Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 32

FSCO A04-000994

BETWEEN:

ANGELA MOLE

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

April 10, 11, 12, August 8, 9, 11, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Amin Sachedina for Mrs. Mole

Ian D. Kirby for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Angela Mole, was injured in a motor vehicle accident on December 4, 2001, and Wawanesa Mutual Insurance Company ("Wawanesa") paid her statutory accident benefits under the Schedule.¹ Mrs. Mole's claims for further benefits were not resolved through mediation, and she 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 Mrs. Mole initially entitled to payment of weekly non-earner benefits under Part III of the Schedule?

2. Is Mrs. Mole entitled to payment of attendant care benefits under section 16 of the Schedule?

3. Is Mrs. Mole entitled to payment for prescription medication under Part V of the Schedule?

4. Is Mrs. Mole entitled to payment for housekeeping expenses under section 22 of the Schedule?

5. Is Mrs. Mole entitled to payment for two health care assessments under section 24 of the Schedule?

6. Is Mrs. Mole entitled to a special award under subsection 282(10) of the Insurance Act?

I defer the parties claims for their expenses of this arbitration until after they attempt to resolve the issue.

Result:

1. Mrs. Mole is initially entitled to receive weekly non-earner benefits and ongoing payments in accordance with the provisions of Part III of the Schedule.

2. Mrs. Mole is not entitled to payment of attendant care benefits under section 16 of the Schedule.

3. Mr. Mole is entitled to ongoing payment for all Paxil prescriptions expenses she has incurred since the accident under Part V of the Schedule.

4. Mrs. Mole is not entitled to payment of housekeeping expenses under section 22 of the Schedule.

5. Mrs. Mole is entitled to payment for Dr. Ayoob Mossanen's assessment under section 24 of the Schedule, but she is not entitled to payment for Dr. Fred Langer's assessment.

6. Mrs. Mole is not entitled to a special award under subsection 282(10) of the Insurance Act.

EVIDENCE AND ANALYSIS:

Mrs. Mole was a 62-year old homemaker living with her retired spouse at the time of the December 4, 2001 accident. She was knocked down by an automobile while crossing the street, lost consciousness for a short time, and was taken to hospital by ambulance. Mrs. Mole remained overnight in hospital after the accident with a goose-egg bump on her head and soft tissue neck, back and knee injuries.

Mrs. Mole's claims focus on her psychological condition, not her physical injuries. She maintains that the accident greatly exacerbated her pre-existing depression and anxiety. Mrs. Mole claims that, as a result of her accident injuries, she meets the threshold test to receive this disability benefit on a continuing basis, following the first 26 week "waiting period" after the accident. She must establish on a balance of probabilities that she has continuously suffered a complete inability to conduct her normal life as a result of her accident-related injuries.²

Mrs. Mole admits to a long history of psychiatric illness before the accident. All the health experts agree that both before and after the accident she cannot be relied on to portray her functional state, her health or her history. For example, she could not recall during her evidence her birth year, when she emigrated to Canada, and denied receiving the pre-accident psychiatric treatment that is abundantly clear through her treatment records going back more than a decade. Her treating psychologist of many years characterizes her as histrionic. None of the health care experts after the accident could accurately assess her physical abilities during formal tests.

Mrs. Mole's Pre-Accident Life:

Despite the problems with Mrs. Mole's evidence, I find the testimony of her spouse is generally trustworthy because it is fairly consistent with her Canada Pension Plan (CPP) records. Mr. Vito Mole said that before the accident he drove or walked with his wife everywhere outside their home. She could not drive, shop, bicycle or take public transit alone, and admitted that before the accident Mrs. Mole dusted and vacuumed only a little.

The CPP records indicate that prior to the accident Mrs. Mole had given up dancing, socializing and swimming. She has continued to receive CPP disability benefits since 1994, and the records clearly establish that Mrs. Mole suffered ongoing chronic anxiety/depression, hypertension, arthritis/low back pain, left hip pain, dizziness and bilateral leg pain.

