Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 173

FSCO A07-001813

BETWEEN:

JASMIN MANGALLON

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before: Susan Sapin

Heard: September 8, 9 10, 11 and 18, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Peter Carlisi for Mrs. Mangallon Steve Anderson for TTC Insurance Company Limited

Issues:

The Applicant, Jasmin Mangallon, was injured on October 27, 2005 when the rear doors of a TTC bus suddenly closed on her as she attempted to board. She applied to TTC Insurance Company Limited (“TTC”) for a statutory weekly non-earner benefit and taxi expenses payable under the Schedule,¹ which TTC refused to pay. The parties were unable to resolve their disputes through mediation, and Mrs. Mangallon 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. Mangallon entitled to a non-earner benefit from April 27, 2006, under section 12 of the Schedule?

2. Is Mrs. Mangallon entitled to receive a medical benefit for taxi expenses of $2,511.33 claimed under section 14 of the Schedule?

3. Is Mrs. Mangallon entitled to interest for the overdue payment of benefits under section 46(2) of the Schedule?

4. Is either party entitled to their expenses of the arbitration proceeding under section 282(11) of the Insurance Act?

Result:

1. Mrs. Mangallon is not entitled to a non-earner benefit.

2. Mrs. Mangalon is not entitled to taxi expenses.

3. No benefits are owed and no interest is payable

4. TTC is entitled to its expenses of the arbitration proceeding under section 282(11) of the Insurance Act.

INTRODUCTION:

To qualify for a non-earner benefit under the Schedule, Mrs. Mangallon must prove on a balance of probabilities that, as a result of the accident, she suffered an impairment that renders her completely unable to carry on a normal life, within 104 weeks after the incident.² The Schedule defines an impairment as “a loss or abnormality of a psychological, physiological or anatomical structure or function.” The accident need not be the only cause of the impairment, but it must, more likely than not, have materially or significantly contributed to it.

Jasmin Mangallon firmly believes that the effects of injuries she sustained when the doors of a TTC bus closed on her caused so significant a deterioration in her ability to live a normal life that she qualifies for a weekly non-earner benefit under the Schedule. TTC vigorously disputes this, arguing that the incident was a minor one and did not result in an impairment that affected her ability to function to a degree that would qualify her for a non-earner benefit. It is TTC’s position that Mrs. Mangallon’s post-accident impairments, functional limitations and symptoms of headaches, dizziness, whole body pain and depression predated the accident and are due to long-standing and serious heart disease, insulin-dependent diabetes and depression, and are not related to the accident. TTC further asserts that the abrupt closing of the bus doors was not a significant contributor to Mrs. Mangallon’s deteriorating health and function a year after the accident, in light of further significant events such as a second major open-heart surgery in May, 2007 and the emotionally devastating death of her husband of 47 years to cancer barely two months later.

The test for entitlement to the non-earner benefit, as set out in the Schedule, is stringent. An impairment sustained in the accident must be one that continuously prevents Mrs. Mangallon from engaging in substantially all of the activities in which she ordinarily engaged before the accident.³ As stated in the leading decision of the Ontario Court of Appeal in Heath, where pain is the primary factor that allegedly prevents the insured from engaging in his or her former activities, as Mrs. Mangallon maintains is the case here, “the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.” ⁴ Accident-related pain, suffering or disability that interferes with daily living or makes it difficult may not be sufficient for a person to qualify for a non-earner benefit under the strict test imposed by the Schedule, even though it might entitle a person to damages for pain and suffering in a tort action.

There is not dispute that Mrs. Mangallon suffered pain and bruising to the anterior right chest from the impact of the closing bus doors. The question to be determined is, what effect, if any, did the impairment have on her ability to engage in the activities in which she ordinarily engaged in before the accident. This requires me to compare what, for Mrs. Mangallon, were her normal activities before the accident, with what she was able to do afterwards. Her life circumstances before and after the accident must also be considered in order to determine whether the accident itself was a significant contributing factor. For the reasons set out below, I find that the evidence presented does not establish that Mrs. Mangallon meets the test for a non‑earner benefit.

EVIDENCE AND ANALYSIS:

Pre-accident health

As Mrs. Mangallon’s pre-existing medical conditions and limitations and her life circumstances before and after the accident are significant in this case, some background information is important to put the incident and its alleged after-effects in context.

