Neutral Citation: 2006 ONFSCDRS 178 FSCO A06-000068

BETWEEN:

YVETTE ADASSA PATTERSON Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: David Muir

Heard: September 26 and 27, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Allan S. Blott for Mrs. Patterson Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Yvette Adassa Patterson, was injured in a motor vehicle accident on June 4, 2003. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule¹ State Farm terminated weekly income replacement benefits effective February 3, 2004. The parties were unable to resolve their disputes through mediation, and Mrs. Patterson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mrs. Patterson entitled to an income replacement benefit from February 3, 2004 to June 4, 2005 pursuant to section 4 of the Schedule?
Is Mrs. Patterson entitled to payments for housekeeping and home maintenance from June 4, 2003 to June 4, 2005 pursuant to section 22 of the Schedule?
Is either party entitled to have their expenses paid by the other?

Result:

Mrs. Patterson is not entitled to further income replacement benefits.
Mrs. Patterson is entitled to a housekeeping and home maintenance benefit of $15.00 per week from June 4, 2003 to November 2, 2003.
The issue of expenses is left to the parties to resolve.

EVIDENCE AND ANALYSIS:

In order to be entitled to the benefits claimed Mrs. Patterson must show that she suffered impairments in the accident that, in considering her entitlement to income replacement benefits, substantially prevented her from completing the essential tasks of her pre-accident employment, and, in respect of the housekeeping claim, prevented her from performing those tasks such that the housekeeping claims advanced were reasonable and necessary.

Mrs. Patterson was the only witness called. She gave her evidence as far as it went, in a reasonably straightforward and honest manner. The difficulty arises not in what she testified to, but rather, in what she did not tell us. Her evidence as it related to the key issues in this case was quite vague and on many crucial points little or no evidence supporting the claim was offered.

Mrs. Patterson was, prior to the accident, an active go-getter, working at three jobs in order to support herself and her family. She described herself as a single mother. Although her own children were grown, they appear in some ways to still be dependent on her. Her 34 year old son, for example, was living with her at the time of the accident. Later it was revealed in evidence that Mrs. Patterson took charge of a 4 year old grand nephew after the accident. The child, now six years of age, continues to live with her.

In addition to her work and normal family life, Mrs. Patterson, in order to help with her expenses, rented out a room in her home from time to time to persons referred to her by a local shelter. This practice continued after the accident.

Mrs. Patterson, at the time of the accident, had been employed as a health care aide, a tea packer and a bus driver. In March 2003, just weeks before the car accident, there was an incident at her health care job that left her injured and eventually in receipt of workers' compensation benefits. She received those benefits in varying amounts through the period for which income replacement benefits are claimed. Although this is not entirely clear she was able to continue in the tea packing work for a period of time.

In the March workplace incident, Mrs. Patterson suffered an injury to her shoulder and her right knee. As a consequence of the shoulder injury in particular, Mrs. Patterson was unable to work at her job as a health care aide because she was unable to lift and turn clients.

On June 4, 2003 Mrs. Patterson was stopped at a stop light. Just as the light changed and the cars in front of her moved off, Mrs. Patterson heard a siren and she braked the car. As she did this she noticed a van approaching her from behind. Happily the car in front of her had moved off when the van struck her from behind and pushed her forward into the intersection. State Farm made much of the fact that the collision was a minor one. It may have been.

Mrs. Patterson testified that she felt a big bang and immediately had the sensation of blood running down her back. She also testified that it felt as if her intestines had moved inside of her. Mrs. Patterson was able to drive the car to the side of the road and waited for the police there. She attended the hospital and was later released. She does not recall when she first attended her family doctor, Dr. W.M. Pang, but testified that shortly after the accident she was out walking when her right leg felt heavy and gave way. She also noted at that time that her groin was hurting and she had cramps.

Dr. Pang's notes of June 5, 2003 indicate that Mrs. Patterson complained of an explosion in her head and stomach and burning in her back on impact. On June 10, 2003 Mrs. Patterson apparently complained of right leg weakness and dragging foot.

Subsequent notes from Dr. Pang's file through to September 11, 2003, Mrs. Patterson's last visit, concentrate on Mrs. Patterson's right shoulder injury which continued to trouble her. The first note respecting right knee pain, subsequent to the accident is on June 16, 2003. There is a further unintelligible note respecting the right knee on August 25, 2003. On September 11, 2003 in the final note there is reference to right knee pain and a flare up in neck pain. A knee brace had been provided and apparently had helped Mrs. Patterson by this time.