Based on Mr. Mole's testimony, I find that Mrs. Mole's normal life before the accident consisted of doing the majority of the cooking, light dusting and house cleaning (70%), some sewing, reading, watching television or listening to radio, light gardening, shopping, taking frequent walks, socializing with friends and family, babysitting her grandchildren and attending church.

Mr. Mole did not identify any major difference between his wife's pre-accident and post-accident abilities with personal hygiene and self-care, except that he occasionally helps her bathe and cut her toenails since the accident. However, he emphatically and emotionally declared she was far more depressed, fearful and anxious after the knockdown, and described her as always on the verge of crying since the accident.

Mr. Mole stated his spouse's post-accident outdoor walks are of shorter duration and length. She has given up babysitting their grandchildren, reading, watching television or listening to radio because these activities are too distracting. Now, he shares more responsibility for food preparation and washes the dishes himself. Mr. Mole characterized their housekeeping roles as reversed since the accident.

The 2005 surveillance videotape of the couple driving and shopping does not undermine Mr. Mole's evidence. Scenes showing Mrs. Mole's carrying the garbage bins do not conflict with his evidence that she performs some regular household duties on her own.

Health Care Evidence:

Mr. Mole's description of his wife's post-accident activities is confirmed through the four in-home assessments of Ms. Lyndy Goldlust, Wawanesa's occupational therapist. Ms. Goldlust's last in-home assessment in April 2002 states that Mrs. Mole was capable of taking care of herself, except shaving her legs and cutting her toenails. Her recommendations for partial assistance with meal preparation, dishwashing, ironing, laundry, bathroom cleaning, dusting, bedding and shopping support Mr. Mole's evidence.

The testimony of the registered nurse Mrs. Mole retained to evaluate her home activities in 2005 is of little assistance. Mr. Terry Kane did not know her pre-accident condition, and did not have any opinion about her state during the first two years after the accident in order to determine her initial entitlement to the non-earner benefit.³

Mrs. Mole's treating psychologist supports her claim that her psychological condition deteriorated after the accident. Dr. Enzo D'Alessandro has been seeing her regularly since 1998. He opined that her depression/anxiety doubled as a result of the accident, and diagnosing that Mrs. Mole suffers from post-traumatic stress syndrome. He increased her medication, and the notes which form the basis of Dr. D'Alessandro's diagnosis support his testimony that Mrs. Mole suffered increased psychological symptoms after the accident.

Dr. D'Alessandro testified that Mrs. Mole's flashbacks from the accident, her increased fear/anxiety/depression caused her to cease doing housework, watching TV, going shopping and visiting the library. He noted she was able to work around the house and socialize despite her depression before the accident.

Dr. D'Alessandro's evidence is generally consistent with Mr. Mole's characterization of his wife's pre-accident condition, although his notes certainly paint a less functional post-accident woman than Mr. Mole described. Significantly, Dr. D'Alessandro did not present an opinion whether Mrs. Mole suffers the requisite complete inability to carry on her normal pre-accident life as a result of the accident, and his evidence does not provide a professional opinion supporting her non-earner benefit claim. However, I accept Dr. D'Alessandro's testimony that Mrs. Mole's increased psychological symptoms resulting from the accident negatively affected her ability to conduct her normal pre-accident life.

The evidence of Dr. Richard Gladstone, a neurologist who Mrs. Mole hired to conduct an assessment in 2004, provides a similar post-accident diagnosis to that of Dr. D'Alessandro.

He did not understand her pre-accident condition, testifying he thought she was neurotic before the accident, and erroneously believed she was able to work and take care of the household on her own. Dr. Gladstone's lack of knowledge about Mrs. Mole's pre-accident psychological and functional state significantly reduces the value of his opinion that she suffers a total disability as a result of the accident, and I give his opinion little weight.

