Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 161
FSCO A10-000421
BETWEEN:
MARIA DA CONCEICAO MACEDO
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before: Eban Bayefsky
Heard: January 9-12, 16-17, 19, 24-25, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Wendy Sokoloff and Doug Wright for Mrs. Macedo Ian D. Kirby for Allstate Insurance Company of Canada
Issues:
The Applicant, Maria Da Conceicao Macedo, was injured in a motor vehicle accident on November 20, 2007. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.1 Allstate denied certain of Mrs. Macedo’s claims. The parties were unable to resolve their disputes through mediation, and Mrs. Macedo 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:
Did Mrs. Macedo sustain a catastrophic impairment as a result of the accident within the meaning of section 2(1.2)(g) of the Schedule?
Is Mrs. Macedo entitled to attendant care benefits, from November 20, 2007, onward, at a rate of $6,000 per month, less amounts already paid by Allstate, pursuant to section 16 of the Schedule?
Is Mrs. Macedo entitled to receive weekly caregiver benefits, from November 20, 2007 to September 3, 2008, at a rate of $350 per week, and from September 4, 2008, onward, at a rate of $300 per week, less amounts already paid by Allstate, pursuant to section 13 of the Schedule?
Is Mrs. Macedo entitled to payments for housekeeping and home maintenance services, from November 20, 2007, onward, at a rate of $100 per week, less amounts already paid by Allstate, pursuant to section 22 of the Schedule?
Is Mrs. Macedo entitled to payments for modifications to her home, in the amount of $11,870.07, pursuant to section 15(5) of the Schedule?
Is Mrs. Macedo entitled to payments for the cost of examinations, by Dr. F. Mester on October 29, 2008 ($3,899), Dr. A. Hanick on October 15, 2009 ($5,275), and Dr. P. Kirwin on January 31, 2010 ($2,415), pursuant to section 24 of the Schedule?
Is Allstate liable to pay a special award because it unreasonably withheld or delayed payments to Mrs. Macedo, pursuant to section 282(10) of the Insurance Act?
Is Mrs. Macedo entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?
Result:
Mrs. Macedo sustained a catastrophic impairment as a result of the accident.
Allstate shall pay to Mrs. Macedo attendant care benefits, from November 20, 2007, onward, at a rate of $6,000 per month, less amounts already paid.
Allstate shall pay to Mrs. Macedo caregiver benefits, from November 20, 2007, onward, at a rate of $150 per week, less amounts already paid.
Allstate shall pay to Mrs. Macedo housekeeping and home maintenance benefits, from November 20, 2007, onward, at a rate of $100 per week, less amounts already paid.
Mrs. Macedo is not entitled to payments for modifications to her home.
Allstate shall pay to Mrs. Macedo the cost of the assessment proposed by Dr. Mester on October 29, 2008. Mrs. Macedo is not, at this time, entitled to the cost of the reports of Dr. Hanick and Dr. Kirwin.
Allstate shall pay to Mrs. Macedo a special award, in an amount to be determined.
Allstate shall pay to Mrs. Macedo interest on the benefits ordered to be paid.
If required, the parties may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
1) Mrs. Macedo’s Claim of Catastrophic Impairment
Mrs. Macedo maintains that she was very healthy and active before the motor vehicle accident, and that as a result of what was a very serious accident, she suffered a catastrophic impairment, to the point that she is now largely housebound and incapable of taking care of herself or her family. The Insurer maintains that, while the accident was a serious one, Mrs. Macedo’s injuries were surprisingly minor, and that her claim of catastrophic impairment is significantly undermined by her lack of credibility, as it relates both to the nature of her alleged injuries and the extent to which those injuries might have affected her day-to-day functioning.
Pursuant to section 2(1.2)(g) of the Schedule, a catastrophic impairment is “an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.” The AMA Guides indicate that the assessment of an impairment due to mental or behavioural disorder is to be done in relation to four areas of a person’s functioning: (1) activities of daily living, (2) social functioning, (3) concentration, persistence and pace, and (4) deterioration or decompensation in work or worklike settings. In Pastore v. Aviva Canada Inc. (2012), 2012 ONCA 642, 112 O.R. (3d) 523, the Court of Appeal held that it was sufficient for a person to establish at least marked impairment in only one of these areas to be found to have suffered a catastrophic impairment due to mental or behavioural disorder. The Court also indicated that the determination of catastrophic impairment due to mental or behavioural disorder involves a three-step process, namely, the diagnosis of any mental disorders, the identification of the impact of those disorders on a person’s daily life, and the assessment of the severity of those limitations in relation to the four categories of functioning set out in the AMA Guides.
I find that Mrs. Macedo suffered significant psychological and emotional injuries as a result of the accident, that these injuries have profoundly affected the quality of her life, and that her impairment is at least marked in each of the four categories of functioning. I, therefore, find that she suffered a catastrophic impairment within the meaning of section 2(1.2)(g) of the Schedule.
