Neutral Citation: 2003 ONFSCDRS 167

FSCO A00-001314

BETWEEN:

DEBORAH TODD

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Catherine Skinner

Heard:

February 4, 5, 6, 7, May 31, June 7, June 24, 2002 and January 6 and 8, 2003, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received by June 17, 2003.

Appearances:

Henry Goldentuler for Ms. Todd

Robert S. Franklin for State Farm Mutual Automobile Insurance Company

The Applicant, Deborah Todd, was injured in a motor vehicle accident on July 8, 1999. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm denied payment of non earner benefits, certain medical benefits, and expenses under section 24 of the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Todd 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. Todd entitled to non earner benefits under section 12 of the Schedule?
Is Ms. Todd entitled to medical benefits for the cost of assistive devices described in the Total Body Recovery occupational therapy report of November 8, 1999 under section 14 of the Schedule?
Is Ms. Todd entitled to payments of $977 for the cost of an occupational therapy report prepared by Fulcrum Consultants dated June 27, 2000, and $870 for the cost of a Bloorview MacMillan driving assessment and report dated July 14, 2000, incurred under section 24 of the Schedule?
Is Ms. Todd entitled to interest on overdue amounts?
Is Ms. Todd entitled to a special award under section 282(10) of the Insurance Act?

Ms. Todd is not entitled to non earner benefits.
Ms. Todd is not entitled to medical benefits for the assistive devices described in the Total Body Recovery occupational therapy report of November 8, 1999.
Ms. Todd is entitled to payments of $977 and $870 for the cost of assessments and reports incurred under section 24 of the Schedule, plus interest on these amounts.
Ms. Todd is not entitled to a special award under section 282(10) of the Insurance Act.

Background:

On July 8, 1999, 35 year old Deborah Todd was using her wheeled walker to walk through a store parking lot. A Brink's truck reversed slowly and knocked Ms. Todd to the ground. Ms. Todd was taken by ambulance to the emergency room at York General Hospital where she was treated for lacerations to her elbow, bruises on her leg and a cut to her head which required four stitches. Ms. Todd was released a few hours later and spent the night at her mother's house. Ms. Todd's injuries to her elbow, leg and head healed normally.

The issue in this case is whether the motor vehicle accident affected the progression of Ms. Todd's Multiple Sclerosis. Ms. Todd was diagnosed with MS in 1985 and for the first few years the disease was in the relapsing-remitting phase. During that period, Ms. Todd experienced occasional attacks causing weakness and spasticity in her limbs and other symptoms. She would experience a near complete recovery from those attacks, although never completely recovering her pre-attack level of function.

By the mid 1990s, Ms. Todd's disease had entered its secondary progressive stage, characterized by a more steady downward progression with little recovery between attacks. At the time of the accident, Ms. Todd suffered from secondary progressive MS.

Ms. Todd is not employed, having retired from her job with the Government of Canada in January 1996 due to her Multiple Sclerosis. Ms. Todd receives long-term disability payments from the Canada Pension Plan and from Sun Life Insurance.

Ms. Todd submits that the accident accelerated her deterioration. State Farm submits that Ms. Todd's current impairments relate to the natural progression of her disease and were not caused or accelerated by the motor vehicle accident.

The two related issues for determination are whether Ms. Todd suffers a complete inability to carry on a normal life and, if so, whether her inability to carry on a normal life results from the motor vehicle accident.

1. Ms. Todd's entitlement to a non earner benefit

Section 12 of the Schedule provides that an insurer shall pay a non earner benefit to any person who has suffered a complete inability to carry on a normal life as a result and within 104 weeks of the motor vehicle accident. Subsection 2(4) of the Schedule defines the term "complete inability to carry on a normal life" in the following manner:

(4) ... a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

In this case, there is little doubt that Ms. Todd became more impaired within 104 weeks of the accident. The question is whether Ms. Todd's increased impairment continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident or, in other words, those activities that constituted a normal life for her.

The Commission's case law establishes a number of relevant principles.² First, in relation to the scope of activities to be considered, it has been determined that the test for complete inability encompasses substantially all of the insured person's activities, and not simply her essential activities. The test is not met by establishing that the insured person is unable to engage in a "goodly number" or even a majority of her pre-accident activities.³

Second, when considering the insured person's post accident function, a qualitative analysis is merited.⁴ For example, if an insured person's ability to perform an activity is severely restricted or takes an excessive amount of time, it may be said that the insured person is prevented from participating in that activity.⁵ One isolated attempt at an activity after the accident is not sufficient to warrant a finding that the person is able to engage in that activity.

Finally, in C.L. and Zurich Insurance Company, supra, the Director's Delegate provides the following guidance concerning the analysis of an insured person's functional abilities: "..any qualitative analysis of the person's ability to engage in an activity must be done against the backdrop of the ultimate question - whether he or she is continuously prevented from engaging in that activity." [Emphasis in original].

To find a causal relationship between the accident and Ms. Todd's impairments, I do not have to decide that the accident was the sole or even the principal cause. It is sufficient if the accident's contribution to Ms. Todd's impairments was more than minimal and made a material contribution to the progression of her MS.⁶

With these principles in mind, I have considered the evidence as a whole to determine whether Ms. Todd suffered from a complete inability to carry on a normal life as a result of the July 8, 1999 accident.

