Neutral Citation: 2001 ONFSCDRS 85

FSCO A00-000359

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

PAUL R. DOOKIE

Applicant

and

AMERICAN HOME ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

January 29, 30 and 31, 2001, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Michael Krylov, student-at-law, for Mr. Dookie

Chris Blom, lawyer, for American Home Assurance Company

Issues:

The Applicant, Paul R. Dookie, was injured in a motor vehicle accident on March 21, 1998. He applied for statutory accident benefits from American Home Assurance Company (American), payable under the Schedule.¹ American disputed Mr. Dookie's eligibility for income replacement benefits, and the parties were unable to resolve the dispute through mediation. Mr. Dookie 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:

1. Is Mr. Dookie entitled to income replacement benefits as a result of the accident under Part II of the Schedule?

2. Is Mr. Dookie entitled to a special award under subsection 282(10) of the Insurance Act?

Result:

1. Mr. Dookie is entitled to ongoing income replacement benefits as a result of the accident under Part II of the Schedule.

2. Mr. Dookie is not entitled to a special award under subsection 282(10) of the Insurance Act.

EVIDENCE AND ANALYSIS:

Mr. Paul Dookie, now 35 years old, was a self-employed disc jockey at the time of the accident. There is no dispute that he experienced a multitude of serious psychological problems after the accident, and that he qualifies as disabled.² The issue in this case centres on causation, whether the accident was a significant contributing factor to Mr. Dookie's psychological condition.

The Accident and Mr. Dookie's injuries:

Mr. Dookie sustained soft tissue injuries, bruises and scratches when the rental car he, his friend and their two dogs were travelling in overturned on a snow-covered highway in Quebec. His friend's dog was killed in the impact.

Mr. Dookie declined medical treatment at the scene. He and his friend drove back to Toronto in a replacement vehicle.

Mr. Dookie met with American's adjuster upon his return to Toronto. The adjuster explained the available benefits and provided him with the appropriate forms. Mr. Dookie sent American an application and medical certificate, indicating he had modified his job duties due to his accident injuries and was working part time. In July 1998, Mr. Dookie was discharged from chiropractic and physiotherapy treatment after a Designated Assessment Centre (DAC) concluded he had physically recovered. However, the DAC examiners drew attention to his psychological problems.

Mr. Dookie returned to his naturopathic doctor in September 1998. His naturopath recorded symptoms of neck pain, stress, nausea, weight loss and weakness. The notes of Mr. Dookie's family doctor also state he was agitated, complained of weight loss and poor sleep after the accident. The evidence is undisputed that Mr. Dookie suffers delusions, paranoia, pain focus and other psychological problems. He has continuously refused psychotropic medication, but has undergone psychological counselling.

Mr. Dookie ceased working in October 1998 and thereafter applied for general welfare. Since June 1999 his monthly benefits have been increased to $930 under the provincial disability support program.

Mr. Dookie's condition before the accident:

Born in Guyana in1966, Mr. Dookie moved with his mother and siblings to Canada in 1974. There is no evidence that anyone in his family suffered psychological problems.

In grade nine, Mr. Dookie dropped out of high school for several years, and went to live with relatives and work in New York State. He returned to Toronto to finish his secondary education, living on his own until graduating from high school with honours in 1987. He received commendations for courtesy, attendance and clerical work in the school's guidance office. There is no evidence to indicate that Mr. Dookie suffered any psychological or behavioural problems during high school.

Mr. Dookie joined the Canadian military before finishing high school. There is no evidence from any military record that Mr. Dookie experienced psychological or behavioural problems during his service. He quit military service shortly after basic training in 1987.

The evidence is that Mr. Dookie was a self-employed disc jockey at the time of the accident, was active in martial arts and competitions, and lived on his own. He slept at a rented warehouse where he kept his sound equipment, stayed with friends, at his aunt's house or sometimes in an unlicensed vehicle he owned.

Although he lived an unconventional lifestyle, I find that Mr. Dookie earned sufficient money before the accident to support himself at a subsistence level. His cheque deposit register shows he was paid for one party/dance approximately every week.

Mr. Dookie admits he had a few criminal problems before the accident. He stole a jacket and had two impaired driving convictions as a youth. Mr. Dookie smoked marijuana and was charged once with possession as well as a more recent domestic assault.

