Neutral Citation: 2000 ONFSCDRS 61

FSCO A99-000335

BETWEEN:

MARTHA VOSE-LANDIVAR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Joyce Miller

Heard: January 17 and 18, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: L. Brent Vickar for Mrs. Vose-Landivar Robert S. Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Martha Vose-Landivar, ("Mrs. Vose") was injured in a motor vehicle accident on July 24, 1998. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly caregiver benefits on December 23, 1998. The parties were unable to resolve their disputes through mediation, and Mrs. Vose-Landivar applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:

Is Mrs. Vose entitled to caregiver benefits from December 24, 1998 to June 30, 1999 pursuant to section 13 of the Schedule?
Is Mrs. Vose entitled to her arbitration expenses pursuant to subsection 282(11) of the Insurance Act?
Is State Farm entitled to its arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

Result:

Mrs. Vose is not entitled to caregiver benefits.
If needed, I may now be spoken to on the issue expenses.

Evidence:

Mrs. Vose was born in 1954 in Ecuador and immigrated to Canada in 1989. She is married and has four children. Her two oldest children, a son Carlos, 22, and a daughter Paola, 18, are children from her first marriage. She also has two young sons from her present marriage, Juan, 10, and Kevin, 5 years old. Since she came to Canada in 1989, Mrs. Vose has always been a homemaker.

At the time of the accident, Mrs. Vose was living in an apartment with her husband and her two young sons. Two nieces, ages 7 and 9, and Mrs. Vose's former sister-in-law who had physical and mental disabilities, had come to live with her in March 1998. Mrs. Vose testified that she was the primary caregiver to her family, as well as her relatives, until they left in March 1999.

The accident occurred on July 24, 1998. Mrs. Vose was a front-seat passenger in a vehicle driven by her son Carlos. One of her younger sons and one of her nieces were sitting in the back seat. The accident happened when a van collided with their car, on the driver's side, as the car was turning out of a plaza onto Highway 7.

Mrs. Vose testified that immediately after the impact, she checked to see if the children were okay. She stated that she took the children out of the car and then shortly after, she began to feel a pain in her back. Her son drove her to the York Central Hospital in Richmond Hill. She was seen in emergency and the records note that she complained of "pain in the mid lower back radiating down to both legs."

On July 27, 1998, Mrs. Vose went to see Dr. C. Garcia, her family physician. In the Disability Certificate provided to State Farm, Dr. Garcia stated that Mrs. Vose's primary diagnosis was whiplash, with a secondary diagnosis of reactive anxiety. He stated that the nature of her impairment was upper and lower back pain, dizziness, and that she was crying when she was being examined.

Dr. Garcia recommended that Mrs. Vose attend physiotherapy. As well, he sent her to see a psychologist. Mrs. Vose attended physiotherapy at Alliance Health and Rehabilitation Inc. ("Alliance") from July 30, 1998 until January 6, 1999. About six weeks after the accident, Mrs. Vose began to see a rehabilitation psychologist, Dr. Judith Pilowsky. In her report of September 14, 1998, Dr. Pilowsky diagnosed Mrs. Vose as having a Major Depressive Episode of Mild Severity, as well as post traumatic anxiety as a result of the accident. Mrs. Vose attended eight sessions with Dr. Pilowsky and a treatment plan for a further eight to twelve sessions was denied by State Farm.

Mrs. Vose testified that after the accident, she could not do the cooking, cleaning, laundry or take the children to the park as she did before the accident because she had pain on the right side of her head, right side of her neck, right shoulder and pain radiating down the right arm. She testified that she felt depressed and dizzy and cried a lot. She stated that she sought the assistance of a Mrs. Wendy Fuentes to help her with her caregiver duties. Mrs. Vose testified that her daughter Paola did not assist her with any housework as she had just arrived from Ecuador and had begun to go to school which kept her very busy.

Mrs. Vose testified that Mrs. Fuentes worked five days a week, five hours a day from 11:00 a.m. to 4:00 p.m. She stated that Mrs. Fuentes looked after the children, washed their clothes and prepared lunch for the youngest child. She stated that Mrs. Fuentes did not bathe the children because the youngest child didn't allow her to and the rest of the children were able to bathe on their own.

