Ms. Caseres is psychologically disabled as a result of the accident, but I also cannot completely rule this out. Close observation of Ms. Caseres function in daily life might well be helpful in determining to what extent the symptom presentation might be consciously, deliberately motivated. If there are gross or marked discrepancies between her presentation on formal evaluation and her functioning at other times, one would have to conclude that there is unlikely to be a psychiatric disorder. However, if her behaviour remains congruent in different situations, the likelihood of unconsciously motivated, genuine emotionally based difficulties would be more tenable.

Ms. Caseres attended for the recommended psychophysiological evaluation with Dr. Brian A. Ridgley, Ph.D., C.Psych, on May 8 and 10, 1994. Dr. Ridgley reviewed the reports including the most recent ones of Dr. Macartney-Filgate. Ms. Caceres was assisted by a Spanish interpreter. Dr. Ridgley also found Ms. Caceres to be a difficult patient to diagnose. He wrote:

Ms. Caceres demonstrates those cognitive, emotional, behavioural and physiological symptoms characteristic of a relatively severe post traumatic stress disorder. As a result of this disorder and associated anxiety she appears, from her statements, to have developed an avoidance to leaving the home so as to prevent being a victim in another accident. Ms. Caceres reports and physiological monitoring confirms high physiological arousal levels, anxiety and panic. Heart rate and respiration rate recordings at the beginning of the physiological monitoring were significantly elevated. She appears to have limited knowledge of her own arousal levels or what is happening psychophysiologically and I suspect attributes or confuses many of her sympathetic nervous system symptoms with pain and sickness.

Unfortunately there is no recorded history of Ms. Caceres' mental state or health prior to her injuries of August 25, 1991. Unless she has been coached, her expressed symptoms are consistent with the post traumatic stress disorder subsequent to her motor vehicle accident. Psychophysiological functions are fairly hard to misrepresent and her high arousal levels are consistent with severe post traumatic anxiety. She may have been an anxious and "nervous" individual prior to her accident but her current anxiety and panic appears disabling. Her anxiety in the authors opinion is more disabling than her pain and can contribute significantly to both her pain and her expressed pain symptoms.

Ms. Caceres' motor vehicle accident occurred on August 25, 1991 slightly less than three years ago. Post traumatic stress and pain usually demonstrates significant improvement in the first six months following trauma. Unfortunately, Ms. Caceres demonstrates continuing severe post traumatic anxiety and expressed pain symptomatology which she states is disabling. This is somewhat pessimistic with respect to the prognosis.

If Ms. Caceres' post traumatic anxiety is the principal contributant to her expressed disability it should become the focus of here rehabilitation. She needs to be able to learn those skills which will enable her to control panic, her high physiological arousal, her cognitive based fears, and her avoidant behaviours which currently make her feel sick, in pain, and incompetent. A referral to an anxiety disorders clinic is strongly recommended or to a psychiatrist who will provide ongoing treatment with a review of her medication and their side effects.

On the basis of the opinions of Dr. Kronby, Dr. Arbitman, Dr. Ridgely and the inconclusiveness of the report of Dr. Macartney-Filgate, coupled with the reports of her family doctor (Dr. Batay-Csorba) and the evidence of Ms. Caceres, herself, I am prepared to find that during the relevant period (February 16 to December 8, 1992) Ms. Caceres was substantially unable to complete her essential tasks as a homemaker and mother, as a result of injuries she received in the motor vehicle accident of August 25, 1991. Although it is clear from the notes of Dr. Batay-Csorba that Ms. Caceres suffered from some low back pain before the accident, I accept Ms. Caceres' evidence that she was managing with her household duties and even seeking employment outside the home. Dr. Batay-Csorba also noted, prior to the accident, that Ms. Caceres seemed to suffer from anxiety. It is clear that the psychological effect of the motor vehicle accident, in this case, is more severe than the effect of the physical injuries suffered by Ms. Caceres.

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 Ralph McCormi'ck and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, 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 Vtto Luigi Calogero and 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, a party may apply to the Commission for assessment of the expenses.

Order:

1. Ms. Caceres is entitled to weekly benefits under the provisions of sections 13(1) and 13(4) of the Schedule for the period February 16 to December 8, 1992.

2. Ms. Caceres is entitled to interest and to her expenses incurred in respect of the arbitration.

August 22, 1995

K. Julaine Palmer Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2The report is apparently dated in error as January 12, 1993. The referral is reported in the December 16, 1993 report of the rehabilitation counsellor, Rodney John.