Mr. Dookie's criminal convictions during his youth are remote to this accident. His use of marijuana is not uncommon today and his more recent assault is an isolated incident. I do not regard this evidence as important indicators of Mr. Dookie's pre-accident mental health.

Mr. Dookie's health records are more relevant in establishing his pre-accident psychological condition. In a 1994 health questionnaire for his naturopath, Mr. Dookie listed respiratory, skin irritations and ear/nose/throat infections as constant problems. He had regular appointments with his naturopath from 1994 through April 1996 and took herbal remedies primarily for indigestion and allergies. Occasionally, he visited his family doctor as well. None of Mr. Dookie's pre-accident health practitioners indicate that he experienced paranoia, delusional thinking, chronic pain behaviour or other psychological symptoms before the accident. Likewise, Mr. Dookie's provincial health records (OHIP) do not indicate that he suffered or was treated for any psychological or emotional problems prior to the accident.

American contends that Mr. Dookie's hiatus from high school, criminal and domestic assault charges, and non-traditional lifestyle together establish that he was psychologically disturbed prior to the accident. This argument is contradicted by the complete lack of any documented psychological problems in his pre-accident health records.

Mr. Dookie's evidence:

Mr. Dookie testified that since the accident he has suffered neck and back pain, fatigue, sleep loss and headaches, which depress him. He had allergies before the accident and took herbal remedies.

Mr. Dookie vehemently denied any psychological problems either before or after the accident. He takes additional herbal remedies to address his depression and chronic pain, but refuses prescribed psychotropic medication.

Although Mr. Dookie sequentially related his history and appropriately responded to most questions, there is no doubt that he suffers serious delusions. For example, Mr. Dookie stated that he declined to guard the Queen mother, while serving as a military cadet, based on her advocacy of racial segregation and because she was the leader of a worldwide white supremacist organization. Although he denied telling one expert of his admiration for Adolf Hitler or that he had told him the Holocaust resulted from the Jewish people's extravagant lifestyle, Mr. Dookie said there was truth in his reported statements.

Mr. Dookie offered no proof to support his contention that he is his own psychiatrist. He believes that the medical community and drug companies conspire to make money from him. Mr. Dookie therefore refuses prescribed medication.

Mr. Dookie's beliefs are not merely matters of opinion or conjecture based upon established facts. It is not disputed that Mr. Dookie suffers delusions and paranoia, and I put little weight on his evidence as to his psychological well-being.

Mr. Dookie's mother:

Mrs. Alice Dookie's testimony that her son was a good student is consistent with her son's high school transcript. He liked to play music and had a paper route as a child. She stated that Mr. Dookie lived on his own after returning to Toronto from New York, and regularly visited her. After high school, he lived on his own and worked as a disc jockey until the accident. She says that he was fine before the accident.

Mrs. Dookie observed her son's condition changed about two months after the accident. During her visits with him, he was unhappy, agitated, had noticeably lost weight, complained about lacking money and talked constantly about the accident. Mrs. Dookie said that her son changed from being a happy and functional person to depressed and less functional after the accident. She gave her son financial support and cooked him meals. Mrs. Dookie said that she has noticed some improvement in her son's mood recently because he has resumed attending family functions.

On the one hand, Mrs. Dookie's contact with her son has been limited since he moved from home in high school. She did not recall why her son dropped out of high school, his reasons for living on his own during high school or why he resigned from the military. On the other hand, I found her testimony credible, and I accept that through her visits she has had an opportunity to observe her son's general demeanor before and after the accident. Based on her evidence, I find that Mr. Dookie became unhappy and depressed after the accident.

The Experts:

The first psychiatric examination at a Designated Assessment Centre (DAC) lacked pre-accident records to provide a firm opinion on the causation issue. However, the DAC confirmed that Mr. Dookie was in a manic state in July 1998. The DAC recommended that American fund Mr. Dookie's treatment if he had no previous psychiatric history.

In September 1999, Mr. Dookie began counselling with a psychologist, Dr. John VanDeursen, who diagnosed that Mr. Dookie suffered from manic depression as a result of the accident. Counselling sessions with him did not produce any positive change because Mr. Dookie refused psycho-tropic medication.