Mrs. Mangallon was born in the Philippines in 1948 and completed Grade 8 there. She worked briefly after leaving school, until she married her husband Froilan at age 18 in 1966. At her husband’s wish, she did not work outside the home again after her marriage. The couple emigrated to Toronto in 1973. They had four children, Jocelyne, Maria Teresa and Michael, born in 1969, 1970 and 1972 in the Philippines, and Maria Susan, born in Toronto in 1977. There are seven grandchildren, ranging in age from 5 to 22 years old. Mrs. Mangallon’s eldest son Michael, her eldest granddaughter (Michael’s niece) Falisha Walters, and Falisha’s husband Shane Walters, testified at the hearing.

There is no dispute that Mrs. Mangallon’s pre-accident activities were already limited by a number of fairly serious and long-standing health problems. These included heart disease (coronary and valvular) with symptoms of chest pain, angina and dizziness; high cholesterol, high blood pressure; insulin-dependent diabetes; depression; and shortness of breath on activity due both to her heart condition, asthma and allergies. She required medication for each of these conditions.⁵ She suffered from “terrible” headaches severe enough that she went to the hospital for treatment and was prescribed Tylenol, which she said only helped for a while.

Mrs. Mangallon was forthcoming about her pre-accident conditions in her testimony, although she denied that she suffered certain symptoms such as dizziness before the accident until confronted with pre-accident references on cross-examination. She has had two open-heart surgeries, the first to repair a valve in 1979. She agreed it was a serious surgery lasting 7-8 hours, she spent 20 days in hospital, and her life changed afterwards. She testified that for the first time she became dependent on others for help inside and outside the home, and that these limitations made her angry and depressed. She received a pacemaker in 2002, after which she had difficulty lifting her arms. She underwent a second open-heart surgery in May 2007, about a year and a half after the 2005 accident to replace three valves. She spent 19 days in hospital. Tragically, her beloved husband of 47 years succumbed to cancer barely two months later, on August 20, 2007, after two months in hospital and less than two years after being diagnosed. This was a terrible time for Mrs. Mangallon and her family.

As stated in the Heath decision referred to above, “Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snap-shot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.”⁶ Given Mrs. Mangallon’s long-standing illnesses, I find a reasonable time period would be the year before the accident.

As entitlement to a non-earner benefit can arise within two years after the accident, a person’s life circumstances in that two-year period must also be considered, to determine if there are any significant factors unrelated to the accident that might account for an insured person’s symptoms or impairments. This is especially so in Mrs. Mangallon’s case for several reasons.

Firstly, she suffers from heart disease, a chronic and progressive illness. Secondly, there is no mention of many of the symptoms she attributes to the accident in any of the medical reports in the year following the accident. Thirdly, Mrs. Mangallon testified that certain symptoms, such as neck and arm pain, back pain, lower limb numbness and pain and balance difficulties, did not appear until a year after the incident. And lastly, Mrs. Mangallon and her family view the TTC bus incident as a significant cause of her post-accident pain and limitations, despite the fact that there is very little objective medical or other evidence to support this belief. Consequently, I find a reasonable period for considering Mrs. Mangallon’s activities and life circumstances would be approximately one year before and two years after the accident.

There is no dispute that Mrs. Mangallon did not perform housework before the accident except for light dusting, light sweeping and light meal preparation (up to 30 minutes.) She lived with her husband in an apartment in a seniors building. They had lived there since about 2002. An in-home occupational assessment report describes it as a “studio” apartment, i.e. one main room with double bed, dresser, armoire, television, sofa, and table with three chairs.⁷ There is a bathroom and a small kitchen. Mr. Mangallon did most of the housework and cooking. Michael Mangallon confirmed his father had always done “everything” for the family even when the children were young, including cooking, laundry, cleaning and taking out the garbage.

Mr. Mangallon was not a well man. He suffered from high blood pressure, diabetes and epileptic seizures, and, in November 2005 at least, bad nerves.⁸ He had also had triple-bypass surgery. He passed away from intestinal cancer in August, 2007. Mrs. Mangallon testified that when he was first diagnosed, he was given two years to live. She stated he “did not even make it to the two years.” It is reasonable to conclude from this information that this significant and stressful life event, the diagnosis of terminal illness, would have been made about two years earlier – around the time of the TTC bus incident, in fact.