Mrs. Vose stated that Mrs. Fuentes also did housework. She cleaned the washrooms and the floors, tidied the rooms, made the beds, changed the bed sheets, prepared meals, watered the plants, did the laundry and dusted. Mrs. Fuentes was paid a $140 a week for caregiver assistance and $60 a week for housekeeping.

Mrs. Vose testified that after State Farm terminated her caregiver benefits on December 23, 1998, Mrs. Fuentes continued to work for her, without pay, until June 30, 1999. The evidence, however, shows that Mrs. Vose was paid $60 a week for housekeeping until March 5, 1999 and after this date no further claim was made for housekeeping.

Mrs. Vose's testimony is in contradiction to what she told different medical practitioners. In her report of September 14, 1998, Dr. Pilowsky states:

Due to the pain in her neck and lower back, Mrs. Vose estimated a fifty to seventh-five percent reduction in her ability to attend to household activities. She explained that chores requiring bending such as cleaning and laundry are performed by her daughter. She similarly reported being unable to mop, sweep or lift heavy items. With respect to her child care responsibilities, Mrs. Vose indicated that her sister or a helper supervised her children at bath time. She is also worried about being unable to assist her children with homework due to her lack of patience.

... This client advised that she continues to go to the park with her children and take walks. Otherwise, she remains at home. [emphasis added]

In her report of January 11, 1999, Dr. Pilowsky noted that "... this client has been gradually increasing her duties at home. Although she continued to rely on her oldest daughter with physically demanding tasks, she is managing more chores around the house such as meal preparation". [emphasis added]

In her report of May 18, 1999, Dr. Hill, a psychiatrist who assessed Mrs. Vose at the request of her then representative, stated that Mrs. Vose advised her that "a homemaker used to come from 11:00 a.m. until 2:00 p.m. every day but now only three days per week. She usually makes the beds and helps the children with their bath. Her daughter cleans the kitchen, cooks, does the laundry." [emphasis added]

On June 10, 1999 Dr. M. Devlin, a physiatrist who performed a medical rehabilitation assessment, reported that Mrs. Vose advised that she had "a homemaker coming in two to three times per week, for about three hours per visit, and this individual does most of the cooking, laundry and house cleaning, although Mrs. Vose-Landivar does participate in this, as does her daughter. Her husband does the shopping." [emphasis added]

When describing the type of accident that she had, Mrs. Vose also gave contradictory information to different doctors. For example, she told Dr. Hill that she had a significant accident. In her report of May 18, 1999, Dr. Hill stated: "I am surprised that after such a serious motor vehicle accident in which the lives of 4 people were in danger, there is still a discussion of necessity for investigation and treatment. Physical injury is present, persistent, non investigated and non treated, along with the psychological distress which has not been addressed by any means to date." [emphasis added]

A few weeks later, on May 31, 1999, Dr. A. Sanchez, a psychiatrist who saw Mrs. Vose on the recommendation of her family doctor, reported: "It was apparently a minor accident and she does not understand how did [sic] she injured herself so greatly. She has been having different types of treatments and also saw a psychologist, but she does not see much improvement." [emphasis added]

When presented with the contradictions between her testimony and the medical reports, Mrs. Vose repeatedly responded that she did not remember what she had told the medical practitioners.

Findings:

Mrs. Vose is claiming caregiver benefits in the amount of $140 per week for the period of December 24, 1998 to June 30, 1999 pursuant to section 13 of the Schedule. In order to succeed in her claim, Mrs. Vose must prove on the balance of probabilities that as a result of the accident, she suffers a substantial inability to engage in the care giving activities in which she engaged at the time of the accident. For the following reasons, I find that Mrs. Vose has not discharged her burden.

Mrs. Vose was involved in a minor accident. Her initial injuries reported to her family doctor were upper and lower back pain and dizziness. Except for her subjective complaints, Mrs. Vose did not present any cogent objective medical evidence that she was substantially disabled from performing her caregiver activities.