Ms. Todd's Evidence

Pre Accident

Ms. Todd testified at length about her pre-accident activities. She indicated that she regularly cooked and entertained in her home, drove by herself, walked with a walker, visited and assisted her mother by driving her to appointments and shopping, attended conditioning classes at the Jewish Community Centre three times per week and was involved in volunteer work with the MS Society. She said she was independent in her personal care and could perform many home care activities herself.

In terms of her mobility, Ms. Todd testified that she used her wheelchair only very sparingly before the accident. She generally walked using her wheeled walker. In her examination-in-chief, Ms. Todd indicated that she could climb stairs before the accident. She later clarified that, before the accident, she became unable to lift her legs onto stairs without assistance and would often go up stairs from a seated position. She testified that she was able to transfer independently before the accident.

Ms. Todd drove an unmodified car before the accident and had driven to the parking lot where the accident occurred on July 8, 1999. She acknowledged that she did not drive on her bad days when her MS symptoms were aggravated. In May 1999, Ms. Todd was assessed at Bloorview MacMillan Driving Centre ("Bloorview") for driving skills and the need for hand controls in her vehicle at the suggestion of her treating neurologist, Dr. Raold Serebrin. Bloorview's report of May 18, 1999 indicates that Ms. Todd was able to drive with hand controls in her vehicle. Ms. Todd has not had hand controls installed in her vehicle.

Ms. Todd has received housekeeping and personal care assistance from the Community Access Care Centre ("CACC") since 1997. The attendant came to her home three times per week before the accident and provided her with laundry and housekeeping assistance.

Ms. Todd was in the midst of moving from her old apartment to her current, wheelchair accessible, apartment when the accident occurred. She said she had intended to move at the end of July 1999, but had to move sooner because her old apartment was no longer accessible due to her reliance on a wheelchair after the accident. Ms. Todd had applied for the wheelchair accessible apartment in 1996.

Ms. Todd explained that she has a history of suffering exacerbation of her MS symptoms as a result of urinary tract infections ("UTIs"). The medical records in evidence confirm that Ms. Todd has suffered numerous exacerbations as a result of urinary tract infections both before and after the accident. These infections cause her legs to weaken and result in difficulty maintaining balance and transferring. Ms. Todd estimated that she generally recovers from the effects of an exacerbation within one week to two months.

Ms. Todd also indicated that her MS symptoms are aggravated by stressful situations. She frequently suffered exacerbations as a result of violent episodes with her ex-husband, from whom she was separated in 1998. These exacerbations would cause her to take to her bed for up to two days, after which she would recover.

At the time of the accident, Ms. Todd's medication included Prozac to increase energy and combat depression, Amantadine for treatment of stiffness and tremors, a diuretic and a potassium supplement.

Psychologically, Ms. Todd testified that she felt optimistic before the accident. She acknowledged that her disease had progressed, but felt that she could continue to function independently for several more years.

Post Accident

Ms. Todd testified that she suffered an immediate and severe deterioration after the July 8, 1999 accident. She testified that she was confined to her bed for a week and could no longer walk using her walker or drive her car. She became unable to cook, clean the house, transfer safely by herself, look after her personal grooming and toileting, or engage in any of her usual activities including grocery shopping by herself and with her mother, sewing crafts and socializing in and out of her home.

Ms. Todd testified that she has never recovered her function in most of these areas.

Regarding her mobility, Ms. Todd indicated that her ability to walk using her walker became severely restricted and that she was effectively confined to a wheelchair after the accident.

Ms. Todd attempted driving once, shortly after the accident. She wanted to move her car from the street to her parking space. She was unwilling to ask anyone to assist her and she moved her car by herself. She testified that she had great difficulty with driving on this occasion and that she has not driven since.

Ms. Todd's inability to drive prevented her from visiting and assisting her mother with errands and from shopping and socializing on her own. Ms. Todd testified that there is no longer any spontaneity in her life and that everything must be planned.

Ms. Todd was again assessed for driving skills and the need for hand controls at Bloorview in July 2000. Bloorview's report of July 25, 2000 indicates that Ms. Todd continued to be able to drive using hand controls, noting that she required a wheelchair accessible vehicle.

Ms. Todd continued to receive home care assistance from the Community Access Care Centre, although the frequency of the visits was reduced to twice per week after the accident. Ms. Todd attributed this reduction to cutbacks in funding and to her marriage in October 2000.

Socially, Ms. Todd testified that she continued to attend classes at the JCC twice per week, she continued to see her friend Angie socially twice per week and continued to be involved with the MS Society, although not on its Board of Directors.

Psychologically, Ms. Todd testified that the accident caused her to lose confidence in many facets of her life and negatively affected her personal relationships. She testified that she suffered from increased depression and anxiety after the accident which interfered with her ability to sleep and to socialize with friends. She testified that she saw a psychiatrist, Dr. Sheldon Shaul, to assist her with her accident-related problems.

Ms. Todd saw her family doctor, Dr. Michael Wyman, on July 12, 1999. She testified that he increased her prescribed dosage of Prozac and prescribed Tylenol #3s as a result of the exacerbation caused by the accident.