Dr. VanDeursen testified that Mr. Dookie's symptoms were overwhelmingly evident. His characterization is consistent with Mrs. Dookie's evidence of his demeanor and her testimony that her son was not eating or properly caring for himself at that time.

Dr. VanDeursen opined that Mr. Dookie's condition was precipitated by the accident because he found no significant pre-accident psychological problems. Although he did not have pre-accident medical records at the time of his report, Mr. Dookie's pre-accident history was put before Dr. VanDeursen at the hearing. He conceded these factors might indicate pre-existing psychological problems, but emphasized that they are not uncommon adolescent behaviour. Dr. VanDeursen stated that it would be erroneous to conclude Mr. Dookie was disturbed before the accident unless there was evidence indicating he experienced pre-accident psychotic symptoms.

Dr. VanDeursen agreed with American's psychiatric expert on one important point. Mr. Dookie's psychological condition has a strong biochemical component, which is not linked to the accident. He admitted that Mr. Dookie's pre-accident history demonstrates he likely had emotional problems before the accident which caused him to be susceptible to stressors.

It is Dr. VanDeursen's opinion is that Mr. Dookie's physical injuries and ensuing financial distress from the accident were the cause of his condition. He said that he has seen other cases where a person buckles under stress and develops a serious psychological condition such as Mr. Dookie's. However, his opinion is weakened because he failed to provide any reports, studies or other scientific data to support his observational theory.

Dr. Alfred Margulies, a consulting psychiatrist for American, reached an opposite conclusion after his September 2000 assessment. He diagnosed that Mr. Dookie suffered from schizophrenia, rather than from manic depression. The symptoms of these disorders overlap, and nothing suggests that a correct diagnosis is relevant to the determination of the issues here.³

In his testimony, Dr. Margulies described the metabolic nature of these psychotic illnesses. Both schizophrenia and manic depression manifest themselves in early adulthood, resulting from failure of the body to chemically produce neurotransmitters. Dr. Margulies stated there is no scientific evidence that soft tissue injuries resulting from motor vehicle accidents affect the metabolic functions that create either disorder.

Dr. Margulies was of the view that Mr. Dookie was delusional before the accident. He stated that Mr. Dookie's present belief that he quit the military due to racism in the royal family and the armed forces is evidence he suffered delusions in 1987. I agree with Dr. VanDeursen, who logically pointed out that the accuracy of Mr. Dookie's present recall of his past state of mind cannot be relied upon to determine the state of his pre-accident mental health.

Dr. Margulies infers that Mr. Dookie was a disturbed adolescence because he dropped out of school, had some high school attendance problems, trouble with the law and moved out of the family home at an early age. His opinion is that Mr. Dookie's adult living arrangements and subsistence earnings add to the inference that he was already schizophrenic at the time of the accident and that this accident did not significantly exacerbate his pre-existing psychological problems.

I respectfully disagree with Dr. Margulies' opinion. Mr. Dookie's graduation from high school with honours, school commendations for behaviour and attendance, work as a cooperative student and completion of basic military training demonstrate he was quite functional in adolescence and young adulthood. I prefer Dr. VanDeursen's opinion that Mr. Dookie's isolated criminal incidents and minor behavioural problems during his adolescent period and young adulthood indicate he likely had some emotional predisposition, rather than demonstrating a pattern of a psychologically disturbed young man.

Functionally, the evidence is undisputed that Mr. Dookie earned a subsistence living and did not require emotional or psychological care before the accident. I find this clearly meets Mr. Dookie's burden to establish that he was sufficiently functional to care for himself at the time of the accident.

While Mr. Dookie and his friend escaped this serious collision with relatively minor physical injuries, I accept the evidence that he was shaken by the impact and the death of his friend's pet. Mr. Dookie remained working part time, but I am persuaded by the notes of his naturopath, the family doctor and Dr. VanDeursen's opinion that his soft tissue injuries developed into chronic pain.

I find that Mr. Dookie's vulnerable defences were overwhelmed by the accident, and that he was a thin-skulled person.⁴ The sequence of events, the record of his cascading symptoms, his cessation of part-time work approximately six months following the accident, together with Dr. VanDeursen's opinion further persuade me, on a balance of probabilities, there is more than a temporal or minimal connection between this accident and his psychological condition.⁵ Dr. Margulies' premise that Mr. Dookie would have developed the same symptoms if the accident had not occurred clearly involves more speculation than Dr. VanDeursen's conclusion.