Dr. N. D. Clements, an orthopaedic surgeon who examined Mrs. Vose on behalf of State Farm, reported on October 16, 1998 in his summary of clinical findings that: "... the clinical examination demonstrates a degree of magnification of symptomatology and non-organic findings. I am not able to specifically identify any musculoskeletal impairment on clinical examination which requires further active rehabilitation or further active investigation." He stated that he could not identify "... any musculoskeletal impairment which would preclude Mrs. Vose from resuming her activities of daily living and child care responsibilities. In her own words, Mrs. Vose indicates that the therapy is not particularly helpful and I see little benefit to carrying on with active physiotherapy at this point in time."

Dr. Clements concluded that Mrs. Vose did not suffer from a substantial inability from performing her pre-accident care giving activities, personal care activities, as well as performing housekeeping and home maintenance activities from a musculoskeletal perspective.

In her report of November 9, 1998, Dr. L. Koepfler, a psychologist who assessed Mrs. Vose on behalf of State Farm, stated that Mrs. Vose "reports that although she initially experienced low back pain and some leg pain, these symptoms have virtually disappeared." The report also notes that Mrs. Vose "acknowledged that she has seen significant improvement in her back pain, which she attributes to massage and she reports complete recovery from leg discomfort. She reports little change, however, in her neck and arm symptoms."

According to Dr. Pilowsky's report of January 11, 1999, Mrs. Vose was increasing her duties at home, managing more chores such as meal preparation, while her daughter assisted with the physically-demanding tasks.

The physiotherapy discharge report by Alliance on January 26, 1999 stated that:

Cervical range of motion showed improvement and is full in all planes except extension, which is 50% with dizziness and head pain being provoked. Mrs. Vose moved guardedly, limiting her head movements presumably due to dizziness. Lumbar forward flexion is within normal limits with dizziness again provoked. Right shoulder range of motion is full with range pain on flexion. Hand tremor was noted on one occasion when placing the hand behind the back. The right rotator cuff muscles and biceps show normal strength and isometric testing.

The report concluded that Mrs. Vose continues to demonstrate signs of right arm nerve root irritation and may require further investigation. No evidence was presented that Mrs. Vose followed up on this recommendation. There is no evidence that any further treatment plans were presented to State Farm regarding this particular problem.

The one consistent observation made by the medical assessors was that Mrs. Vose was suffering from a moderate form of depression. In May 1999, Mrs. Vose was assessed by two different psychiatrists, Dr. Hill and Dr. Sanchez. Mrs. Vose, however, did not follow-up with any treatment with either doctor. Mrs. Vose testified that this was because Dr. Hill's office was too far away from where she lived. She gave no explanation as to why she did not seek out the services of Dr. Sanchez or another therapist who may be closer to her.

If Mrs. Vose was suffering from depression, in my view, it was not caused by the car accident. The evidence shows that at the time of the accident, Mrs. Vose had been undergoing a number of very stressful and difficult family and health problems. She had undergone a minor medical procedure shortly before the accident. Her husband suffered a relapse to his life- threatening cancer. She had become the custodian of the two young girls after their grandmother, who was looking after them, had died. Her nine year old son was having academic difficulties. Her husband's small income was insufficient for them to meet their basic financial needs. They had to rely on a welfare subsidy.

In my view, it is more likely than not that this minor accident became the focus of Mrs. Vose's very stressful life. Except for Mrs. Vose's subjective complaints, I received no objective evidence that, physically, after December 23, 1998 she was substantially disabled from performing her caregiver duties as a result of the accident. I find that any psychological problems that Mrs. Vose may be suffering from are more likely related to the stressful life that she was living at the time of the accident, than the minor accident itself. I was not presented with any objective, reliable evidence that would lead me to conclude that psychologically she was substantially disabled from performing her caregiver duties because of the accident.

Accordingly, for the above reasons, I find that Mrs. Vose has not proved on a balance of probabilities that she is entitled to any caregiver benefits after December 23, 1998.

EXPENSES:

If needed, I may now be spoken to on the issue of expenses.

March 22, 2000

Joyce Miller Arbitrator

Date