At Dr. Wyman's suggestion, Ms. Todd began attending physiotherapy sessions at Advanced Rehabilitation Technology on August 25, 1999. Ms. Todd attended physiotherapy regularly until January 2000, and then less frequently until April 2000. She testified that she found the physiotherapy sessions helpful and good for her confidence.

Analysis of Ms. Todd's Evidence

I have difficulty relying on Ms. Todd's testimony concerning her pre- and post accident abilities because of the inconsistencies revealed in cross-examination and the significant and unexplained discrepancies between her testimony and the documentary evidence.

In cross-examination, Ms. Todd acknowledged that she had noticed a deterioration in her condition before the accident. She had been hospitalized for falls and confined to a wheelchair because of exacerbations before the accident. She had begun seeing Dr. Shaul before the accident because she was concerned about the progression of her disease. She also acknowledged that she was not bedridden for the week after the accident and that she went on a vacation with her boyfriend for a few days between July 8, 1999 and July 20, 1999.

Ms. Todd's testimony is also contradicted in important respects by documents which she herself prepared prior to the accident. For example, in 1995, Ms. Todd reported that she could only walk three feet, could not climb stairs and was dependent on her husband for all home maintenance.⁷In 1996, Ms. Todd reported severe mobility problems and continual and severe fatigue. Ms. Todd's employer confirmed that she frequently fell in the office and required assistance from her colleagues.⁸ And again in 1996, Ms. Todd reported that she could not walk, stand or climb stairs and was confined to a wheelchair.⁹ In January 1996, Ms. Todd reported to her then family doctor, Dr. Donald Nicolson, that she was unable to walk more than a few steps without falling and could not dress herself or do any home maintenance activities.¹⁰

In May 1999, Ms. Todd prepared a handwritten note detailing some of her concerns for the benefit of her neurologist, Dr. Serebrin. In this note, Ms. Todd reported that she was experiencing more falls and was hospitalized twice after falls in 1998-1999. She also reported extreme difficulty climbing stairs and very slow walking.

Many of Ms. Todd's statements after the accident reflect a similar inconsistency with her testimony. In an OCF 12, Activities of Daily Living, completed on July 20, 1999, Ms. Todd indicated that she was able to partially drive, cook, wash dishes and look after her toileting as she did before the accident.

On July 22, 1999, Ms. Todd met with Barbara Cawley, an occupational therapist, who attended at Ms. Todd's apartment for an in-home assessment. Ms. Cawley's report indicated that Ms. Todd demonstrated her ability to walk with a walker on that occasion, although less stably than before the accident. She also reported that she was able at that time to shower, dress, groom, prepare meals, feed and toilet herself independently, although more slowly than before the accident. Ms. Todd reported that she fell using her walker approximately three times per week before the accident, and that she was falling every other day after the accident.

On August 17, 1999, Ms. Todd gave a statement to State Farm in which she detailed the injuries she sustained in the accident. She did not mention being confined to a wheelchair, being bedridden or being unable to transfer.

On November 1, 1999, Marika Paquin, occupational therapist, attended at Ms. Todd's apartment for a follow-up, in-home assessment. Ms. Todd reported to Ms. Paquin that she continued to use her walker in July and August, 1999 and continued to use stairs after the accident, although with increased difficulty.

Ms. Todd's statements to the assessors from the North York CACC are also inconsistent with her testimony concerning her functional abilities. The CACC conducted an in-home assessment of Ms. Todd's needs on July 19, 1999. Ms. Todd indicated that she was independent in her shopping, meal preparation and dusting at that time. The report also noted that Ms. Todd was independent in all but bathroom transferring.

On December 10, 1999, Ms. Todd indicated to the CACC that she could walk down the stairs if she needed to and that she walked with her walker if necessary. On April 10, 2001, the CACC's notes indicated that Ms. Todd was doing very well, going out socially on a regular basis and is independent in her self care. On November 1, 2001, Ms. Todd was noted to be independent in her bathing, some other aspects of her personal care and meal preparation. The notes also indicated that Ms. Todd continued to be very active with the MS Society and that she attended JCC classes twice per week.

On May 30, 2000, Ms. Todd was admitted to North York General Hospital for an exacerbation of her MS symptoms secondary to a urinary tract infection. The hospital's occupational therapy progress notes from May 30 to June 2, 2000 indicate that Ms. Todd was able to walk approximately 10 steps using her walker, dress her lower body without assistance and do some transfers independently.

Ms. Todd explained that, at times, she exaggerates her abilities out of pride and, at other times, exaggerates her disabilities for her own benefit. Even accounting for this tendency, the passage of time and the effect of her disease on Ms. Todd's memory, I find the discrepancies in the evidence too significant to ignore. Ms. Todd acknowledged that she would have no reason to exaggerate or minimize in her reporting to the CACC. I find that I cannot rely on Ms. Todd's descriptions of her pre and post-accident functional abilities. Consequently, I rely on other evidence concerning Ms. Todd's functional abilities where it conflicts with her testimony.