After Mrs. Mangallon got her pacemaker in 2002, the couple received additional help with housekeeping and laundry from Scarborough Support Services for the Elderly (“SSSE”), who also helped Mrs. Mangallon shower every other day, as she had trouble lifting her arms after the surgery. Mrs. Mangallon testified that showering assistance was only for a few months, and after that she could do it herself or Falisha sometimes helped as well. However, she agreed on cross-examination with statements she made to Dana Cappel, an occupational therapist who assessed her on December 28, 2005, that prior to the accident her husband also assisted with showering due to her dizziness, and with dressing that would require her to lift her arms over her head.⁹

Mrs. Mangallon disagreed that she required assistance and supervision while showering in part due to pain in her shoulders from arthritis, which is what Ms. Cappel stated in her report.¹⁰ Mrs. Mangallon insisted that she does not have arthritis. However, x-rays taken within days of the TTC incident showed degenerative arthritis in the cervical spine and shoulders.¹¹ Mrs. Mangallon also testified that she had chronic pain in her left shoulder since the pacemaker was installed in 2002, and stated the small nerves in her neck were affected during that procedure. She also said her chest is always painful on the right and the left, and that is why she “always” uses nitroglycerin when the pain is “really severe.”

These statements raise two important recurring themes in this case: one, what Mrs. Mangallon believes and what is actual fact are often two different things; and two, factors other than the TTC bus incident more likely account for some of her post-accident symptoms – in this example, bilateral chest and neck pain, difficulty lifting her arms over her head due to pain associated with surgery, and severe chest pains due to angina.

Pre-accident medical records could have helped clarify and explain pre- and post-accident conditions that could be significant causes of post-accident pain symptoms, but none were provided. The explanation proffered was that “TTC did not ask for them.” However, the onus is on Mrs. Mangallon to prove her case on a balance of probabilities, and to provide sufficient objective, reliable evidence, including medical evidence, to meet that onus. In these examples, no evidence has been provided to rebut the reasonable inference that arthritis and the effects of a pre-existing heart condition and repeated surgical procedures in the chest area, among others, were significant factors in Mrs. Mangallon’s pain complaints.

I find Mrs. Mangallon required the self-care assistance described above from SSSE and family members in the two years before the accident, and that she was also very dependent on her husband for home-making and outings, and to a lesser extent on family and friends for transportation and other activities, before the accident.

Her granddaughter Falisha testified she too would assist her grandmother before the accident with showering, dressing, and that she cut and manicured her nails and washed and styled her hair due to her grandmother’s difficulties with these activities. SSSE and Falisha continue to provide assistance. Mrs. Mangallon also receives income benefits from the Ontario Disability Support Programme, which she advised is because of disability related to her heart condition.

Mrs. Mangallon does not drive. Before the accident, and before her husband had to give up driving due to his seizures, they mostly got around by car, and she occasionally took taxis or the TTC. It is not clear when Mr. Mangallon stopped driving. In any event, Mrs. Mangallon’s evidence was that before the accident, she would go grocery shopping once a month with her husband and a friend, Nick, who would drive them in his van. They would buy a month’s worth of groceries at a time. She stated that if she could not take a taxi or a bus due to pain or dizziness, her granddaughter Falisha would drive her twice a month to a Chinese supermarket to shop. Her son Michael took her to Costco twice a month. She stated she could carry up to 10 pounds at a time before the accident, but not more than 3 pounds afterwards.

Mrs. Mangallon described an active social life before the accident despite her many symptoms and physical restrictions. She and her husband would go daily to the Scarborough Town Centre shopping mall, where she would socialize with her group of older women friends for several hours. They would also walk around the mall. She would go to the homes of friends for meals or barbecues or to play cards. She went camping, fishing and to the beach, involving a two-hour drive. She went to parties and to dances once a month with her husband. She did not dance, due to her heart condition, but sat and watched. Every six months she would take the bus with friends to Casino Rama, a Muskoka casino north of Toronto. A devout Catholic, she attended mass once a week, and according to her son Michael, went on pilgrimages with her women friends to a shrine in Buffalo. Michael and Falisha also attested to Mrs. Mangallon’s active social life. Although it was not specified when or how often these activities were undertaken, I accept that they took place despite any limitations due to health, before the accident.

Most important of all to Mrs. Mangallon before the accident was her role as matriarch to her extended family of children and grandchildren. She explained that in Filipino culture, the role of grandmother is key, as she is the one who regularly gathers the whole family together for social outings such as picnics and barbecues in the park and for family celebrations such as birthdays and anniversaries. Michael also testified that his father was the “base” of their family, that his death was devastating for the whole family, and that although his mother tried her best to keep the family together after Mr. Mangallon passed away, this was difficult. It was evident from the testimony of Mrs. Mangallon and her family, below, that the couple were very close, and I find that Mr. Mangallon’s presence and participation were integral to Mrs. Mangallon’s family and social activities.

