Neutral Citation: 2001 ONFSCDRS 123
FSCO A00-000654
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SONIA PINHASOV
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
REASONS FOR DECISION
Before:
Asfaw Seife
Heard:
August 28, 29, 30, 2000, and October 13, 2000, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances:
Jadranka Cavrak for Ms. Pinhasov
Doug Wallace for Guarantee Company of North America
Issues:
Ms. Sonia Pinhasov was injured in a motor vehicle accident on January 4, 1996. She applied for and received statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.1 Guarantee paid Ms. Pinhasov weekly income replacement benefits (IRBs) at the rate of $274.66, from one week after the accident through to December 17, 1997, when they were terminated. Ms. Pinhasov claimed ongoing entitlement to IRBs, at the same rate, as well as the payment of housekeeping expenses. The parties were unable to resolve their disputes through mediation, and Ms. Pinhasov 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 Ms. Pinhasov entitled to IRBs from December 17, 1997 and ongoing, pursuant to section 7 of the Schedule,?
Is Ms. Pinhasov entitled to housekeeping expenses from January 4, 1996 and ongoing, claimed under section 55 of the Schedule?
Is Ms. Pinhasov entitled to a special award because Guarantee delayed or withheld benefits, pursuant to section 282(11.2) of the Act?
Is Guarantee entitled to a repayment of $6,527 paid to Ms. Pinhasov in error, pursuant to section 70 of the Schedule?
Ms. Pinhasov also claims interest on any amounts owing.
Result:
Ms. Pinhasov is entitled to IRBs from December 17, 1997 and ongoing, pursuant to section 7 of the Schedule, plus interest in accordance with section 68 of the Schedule, until the provisions of Part VI of the Schedule with respect to loss of earning capacity benefits have been complied with.
Ms. Pinhasov is entitled to payment of housekeeping expenses from January 4, 1996 to June 21, 1996, for eight hours per week, at the rate of $10 per hour. Ms. Pinhasov is entitled to interest on this amount from December 30, 1998, in accordance with section 68 of the Schedule.
Ms. Pinhasov is not entitled to a special award.
The issue of repayment is deferred.
The issue of expenses is deferred.
EVIDENCE AND FINDINGS:
Background:
At the time of the accident of January 4, 1996, Ms. Pinhasov was 36 years old, married with two teenage boys. She immigrated to Canada in 1993, from Israel, where she had lived for the previous 18 years. Ms. Pinhasov speaks Russian and Hebrew; however, she is more comfortable in Hebrew, her native language. Ms. Pinhasov can understand some English, but does not speak it very well. She cannot read or write English. Ms. Pinhasov testified through the assistance of an interpreter in Hebrew.
At the time of the accident, Ms. Pinhasov was employed as a fabric cutter at Global Upholstery, where she had worked since her arrival in Canada. Ms. Pinhasov had never worked outside of the home before coming to Canada. Her husband, David Pinhasov, who was also injured in the same accident, is a travel agent by profession and was employed as a travel consultant at the time of the accident. For the past 18 years, Mr. Pinhasov has suffered from atrial fibrillation, a serious cardiac problem with life-threatening potential.
The accident occurred at an intersection. Mr. Pinhasov was driving and Ms. Pinhasov was seated in the front, wearing her seat belt. Their car was struck on the driver's side by another vehicle. Ms. Pinhasov testified she could not recall whether any part of her body came into contact with the interior of the car. Her only recollection is after the collision when she saw her husband motionless in his seat and totally unresponsive. She was terrified because she thought he was dead. Mr. and Ms. Pinhasov were taken to North York Branson Hospital by ambulance where Mr. Pinhasov was treated for his injuries and released after a few hours. Ms. Pinhasov did not complain about pain or any injury to herself. She testified that her concern at that time was for her husband who she thought was at the risk of losing his life.
The following morning, Ms. Pinhasov woke up with a strong headache, shaking and shivering. The right side of her face was blue and swollen and she was experiencing severe neck and back pain. She saw her family physician, Dr. Sara Pliamm who diagnosed her with soft-tissue injuries to her neck and back, as a result of the accident.
Since the accident, in addition to pain in the neck and low back and headaches, Ms. Pinhasov has been complaining of various problems, including left knee pain, swelling in the right forearm, memory and concentration difficulties, nightmares, depression, anxiety and panic attacks. She attributes all of these problems to the accident.
Ms. Pinhasov has been treated by a number of health care professionals and specialists, including chiropractors, physiotherapists, orthopaedic surgeons, psychologists, occupational therapists, and rehabilitation specialists. She has been assessed by various physicians and health care facilities, at her request and through referral by Guarantee. In addition, she has undergone both a disability DAC and a medical/rehabilitation DAC assessment.
Entitlement to Weekly Income Replacement Benefits:
In order to be entitled to further IRBs under section 7 of the Schedule, Ms. Pinhasov must prove, on a balance of probabilities, that because of an impairment she sustained as a result of the accident, she suffers a substantial inability to perform the essential tasks of her pre-accident occupation or employment. The Schedule defines impairment as "a loss or abnormality of psychological, physiological or anatomical structure or function". It has been stated in numerous arbitration decisions that substantial inability means not some disability and not total disability, but a significant inability which prevents an applicant from carrying out his or her essential tasks to a significant extent.
There is not much dispute regarding Ms. Pinhasov's pre-accident essential tasks as a fabric cutter. Ms. Pinhasov and her employer, Mr. John Cuda, testified. A job analysis report, prepared by Crawford and Company Healthcare Management ("Crawford"),2 and a Jobsite Assessment, conducted by Career Navigators, were filed in evidence. Based on the oral testimony and the documentary evidence, I find that as a fabric cutter, Ms. Pinhasov's essential tasks consisted of retrieving a fabric roll from shelves, putting it on a special stand, placing the fabric on a work table and cutting the fabric to a specified order using scissors, a hand-cutter or a larger electric fabric cutter. She returned the fabric roll to the shelf, placed the cut fabric on a cart and pushed the cart to another work area a short distance from her work station. This routine was repeated many times, as she was required to cut different fabrics to different specifications. Ms. Pinhasov worked from 8:00 a.m. to 4:30 p.m., five days a week, with two 15-minute and one 30-minute break during the day. Sometimes, she worked on Saturdays, for half a day.