Evidence of Angie Marino, Ewa Zielinska, Anne Ceschiatti

Angie Marino testified on behalf of Ms. Todd. Ms. Marino is Ms. Todd's close friend and has known her since 1994. The two friends attend classes at the JCC together. Ms. Marino testified that she noticed a significant deterioration in Ms. Todd's condition after the accident. She indicated that Ms. Todd became unable to accomplish many of the tasks that she was able to do before the accident. She indicated that Ms. Todd continued to attend classes at the JCC once or twice a week and that they continue to speak on the phone with the same regularity as they did before the accident. Ms. Marino saw Ms. Todd socially less frequently than she did before the accident.

In cross-examination, Ms. Marino indicated that, by January 2000, Ms. Todd had partially recovered from the deterioration she experienced after the accident. Ms. Marino was not aware that Ms. Todd had been hospitalized or confined to a wheelchair prior to the accident because of exacerbations caused by UTIs or other conditions. Ms. Marino was also not aware of Ms. Todd's going on vacation in the few weeks after the accident.

I accept Ms. Marino's testimony that she observed a deterioration in Ms. Todd after the accident. However, I do not find that Ms. Marino's evidence supports a finding that Ms. Todd suffered a complete inability to carry on a normal life as a result of the accident. Her testimony indicates an incomplete understanding of the extent of Ms. Todd's condition before and after the accident. It also indicates that Ms. Todd recovered some of her functions after the accident and continued on with some of her pre-accident activities, including her classes at the JCC.

Ewa Zielinska, the superintendent of Ms. Todd's apartment building, testified that she saw Ms. Todd walk with a walker for a few months after she moved to the building in July 1999. I accept her testimony as evidence that Ms. Todd continued to have some ability to walk with a walker after the accident.

Ms. Anne Ceschiatti, Ms. Todd's mother, testified that Ms. Todd suffered a deterioration in her condition after the accident which changed her life profoundly. Ms. Todd is now unable to visit Ms. Ceschiatti more than once per month and cannot assist Ms. Ceschiatti with her errands and doctors' appointments.

Ms. Ceschiatti testified that Ms. Todd had never used a wheelchair or been hospitalized for MS-related problems before the accident. This is contrary to the balance of the evidence and reflects an incomplete understanding of the extent of Ms. Todd's pre-accident condition. I do not rely on Ms. Ceschiatti's evidence to find that Ms. Todd suffered a complete inability to carry on a normal life after the accident, although I accept that Ms. Todd's deterioration has significantly affected her ability to visit and assist her mother.

Overall, based on Ms. Marino's and Ms. Ceschiatti's evidence, I find that Ms. Todd suffered an exacerbation immediately after the accident, similar to what she experiences as a result of UTIs. Based on Ms. Todd's medical history, I also accept that this short-term exacerbation was caused by the motor vehicle accident. The evidence indicates, however, that Ms. Todd recovered her function shortly after this exacerbation and that it did not result in a complete inability to carry on a normal life. I distinguish this short-term effect of the motor vehicle accident from Ms.Todd's long-term impairments, such as the inability to walk with a walker or drive without hand controls, which I find were not caused by the motor vehicle accident.

Medical Evidence

The extensive medical evidence in this case does not support a finding that Ms. Todd's post-accident deterioration resulted in a complete inability to carry on a normal life or was caused by the motor vehicle accident.

a) Dr. Michael Wyman

Dr. Wyman is Ms. Todd's current family doctor. He saw Ms. Todd 23 times between 1997 and June 23, 1999, and continues to see her regularly.

On July 12, 1999, Ms. Todd told Dr. Wyman about the motor vehicle accident. Dr. Wyman testified that she attended at the office in a wheelchair on that day and that he has never seen her out of a wheelchair since July 12, 1999.

On Ms. Todd's next visit, August 25, 1999, Dr. Wyman recommended physiotherapy. He testified that he believed the treatments relieved her discomfort.

Dr. Wyman testified that he noticed a rapid deterioration in Ms. Todd's condition after the accident. He described her reliance on a wheelchair and increased difficulty performing her daily activities. He stated that Ms. Todd had never experienced the recovery phase after the accident that she had after other attacks.

Dr. Wyman's July 25, 2000 report described Ms. Todd's increased impairments after the accident and attributed them to the motor vehicle accident.

Dr. Wyman's description of Ms. Todd's functional abilities did not successfully withstand cross-examination or a review of his notes and records.

In cross-examination, Dr. Wyman indicated that he did not prescribe any new or increased medication for Ms. Todd after the accident. He acknowledged that the first reference in his notes to Ms. Todd being in a wheelchair was on January 6, 2000. He explained that he believed that Ms. Todd was functional without the wheelchair to some extent after the accident, and became more reliant on the wheelchair in approximately January 2000. Dr. Wyman also acknowledged that Ms. Todd may have attended at his office in a wheelchair before her accident.

Dr. Wyman said that he often saw Ms. Todd before the accident for exacerbations caused by UTIs or colds. In such cases, Dr. Wyman would generally refer her to a specialist on an urgent basis. Dr. Wyman did not refer Ms. Todd to a specialist in the immediate aftermath of her accident. He referred Ms. Todd to Dr. Raold Serebrin at some time between July 12, 1999 and August 17, 1999.

In March 1999, four months before the accident, Dr. Wyman completed a Statement of Disability indicating that Ms. Todd no longer had any periods of remission and that her disease was worsening. In June 2000, Dr. Wyman wrote a referral to Bloorview, indicating that Ms. Todd was able to walk a few steps with her walker.