I will first set out the nature of Mrs. Macedo’s accident and injuries.
(i) Mrs. Macedo’s Accident and Injuries
Mrs. Macedo was involved in a serious motor vehicle accident on November 20, 2007, when the car she was driving went over a bridge, falling 30-40 feet to the street below, and rolling onto the roof of the car. Police, firefighters and paramedics were called to the scene, where Mrs. Macedo had to be extricated from the car using the “Jaws of Life.” Although conscious and alert immediately following the accident, Mrs. Macedo had, and continues to have, no recollection of how the accident occurred. She was taken to Sunnybrook Health Sciences Centre, prescribed pain medication and released the same day. That night at home, Mrs. Macedo got up to go to the bathroom and fainted. Her husband called 911, an ambulance took her back to the hospital, and she underwent various tests, which were all determined to be normal. She was released later that day. On November 22, 2007, Mrs. Macedo saw her family physician, Dr. N. Fernandez, complaining of neck and back pain, and headaches. Mrs. Macedo was placed on anti-inflammatory medications, and was referred to physiotherapy treatment. On January 16, 2008, Dr. Fernandez submitted a Disability Certificate (an OCF-3 form) indicating that Mrs. Macedo was substantially disabled from her pre-accident employment, caregiving and housekeeping tasks. Mrs. Macedo continued to complain of neck, back, arm and leg pain, fluctuating dysphoria, anxiety and driver’s anxiety, and was eventually prescribed anti-depressant medication and sleeping pills, and now sees a psychologist once a week. Dr. Fernandez testified that Mrs. Macedo’s memory deteriorated following the accident.
Mrs. Macedo underwent numerous assessments following the accident, which differed as to the nature and severity of her injuries.
On July 3, 2008, Dr. P. Kirwin, a specialist in physical medicine and rehabilitation who began to see Mrs. Macedo on the referral of her family doctor, reported that Mrs. Macedo suffered from a “closed head injury, mechanical cervical and lumbar pain, non specific left shin pain and hand arthrolgias and non specific thoracic pains, bilateral rotator cuff tendonitis and a cervicogenic headache and nonspecific numbness of the hands and coolness of the hands.” On January 31, 2010, Dr. Kirwin reported that Mrs. Macedo suffered, in part, from chronic pain syndrome and fibromyalgia.
On July 29, 2008, Dr. R. Dost, a neurologist who assessed Mrs. Macedo at the request of the Insurer, reported as follows:
Given the uncertainty surrounding the events of the motor vehicle accident, specifically whether Ms. Macedo had a seizure or syncopal episode, the usual markers of brain injury are not reliable, specifically retrograde and anterograde amnesia. However, if one extends Ms. Macedo the benefit of the doubt, she would have sustained no more than a “mild” head injury, the natural history of which is complete recovery [emphasis in original]. Her current cognitive inefficiencies are not attributable to the effects of closed head injury, and are better attributed to her levels of emotional duress, reported levels of pain, and sleep disruption.
Ms. Macedo continues to have episodes of syncope, virtually always triggered by memories of the accident, strongly suggesting pseudo-seizures rather than organic seizures.
To conclude, there is no traumatic neurological impairment or disability.
On November 13, 2008, Dr. Dost reiterated that “it is questionable if [Mrs. Macedo] sustained a brain injury, but if she did,…it would be no greater than mild.”
On August 27, 2008, Dr. A. Hanick, a psychiatrist to whom Dr. Fernandez referred Mrs. Macedo, reported that Mrs. Macedo suffered from post-traumatic stress disorder, major depressive episode, agoraphobia, driving phobia, post-traumatic mixed headaches and chronic pain disorder. Dr. Hanick testified that, given that motor vehicle accidents can be extremely traumatic, it is very common for accident victims not to remember the event itself. On October 15, 2009, Dr. Hanick further stated that, while Mrs. Macedo’s cognitive deficits might suggest that she suffered from an underlying head injury, her “presentation and performance are much more suggestive of a dissociative (psychogenic) amnesia” and there was “evidence for a significant cognitive disorder.” Dr. Hanick stated that Mrs. Macedo’s condition was of such a nature, as a last resort she “might require such therapies as electroconvulsive therapy” although “such a possible hospitalization is a difficult issue for her family.”
On September 12, 2008, as part of a multi-disciplinary assessment arranged by the Insurer, Mrs. Macedo underwent a psychiatric examination by Dr. S. Shapiro, who reported that Mrs. Macedo suffered from adjustment disorder with depressed and anxious mood, and that this was of a “mild to moderate intensity.”