Mrs. Mole retained another neurologist, Dr. Ayoob Mossanen, who was unable to perform a complete evaluation due to her reluctant participation. His report also does not address the non-earner benefit eligibility test, and bears little weight.

Mrs. Mole presented the evidence of Dr. Fred Langer, an orthopaedic surgeon, who saw her for an assessment in late 2003. He admitted at the hearing that his written opinion was incorrect because Mr. and Mrs. Mole gave him wrong information about her condition, and it is not possible to determine the impact of the accident on her. Dr. Langer's opinion is of little consequence.

Mrs. Mole submits that her non-earner claim primarily relies on the opinion of Dr. David Kurzman, a neuropsychologist, who saw Mrs. Mole twice in September 2004. In tests, she showed moderate to severe levels of depression, anxiety and hopelessness. Dr. Kurzman reported that the test results underestimate Mrs. Mole's cognitive functioning. He admitted in testimony he did not know her pre-accident depression was severe, but opined that her pre-accident condition rendered her more susceptible to the effects of the mild to moderate head injury she sustained in the accident.

Dr. Kurzman's report that Mrs. Mole appears to suffer a complete disability from all daily activities is not consistent with Mr. Mole's evidence about her post-accident functional level. Additionally, his conclusion that Mrs. Mole suffers an extreme mental or behavioural disorder from the accident⁴, a catastrophic impairment, is not supported by appropriate tests and examination findings because he primarily relied on her interview. Dr. Kurzman's reliance on Mrs. Mole's information and his inadequate knowledge of her pre-accident depression and function level cause me to reject his opinion she suffers a complete inability respecting her normal daily activities.

Dr. Sam Ozersky, Wawanesa's examining psychiatrist, had similar difficulty obtaining accurate information from both Mrs. Mole and the through tests he conducted a year after the accident. Mr. Mole told Dr. Ozersky his wife was fully functioning despite her depression before the accident, but he did not record any specific tasks and he had no health records to accurately compare her pre-accident versus her post-accident condition. He arrived at no firm conclusion.

At the hearing, Dr. Ozersky stated that Mrs. Mole's dramatic long/short term memory loss is inconsistent with her mild/moderate concussion because there is no evidence she sustained an organic brain injury. He said the accident is a significant contributor to her psychological problems. I accept Dr. Ozersky's opinion that the accident significantly contributed to her pre-existing depression and anxiety because it is supported by Dr. D'Alessandro's regular observations of her increased post-accident depression and Mr. Mole's similar evidence.

Disability Analysis:

The best evidence about Mrs. Mole's normal activities and functional level comes from Mr. Mole and Ms. Goldlust. Dr. D'Alessandro's notes help too, but all the other health experts had inaccurate pre-accident information or otherwise erroneously believed Mrs. Mole does almost nothing post-accident. I rely on the lay evidence of Mr. Mole, her treating psychologist's notes together with Ms. Goldlust's reports as painting the best portrait of Mrs. Mole's post-accident state.

Relying on that evidence, I find that post-accident Mrs. Mole has virtually stopped reading, ceased babysitting/family socializing, watching television or listening to radio and her walks are shorter and less frequent. I compare that against her remaining ability to do almost all her personal care, shop with her husband as a she did before the accident, a little gardening, light housework and cooking, infrequently attend church post-accident.

Mr. Mole's testimony gives me the distinct impression that the loss of some aspects of his spouse's pre-accident life were particularly significant for her. Before the accident, she drew enjoyment from babysitting her grandchildren, taking walks with her husband and was an avid reader.

In Walker v. Ritchie⁵, Justice Brockenshire distinguished between mundane activities of an active high school student who had sustained severe accident injuries and those which added interest, challenge and opportunity to her life before the accident. He used the example that making toast and pouring juice for morning breakfast do not deserve the same weight as the plaintiff's socializing, athletics and intellectual/educational interests.