In his report, Dr. Wyman referred to Ms. Todd's falls in April and May 2000 and indicated that these types of incidents did not occur before the accident. However, it is apparent from the medical evidence that Ms. Todd was suffering exacerbations at those times from a UTI and other conditions, and that she was hospitalized on several occasions before the accident for falls during exacerbations.

Although Dr. Wyman described a rapid and severe deterioration in Ms. Todd's condition after the accident, I find that this description does not coincide accurately with his notes and records which were prepared contemporaneously. Dr. Wyman's notes generally reflect a progressive decline in Ms. Todd's condition since he began seeing her in 1997. Ms. Todd clearly had good days and bad days, both before and after the accident.

On the basis of Dr. Wyman's evidence, I am unable to conclude that Ms. Todd's post-accident deterioration was so severe that she suffered a complete inability to carry on a normal life. I also cannot accept Dr. Wyman's conclusion that the accident caused a severe and rapid acceleration in Ms. Todd's decline. I do not find that Ms. Todd's deterioration was as severe or as sudden as Dr. Wyman indicated, and I do not rely on his opinion concerning causation.

b) Dr. Raold Serebrin

Dr. Serebrin was Ms. Todd's treating neurologist from 1994 to 2000. Dr. Serebrin saw Ms. Todd on average 2 to 3 times per year during that period. His progress reports indicated that Ms. Todd was more severely disabled before the accident than her testimony suggests. For example, in January 1994, Dr. Serebrin wrote that Ms. Todd's MS had evolved into the chronic progressive stage. On August 2, 1995, Dr. Serebrin referred to two serious attacks in 1995 and indicated that Ms. Todd should not be driving and she understood this. In February 1996, Dr. Serebrin wrote that Ms. Todd used a wheelchair when she could not manage with a cane.

In September 1996, he wrote that Ms. Todd uses a cane to cross rooms but was more or less reliant on her electric wheelchair for everything else. In October 1998, Ms. Todd was hospitalized for an attack secondary to a UTI. In February 1999, Dr. Serebrin arranged for an MRI of Ms. Todd and the results indicated that the extent of the disease was moderate to severe. In May 1999, Dr. Serebrin saw Ms. Todd and indicated that she was alarmed because of the increased weakness in her right leg resulting in an inability to lift her leg over a curb without assistance.

Dr. Serebrin's reports from the post-accident period indicate that Ms. Todd continued to deteriorate although not as suddenly or severely as suggested elsewhere. On August 17, 1999, Dr. Serebrin wrote that Ms. Todd's neurological examination was little changed from his previous report and that she had reached a very severe stage in her disease. Dr. Serebrin did not treat Ms. Todd with steroids or suggest any other course of treatment at that time.

In November 1999, Dr. Serebrin reported that Ms. Todd telephoned him on October 25, 1999, overwhelmed because she was suddenly unable to transfer for reasons that were not obvious. Dr. Serebrin treated Ms. Todd with a course of steroids and notes that she was otherwise little changed.

On June 5, 2000, Dr. Serebrin reported that Ms. Todd was admitted to North York General Hospital on May 30, 2000 for an exacerbation of her MS secondary to a UTI. He wrote that she became markedly more weak, incontinent, spastic and was unable to stand, walk, transfer or even sit in a wheelchair as a result of the UTI. His report stated that Ms. Todd had become markedly more disabled and has been able to walk only a very few steps with her walker for the past couple of years.

Dr. Serebrin's reports after the accident indicate that Ms. Todd continued to have limited use of her walker, but was essentially confined to a wheelchair, as she had been before the accident. His reports of November 1999 and June 2000 comment on Ms. Todd's sudden inability to stand, walk and transfer, suggesting that she continued to have some limited abilities in those areas after the accident. His reports in 1999 and 2000 indicate that Ms. Todd's abilities were substantially unchanged for several years before and after the accident.

Although Dr. Serebrin did not testify, I attach considerable weight to his reports as he was Ms. Todd's treating neurologist and saw her regularly throughout the pre and post-accident period.

c) Dr. Michel P. Rathbone

Dr. Rathbone testified at the arbitration hearing on behalf of Ms. Todd and was qualified as an expert in neurology. Dr. Rathbone examined Ms. Todd in October 2000. He prepared two reports for the purpose of this arbitration, dated October 16, 2000 and January 29, 2002. Dr. Rathbone concluded that the motor vehicle accident had caused Ms. Todd's symptoms to deteriorate in a dramatic fashion. He noted a close temporal link between Ms. Todd's deterioration and the motor vehicle accident. He commented that the speed and severity of the deterioration is the critical factor in the causal determination. In Dr. Rathbone's opinion, Ms. Todd experienced a sudden and severe response to the trauma of the accident from which she has had little or no recovery.

In cross-examination, Dr. Rathbone acknowledged that there is significant controversy in the medical community regarding the possibility of a causal connection between psychological or physical trauma and the exacerbation of MS. He accepted that many of his colleagues would disagree with his opinion that such a connection exists. In his January 2002 report, Dr. Rathbone concludes, based on his research and his clinical practice, that an association between trauma and/or stress is "certainly possible in certain cases of MS."