As part of the same assessment, Mrs. Macedo was seen on September 19, 2008, by Dr. J. Mathoo, a physiatrist, who reported that, from a musculoskeletal perspective, there were “no valid indicators of impairment suggesting need for physical restrictions or imposed limitations” and that “any limitation in function is self-imposed due to exaggerated pain behaviour….” Dr. Mathoo reported that Mrs. Macedo’s “physical presentation is highly suggestive of self-limited movements and function associated with exaggerated pain behaviour and somatic amplification, far out of proportion from any objectively identified musculoskeletal impairments resulting from the index MVA” and that her “presentation is consistent with nonorganic type of diffuse and chronic pain.” Dr. Mathoo testified that Mrs. Macedo’s presentation was suggestive of chronic pain syndrome.
On May 9, 2009, Dr. R. Vitelli, a psychologist who assessed Mrs. Macedo at the request of her counsel, reported that “personality and clinical symptom testing suggest severe anxiety, severe depression, severe hopelessness and severe post-traumatic stress symptoms” and that while Mrs. Macedo appeared to meet some of the criteria for a mild traumatic brain injury, there was “some question as what extent her emotional issues and problems dealing with her chronic pain are overshadowing her cognitive functioning.”
On June 15, 2009, Dr. V. Lopo, a psychotherapist, and Dr. Bodnar, a psychologist, provided a psychological treatment progress report, in which they reported that Mrs. Macedo suffered from post-traumatic stress disorder, major depression, pain disorder associated with psychological factors and a general medical condition.
On August 26, 2010, Dr. J. D. Salmon Jr., a psychologist who assessed Mrs. Macedo at the request of her counsel, reported that Mrs. Macedo suffered from post-traumatic stress disorder with associated panic attacks, major depressive disorder with psychotic features, and pain disorder associated with both psychological factors and a general medical condition.
On November 29, 2011, Dr. L. Gerber, a psychiatrist who assessed Mrs. Macedo at the request of her counsel, reported that, “[e]ven though it is unclear exactly how much each of the various conditions contribute to her cognitive functioning,…it is likely the combination of her Mild Traumatic Brain Injury, Severe Major Depressive Disorder with Psychotic Features, Posttraumatic Stress Disorder, and Chronic Pain Disorder which has resulted in her ongoing cognitive difficulties.”
In order to consider Mrs. Macedo’s general claim of catastrophic impairment, as well as her specific claims for attendant care, caregiving and housekeeping benefits, it is necessary to understand her previous social situation and medical history.
(ii) Mrs. Macedo’s Pre-accident Social and Medical History
Mrs. Macedo is married and has two sons, Nuno and Fabio, who were 16 and 10, respectively, at the time of the accident. Both sons live with Mrs. Macedo and her husband. Mrs. Macedo worked as a cleaning lady in private homes, for 3-5 years before the accident. Mrs. Macedo’s husband, Manuel, testified that his wife worked 5-6 days a week, 5-6 hours per day.
Mr. Macedo testified that he injured his back in a workplace accident in 1998, and has not returned to work since that time. He said that he received workers’ compensation benefits for his injury, which included funds for attendant care provided to him by his wife. Mr. Macedo’s benefits were terminated in 2001, and he appealed to the Workplace Safety and Insurance Appeals Tribunal, which, in 2005, reinstated Mr. Macedo’s benefits “calculated pursuant to 60% at category IV of the Board’s policy on psychotraumatic disability.” Mr. Macedo testified that the following passage in the Appeals Tribunal’s decision was true:
The worker described his typical day as sedentary. He may go out for short periods of time but his wife must take care of him and keep an eye on his whereabouts. There are days that he cannot remember and he must be reminded to take his medications. His wife ensures that he is awakened and fed and tries to encourage him to get some exercise out of doors. He has very little social life and states that his condition has worsened since 1999. He described his emotional state as having worsened after he stopped receiving benefits.
Mr. Macedo acknowledged his wife’s testimony before the Appeals Tribunal, to the effect that she “stopped working not long after [her husband’s] work accident in order to take care of [him].” Mr. Macedo testified that his wife had told the Board she was not working, but that she was working, and that if she said this, she was lying. Mr. Tony Martins, a real estate agent who sold Mr. and Mrs. Macedo their house in late 2006, testified that he showed them 80-100 houses over a 4-5 month period, that Mrs. Macedo was working at the time, and that Mr. Macedo was on a pension from an accident, although there did not seem to be anything wrong with him.
In cross-examination, Mrs. Macedo testified that she could not remember what she told the Appeals Tribunal about not working after her husband’s work injury, that she was working because she needed to live, and that she might have lied, but she does not remember. In response to a question as to whether she would lie to get money, she simply said, “I don’t know, I don’t know.”
