State Farm Mutual Automobile Insurance Company v. Savithiri Sivananthan, 2004 ONFSCDRS 168

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2004 ONFSCDRS 168

Appeal P04-00009

Appellant

and

Respondent

Before:

David Evans

Representatives:

Christopher J. Schnarr for State Farm

Moira Gracey for Mrs. Sivananthan

Hearing Date:

By written submissions completed June 17, 2004

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed, and the arbitration order dated February 16, 2004, is confirmed.
If the parties are unable to agree on appeal expenses, the matter may be resolved in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 18, 2004

David Evans Director's Delegate

Date

Mrs. Savithiri Sivananthan was injured in a motor vehicle accident on October 21, 1999. In a decision dated February 16, 2004, the Arbitrator found that she was entitled to ongoing income replacement benefits ("IRBs") pursuant to the SABS-1996.¹ The Insurer, State Farm, appeals the award of IRBs from and after October 28, 2001 — the post-104 week period.² State Farm claims the Arbitrator erred in law³ by accepting certain expert testimony.

As set out in the arbitration decision, Mrs. Sivananthan had worked in a series of contract jobs after coming to Canada and was working as a data entry clerk at the time of the accident. She lost this job after the accident when she asked her employer to accommodate her. She then assisted her husband with his newspaper route, unpaid, folding newspapers while he delivered them.

Mrs. Sivananthan initially received IRBs, but State Farm terminated them on June 15, 2000.

Mrs. Sivananthan testified that since the accident, she has been suffering from continuing back pain, a major depressive disorder, anxiety, a panic disorder and severe claustrophobia. The Arbitrator considered her psychological disabilities to be the crux of her claim.

Dr. Shiva Kumar Gaur, Mrs. Sivananthan's family doctor, referred her to a Tamil-speaking psychiatrist, Dr. J. Rajendra. Dr. Rajendra found that as of August 30, 2002, Mrs. Sivananthan still required vocational rehabilitation before trying to return to work. He sent her to Ms. Julia Leary, a vocational evaluator with JVS Toronto, who prepared a Vocational Evaluation Report dated November 20, 2002.

In her report, Ms. Leary set out the background information that led to the referral, including Dr. Rajendra's report that Mrs. Sivananthan had symptoms of a moderate depressive disorder and Dr. Gaur's report that she had ongoing post traumatic depression. Ms. Leary reviewed Mrs. Sivananthan's employment history as a clerk. She then set out her behavioural observations, including Mrs. Sivananthan's difficulties in using elevators and her pain behaviours throughout the testing process. After describing the tests she used, Ms. Leary listed Mrs. Sivananthan's vocational assets and barriers to employment. She described Mrs. Sivananthan as "prevocational: she is currently unable to participate in training or competitive employment due to the sequelae of a motor vehicle accident." She concluded with a number of recommendations that Mrs. Sivananthan should follow before attempting to work, which included: psychiatric treatment, cognitive behavioural therapy, involvement in a support group, work hardening, and participation in self-esteem workshops or counseling.

Ms. Leary testified at the hearing, where the Arbitrator accepted her as an expert witness in the field of vocational assessments and rehabilitation. State Farm submits that the Arbitrator erred in law by permitting her to testify in relation to issues outside her expertise.

The parties agree that whether Ms. Leary had the required qualifications to give opinion evidence was a question of law subject to review on appeal.

A. Ms. Leary's Evidence

Since Ms. Leary's evidence is the basis of this appeal, I will set out where the Arbitrator considered it in her decision.

Some of the evidence is more in the nature of observations or confirmation, such as the information about Mrs. Sivananthan's series of contract jobs and Ms. Leary's observations that she was unable to sit or concentrate on work. Similarly, later in the decision, under the heading "Credibility," the Arbitrator wrote:

Ms. Leary felt that Mrs. Sivananthan "gave very genuine effort. She was very motivated to do well." She noted that the applicant "felt disappointed ... it seemed like a bit of a letdown for her" when Ms. Leary informed her of her