I have difficulty relying on Dr. Rathbone's opinion to find that there is a causal relationship between the motor vehicle accident and Ms. Todd's impairments within the 104 weeks after the accident. In general terms, I take Dr. Rathbone's evidence to mean that there is a possibility of a causal connection in some cases. This possibility is not sufficient to satisfy the burden of proof, which requires the Applicant to prove her claims on a balance of probabilities.

Even if I were to accept Dr. Rathbone's theory regarding causation, I do not find the requisite close temporal link between the accident and Ms. Todd's ongoing impairments.

Dr. Rathbone described an immediate and severe deterioration in Ms. Todd after the accident. He acknowledged that his understanding of her pre and post-accident condition was critical to his opinion that there is a causal relationship between the accident and her ongoing condition. He accepted that if he was mistaken in his understanding of her pre and post-accident functional abilities, this may change his opinion of the causal relationship.

Dr. Rathbone relied on Ms. Todd's reports to arrive at his understanding of her pre and post-accident condition. He reviewed the reports of Dr. Devlin, Dr. McIlroy and Dr. Mayer. Dr. Rathbone did not have the benefit of Dr. Wyman's notes and records, nor those of Dr. Serebrin.

I find, therefore, that Dr. Rathbone did not have a complete picture of Ms. Todd's condition before and after the accident.

Based on my review of the evidence, I find that Ms. Todd's deterioration was more gradual than Dr. Rathbone understood it to be. I find, for example, that Ms. Todd was not immediately confined to a wheelchair after the accident, as Dr. Rathbone understood. I accept the evidence that Ms. Todd continued to use a walker for several weeks or months after the accident.¹¹

For these reasons I do not accept Dr. Rathbone's opinion that the motor vehicle accident caused Ms. Todd's impairments in the 104 weeks after the accident.

d) Dr. Trevor Gray

Dr. Gray testified at the hearing on behalf of State Farm and was qualified as an expert in neurology. Dr. Gray examined Ms. Todd on November 22, 2001 and his report is dated January 21, 2002. On the question of a causal relationship between Ms. Todd's accident and her impairments, Dr. Gray commented as follows: "Several studies have not been able to show any relationship between physical trauma and onset, exacerbations or progression of multiple sclerosis. It is therefore my opinion that this patient's progression since the motor vehicle accident of July 8, 1999, has been related to the natural history of multiple sclerosis in her particular case and progression has not occurred in relationship to the mild head injury and soft tissue injuries that she sustained."

I find that Dr. Gray conducted a more thorough document review in preparing his report than did Dr. Rathbone.¹² I find, therefore, that Dr. Gray benefited from a more complete picture of Ms. Todd's condition immediately before and after the accident.

Dr. Gray accepted that Ms. Todd suffered a transient effect from the stress of the accident, but, in his opinion, recovered quickly from that effect.

My review of the medical articles referred to me confirms that the preponderance of the medical literature does not support a causal connection between trauma and multiple sclerosis on a balance of probabilities.¹³

Dr. M. Devlin, physiatrist, and Dr. William McIlroy, neurologist, both conducted insurer's examinations of Ms. Todd in January 2000. They share Dr. Gray's opinion that Ms. Todd's impairments are related to the natural progression of the disease and not the accident.

e) DEAHY Assessors

DEAHY Medical Assessments conducted a Functional Abilities Evaluation and an orthopaedic assesment of Ms. Todd on July 13, 2000. Ms. Marina Kricheva, kinesiologist, concluded that Ms. Todd is unable to perform her pre-accident activities of daily living. I attach little weight to this conclusion in light of the inaccuracies in Ms. Kricheva's information concerning Ms. Todd's pre-accident and post-accident activities.¹⁴

The DEAHY orthopaedic assessment was conducted on July 27, 2000 by Dr. Morris Charendoff, an orthopaedic surgeon. Dr. Charendoff concluded that Ms. Todd has ongoing low back pain which is accident related. Dr. Charendoff does not indicate whether Ms. Todd's back pain significantly impedes her functional abilities or renders her completely unable to carry on a normal life.

DEAHY also conducted a psychological assessment of Ms. Todd on August 18, 2000. Howard Waiser, a psychologist, conducted the assessment. Mr. Waiser concluded that Ms. Todd was an optimistic, energetic woman who tries to deal with life as it unfolds. Ms. Todd was not receptive to the idea of therapy, indicating that she could cope with her emotional situation by herself. I accept this as evidence that, psychologically, Ms. Todd remained relatively stable, balanced and self reliant after the accident.

f) Med Rehab DAC

Multi-Disciplinary Assessment Centre conducted a Med Rehab DAC assessment of Ms. Todd in March 2000. Ms. Todd was assessed by Dr. J. Mayer, neurosurgeon, on March 30, 2000 and by Mrs. Nina Lee, physiotherapist, on March 15, 2000. The assessors were considering the reasonableness and necessity of a treatment plan dated August 24, 1999 prepared by Advanced Rehab Technology. The assessors concluded that the treatment plan was not reasonable or necessary although they did recommend six more weeks of therapy.

Mrs. Lee's report is useful because it describes Ms. Todd's post-accident functional abilities. Mrs Lee wrote:

The client reports that she is independent with most activities of daily living that she was involved in prior to the accident. She reports that she is able to independently transfer out of her bed. She states that she can use her two-wheeled walker inside her apartment...she has a bath bench for her showers and she is able to groom independently. The client states that, while seated in her wheelchair, she is able to prepare all her own meals.