I find the physical demands of this job included standing up to eight hours a day, frequent reaching, lifting, carrying, pulling, and pushing; and occasional bending, stooping, and twisting. Sitting was rarely required. Frequently, Ms. Pinhasov was required to lift and carry fabric rolls weighing up to 35 pounds; however, she was assisted by another employee to lift rolls weighing more than 35 pounds. Ms. Pinhasov's job required concentration and precision cutting. Lack of concentration could result in damage to expensive fabric and injury to herself.
I heard evidence from Ms. Pinhasov and her witnesses — Roni Pinhasov, her son; Dr. Pliamm, her family physician since 1994; Mr. John Cuda, her employer; Dr. Shulamit Mor, her treating psychologist; and Dr. Brian Alpert, the orthopaedic specialist who assessed her in January 2000. Guarantee called Dr. Bruce Paitich, orthopaedic specialist, and Dr. Gillin-Garling, psychologist, who assessed Ms. Pinhasov in May 2000. Guarantee also filed surveillance videotapes and investigation reports of Ms. Pinhasov's activities in December 1999.
In addition, both parties filed considerable documentary evidence, including the clinical records and reports of the physicians and health care facilities who have treated or assessed Ms. Pinhasov since the accident.
This is a difficult case. Ms. Pinhasov testified that the major physical impairments preventing her from resuming her pre-accident employment and housekeeping activities are low back, neck and left knee pain, which prevent her from engaging in activities that require prolonged standing, and lifting and carrying heavy items. She also testified that severe and persistent headaches interfere with her ability to concentrate. Ms. Pinhasov related that she suffers from depression, mood changes, nightmares, sleeping problems, palpitations and sweating, forgetfulness, impatience, intolerance, anxiety and suicidal thoughts since the accident. She attributes all of these problems to the accident. She testified that her symptoms have not improved much over time.
Guarantee paid Ms. Pinhasov IRBs for almost two years following the accident, on the basis that she suffered a substantial inability to perform her essential tasks as a result of impairments caused by the accident. While Guarantee argues that Ms. Pinhasov did not suffer the requisite disability after the termination of her benefits, it does not question seriously that she continued to suffer from psychological problems. Guarantee continued to pay for Ms. Pinhasov's psychological treatment after her IRBs were terminated. At the time of the commencement of this hearing, over four and a half years post-accident, Guarantee was still paying for this treatment.
Nevertheless, Guarantee takes the position that any physiological or psychological impairments that may be disabling to her after December 17, 1997, are not caused by the accident.
For the following reasons, I find that Ms. Pinhasov continues to suffer a substantial inability to perform the essential tasks of her pre-accident employment as a result of physical and psychological impairments caused by the accident.
I find that before the accident, Ms. Pinhasov enjoyed excellent health. She had no significant physical or psychological problems. She coped well with the heavy demands of a full time job, a busy family life and her husband's medical situation. She complained of back pain two months before the accident; however, this was not a problem that required treatment, nor did it interfere with her ability to function. No evidence suggested the contrary.
After the accident, Ms. Pinhasov's life changed drastically. Her complaints of physical and emotional problems have continued without interruption from the date of the accident. Despite treatment, she has seen no improvement in her physical and psychological state and has not returned to her pre-accident job or to any other employment.
Physical Problems:
Ms. Pinhasov testified that while her back pain has improved since the motor vehicle accident, she still gets pain when she lifts or carries heavy items, or engages in prolonged standing, sitting or walking. Her neck pain has improved significantly. She now has no problems with any movement of her neck, although, occasionally, she still gets sharp, annoying pain and a "clicking" sound when she moves her neck, especially in the morning. There is no dispute, and I find that as a result of the accident Ms. Pinhasov sustained soft-tissue injuries to her neck and back, as well as cervicogenic headaches.
Ms. Pinhasov testified that her left knee pain started soon after the accident and has not improved. She stated that this is one of the major physical problems contributing to her inability to return to work. She testified that after fifteen minutes of walking or standing her knee hurts badly and she has to stop the activity. She has difficulty going up and down stairs. There is little consensus among the physicians about the nature and cause of Ms. Pinhasov's left knee problem. No medical documentation supports the contention that Ms. Pinhasov suffered direct trauma to her left knee in the accident. Ms. Pinhasov testified that she reported left knee pain to Dr. Pliamm during her first or second visit after the accident; however, Dr. Pliamm did not record such a complaint until May 13, 1996, about four months after the accident. At that time, Ms. Pinhasov reported that she had had the pain for about a month. Dr. Pliamm could detect no abnormality in the knee when she examined her in May 1996. She felt the pain was referred from her back injury. Dr. Pliamm explained that Ms. Pinhasov's delayed complaint of left knee pain was attributable to her focus on her neck and back pain.
Orthopaedic specialists who have examined Ms. Pinhasov's left knee have expressed different opinions. In November 1996, Dr. Lipson, conducting an insurer's examination, found nothing physiologically wrong with her left knee. He felt the pain was delayed in its onset and therefore probably not due to the accident.
Dr. M. Indech, consulting orthopaedic surgeon, concluded, in June 1997, that clinically, Ms. Pinhasov had signs of patello-femoral syndrome (damage to the cartilage of her left knee cap). He commented:
Passive movement of the patella either longitudinally or transversely gave her unpleasant grinding pain. There was no fluid in or heat coming from the joint. She had good flexibility with pain at the extreme localized under the patella... She had no signs of meniscal lesion. Her x-rays were normal.
Dr. Indech recommended arthroscopic surgery or in the alternative, treatment with physiotherapy. Ms. Pinhasov decided against the surgery and continued with therapy.
Dr. Perry Tepperman, the disability DAC orthopaedic specialist, in his report of December 8, 1997, stated:
Mrs. Pinhasov demonstrated considerable histrionic behaviour today while examining her knee. Accordingly, it was difficult to determine if there is any evidence of clinical pathology. While she may have patello-femoral syndrome, based on the lack of history of direct knee trauma in the accident, and the significant delay in onset of the knee symptoms, it is difficult to attribute her knee complaints to the motor vehicle accident.