Mrs. Mangallon, Michael and Falisha all testified that another important activity for Mrs. Mangallon was looking after grandchildren. As Mrs. Mangallon stated, “Grandma was my occupation.” Before the accident, her son Michael would pick her up and take her to his home every second week, where she babysat his two girls (then aged 5 and 3 years) for two hours. At that time Michael lived a 15 minute drive from his parents. Mrs. Mangallon also stated her youngest daughter Susan would drive her to and from Muskoka once a month to spend a week with her three grandchildren there. Mrs. Mangallon stated she did not do any work around the house there, but watched movies with the children and played with them. It was not explained whether Mr. Mangallon went along on these visits. She stated she would spend time with Falisha, 22, and Erin, 19, her eldest daughter’s children, twice a month “because they are growing up.” She stated that prior to the accident she spent a lot of time with her grandchildren and they stayed with her on weekends.

Michael, Falisha and Falisha’s husband Shane Walters attested to Mrs. Mangallon’s central role in the lives of her extended family. This evidence, although sincerely and truthfully given, was not helpful to Mrs. Mangallon’s case, for a number of reasons, the two main ones being that their recollections did not appear to be accurate regarding facts and points in time, and they were unaware of the full extent of Mrs. Mangallon’s medical condition, limitations and medication before the accident. This is particularly true of Shane Walters, who did not meet Mrs. Mangallon until after the accident.

Michael testified that Mrs. Mangallon was a very loving and physically demonstrative mother to her own four children. She demonstrated the same affection for each grandchild as he or she was born, holding them, carrying them, hugging them, taking them to the mall or the park, pushing them on the swings, taking them down the slide, taking them downtown with her husband. It was Michael’s recollection that although his mother had had a “heart condition” since he himself was a child, she was still able to engage in the activities described after recovering from her open-heart surgery in 1979 and after receiving her pacemaker in 2002, before the 2005 bus incident. Contrary to his mother’s testimony, he remembered her dancing at parties. He conceded, however, that he was not really aware of any heart-related restrictions on her activities, and stated his father had always done all the housework, shopping and cooking because “that was the type of person he was.” Michael was not even aware until after his father passed away that his mother had been receiving assistance from SSSE since 2002.

Michael maintained that his mother babysat his two children and those of his siblings in her home while the parents were at work, 6 -7 hours a day, sometimes all seven grandchildren at the same time, and she was always carrying the smaller ones. He later conceded that it was probably just the youngest five children at one time. Even so, it was not clear when that would have been the case, if, as his mother testified, Susan and her three children had moved to Muskoka before the accident. In any event, given the small size of the elder Mangallons’ apartment, where they had lived since 2002, I find it difficult to believe they would babysit all the children there at one time, or, as Mrs. Mangallon maintained, that they stayed with her on weekends. No details were provided, such as where the children would have slept. I find it reasonable to conclude that the Mangallons’ memories of extensive babysitting hearken back to an earlier time before the Mangallons’ moved to their seniors apartment, i.e. before 2002.

Michael testified that his mother relied heavily on her husband when minding the grandchildren, a fact Mrs. Mangallon also admitted; it was something the couple did together and Michael agreed his father’s presence was “key.” He agreed on cross-examination that one reason his mother could no longer cope with babysitting was because his father was no longer there to help her. Michael also stated, and Mrs. Mangallon admitted, that after her pacemaker was implanted she was not as physical with her grandchildren and was hesitant to interact with them and would put her hand on her chest to protect the device. His evidence was that this was only after the pacemaker was first implanted. However, there were numerous examples of Mrs. Mangallon’s preoccupation with avoiding anything she thought might affect the device. For instance, she testified that when the TTC bus doors closed on her, she turned sideways and put her hand over her chest so the pacemaker would not be hit. She also testified that she was told by both her family doctor, Dr. Yanofsky, and her heart doctor that she could not participate in physiotherapy because it would affect the pacemaker battery. There is no evidence that this is so. In fact, a medical report from Dr. Yanofsky indicates he felt physiotherapy would be helpful, but Mrs. Mangallon “could not afford it.”¹² Given her perceived limitations, I find Mrs. Mangallon was not as physical with her grandchildren as she claimed to be in the year before the accident.

Falisha testified that she lived with her grandmother and was effectively raised by her until she was seven years old, which would be until 1994. After she returned to live with her own mother, she visited her grandmother every weekend, staying overnight. As she got older she and her family would visit on Sundays. According to her, there were always other grandchildren “around” before 2005. She stated her grandmother babysat 48-50 hours per week, including “PD” days.¹³ It was not clear from Falisha’s evidence when, before 2005, all of this babysitting took place. Again, I find it difficult to believe it would have been possible after the Mangallons moved to their small apartment. No evidence was provided about where the children went to school or how they would get to their grandparents’ residence, or if the babysitting was all day for some, or only after school, or for which children, or if it included holidays and vacations.