In a September 17, 2003 letter to the Workplace Safety and Insurance Board ("WSIB") in respect of Mrs. Patterson's claim arising from the March 2003 workplace incident, Dr. Pang made the following points:

Her case is further complicated by a car accident on June 4/03 where she sustained neck strain, right knee strain and lower back strain for which she is getting physiotherapy. The prognosis for the shoulder strain is fair since she will likely be left unable to do her previous job, no heavy lifting and it is unclear how the L5-6 spondylosis will be resolved at this time.

Her medical restrictions at this time include no heavy lifting, no prolonged reaching overhead. No standing for prolonged periods or bending/squatting for prolonged periods. Part of these restrictions are due to the car accident.

In a letter to State Farm dated September 12, 2003 Dr. Pang provided the following diagnosis resulting from the car accident:

[W]orsening right shoulder strain, neck sprain/strain/whiplash, lower back strain, right knee sprain.

As of that date, Dr. Pang reported improvement in all of these areas. Later in the letter the Doctor indicates that she is unable to work as a result of the pre-existing shoulder problem "and due to the additional injuries from the car accident".

Mrs. Patterson testified that her right knee continues to bother her. She complained of back pain as well, but her most significant complaint is what she characterized as groin pain. She was asked more than once to explain how this pain affected her ability to function and her response would usually begin with the stress and frustration she felt when it came on. Considering her evidence as a whole and in particular her remarks at the beginning of her second day of evidence, it is the stress and frustration she feels when experiencing this pain because no one can explain it or treat it, which causes her the most difficulty. Mrs. Patterson wants a "good doctor" to diagnose and treat this impairment. That is not an issue before me in this hearing, as important as it undoubtedly is to Mrs. Patterson.

Mrs. Patterson described this feeling or pain variously, as feeling like her insides falling out, giving birth or like the cramping associated with her period. At times she testified that it was so bad that it made it difficult to sit down on the toilet and on occasion she would stand when toiletting. When asked by me whether the pain prevented her from sitting down on the toilet she replied that it did not. This pain is not continuous. Mrs. Patterson stated on one occasion that there were times when she felt healed but then the pain would return.

There is very little mention of this complaint in the early documentation of Mrs. Patterson's care. There is an ambiguous reference in Dr. Pang's note of June 10, 2003 to the effect that Mrs. Patterson thought there was something "wrong inside". Dr. Pang apparently offered her a bladder test but the offer was declined. X-rays and pelvic ultrasound were ordered. A later note from July 9, 2003 indicates complaints of abdominal discomfort. Significantly, in my view, this complaint is not noted in the two letters of Dr. Pang referred to above. It is also not referred to as restricting her activities in the activities of daily living form completed by Mrs. Patterson in late August 2003, almost three months after the accident. Nor is it mentioned in any of the insurer assessments conducted in January/February 2004. There is no substantial record of this complaint until well after Mrs. Patterson moved to Hamilton in late June 2004 where complaints of abdominal pain are noted in the records of Dr. J. Yellin and Dr. W. Grandwilewski, who she began seeing.

While I do not question the veracity of Mrs. Patterson's complaints of abdominal pain today, there is no substantial evidence that this was an injury sustained in the accident. Given the significant gap in time between the accident and it first being reported as a serious concern, I find there is no basis to connect it to the car accident. Morever, while a source of discomfort, stress and frustration, Mrs. Patterson did not testify that this pain prevents her from doing anything in particular. Accordingly, even if it were an injury sustained in the accident, I find no basis for concluding that it prevents her from performing any of her pre-accident activities.

The only other medical evidence of a treating practitioner is the indirect evidence of Dr. Grandwilewski who saw Mrs. Patterson in the Fall of 2004 after she had moved to Hamilton. According to Mrs. Patterson, Dr. Grandwilewski explained to her that she had a problem with a disc in her spine and drew a diagram. The notes of Dr. Grandwilewski and another doctor, Dr. Yellin, who Mrs. Patterson began seeing at about the same time, include reports of abdominal pain. An X-ray of her lumbar spine confirmed mild degenerative changes at L5-S1.

Mrs. Patterson was assessed by a Dr. Martin at the request of State Farm in February 2004. He concluded that she could not work at her pre-accident employment because of the injuries sustained in the March 2003 workplace incident, particularly the right shoulder strain.