Dr. Gregory Soon-Shiong, the medical/rehabilitation DAC orthopaedic specialist, stated in his April 14, 1998 report that Ms. Pinhasov had "some positive objective findings of patellofemoral syndrome". In February 2000, Dr. Brian Alpert, examining Ms. Pinhasov at her request, diagnosed her left knee problem as "chronic patellofemoral pain with possible internal derangement ". On the other hand, Dr. Bruce Paitich testified that he found no physiological basis for Ms. Pinhasov's left knee pain when he examined her a few months after Dr. Alpert. Dr. Paitich stated in his report that Ms. Pinhasov "likely sustained an anterior knee contusion with possible mild chondromalacia patellae (softening of the cartilage of the knee), a condition that can occur in the absence of a trauma".
Dr. Paitich and Dr. Alpert agree that if Ms. Pinhasov had torn the cartilage in her knee in the accident, the symptoms would have been immediate and her knee would have been swollen within a few hours. Dr. Pliamm does not disagree with this; she attributed the pain to the back injury and Ms. Pinhasov's delayed complaint to her focus on her other problems.
There is no objective, physiological explanation for Ms. Pinhasov's subjective complaint of left knee pain. The medical evidence does not rule out the possibility that Ms. Pinhasov's complaint of left knee pain could be related to the accident. While there is no documentation of a direct trauma to Ms. Pinhasov's left knee in the accident to support the diagnosis of a patello-femoral syndrome, the medical evidence does not preclude the likelihood that she might have sustained some other type of injury to her knee, as Dr. Paitich stated in his report, or that the knee pain emanates from her back injury, as Dr. Pliamm testified. Despite the absence of agreement on the diagnosis, there is no evidence to suggest that Ms. Pinhasov has manufactured her left knee complaint. I am prepared to accept Ms. Pinhasov's testimony about her left knee pain. Prior to the accident, Ms. Pinhasov had no complaints about her knee and I have heard no evidence to suggest post-accident injury or medical problems to which the left knee pain can be attributed. I have found Ms. Pinhasov to be a credible witness. I conclude, therefore, on the balance of probabilities, that the car accident was the cause of Ms. Pinhasov's left knee pain.
In summary, I find that Ms. Pinhasov's neck, back and left knee injuries resulted from the accident.
Psychological Problems:
Ms. Pinhasov testified that she suffers from depression and anxiety on a daily basis. She spends most of her days in front of the television set, watching the same shows over and over again enjoying little interaction with her family and friends. Her relationship with her husband and her children has deteriorated since the accident. Her memory and concentration problems have continued from the time of the accident without improvement. Almost every night since the accident, she has been going to bed with pain and with the fear of getting nightmares. She often closes her bedroom door and stays on her own. Ms. Pinhasov testified that she thinks terrible thoughts all the time. Every knock on the door makes her jump, because she thinks something bad has happened to her husband. Her primary and overriding concern after the accident has been her pre-occupation with her husband's health. Her husband had heart problems for many years before the accident, but her concern after the accident stems from the trauma of seeing him "dead" at the scene of the accident. Ms. Pinhasov suffers from almost daily nightmares re-living the trauma of the accident, and "seeing death". These nightmares keep her up all night.
Guarantee submitted that Ms. Pinhasov's concerns about her husband's health pre-existed the accident, and that she became more vigilant after the accident because his heart condition deteriorated, for reasons unrelated to the accident. I heard no evidence in this case that Mr.Pinhasov's heart condition deteriorated after the accident. Neither did Guarantee adduce any evidence to show Ms. Pinhasov's concern about her husband's health caused her psychological problems prior to the accident. I accept Ms. Pinhasov's evidence and the evidence of Dr. Pliamm, her family doctor since 1994, that despite her husband's medical condition, Ms. Pinhasov enjoyed good health, both emotionally and physically before the accident.
The medical evidence shows and I find that after the accident, Ms. Pinhasov developed serious psychological problems, including major depression and post-traumatic stress disorder.
Ms. Pinhasov's psychological symptoms emerged early after the accident. In addition to the complaints of pain arising from her physical injuries, Dr. Pliamm recorded complaints of insomnia, depression, poor memory and inability to concentrate as early as three months after the accident. Amanda Fyfe, Medical Service Consultant with Crawford,3 in her status report to Guarantee dated March 29, 1996, warned Guarantee of Ms. Pinhasov's psychological problems. She advised that "these psychological issues need to be addressed in a timely manner to prevent a functional overlay, particularly if physical recovery has been achieved".
Ms. Fyfe informed Guarantee that on April 19, 1996, Ms. Pinhasov complained to her that she was having sleeping problems due to bad dreams. The same problem was noted by Dr. Judy Silverman, chiropractor, in April 1996.
On July 6, 1996, Crawford's new Medical Service Consultant, Laurel Smith, wrote to Guarantee about the outcome of her meeting with Ms. Pinhasov:
Ms. Pinhasov also noted she has recently noted getting angry easily and does not have any patience. I inquired why she thought she would anger easily and would lose patience, and Ms. Pinhasov reported she is frustrated with her ongoing medical condition as a result of the motor vehicle accident, which has been seemingly responding to treatment very slowly. She further reported experiencing frustration regarding her limited functional ability in relation to her activities of normal living and work-related activities, due to limited mobility and pain in her low back region and headaches.
By September 1996, Crawford had identified Ms. Pinhasov's continued complaints about her physical problems as a new barrier to her recovery. It reported that Ms. Pinhasov was complaining of feelings of depression, experiencing "bad" dreams, and sleep problems. At this time, Ms. Pinhasov was taking various medications, including anti-depressants, anti-inflammatory drugs and analgesics.
In December 1996, Annabella Polenski, Behavioural Therapist at the Health Recovery Clinic, reported to Guarantee that Ms. Pinhasov was paralysed by her pre-existing personality traits of passivity and dependence on her husband and her concerns regarding her husband's health and her ability to be the head of the household.