The assessors of the Med Rehab DAC concluded that Ms. Todd had suffered a relapse of her MS as a result of the accident. This conclusion is not equivalent to an opinion that the motor vehicle accident is causally related to Ms. Todd's long-term impairments that affect her ability to carry on her daily activities.

g) Diane Sidenberg

Diane Sidenberg testified on behalf of Ms. Todd. Ms. Sidenberg is a physiotherapist who treated Ms. Todd after the July 8 accident at Advanced Rehab Technology. Ms. Sidenberg first assessed Ms. Todd on August 24, 1999 and provided treatment until April 2000.

Ms. Sidenberg's evidence indicates that Ms. Todd showed a marked lack of function when she was first seen in August 1999, although she improved over the course of the following few months. Ms. Sidenberg's notes indicate that Ms. Todd's transferring abilities improved and that she continued to use her walker for special occasions outside of the home.

Although Ms. Sidenberg testified that she believed Ms. Todd had suffered a sudden deterioration in function after the accident, she acknowledges that she had not treated Ms. Todd before the accident and relied on Ms. Todd's subjective reporting of her pre-accident abilities.

Ms. Sidenberg testified that Ms. Todd's post-accident condition was related to the motor vehicle accident, although I attach little weight to this opinion because Ms. Sidenberg's expertise lies in physiotherapy and not neurology.

Conclusion regarding Ms. Todd's entitlement to non earner benefits

Based on the evidence taken as a whole, I do not find that Ms. Todd was continuously prevented from engaging in substantially all of the activities in which she engaged prior to the accident in the 104 weeks after the accident. I accept that Ms. Todd may have suffered a set back after the accident with increased weakness and difficulty transferring. I find, however, that these symptoms resolved within a short period of time and did not result in a complete inability to carry on a normal life. The overall picture presented in the evidence is one of a woman who was marginally functional before the accident and remained marginally functional after the accident.

Specifically, with respect to mobility, I find that Ms. Todd had a limited ability to walk with her walker before the accident. Although I accept that Ms. Todd became less stable and less confident on the walker after the accident, she continued to walk with a walker in a limited fashion.

I accept that Ms. Todd became more reliant on her wheelchair after the accident, but I find that she was using the wheelchair more extensively before the accident than she indicated in her testimony. I rely on Dr. Serebrin's report that she used her wheelchair for most activities as early as 1996 and Ms. Todd's own representations in her applications for disability benefits and Wheel Trans. I do not accept Ms. Todd's testimony that she was walking well with her walker before the accident and was confined to a wheelchair almost exclusively immediately after the accident. The evidence suggests that the transition was more gradual than that, and that she continued to have limited mobility with her wheeled walker after the accident.

I accept that Ms. Todd's ability to transfer was affected by the motor vehicle accident. However, it is apparent that Ms. Todd recovered her transfer abilities to some extent within a few months of the accident. By January 2000, Ms. Todd was reporting that she could do most transfers independently. She demonstrated the ability to transfer in and out of a vehicle without assistance in July 2000 and accomplished some transfers independently in North York General Hospital in May 2000. Although I accept that Ms. Todd's ability to transfer safely has diminished since the accident, I cannot conclude that she is continuously prevented from transferring herself as a result of the accident.

I accept that Ms. Todd has not driven since the accident. It is apparent from the evidence, however, that Ms. Todd's ability to drive was limited before the accident. She herself indicated to various assessors that she was limited in her driving abilities and did not drive on her bad days before the accident. Dr. Serebrin told Ms. Todd in 1995 that she should not be driving and she was assessed for driving skills and hand controls before the accident.

In May 1999, Bloorview concluded that Ms. Todd required hand controls for her vehicle. It reached the same conclusion in October 2000, when Ms. Todd was re-assessed. Although Ms. Todd has not acquired a wheelchair accessible vehicle or installed hand controls in her vehicle, this is not because of any functional limitations on driving with hand controls.

In terms of her daily activities, Ms. Todd continued attending classes at the JCC once or twice per week, and visiting her mother, although less frequently than before the accident. Ms. Todd remained active in the MS Society after the accident, although she resigned from its Board of Directors. I accept that Ms. Todd socialized less frequently with her friends after the accident, but I find that she went on a vacation within days of the accident and continues to see her friend Angie twice per week. Ms. Todd also got married in October 2000 and reported to the CACC in April 2001 that she was going out socially on a regular basis.

Ms. Todd received housekeeping assistance from CACC before the accident and she continued to receive this assistance after the accident, although at reduced frequency. The preponderance of the evidence indicates that Ms. Todd continued to be involved in shopping, meal preparation and some light housework after the accident. I accept that Ms. Todd's ability to engage in these activities has become more restricted since the accident in that, for example, it takes her longer to prepare meals. I cannot conclude, however, that Ms. Todd has been continuously prevented from engaging in these activities since the accident. Ms. Todd has not requested any attendant care or housekeeping benefits from State Farm in connection with the accident.