Although Mrs. Patterson testified that the exacerbation of her prior shoulder injury and arthritic right knee, which can be linked to the accident, prevented her from functioning, her evidence in this regard was vague and quite limited. It is also contradicted by other evidence she gave. For long stretches during the period of time for which benefits are being claimed she was caring for a four year old child. Mrs Patterson claimed in her evidence that the child cared for her. This seems unlikely. In January or February 2004 she worked for a number of days in a home where she helped out in the kitchen. Mrs. Patterson was not completely forthcoming about the extent of this work. She did testify that after a number of days she found that she could not do the work because it was difficult reaching above her head. She also testified that she found it difficult to stand because of her knee complaints. Also in June 2004 she sold her home in Oshawa and moved into a new home she had purchased in Hamilton.

Income Replacement Benefits

At the time of the accident Mrs. Patterson was unable to work at her primary employment because of an injury sustained in the workplace three months previously. I accept the evidence from Dr. Pang's records that the car accident aggravated these injuries. The doctor's records, including the letters to the two insurers, do support the conclusion that Mrs. Patterson was unable to perform the essential tasks of her pre-accident employment because of the injuries sustained in the accident in June 2003. As well, they might be interpreted as supporting the conclusion that it would take longer for Mrs. Patterson to recover from the pre-existing problems in her shoulder and right knee. However, these records say nothing probative about the period after State Farm terminated benefits in February 2004.

Although confirming medical evidence is not an absolute pre-requisite to establishing entitlement to a benefit in every case, in a situation such as this where there is a disabling pre-existing condition, corroborative medical evidence takes on heightened significance. It is an extremely difficult thing for even the most sophisticated lay person to tease out what impairment results from the accident and what existed prior to it, and then relate those facts to the tests for entitlement at issue here. In this case there is no corroborative medical evidence beyond September 2003.

Mrs. Patterson has some basis for criticising Dr. Martin's report. I agree that the deficiencies in the report may weaken Dr. Martin's conclusion somewhat, but those weaknesses are not a substitute for evidence from Mrs. Patterson that she was unable to perform the essential tasks of her employment as a result of injuries sustained in the car accident. Beyond the early notes of Dr. Pang indicating an exacerbation of her pre-existing shoulder and knee problems there is no medical evidence to contradict the conclusions of Dr. Martin.

I find therefore no basis for her claim to income replacement benefits beyond their termination by State Farm in February 2004.

Housekeeping

There is very little evidence in support of the housekeeping claim. Mrs. Patterson only said that she did not do her vacuuming and could not sew. She further testified that she paid someone to do her vacuuming but made no record of it. The only other evidence tendered was a series of invoices created in September 2004 which purport to describe well after the fact, services provided by a Stephanie Gayle from the date of the accident until September 2004. In the absence of any vive voce evidence to support these after the fact re-creations of the services that might have been provided I can give them no weight. To be clear, it is not unusual for insured persons to rely upon invoices and other documents created somewhat after the fact to support claims for these types of benefits. Insured persons often do not keep detailed records nor should they necessarily be expected to. However it is not enough to submit a pile of paper without any other evidence to substantiate in any way their contents when asserting a claim to over 52 weeks of housekeeping claims.

As indicated above, beyond Mrs. Patterson's belief that she has suffered an impairment in the car accident that prevents her from doing her housekeeping there is very little evidence that would support her entitlement to housekeeping benefits. Dr. Pang's letter of September 17, 2003 which imposes some restrictions on Mrs. Patterson, some of which are related to the accident, as well as her letter to State Farm of September 12, 2003, can not easily be read as restricting Mrs. Patterson's ability to perform most of her housekeeping tasks.

The only other evidence in support of her claim is found in an insurer's examination which confirms that Mrs. Patterson had returned to many of her homemaking tasks although she was unable to perform the heavier housekeeping tasks such as her vacuuming, mopping and cleaning her bathtub at that time. Ms Chung the occupational therapist, in a report dated October 2, 2003 indicated that 1.5 hours per week of assistance should be provided until certain assistive devices were delivered. There is no evidence that this recommendation was followed up on. It is also not clear whether all of the recommended items were provided, but Mrs. Patterson did indicate that she received the recommended long handled tub scrub.

On the basis of that report and Mrs. Patterson's evidence that there were some tasks that she could not perform, at least for a time, I find that Mrs. Patterson is entitled to a housekeeping and home maintenance benefit of 1.5 hours per week from June 4, 2003 to October 2, 2003 and for a reasonable period beyond - November 2, 2003. I also find that a reasonable hourly rate for this work is $10.00.

EXPENSES:

Each party has claimed their expenses. I heard no submissions on this point. I leave the issue to the parties to resolve. Should they be unable to do so they may schedule an appointment with me in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

November 10, 2006

David Muir Arbitrator

Date

Financial Services Commission of Ontario / Commission des services financiers de l’Ontario