In his report of December 10, 1996, Dr. Copas, the psychologist at Health Recovery Clinic, stated:
....Ms. Pinhasov reported frequent crying and pervasive feelings of sadness. She stated that she often cries throughout the night as she reflects about her life since the accident. She states that since she cannot scream at her husband for fear of jeopardizing his health, she thus withholds a lot of anger and sadness. She denied feelings of guilt and hopelessness. She states that she still hopes that her future will be better. However, from the present interview, it was evident that Ms. Pinhasov feels completely overwhelmed emotionally and unable to cope with her current stressors. She denied any suicidal ideation at this time. She stated that thinking about her children serves as a deterrent against suicide.
Ms. Pinhasov also reported increased symptoms of irritability and anxiety since her accident. She stated that she occasionally experiences periods of anxiety that are so severe that she cannot eat. She reported that these periods are usually related to arguments with her husband or concerns about her husband.
With respect to here current cognitive functioning, Ms. Pinhasov reported concentration and memory difficulties. She specifically reported that she has difficulty recalling what she has just read, and is also finding that she is forgetting her keys and losing personal items. Ms. Pinhasov noted that these cognitive problems tend to be related to periods of increased stress.
Dr. Copas concluded:
From a psychological standpoint, Ms. Pinhasov reports feeling very concerned about the status of her husband's health at the present time. Indeed, she reports that she is much more concerned about his health than she is of her own. Nonetheless, she states that she is interested in attempting a treatment program to improve her own level of functioning and to be able to cope with her pain more effectively. In my opinion, while she expresses a strong desire to return to a more functional lifestyle, she is currently limited by her symptoms of reactive depression secondary to her pain and functional restrictions and her symptoms of anxiety and rumination regarding her husband and children's well being. ...while there is no evidence of psychological impairment which would contraindicate participation in a treatment program, Ms. Pinhasov requires assistance in the area of stress management in order to fully engage in her treatment.
Dr. Copas recommended to Guarantee that Ms. Pinhasov be referred to a Hebrew-speaking psychologist for treatment.
Dr. Pliamm testified that Ms. Pinhasov's mental and physical condition was deteriorating instead of improving with the passage of time. Dr. Pliamm recorded Ms. Pinhasov's continued complaints of severe daily headaches, insomnia, neck pain, lower back pain, anxiety, depression and other emotional problems, beginning early after the accident.
Ms. Pinhasov continued to complain of pain in the absence of objective physical findings. On January 6, 1997, Guarantee referred Ms. Pinhasov to Lacroix, Scherer Consultants, for an opinion as to whether Ms. Pinhasov was psychologically disabled as a result of the motor vehicle accident from returning to her pre-accident employment. The assessment was conducted by Dr. Lacroix and Dr. Mor, who speaks Hebrew. In their report dated February 7, 1997, the psychologists answered Guarantee's question in the positive, stating that Ms. Pinhasov was "suffering from disabling psychological factors which currently pose a significant barrier to her return to full time employment." Subsequently, Guarantee agreed with Dr. Mor's recommendation that she would be the most appropriate psychologist to treat Ms. Pinhasov, as she spoke Hebrew and Ms. Pinhasov seemed to trust her judgment. Dr. Mor has been treating Ms. Pinhasov ever since.
While Ms. Pinhasov was still receiving psychological treatment by Dr. Mor, Guarantee decided to have her undergo a disability DAC assessment at Rehab Care. The psychologist, Dr. Lorne Switzman, stated in the DAC report dated December 5, 1997:
It is now almost two years since the MVA and Ms. Pinhasov continues to experience post traumatic symptoms, weepiness and pain-focussed behaviour. I observed an episode of anxiety with the uncharacteristic symptom of coughing. It seems that the traumatizing event was when Ms. Pinhasov observed her husband unconscious after the MVA and this triggered a protracted catastrophic reaction in her. I have no doubt that the stroke [suffered by Mr. Pinhasov in October 1997], which was questioned by Dr. Levitan, further exacerbated Ms. Pinhasov's anxiety. Diagnostically, Ms. Pinhasov would meet the minimal criteria for a chronic post traumatic stress disorder, however, this is complicated by the continued worry over her husband's cardiac condition which is an ongoing stressor. Therefore, I would characterize Ms. Pinhasov's condition as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. If she felt that the health threat to her husband's mortality was removed, it is likely that her emotional reaction would not be persistent (e.g., sitting up at night observing him breathing). Removal of the stressor, however, would not impact on her high level of psychological vulnerability which, I believe preexisted the MVA.
In the clinical view, Ms. Pinhasov was more blatantly anxious about her husband's condition than she was about her own. It was also clear to me that the boundaries between her husband's state and her own are diffuse. She would begin talking about herself and slip into discussing her husband. Even her symptoms parallel those of her husband's. More than being extremely anxious over her husband, Ms. Pinhasov's identity is wrapped up in it. This is long-standing and unrelated to the MVA.
Ms. Pinhasov met her husband when she was fifteen and she married him at the age 17 in an arranged marriage. This is apparently consistent with her cultural norm. Given that Ms. Pinhasov is not integrated in her traditional, cultural environment, she does not have the infrastructure to buffer a woman against the vicissitudes of life. Clearly, she is feeling vulnerable in terms of living without the support of her husband. While this is understandable for anyone who is attached to another person, in Ms. Pinhasov's case, I believe that it is compounded by a lack of individuation. (Emphasis added)
Dr. Switzman reported observing evidence of Ms. Pinhasov's psychological difficulties as follows:
In the interview, I directly observed an episode in which [Ms. Pinhasov] complained of difficulty breathing. A half-hour into the interview, she began to cough and shortly thereafter, she stood up. She began to hyperventilate and complained of her heart racing. This occurred after I had introduced the topic of work. She was able to calm down within a few minutes after I provided her with a glass of water, however, the cough persisted. Ms. Pinhasov told me that this happens to her when she feels angry or nervous. As for pain behaviour, she switched seats to a more rigid chair after 1 hr. 15 mins. into the interview. Fifteen minutes later, she complained of a "terrible headache" and hypersensitivity to noise. Upon leaving the office, she walked with slight stiffness.
In the end, Dr. Switzman concluded that, from the psychological perspective, he believed Ms. Pinhasov was able to return to work. However, he commented:
The problem is that there is no job awaiting for her and she is restricted by language in pursuing many other forms of work. I believe that she is in need of concrete, life-related goals to help her emerge from her personal psychological state.