At some point not specified, Michael moved farther away to Ajax, where it would not have been possible for the Mangallons to babysit his children on a daily basis.

Michael and Falisha both admitted they were not fully aware of the extent of Mrs. Mangallon’s pre-accident health difficulties and restrictions. Michael, for example, did not know his mother received help from SSSE before the accident, or that that her activities were restricted after her pacemaker surgery in 2002. It is difficult to reconcile his recollection of how active she was with her grandchildren, including lifting and carrying them, with the fact she could not even lift her arms to put on clothing after her pacemaker surgery and up to the time of the accident.

Another example of the limited value of her family’s testimony is the fact that Michael did not know the type and amount of medication his mother took, and was taken aback at the hearing when told she suffered from, and took medication for, depression prior to the accident. He conceded he did not really have an accurate picture of her pre-accident health, in part because his mother took care to conceal her problems when he visited her with his family on Sundays.

As for Falisha, she was a teenager with her own busy life and did not spend as much time with her grandmother in the year or two before the accident as when she was younger. She conceded she was not really aware of her grandmother’s pre-accident limitations due to her chronic health conditions because these were concealed from her. I find she was mistaken in her testimony about the amount of housekeeping her grandmother was capable of before the accident.

I am not persuaded that the amount of babysitting claimed by Mrs. Mangallon, Michael and Falisha took place in the two years before the accident. The activity level involved is not consistent with Mrs. Mangallon’s physical restrictions after the pacemaker implant and the care she took to safeguard it. I find it difficult to believe she could lift and carry children and push them on swings if she could not even lift her arms to put on clothing due to pain. I find the recollections of Mrs. Mangallon, Michael and Falisha more likely refer to a time before the pacemaker implant and the elder Mangallons’ move to their seniors apartment in 2002.

Post accident health

According to Mrs. Mangallon and her family, everything changed after the incident on the TTC bus. Mrs. Mangallon maintained that her headaches, dizziness, pain and depression were much worse, and she suffered from difficulties sleeping, forgetfulness and frequent outbursts of temper, which prevented her from engaging in her normal activities to the extent she did before the accident. She stated she had severe pain in the back of her head, neck, shoulders, arms, back and legs every day, accompanied by numbness and tingling in her arms and legs, loss of balance and shooting pains down her leg. She cried all the time, lost her appetite, lost ten pounds, and suffered from spasms in her back and wrists. These symptoms continue to this day. She can no longer do the little housework or cooking she did previously. She cannot babysit her grandchildren because she cannot look after them, hold them, lift them or take them places. She cannot attend weekly mass, or make the trip to Muskoka or the casino, or enjoy family gatherings. She cannot stand to be in crowds. She only attends important family events and cannot stay long due to pain and depression. She was unable to attend Falisha’s wedding in Jamaica this summer as she could not tolerate the travel. Michael testified that when he asked her why, his mother told him it was because of shooting pains in her leg. He stated she was subject to extremes of emotion, complained continually of aches and pains, and could not appear to sit comfortably for any period of time or have children on her lap. Both he and Falisha testified that Mrs. Mangallon had become increasingly needy and dependent on family members.

Mrs. Mangallon attributes all of this to the injuries and their after-effects he says she sustained when the rear doors of the TTC bus abruptly closed on her on October 27, 2005. I find this unlikely for a number of reasons.

For one thing, the medical evidence does not support her assertion that the incident was a significant cause of her symptoms and impairments. Dr. M.J. Yanofsky, Mrs. Mangallon’s family doctor, whom she saw twice monthly before the accident and weekly afterwards, described her TTC injury as “right upper chest contusion/pain, dizziness and headaches” in a Disability Certificate dated November 21, 2005, a month after the incident. In that same document, Mrs. Mangallon wrote, “Since the accident I have continuous pain in my right chest, which I never had before.” No other injuries or symptoms are mentioned.

In an interview with Jim Bailey, TTC’s adjuster, on November 11, 2005, Mrs. Mangallon told him Dr. Yanofsky advised her the bruising was bad because of the blood thinner she took for her heart condition.¹⁴ She also told Mr. Bailey the only thing she couldn’t do was walk around Scarborough Town Centre since the accident a month earlier. Again, no other injuries or symptoms are mentioned.