The result is that I find Mr. Dookie developed chronic pain, followed by manic behaviour and delusions as a result of the accident. I find that Mr. Dookie is entitled to ongoing weekly disability benefits as a result of the accident under Part II of the Schedule, together with interest under section 46.

Sections 55 and 56 of the Schedule require an insured to cooperate with treatment and vocational programs. I trust that Mr. Dookie will cooperate with Dr. VanDeursen and other health practitioners to assist him.

Special Award claim:

Under subsection 282(10) of the Insurance Act, an insured person may be entitled to a special award where it is established the insurer has unreasonably withheld or delayed payment of benefits. Mr. Dookie's representative did not clearly identify the facts supporting his claim for a special award claim. He argued that Mr. Dookie was worse off due to American's failure to provide him with financial and medical/psychological assistance.

I have no jurisdiction to determine whether American unreasonably withheld or delayed Mr. Dookie's medical and rehabilitation benefits because those issues are not before me. However, I have reviewed American's correspondence file and the testimony of Ms. Beverly Ballard, to make a determination respecting American's refusal to pay Mr. Dookie's income replacement benefits.

Ms. Ballard gave clear and credible evidence. She explained the available benefits to Mr. Dookie and provided him with the appropriate claim forms within a week of the accident. After Mr. Dookie told her that he was still working part time, Ms. Ballard was not sure if he intended to submit a claim for income replacement benefits.

The claim forms Mr. Dookie submitted approximately two weeks after the accident indicate he did not lose any time from work. His signed statement taken by Ms. Ballard a month after the accident states he had cut his hours, which is confirmed by the disability certificate completed by Mr. Dookie's family doctor. He was having difficulty with heavier duties and was working four hours a day.

Mr. Dookie retained a lawyer a month after he submitted his initial claim forms, but he did not produce the requested documentation of his self-employment income necessary for American to establish his weekly benefit amount. He also failed to disclose the amount of his post-accident earnings, which American was entitled to deduct from the income replacement benefit.⁶ Under this version of the Schedule, there is no minimum weekly amount. I find that American's request for income documentation was reasonable.

Mr. Dookie finally produced records of his pre-accident income after he filed for mediation in early 2000. By this time it was clear to the parties there was a legitimate issue of whether his psychotic condition was precipitated by the accident. Mr. Dookie has failed to establish that American unreasonably delayed or withheld his income replacement benefits. I find that Mr. Dookie is not entitled to a special award.

EXPENSES:

The parties may apply for an assessment of their expenses if they cannot resolve this issue on their own.

June 5, 2001

Fred Sampliner

Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 85

FSCO A00-000359

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

PAUL R. DOOKIE

Applicant

and

AMERICAN HOME ASSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. American shall pay Mr. Dookie $109 per week beginning March 28, 1998 plus interest in accordance with section 46 of the Schedule.

June 5, 2001

Fred Sampliner

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2American concedes that Mr. Dookie meets both eligibility tests for ongoing income replacement benefits under Part II of the Schedule. During the first 104 weeks of disability, the insured must suffer a substantial inability to perform the essential tasks of his or her pre-accident job in order to be eligible for benefits (subsection 5(1) of the Schedule). After 104 weeks, the insured must demonstrate a complete inability to engage in any suitable employment (paragraph 5(2)(i) of the Schedule). The parties agree that his benefit is $109 per week.
3. 3Edwards and State Farm Mutual Automobile Insurance Company (OIC A-001707, July 12, 1993), Hearn and Allianz Insurance Company of Canada (FSCO A97-001667, August 17, 1999), Freeman and Wellington Insurance Company (OIC A-013578, October 16, 1995)
4. 4Hearn, supra, see note #3, Nesrallah (Gillis) and Dominion of Canada General Insurance Company (FSCO A98-000567, September 23, 1999), Beiler and Alpina Insurance Company Ltd. (OIC A-003051, February 22, 1994), E. Z. and Royal Insurance Company of Canada (OIC A-005237, November 14, 1995)
5. 5Koch and AXA Insurance (Canada), (OIC A-951417, June 6, 1995)
6. 6Subsection 6(2) of the Schedule