Dr. Switzman recommended further psychological treatment involving both the Pinhasovs in marital therapy and cardiac counselling, with additional vocational counselling for Ms. Pinhasov herself.
In April 1998, Ms. Pinhasov underwent a multi-disciplinary medical/rehabilitation DAC assessment at York Central Hospital. Dr. Eisen, a psychiatrist, diagnosed her as suffering from post-traumatic stress disorder and a major depressive episode, as a result of the accident. He recommended treatment with an anti-depressant.
Dr. Shawn Scherer, the DAC psychologist, commented in his report dated March 6, 1998, that Ms. Pinhasov "continues to exhibit a pattern of post-traumatic symptoms associated with marked anxiety and depression", some symptoms of post-traumatic stress disorder and adjustment disorder. He felt her condition "has been complicated by two primary traumatizing events, notably the accident itself and its effects on her and her spouse; she has vivid recollections of her spouse being unconscious at the scene, which in turn resulted in profound fear of spousal loss".
Dr. Scherer endorsed Dr. Copas' view as to Ms. Pinhasov's pre-accident psychological makeup, as follows:
It is significant to note that the woman was raised in a rather sheltered home environment, was dependent first upon family, thereafter, in her mid-teens, upon her present spouse. She remained in the home throughout most of her adult years until coming to Canada. The clinical picture is suggestive of a passive-dependent personality pre-accident, likely psychologically fragile and highly vulnerable to any precipitating traumatic event.
Dr. Scherer recommended, among other things, that Ms. Pinhasov receive psychological treatment, marital therapy, medication for her depression and vocational rehabilitation case management support. In making these recommendations, Dr. Scherer stated:
[Ms. Pinhasov] is in need of regular mental health treatment. The fact that substantive adjustment problems with marked anxiety and depressive features remain causes some concern, particularly in view of the fact that she has received over a year of psychological treatment already. Nevertheless, without appropriate psychotherapeutic and pharmaco-therapeutic intervention, there is little prospect that her condition will spontaneously resolve, and there remains a distinct possibility that her condition could further deteriorate, especially if her husband's medical condition worsened or the family's financial circumstances became more pronounced.
Dr. Mor, the only psychologist who has treated Ms. Pinhasov, testified that when Ms. Pinhasov was first referred to her by Guarantee in February 1997, she found her depressed, anxious, absent minded and suffered from lack of motivation to work as a result of despondency and depression. Dr. Mor testified that although there were other factors contributing to Ms. Pinhasov's psychological difficulties, such as her husband's serious heart problems, the "stroke" he suffered in October 1997, and a tubal ligation done without her consent, the motor vehicle accident remained the major cause of her impairment.
Dr. Mor testified that based on her clinical observations and psychological testing she conducted, Ms. Pinhasov is suffering from post-traumatic stress disorder, chronic pain disorder with "psychological and medical underpinnings", as a result of the accident. Dr. Mor agreed with Dr. Switzman's view that the accident was the traumatizing event causing her post-traumatic stress disorder. Dr. Mor testified that Ms. Pinhasov's description of the accident was that she suddenly saw her husband slumped in his seat and she thought he was dead. Ms. Pinhasov feels "traumatized" every time she tells her story again or witnesses her husband in distress from his cardiac problems. Sometimes she feels suicidal, but she loves her children too much and would not act on it.
In her report dated November 3, 1999, Dr. Mor concluded:
There is no doubt in my mind that Sonia Pinhasov is very fragile psychologically and emotionally. Within the span of three years she and her family incurred severe losses as a result of this unfortunate MVA and their valiant attempts to re-build their life is fraught with difficulties. Sonia is severely depressed and anxious. She worries that due to her chronic pain she will have difficulties re-integrating into the workforce, thus not being able to help her family regain their financial equilibrium. She is also extremely concerned with regards to her husband's health and difficulties in re-establishing his own business. I have been watching her carefully and I have real concerns for her well being. From her point of view, life is hopeless. The family is financially ruined and she is unequipped to take care of her self and her sons should something will happen to her husband.
Dr. John Thornton, psychiatrist, in his report dated January 31, 2000, reached a similar conclusion. He stated that Ms. Pinhasov suffers from post-traumatic stress disorder, generalized anxiety disorder and mood disorders with suicidal ideations, as a result of the accident. Psychiatrically, he felt Ms. Pinhasov "demonstrates a substantial inability to perform the essential tasks of her own occupation and at the present time this is total".
In her report dated February 8, 2000, Dr. Pliamm stated:
.....Sonia Pinhasov sustained a significant strain to the soft tissues of her neck and lower back areas as a result of the motor vehicle accident of January 4th, 1996. It is entirely possible that she may even have sustained a mild head injury as she could not recall what happened immediately after impact occurred.
As a result of the injuries sustained in the accident, Sonia now suffers from chronic post-traumatic headaches, neck pain, lower back pain, anxiety attacks and depression. Neither she nor her husband was able to return to work for some time after the accident and the family started having financial difficulties. There was deterioration in the relationship between Sonia and her husband because of the stress they were both having to deal with while recuperating from their injuries as well as the added stress of the financial difficulties.
Prior to the accident, Sonia was in the best of health, except for some gynecological problems. To date as a result of the accident this woman suffers from headaches, neck pain, back pain, anxiety, and depression and insomnia. She has also complained of other ailments such as right hand pain, right TMJ pain, and left knee pain. Since she never had such complaints prior to the accident, of January 4th, 1996, it is my opinion the pain she was now experiencing in her right hand, right TMJ and left knee were a consequence of the accident.
It is obvious that Sonia developed and still suffers with post-traumatic anxiety-depressive state as a direct result of this accident. I feel that she is presently disabled as a factory worker due to the physical and psychological injuries she sustained as a result of the motor vehicle accident of January 4th, 1996.