In January 2006, three months after the accident, Mrs. Mangallon was examined at TTC’s request by Dr. L.T. Walters, a general practitioner. Although his report contains a number of errors, not all were significant and Mrs. Mangallon had the opportunity to correct them in her testimony. What did emerge as reliable and significant from this report, is that Mrs. Mangallon confirmed she told Dr. Walters that she had chronic pain at the left shoulder at the site of the pacemaker since it was implanted in 2002; that Dr. Walters found she had “distinct tenderness at the right second rib attachment to the sternum and along the border of the sternum all the way down to the zyphoid¹⁵;” and that he advised her that due to her insulin-dependent diabetes, her soft tissue injury would take longer to heal than for other people who are not diabetic. Dr. Walters felt her discomfort was gradually resolving. He concluded that Mrs. Mangallon did not demonstrate an ongoing physical impairment, only that she did have residual tenderness with palpation or percussion over the right anterior chest wall. There is no mention of any other injuries or symptoms in the report.

There appears to be no further medical information until a letter prepared by Dr. Yanofsky dated November 1, 2006, reporting that Mrs. Mangallon’s pain in the right shoulder and, “more significantly to the right anterior chest wall has persisted for the past year.”¹⁶ The letter goes on to state nothing more than that physiotherapy was advised but Mrs. Mangallon could not afford it; that chronic persisting right anterior chest pain made it difficult for her to do housework and to care for her husband who was in failing health;¹⁷ that anterior chest wall pain was likely secondary to costchondritis;¹⁸ and that x-rays revealed no abnormalities. No other accident-related injuries, symptoms or complaints are mentioned. As we know, prior to the accident it was Mr. Mangallon (and SSSE) who did the housework, including making meals because Mrs. Mangallon was not able, and Mrs. Mangallon herself required some help with showering and dressing, often from her husband. Obviously Dr. Yanofsky was not aware of Mrs. Mangallon’s pre-accident limitations regarding housework and self-care.¹⁹ I find his opinion that chest wall pain from the accident made it difficult to care for her husband also to be inaccurate, as I am not persuaded, given her pre-existing limitations, that Mrs. Mangallon would have been able to manage the care of her ailing husband in any event.

Mrs. Mangallon testified, and Michael and Falisha corroborated, that she did not develop symptoms of neck, shoulder, back, arm and leg pain until a year after the accident. Even at that point and afterwards, however, these symptoms are not documented in or supported by any medical evidence, despite Mrs. Mangallon’s insistence at the hearing that she told all her doctors and others who assessed her, about them. For example, a report of an in-home assessment conducted on her behalf by Dr. A. Ventrella, a chiropractor, three years after the accident, recorded her symptoms as pain in the right upper chest/shoulder with intermittent referral into the right hand, and that “the client reported that the chest/shoulder pain interferes with daily activities at home making it difficult to complete the majority of tasks and activities that were previously performed readily.”²⁰ No symptoms of neck, back or leg pain are mentioned.

Dr. Ventrella did report “elevated emotions of stress and frustration since the accident due to her physical symptoms, . . . difficulty staying asleep without medication due to her symptoms [which led] to non-restorative sleep patterns leading to decreased energy and fatigue during the day.” He stated that Mrs. Mangallon “reported and demonstrated decreased tolerance to, and limitations in, lifting, carrying, overhead reaching, gripping, pushing and pulling.”

Dr. Ventrella’s report was unhelpful to Mrs. Mangallon’s case for a number of reasons. One, despite noting that her health history included open-heart surgery in 1997 and 2007, diabetes, hypertension, depression and dizziness, he concluded that “other than the injuries sustained in the accident, her health history is unremarkable.” Two, he recommended 8.5 hours of housekeeping assistance for sweeping, vacuuming, mopping floors, cleaning the bathroom and kitchen, making beds and changing linens, tidying, shopping and cooking, none of which, with perhaps the exception of shopping, Mrs. Mangallon actually did before the accident. Three, he did not consider the possible impact of relatively recent open-heart surgery and widowhood on her stress level and sleeping difficulties, although to be fair this would be outside his area of medical expertise. There is simply nothing in Dr. Ventrella’s report that in any way supports Mrs. Mangallon’s claim that she is continually prevented from engaging in substantially all of her pre-accident activities. In fact, he provided detailed recommendations for the gradual resumption of activities.

The October 3, 2008 report of Dr. S. Esmail, an orthopaedic surgeon, submitted on behalf of Mrs. Mangallon was similarly unhelpful to her case.²¹ Based on her subjective report, Dr. Esmail diagnosed Mrs. Mangallon’s symptoms as “possible aggravation of the costosternal joint dysfunction secondary to a compression injury,” based on his belief that Mrs. Mangallon’s right rib cage was “crushed” during the accident. Mrs. Mangallon denied she told him that, as she most definitely did not suffer a crush injury. Dr. Esmail also diagnosed “possible carpal tunnel syndrome, right hand; myofascial pain, right arm, and chronic pain disorder, right arm.” His opinion was that,

based upon the available information, to a reasonable degree of medical certainty, there is a probable causal relationship between the current complaints and the injury reported. Her present clinical complaints appear to be as a result of a combination of pre-existing condition, superimposed on further exacerbation and aggravation of the costosternal joint dysfunction.