I agree with Justice Brockenshire's reasoning that to equally catalogue all activities does not comport with expectations that a normal life centres on the interests a person finds rewarding. I adopt this realistic approach, and attach greater weight to the activities and interests Mrs. Mole found rewarding before the accident. On Mr. Mole's evidence, I find that prior to the accident Mrs. Mole drew great enjoyment from babysitting her grandchildren, reading, taking long walks and visiting the library.

I find that Mrs. Mole's enjoyment of these rewarding interests were profoundly compromised in quality and quantity as a result of her accident injuries. I recognize that Mrs. Mole resumed other normal pre-accident activities (most of her personal care, a third of the cooking and housecleaning, shopping and modest gardening⁶). However, on a balance of probabilities, there is sufficient evidence from Mr. Mole and Dr. D'Alessandro establishing that the quality and amount of her normal household and interest activities have been so profoundly compromised as to qualify as "substantially all"⁷ activities of her normal life. As a result, I find that Mrs. Mole has continuously suffered a complete inability to carry on a normal life and is entitled to ongoing payment of the non-earner benefit under Part III of the Schedule.

Attendant Care Benefits:

Mrs. Mole claims that her spouse bathed and groomed her as a result of her accident injuries, submitting invoices for the expenses of her home attendant through May 2003. Wawanesa paid a portion of her attendant care claims, in accordance with the recommendations from its in-home assessments through March 2002.⁸

However, Mrs. Mole has not submitted a health expert's opinion supporting that she requires any further attendant care. There is lay evidence from Mr. Mole that he sometimes helps her bathe and cut her toenails, but both he and Ms. Goldlust's final report do not indicate times for these tasks. I decline to grant Mrs. Mole further attendant care benefits under section 16 of the Schedule.

Housekeeping Benefits:

Reimbursement of housekeeping expenses up to $100 per week is available to Mrs. Mole if she suffers a substantial inability with her pre-accident homemaking as a result of her accident-related injuries. Mrs. Mole claims she is entitled to $100 per week from May 15, 2002 through December 2003.

While I am prepared to accept that Mrs. Mole meets the qualification for entitlement during this period based on Mr. Mole, Ms. Goldlust's evidence and Dr. Mossanen's view that she requires help with heavy tasks, the invoices prepared by her sons and spouse for that time period are not specific enough to determine the nature of their work and amount payable. The $100 weekly amounts billed on all the invoices similarly state grocery shopping, garbage, sweeping, mopping, dusting, bathroom cleaning, changing bedding, laundry and ironing. Some of these categories are not heavier tasks, and there is no evidence to identify separate amounts of time. Without this evidence, I cannot speculate or assign a specific amount of time to arrive at a housekeeping benefit under section 22 of the Schedule.

Prescription Medication:

I rely on the evidence from Mrs. Mole's treating psychologist and her spouse that she experienced a greater degree of depression and anxiety as a result of this pedestrian knockdown. Mrs. Mole took anti-depressant medication before the accident, but Dr. D'Alessandro stated that he increased her prescription after the accident to control her symptoms.

The prescription summary showing that Dr. D'Alessandro increased Mrs. Mole's dosage of prescription Paxil medication from10 milligrams to 20 milligrams, followed by 30 milligrams is consistent with his testimony. I rely on Dr. D'Alessandro in finding that Mrs. Mole is entitled to reimbursement for all Paxil prescription medication since the accident under Part V of the Schedule.

Costs of Examination:

Mrs. Mole's claims for payment of Dr. Fred Langer's orthopaedic examination and Dr. Ayoob Mossanen's neurological assessment qualify for coverage if she establishes they relate to her claims for accident benefits, and the cost is reasonable. Dr. Mossanen's detailed physical evaluation and diagnosis ventures an opinion that her physical problems are not the culprit and concludes that her psychological condition is the real problem.