The only evidence contradicting Ms. Pinhasov's claim that she suffers from psychological problems came from Dr. Gillin-Garling, the psychologist who assessed her on May 24, 2000, at Guarantee's request. Unlike all of the other psychologists, Dr. Gillin-Garling concluded that Ms. Pinhasov had no psychological impairment, either from clinical presentation or psychological testing. Dr. Gillin-Garling conceded that the psychological testing that both she and Dr. Mor had conducted was invalid, as the questions had to be translated to Ms. Pinhasov, the test did not account for cultural variations and there was no proof that Ms. Pinhasov was monitored for fatigue during the six-hour testing. The invalidity of the test notwithstanding, Dr. Gillin-Garling testified that she relied on the results and concluded that Ms. Pinhasov deliberately engaged in symptom magnification. Dr. Gillin-Garling testified that if Ms. Pinhasov had any psychological problems, they were not caused by the accident; rather, her husband's deteriorating health condition was responsible for her problems.
If psychological testing is invalid, Dr. Gillin-Garling testified that she would rely on clinical presentation to formulate her impression. However, she only saw Ms. Pinhasov once for a few minutes during the assessment. Ms. Pinhasov testified that she saw Dr. Gillin-Garling for 10 minutes that day. Dr. Gillin-Garling was unable to remember how much time she spent with Ms. Pinhasov. It is clear from her testimony that her opinion was formulated based entirely on the psychological testing, the very test that she found was invalid for reaching a diagnosis.
I prefer the evidence of Dr. Mor to that of Dr. Gillin-Garling. Unlike Dr. Gillin-Garling, who reached her conclusion after only seeing Ms. Pinhasov once for a few minutes, Dr. Mor has treated Ms. Pinhasov for more than three years. Dr. Mor's opinions are supported by the evidence of Dr. Pliamm and the opinions of all of the psychologists who have seen Ms. Pinhasov since the accident. Dr. Gillin-Garling's opinion that Ms. Pinhasov engaged in intentional symptom magnification is not supported with any reliable evidence and I reject it.
I accept the opinions of Dr. Copas, Dr. Eisen, Dr. Scherer and Dr. Thornton. I find that Ms. Pinhasov suffers psychological problems, including post-traumatic stress disorder, depression, and anxiety. In addition, for the following reasons, I find that the accident is the cause of Ms. Pinhasov's psychological problems.
Causation:
In this proceeding the Applicant does not have to prove that the accident is the sole cause of her disability. In order to establish a causal link between the accident and Ms. Pinhasov's disabling impairments, it is sufficient to demonstrate, on a balance of probabilities, that the accident significantly or materially contributed to her disability. In this case, I am satisfied that the evidence supports the finding that the accident is a significant factor that precipitated Ms. Pinhasov's psychological impairments and her resulting disability. In reaching this conclusion, I have considered the following factors:
Before the accident, Ms. Pinhasov was a healthy, fully functioning woman with no relevant medical or psychological problems. For over 16 years prior to the accident, she had coped well with her husband's pre-existing serious heart problems, her job and her family obligations;
After the accident, Ms. Pinhasov's mental health and functionality has deteriorated significantly. I heard no evidence in this case of a material change in Mr. Pinhasov's heart condition post-accident to which her psychological problems could be better attributed;
Even if Mr. Pinhasov's cardiac condition deteriorated after the accident, I heard no evidence to negate the diagnosis of post-traumatic stress disorder as a result of the trauma of Ms. Pinhasov witnessing her husband's injury and her belief that he died at the scene of the accident;
Ms. Pinhasov's emotional difficulties were recorded starting soon after the accident, and have continued with little improvement since;
Most of the practitioners who have assessed or treated her have attributed her psychological problems to the physical and psychological trauma of the accident; they agree that she requires psychological treatment. Guarantee has paid for this treatment on the basis that her psychological difficulties are caused by the accident;
None of the practitioners who have treated or assessed Ms. Pinhasov over the years, with the exception of Dr. Gillin-Garling, have questioned her credibility. They have all found her complaints of pain and disability to be genuine.
Credibility:
While there is no dispute that as a result of the accident Ms. Pinhasov sustained soft-tissue injuries to her neck and back, the medical evidence indicates that there is no objective physiological pathology that could account for Ms. Pinhasov's continued complaints of pain more than four years after the accident. Under the Schedule, pain that is disabling is compensable, despite the absence of an objectively identifiable physiological impairment. In the absence of such evidence, the reliability of Ms. Pinhasov's testimony is vital in assessing her claim. I have found Ms. Pinhasov to be a credible witness.
It has been stated in a number of arbitration cases that credibility problems must be "significant and substantial and related to the relevant and material elements of the applicant's claim".4 In assessing credibility, allowance must also be made for fading recollections and psychological problems.5
Guarantee questions her credibility and points to instances of "symptom magnification" referred to by some of its assessors, her denial of low-back problems before the accident and the videotape evidence which contradicts her testimony about her functional abilities.
I do not accept Guarantee's argument. I find no significant discrepancies in Ms. Pinhasov's testimony. Ms. Pinhasov did testify that she had no back problems prior to the accident, and there were notes in Dr. Pliamm's clinical records that she complained of back pain two months before the accident. However, Dr. Pliamm testified that these were general complaints related to a hard day at work and that she required no treatment for it nor did it interfere with her functionality. I do not find this is a material misrepresentation of her pre-accident condition.
As to symptom magnification, some of the assessors have referred to histrionic behaviour and pain-focussed behaviour on the part of Ms. Pinhasov. However, none of the orthopaedic specialists who examined Ms. Pinhasov have reported that she was either malingering or deliberately exaggerating her pain. Symptom magnification in itself is not sufficient to question the credibility of the Applicant, unless it was performed deliberately for purposes of secondary gain. With the exception of Dr. Gillin-Garling, whose evidence I have already rejected, the psychologists and psychiatrists who have treated or assessed Ms. Pinhasov have found her to be credible.
The surveillance videotape taken on December 30, 1999, at 9:40 a.m., depicts Ms. Pinhasov at a supermarket pushing a cart containing bags of groceries, lifting grocery bags from the cart, walking with a bag in each hand to her car parked some 50 feet away and placing the bags in the trunk of the car. In one of the three trips, she is seen holding two parcels and one case of pop in the right hand, which she then placed in the trunk of the car. She is seen performing these activities with no apparent distress. I do not find this undermines her credibility.