Not only are no other symptoms or complaints noted, but Dr. Esmail specifically cautioned that:

if this report is used for TORT purposes, it is imperative that the previous medical records be reviewed and issues regarding apportionment of the clinical impairment and disability with regards to her pre-existing condition superimposed on exacerbation and aggravation being addressed appropriately. This can only be done after review of the previous medical records.

Dr. Esmail did not have Mrs. Mangallon’s pre-accident medical records nor a full picture of her many pre-accident symptoms and complaints. At best, I find Dr. Esmail’s very tentative opinion on causation suggests that the injury sustained on the TTC bus may have aggravated a pre-existing dysfunction of the costosternal joint (where the ribs join the breastbone.) However, how this would have caused a pain disorder in the right arm was not explained, nor was the effect of open-heart surgery a year earlier (the second such surgery), in which the breast bone would have been surgically cut (for a second time) to provide access to the heart. Dr. Esmail’s opinion is a very long way away from supporting Mrs. Mangallon’s claim that any impairment sustained in the accident contributed significantly to any post-accident limitations she developed within two years of the accident. Pre-accident medical records, especially those of Dr. Yanofsky, who saw Mrs. Mangallon so frequently and regularly both before and after the accident, might have assisted in determining the significance of the accident on her ability to engage in normal activities afterwards. However, these records were not provided.

Based on the evidence as a whole, I find that, compared to the emotional devastation and aftermath of the loss of her husband so soon after her own serious open-heart surgery in 2007, on top of her own significant pre-accident symptoms and limitations, the TTC bus incident simply pales into insignificance. I find no causal relationship between that incident and her post-accident symptoms and limitations. Mrs. Mangallon’s own doctors have told her this. Clearly frustrated with practitioners, including her own family doctor, all of whom she believes downplayed or ignored her consistent complaints, Mrs. Mangallon complained at the hearing that her own doctors did not listen to her and told her her accident “was nothing.” She continues to believe otherwise.

In any event, I find there is insufficient evidence, on a balance of probabilities, to establish that any of her accident-related impairments continuously prevented Mrs. Mangallon from engaging in all of the activities that she normally engaged in prior to the accident. Surveillance evidence taken in March 2007 shows Mrs. Mangallon walking outdoors, taking the bus, attending medical appointments with her husband, and doing the monthly grocery shopping with her husband and Nick. Shopping included her loading a shopping cart to the brim with at least two dozen shopping bags and then pushing the loaded cart herself. In another clip, Mrs. Mangallon is shown entering a grocery store by herself and picking up a large bottle of ketchup, hot dogs and bread, paying for them at the cash and returning to the waiting van. She moves normally, even briskly, and capably throughout. The video surveillance from July 2008 shows Mrs. Mangallon walking to the bus, stop to take the bus to the mall, where she sat for several hours visiting her women friends, an activity she admitted she still continues several days a week. I find Mrs. Mangallon was far more active after the accident than she testified or believed, and not significantly less active than she was before. Her explanation was that she had no choice but to engage in these activities, because her husband was too ill to do what he did before, and there was no one else to help her. In other words, she can carry out normal activities if she has too, despite pain. I find the fact that Mrs. Mangallon, viewing the tapes at the hearing, insisted she was moving much more slowly than normal, is another indication of the degree to which her perception and belief differ from objective reality.

With respect to her role as grandmother and babysitter, I have found that she was not as active in that role pre-accident as she claimed. To the extent her role has been more limited since the accident, I do not find the accident contributed significantly. It was very evident from her own testimony and that of her son Michael that she, and the family as a whole in fact, are still grieving the passing of Mr. Mangallon. Mrs. Mangallon candidly, and poignantly, testified that she is lonely and depressed and feels she is going to die soon. It is plain to see that she misses her husband very much. She is not up for much in the way of social interaction, large gatherings or festivities. She attributes all this to chronic daily pain, physical as well as emotional. There is no doubt that she is suffering. However, there is no evidence that her pain and suffering limit her activities to the degree required to meet the test for non-earner benefits.