I find Dr. Mossanen's report of October 16, 2003 directly relates to Mrs. Mole's claims for accident benefits because it focuses on the health care professionals analysis and treatment of her psychological problems. I further find that the $1,450 cost billed (plus $101.50 GST) for his examination and report are reasonable, and that Mrs. Mole is entitled to full reimbursement of this amount under section 24 of the Schedule.

Wawanesa initially argues that Mrs. Mole is precluded from receiving reimbursement for Dr. Langer's examination and report because she did not obtain necessary approval prior to incurring this expense. The relevant procedures requiring claimants to submit proposals for examinations to insurers came into effect approximately four weeks prior to the November 26, 2003 examination date.⁹

However, neither party addressed whether this is a substantive change to the Schedule that does not affect Mrs. Mole's 2001 accident, or more in the nature of a procedural matter that applies to her situation. Without counsels' submissions, I am loath to decide the matter on this point.

Wawanesa argues that Dr Langer did not prepare his report for purposes of her accident benefits claims. Dr. Langer's conclusion that Mrs. Mole suffers permanent impairments of important functions directly speaks to her tort claim, and on the same page he very briefly mentions her need for two accident benefits categories (housekeeping, active exercise/massage). There is no analysis of the applicable eligibility tests, and Dr. Langer admits he was not asked to address Mrs. Mole's claim for the non-earner benefit in his report.

Dr. Langer's failure to address the appropriate eligibility tests for any of the claimed accident benefits in this matter establishes that Mrs. Mole did not retain him for purposes of the Schedule. I find that Mrs. Mole is not entitled to reimbursement for the expense of Dr. Langer's assessment under section 24 of the Schedule.

Special Award:

An arbitrator can make a special award if an insurance company unreasonably denies or delays payment of accident benefits.¹⁰ I do not agree with Mrs. Mole's position that Wawanesa did so on any of her allowed claims here.

Mrs. Mole was reluctant to fully disclose her considerable pre-accident psychological treatment and functional status to health experts. Consequently, Wawanesa had conflicting and/or inaccurate information upon which to assess her condition resulting from the accident, as well as her functional status before and after the accident. I do not accept that Wawanesa is to blame for relying on unclear expert evidence, and I deny Mrs. Mole's claim for a special award.

EXPENSES:

The parties should attempt to resolve their respective claims for expenses of this arbitration through reference to Rules 75 through 79 of the Dispute Resolution Practice Code and Expense Regulation F before they contact the case administrator to arrange an assessment of their expense claims.

February 26, 2007

Fred Sampliner

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 32

FSCO A04-000994

BETWEEN:

ANGELA MOLE

Applicant

and

WAWANESA MUTUAL INSURANCE 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. Mrs. Mole's claims for housekeeping benefits under section 22 of the Schedule, attendant care benefits under section 16 of the Schedule, Dr. Fred Langer's cost of examination under section 24 of the Schedule, and her claim for a special award under subsection 282(10) of the Insurance Act are dismissed.

2. Wawanesa shall pay Mrs. Mole ongoing non-earner benefits in accordance with the provisions of Part III of the Schedule, her Paxil prescriptions since the accident under Part V of the Schedule, and reimburse her $1,551.50 for Dr. Mossanen's examination under section 24 of the Schedule.

February 26, 2007

Fred Sampliner

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Subsection 12(1)1 of the Schedule
3. 3Subsection 12(1)1. of the Schedule
4. 4"Criterion G", Ontario Regulation 403/96 subsection 2.(1.1)(e)
5. 5[2003] CanLII 17106 (ON S.C.)
6. 6Maitland and State Farm Automobile Insurance Company (FSCO A05-000307, May 9, 2006)
7. 7Estate of Salvatore Buccellato and Allstate Insurance Company of Canada (FSCO A03-000609, April 14, 2004)
8. 8Section 39 of the Schedule
9. 9Ontario Regulation 281/03
10. 10Subsection 282(10) of the Insurance Act