Ms. Pinhasov testified that she was capable of lifting with one hand a case of pop and walking a distance of 50 feet without difficulty. Ms. Pinhasov explained that in December 1999, she could go grocery shopping on her own which she did at her own pace, slowly. She could carry groceries to her car without assistance and did not require a cart to take the groceries to her car. Ms. Pinhasov testified that what is depicted in the videotape is not a typical shopping day for her. It was a good day, being New Year's Eve, and she pushed herself. Ms. Pinhasov testified that she now does her shopping once a week with her husband and children most of the time. Ms. Pinhasov explained that while she carried the groceries to her car, she did experience difficulty and had pain in her knee and in her back.
I do not find the videotape evidence contradicts Ms. Pinhasov's complaints to the physicians who examined her at that time. I do not find her abilities depicted in the videotape evidence of her functional abilities as it relates to her job duties. Ms. Pinhasov has not denied that she could perform certain light chores, including grocery shopping and the ability to lift and carry lighter items. Her ability to lift and carry a case of pop, weighing less than twenty pounds, should be seen in the context of her circumstances. In any event, in December 1999, the medical evidence was that Ms. Pinhasov's psychological impairment was the principal factor causing her disability.
Conclusion About Disability:
Ms. Pinhasov's pre-accident employment involves considerable physical demands as well as the ability to concentrate. Her testimony about her inability to engage in the essential tasks is supported by her family physician and her treating psychologist. While the physicians who assessed her at her own request and at the request of Guarantee have expressed opposing views, the independent DAC assessments lend considerable support to her claim of disability. In the disability DAC, orthopaedic specialist, Dr. Tepperman, commented on Ms. Pinhasov's disability status in December 1997, as follows:
There is insufficient delineation of physical impairments resulting from the motor vehicle accident that would prevent Mrs. Pinhasov from performing the majority of her essential pre-accident duties as a fabric cutter. However, because of her pain behaviour and the duration of physical deconditioning, I cannot clinically confirm the physical condition of her lumbar spine to determine if she presently possesses the ability to occasionally lift fabric rolls weighing 25-60 lbs. The precise frequency of lifting and the weight requirement needs further documentation. Formal assessment of Mrs. Pinhasov's lifting and carrying capacity would require an FAE/Work Capacity Evaluation. While we could proceed with this part of our multi-disciplinary DAC assessment, this study would not be cost effective at this time because Mrs. Pinhasov's histrionic pain behaviour precludes a valid assessment and virtually guarantees a poor performance and the likelihood of exacerbation of her symptoms with formal testing. (emphasis added)
In addition, Dr. Tepperman stated that Ms. Pinhasov's left knee condition could limit her ability to stand and walk all day as well as to manage a short ladder to reach fabric rolls, if there is "sufficient evidence to accept that these complaints and any resulting physical limitations are due to the motor vehicle accident".
Dr. Tepperman did not state in his report that Ms. Pinhasov was capable of returning to her pre-accident employment in December 1997. What he stated was:
In spite of the above, Mrs. Pinhasov could be expected to manage sedentary to light work and, unless contradicted by her psychological state, it would be best if she could be provided with professional assistance to acquire gainful employment. Likely, this is the only way to break the cycle of her own illness behaviour and to reduce her focus on her husband's cardiac condition.
The disability DAC psychologist, Dr. Switzman, found that Ms. Pinhasov met the minimal criteria for a formal diagnosis of post-traumatic stress syndrome, chronic anxiety and depression, and recommended further extensive psychological treatment, although he found Ms. Pinhasov to be able to return to work from the psychological perspective
In summary, I have found Ms. Pinhasov to be a credible witness. Her testimony about her disability has been supported by ample medical evidence. I am satisfied that Ms. Pinhasov has discharged the onus of proof for entitlement to IRBs.
Sections 20 and 21 of the Schedule provide that if the insured person qualified for weekly income replacement benefits and continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, the insurer shall promptly deliver a written offer to the insured person with respect to the payment of weekly loss of earning capacity benefits.
I have found Ms. Pinhasov to be entitled to IRBs beyond the 104-week mark of the onset of her disability. Accordingly, Guarantee shall pay Ms. Pinhasov IRBs at the rate of $274.66 per week, until the provisions of Part VI of the Schedule with respect to the payment of loss of earning capacity benefits have been complied with.
Entitlement to Housekeeping Expenses
Ms. Pinhasov claims housekeeping expenses from the date of the accident and ongoing, at the rate of approximately $450 per month. She claims that she incurred these expenses in respect of cooking, laundry, and cleaning services provided to her by her mother.
Section 55 of the Schedule provides that if a person sustains an impairment as a result of an accident, the insurer shall pay for additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services.
Under the Schedule, housekeeping expenses are compensable as a pecuniary loss arising out of the accident. Entitlement to the expenses is not determined merely on a comparison of the applicant's functional abilities before and after the accident. In order to succeed in her claim for housekeeping expenses, Ms. Pinhasov must establish not only that she sustained an impairment as a result of the accident, but also that the expenses are additional expenses required as a result of her impairments, and that they are reasonably incurred. Ms. Pinhasov must adduce detailed and reliable evidence about her claim, including evidence about the nature and duration of the services provided, the person(s) who provided them, payments made or other financial arrangements undertaken.
Ms. Pinhasov testified that the family moved into a two-bedroom, two-bathroom condominium two weeks after the accident. She testified that she was able to perform the lighter housekeeping chores soon after the accident; however, she has been relying upon her mother and two sons to help her with the more demanding tasks of housekeeping, such as cooking big meals, vacuuming, laundry and for the elaborate religious dinners that she prepared every Friday before the accident. She testified that her mother started coming to her house "almost from the start", and has continued to do so two to three days a week, spending four to five hours each day. Her mother washes clothes, cooks the Friday meals and cleans the condo. Her older son helps with the vacuuming. Roni, the younger son, corroborated his mother's testimony.