Taxi expenses

Mrs. Mangallon conceded at the hearing that she is not entitled to taxi expenses she claimed under section 14 of the Schedule. I do not accept her submission that she needed to travel by taxi because she could not tolerate public transportation after the accident. The evidence was clear that she travelled by taxi, private vehicle and TTC both before and after the accident.

Procedural matters

Mrs. Mangallon’s first language is Tagalog. She did not learn English until she came to Canada. Despite this, and although I advised her she was entitled to an interpreter provided by the Commission should she wish it, she decided together with her counsel that she did not require an interpreter for the hearing. Although there may have been some misunderstandings along the way in her dealings with TTC and in her testimony at the hearing, and her vocabulary was not extensive or sophisticated, I found she spoke English quite well, certainly well enough to understand and answer questions, explain herself clearly and in detail, and provide clarification when necessary. I did not find the reliability of her evidence to be affected by any difficulties with language. I did not find an interpreter was required, nor would one have been helpful.

EXPENSES:

Under subsection 282(11) of the Insurance Actand section 12 of Regulation 664, an arbitrator’s power to award expenses is limited by specific criteria, only one of which applies in the case before me, namely, “each party’s degree of success in the outcome of the proceeding.” As Mrs. Mangallon’s arbitration was entirely unsuccessful, and no other criteria apply, she is not entitled to her expenses of the arbitration proceeding. As TTC was the successful party and it does not appear that any of the criteria under subsection 282(11) would operate so as to preclude its entitlement to expenses, I find that TTC is entitled to its reasonable expenses of the proceeding.

If TTC wishes to proceed with a claim for expenses, it should submit a copy to Mrs. Mangallon within 15 days of receiving this decision. If the parties are unable to agree on the amount of expenses to be paid, either party may request, in writing, an appointment before me to determine expenses within 30 days from the date of this decision, as required by Rule 79 of the Dispute Resolution Practice Code.

December 18, 2009

Susan Sapin

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 173

FSCO A07-001813

BETWEEN:

JASMIN MANGALLON

Applicant

and

TTC INSURANCE COMPANY LIMITED

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. Mangallon is not entitled to a non-earner benefit under section 12 of the Schedule.

2. Mrs. Mangallon is not entitled to her expenses of the arbitration proceeding under subsection 282(11) of the Insurance Act.

3. TTC is entitled to its reasonable expenses of the arbitration proceeding should it choose to claim them.

4. The arbitration proceeding is dismissed.

December 18, 2009

Susan Sapin

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Section 12(1)
3. 3Section 2(4)
4. 4Heath v. Economical Mutual Insurance Company 2009 ONCA 391, [2009] O.J. No. 1877, para.50, referring to Da Ponte and Motor Vehicle Accidents Claims Fund, (FSCO A01-000486, October 28, 2002) p. 5
5. 5Exhibit 1, Tabs 3 and 4 identify 14 different medications
6. 6Quoting J.P. and Wawanesa Mutual Insurance Company, (OIC A96-001312, August 11, 1997), at p.5
7. 7In-home Occupational Therapy Assessment of Dana Cappel, OT, dated December 28, 2005, Exhibit 2 Tab 18
8. 8Transcript of interview with Jim Bailey, TTC adjuster, on November 11, 2005, Exhibit 3, Tab 1, p. 10
9. 9As recorded by Ms. Cappel in her report
10. 10P.3
11. 11As noted in the March 3, 2009 report of Dr. M.K. Joseph Kwok, an orthopaedic surgeon who examined Mrs. Mangallon at TTC’s request. It is not clear whether anyone ever explained to Mrs. Mangallon that arthritis is a degenerative disease that develops over time.
12. 12No treatment plan for physiotherapy treatment was ever submitted, nor was any treatment undertaken.
13. 13“Professional Development” days when public schools are closed.
14. 14Transcript of interview with Jim Bailey, TTC adjuster, on November 11, 2005, Exhibit 3, tab 1, p. 10
15. 15The tip of the breastbone
16. 16Exhibit 2, Tab 35
17. 17Letter dated February 21, 2006 from Mrs. Mangallon to TTC indicates Mr. Mangallon was in hospital in January 2006. Exhibit 2, Tab 21
18. 18An inflammation of the cartilage where the ribs join the breastbone, as per Dorland’s Illustrated Medical Dictionary 28th Edition
19. 19He was similarly mistaken in his initial November 2005 Disability Certificate, where he indicated that Mrs. Mangallon suffered a substantial inability to perform housekeeping, including shopping, vacuuming and making beds, the latter two activities of which she did not perform pre-accident.
20. 20Report dated September 13, 2008, Exhibit 1, Tab 2, p.7
21. 21Exhibit 1, Tab 1