In terms of her personal care, I find that Ms. Todd was limited in her abilities to accomplish certain tasks before the accident. For example, there are indications in the evidence that Ms. Todd required assistance with dressing as early as 1995. I also find that Ms. Todd maintained some functional ability with respect to her personal care after the accident. Her reports to the CACC consistently indicate that she remained independent in at least some aspects of her personal care after the accident. Ms. Todd reported to Mrs. Lee, of the Med Rehab DAC, that she remained independent with most activities of daily living that she was involved in prior to the accident and that she is able to groom independently.

Understandably, Ms. Todd was frightened and upset by the motor vehicle accident of July 1999. But, based on Dr. Shaul's notes and records and the DEAHY psychological assessment, I do not find that it caused her long-term psychological impairments.

Overall, I accept that Ms. Todd's ability to engage in many of her pre-accident activities has become more limited since the accident. I also accept that she has been prevented from certain pre-accident activities such as assisting her mother with errands. However, I do not find that she was continuously prevented from engaging in substantially all of her pre-accident activities in the 104 weeks after the accident. Ms. Todd continued to be involved in some capacity in her housekeeping and meal preparation activities, her personal care, her social and volunteer activities and classes at the JCC. She maintained her ability to drive with hand controls and her ability to accomplish some transfers independently.

Regarding causation, I accept that the motor vehicle accident caused a short-term exacerbation of Ms. Todd's symptoms, resulting in increased weakness in her legs and difficulty transferring. But I do not accept that these symptoms were so severe as to render Ms. Todd completely unable to carry on a normal life or that they lasted past a few weeks.

I find that the motor vehicle accident did not materially contribute to Ms. Todd's impairment in the 104 weeks after the accident.

In her submissions, Ms. Todd referred me to a number of cases in which courts and tribunals have found a causal connection between an accident and the progression of multiple sclerosis. These decisions were decided on different evidence and I do not find they apply to the particular facts of this case.

2. Ms. Todd's claim for Assistive Devices under section 14 of the Schedule

Ms. Todd claims entitlement to a medical benefit for the cost of assistive devices set out in the report by Total Body Recovery Occupational Therapy of November 8, 1999. Marika Paquin, occupational therapist, assessed Ms. Todd in her home and recommended a number of assistive devices.

Section 14 of the Schedule provides that the insurer shall pay an insured person a medical benefit for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for assistive devices.

I am not persuaded by the evidence in this case that the assistive devices enumerated in Ms. Paquin's report are required as a result of the motor vehicle accident. Dr. Devlin and Dr. McIlroy are both of the view that the assistive devices are required because of Ms. Todd's multiple sclerosis and not because of the motor vehicle accident. Although Dr. Rathbone may have indicated that the assistive devices are reasonable and necessary as a result of the accident, I have not accepted his evidence postulating a causal relationship between Ms. Todd's accident and her impairments.

I find that there is no evidentiary basis on which to determine that the assistive devices are required as a result of the accident.

3. Ms. Todd's claim for the cost of reports under section 24 of the Schedule

Ms. Todd claims entitlement to the sum of $977 for the cost of a report by Fulcrum Consultants dated June 27, 2000, and $870 for the cost of the driving assessment conducted by Bloorview in July 2000.

The Fulcrum Consultants report is a follow up occupational therapy report prepared by Sue Riley. The stated purpose of the assessment and report was to determine Ms. Todd's current functional status, current OT treatment needs and make appropriate recommendations and referrals regarding her seating and mobility needs. Ms. Riley recommended a number of OT treatments and assistive devices in her report. Ms. Todd did not advance a claim against State Farm for any of the treatments or devices outlined in Ms. Riley's report.

The Bloorview assessment of July 2000 concludes that Ms. Todd continues to have the ability to drive with hand controls and recommends a wheelchair accessible vehicle. Ms. Todd did not advance a claim against State Farm for any of Bloorview's recommendations.

Section 24 of the Schedule provides that the insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of the Schedule. In order to succeed in a claim under section 24, an insured person must demonstrate that the expense was reasonable and was incurred for the purpose of the Regulation. To determine whether a report or assessment is compensable under section 24, an arbitrator should examine what benefits were in dispute and what other relevant information was available at the time the report was prepared.¹⁵

I find that Ms. Todd is entitled to the cost of $977 for the cost of the Fulcrum Consultants assessment and report, and $870 for the Bloorview driving assessment. These reports were prepared at a time when Ms. Todd's entitlement to non earner benefits was in issue. Although Ms. Todd did not advance a claim specifically with respect to the treatments or devices outlined in these reports, Ms. Todd's ability to perform her activities in the home and her ability to drive are both relevant to her claim that she suffered a complete inability to carry on a normal life. Ms. Todd's condition fluctuated and she may have suffered some deterioration since the time of the previous assessments. It was therefore reasonable to seek an updated report or assessment of Ms. Todd's abilities. I find that these assessments were reasonably incurred for the purpose of the Regulation.

4. Ms. Todd's entitlement to a special award

I find no evidence to support a conclusion that State Farm unreasonably withheld or delayed payment of accident benefits. There is no basis for a special award.

EXPENSES:

The parties made no submissions with respect to expenses. If they are unable to agree on entitlement or amount, they may apply for an appointment to determine expenses under Rule 79.1 of the Commission's Dispute Resolution Practice Code.

November 25, 2003

Catherine Skinner Arbitrator

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