There is no dispute that before the accident, Ms. Pinhasov was solely responsible for all housekeeping activities of the household, including laundry, cleaning and cooking, the tasks in respect of which the expenses have been claimed. Accordingly, if Ms. Pinhasov was unable, after the accident, to perform these tasks due to the impairments resulting from the accident, and she incurred expenses to have someone else do them, I would find such expenses qualify as additional expenses resulting from the accident. However, the problem with Ms. Pinhasov's case is that the evidence is insufficient to support her claim that the expenses in dispute were reasonably incurred as a result of the accident.
Ms. Pinhasov first claimed housekeeping services by a letter dated November 30, 1998, almost three years after the accident. She submitted to Guarantee forms entitled "Housekeeping Expense (Supplemental Form)". These forms were described in the claim letter as "receipts for housekeeping services". Ms. Pinhasov submitted all the forms together, one form for each month since January 1996. All of the forms appear to be completed in identical handwriting. The contents of the forms consist of information about the name, address and telephone number of the insured person and the "Domestic Worker", the duties performed (listed as clothes washing, house cleaning and cooking), the days of the month and number of hours worked (two days a week, five hours a day), the total monthly hours worked (40 and 45 in a five-week month) and the hourly rate of $10. The forms are dated and signed by the Domestic Worker. The signatures in all of the forms appear to be identical but not legible to the English reader.
Ms. Pinhasov testified that she has not paid her mother any amount since the accident. She testified that she did not prepare the forms but she thought that they might have been prepared by her husband. She stated that her mother does not read or write English. I heard no other evidence about the preparation of these documents. It is not clear to me whether these forms were filed into evidence to prove payment or to show the details about the services provided.
Neither Ms. Pinhasov's mother nor the person who prepared the forms testified. I heard no evidence as to why they were not called to give evidence. Ms. Pinhasov testified as to why she is unable to perform her pre-accident housekeeping activities; however, I heard no evidence as to the specific details of the services that Ms. Pinhasov's mother performed, such as the extent of the tasks she performed or how much time she spent performing each task. Ms. Pinhasov testified, in cross-examination, that she is unable to corroborate the information contained in the claim forms. In the absence of such evidence, I am not prepared to accept the forms as reliable proof of their contents or as proof of payment.
Ms. Pinhasov testified that she did not have to ask her sons and her mother to help — they started helping when they saw that she was injured. She testified that she promised her sons "pocket money" and told her mother that she would pay her when she can. After an accident, it is reasonable for the injured person to ask members of his or her family to help with household chores that the person can no longer do as a result of the injuries, and to pay or promise to pay a reasonable amount for the assistance rendered. However, in such situations, there should be clear and detailed evidence confirming the exact activities performed by the family member.
In this case, I am not persuaded that Ms. Pinhasov established that all of the expenses she claimed were reasonably incurred as a result of the accident. However, given the medical evidence of Ms. Pinhasov's problems after the accident, outlined above, I find it reasonable that she be allowed housekeeping expenses in respect of the initial few months after the accident, when there was not much dispute about her physical symptoms and she was attending various treatment sessions regularly.
I find the Occupational Therapy Home Functional Assessment report by Therapy for Function on June 21, 1996 useful in determining a reasonable period for the duration of Ms. Pinhasov's entitlement to housekeeping expenses. The Occupational Therapist who conducted this assessment concluded, based on information supplied by Ms. Pinahsov and her own observations during the assessment, that Ms. Pinhasov "is currently able to carry out all activities of personal care and homemaking which were her responsibilities prior to the accident" with pacing and the use of assistive devices. The disability DAC assessment concurred with this finding.
I accept Ms. Pinhasov's testimony, corroborated by contemporaneous records6, that her mother came to her house twice a week, and spent four to five hours a day helping her with her household chores. I would allow payment of reasonable housekeeping expenses for the period January 4, 1996 to June 21, 1996, the date of the Occupational Therapy Home Functional Assessment by Therapy for Function, calculated on the basis of $10 per hour, eight hours per week.
Ms. Pinhasov is entitled to interest on this amount from December 30, 1998, thirty days after Guarantee received her application for the benefit, calculated in accordance with section 68 of the Schedule.
Special Award:
Ms. Pinhasov claims a special award under section 282(10) of the Act because Guarantee unreasonably withheld or delayed the payment of housekeeping benefits. This is not an appropriate case in which to order a special award. Ms. Pinhasov did not submit her claim for housekeeping benefits to Guarantee until three and half years after the accident. Ms. Pinhasov achieved only a partial success in her claim for these benefits, in respect of a period of time before she submitted her application for the benefits to Guarantee.
Repayment:
This issue is deferred. I have sent the parties, along with this decision, a separate letter requesting further submissions regarding this issue.
EXPENSES:
The issue of expenses is deferred until a final determination of all the issues in dispute has been made.
August 24, 2001
Asfaw Seife
Senior Arbitrator (A)
Date
Neutral Citation: 2001 ONFSCDRS 123
FSCO A00-000654
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SONIA PINHASOV
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Guarantee Company of North America shall pay Sonia Pinhasov income replacement benefits of $274.66 per week from December 17, 1997, plus interest in accordance with section 68 of the Schedule, until the provisions of Part VI of the Schedule with respect to loss of earning capacity benefits have been complied with.
Guarantee Company of North America shall pay Ms. Pinhasov housekeeping expenses from January 4, 1996 to June 21, 1996, for eight hours per week, at the rate of $10 per hour. Ms. Pinhasov is entitled to interest on this amount from December 30, 1998, calculated in accordance with section 68 of the Schedule.
Ms. Pinhasov is not entitled to a special award.
August 24, 2001
Asfaw Seife
Senior Arbitrator (A)
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
- Guarantee retained Crawford two months after the accident to co-ordinate Ms. Pinhasov's medical management and rehabilitation needs.
- In March 1996, Guarantee retained Crawford and Company Healthcare Management (Crawford) to co-ordinate Ms. Pinhasov's medical management and to assist in her rehabilitation.
- See for example, Hernandez and Zurich Insurance Company (FSCO A96-001123, August 28, 1998)
- Salvaggio and Simcoe & Erie General Insurance Company and Wellington Insurance Company (OIC A96-000978, October 15, 1997)
- See for example Crawfords' status reports to Guarantee dated March 29, 1996, May 3, 1996 and the report of Function for Therapy dated June 13, 1996.