Mr. Macedo stated that he continues to receive workers’ compensation benefits, and that he still takes medication for his emotional problems. He said that he receives an attendant care benefit so that someone could take him to his medical appointments. He stated that his wife used to take him to his doctors’ appointments, but that, since her accident, his older son does this. Mr. Macedo stated that he also receives an Independent Living Allowance from the Workplace Safety and Insurance Board, which covers services such as snow shovelling, grass cutting, home maintenance, specialized household items and support therapy.
Mr. Macedo acknowledged that his wife reported no income on her pre-accident tax returns, but stated that a tax preparer had advised them that, since she was paid in cash, she did not need to report any income. Mrs. Macedo testified that she did not know if it was necessary to report her income, and that she did not know about these things.
Mr. Macedo testified that, prior to the accident, he and his wife took care of the kids, and did the housekeeping. He also stated that his wife did “everything around the house” and that sometimes she would ask the kids to help. Mr. Macedo stated that his sons “helped around the house” before the accident.
Mrs. Macedo testified that, before the accident, she did not have any problems with her memory, any pains in her body, and was not sad. In cross-examination, Mrs. Macedo testified that she did not remember having any emotional problems, or seeing any doctors about emotional problems, before the accident.
Mr. Macedo testified that his wife was very active and happy before the accident, had no health or emotional problems, and was never depressed. Mr. Macedo testified that he had no knowledge of his wife seeing Dr. J. Meastre 12 times from 2001 to 2004 for emotional problems. He said he was also unaware that she saw her family doctor, Dr. Fernandez, about anxiety, stress and depression, as a result of Mr. Macedo being “severely dysfunctional” and “not earning any money.” Mr. Macedo stated that he never saw his wife sad or angry, and that she was never depressed, but also that he knew his wife was sad about his workplace accident.
Dr. Fernandez testified that he saw Mrs. Macedo 5 times from October 2004 to the time of the accident, that she had no significant medical problems, including any major depression, and that she was totally well before the accident. He said that he was not aware that Mrs. Macedo had seen Dr. Maestre for emotional problems. Dr. Fernandez said that he also saw Mr. Macedo concerning his ongoing pain and psychological problems arising from his workplace accident, that Mrs. Macedo would accompany her husband to his appointments, and appeared to be a very caring wife and mother.
(iii) Mrs. Macedo’s Post-accident Activities
Mrs. Macedo’s life changed significantly after the accident. She testified that she is tired and depressed all of the time, has pains throughout her body, has nightmares about the accident, is unable to sleep for any length of time at night, and is afraid to answer the door or go outside by herself. She said that treatment has not improved her pain. She testified that a typical day for her following the accident is laying in bed, sitting on the couch watching television, and going out occasionally with her family when they ask her.
Mr. Macedo testified that, after the accident, his wife is always in pain, spends most of her time in bed or watching television, talks very little to the family and sometimes does not even recognize them. Mr. Macedo said that his wife always needs someone to help her walk, that she does not drive or go outside by herself and that her memory is almost completely gone. Mrs. Macedo’s sons testified that their mother is completely different from before the accident, sitting at home watching television, saying very little to them, and showing no interest in their school or sports activities.
Mr. Martins testified that he saw Mrs. Macedo again a few times after the accident, that she was very unresponsive, and totally different from before the accident, when she was happy, hard-working, communicative and outgoing. This was also the testimony of Miriam Ticoll, who employed Mrs. Macedo as a cleaning lady for two years before the accident, and who saw her approximately 2-3 months following the accident.
The WSIB file contains three letters from Dr. Fernandez (February 15, 2008, March 25, 2009 and May 14, 2010), in which he states that, due to “the severity of [Mr. Macedo’s] medical condition, it was necessary for his wife…to escort him to my office on [89] visits [from October 22, 2004 to April 22, 2010].” Mr. Macedo testified that he had asked for these letters, but that it was on behalf of his son, so he asked that his son’s name be put in. The letters do not refer to Mr. Macedo’s son, but Mr. Macedo stated that it is his son who does this, and that “if it’s a lie”, Dr. Fernandez would have to be asked about it. Dr. Fernandez testified that he did not recall who asked him to write these letters, that the May 14, 2010 letter saying that Mrs. Macedo accompanied her husband to his appointments was not correct, although the March 25, 2009 letter stating the same thing was accurate.
On July 30, 2008, at the request of the Insurer, Mrs. Macedo attended at AssessMed for a psychological assessment, at which she had a fainting spell. Mr. Macedo had accompanied his wife to the appointment, and testified that he was very upset with the way his wife was treated in the assessment, and that when he saw his wife faint, he told the assessors that they were trying to kill his wife. The Portuguese interpreter at the assessment, Ms. Dianne Martins-Gomes, provided a written statement about the incident, in which she indicated that Mr. Macedo had threatened to sue the assessors if his wife became ill as a result of the assessment, and had said, “I sue you, I kill you, I don’t care, stupid.” At the hearing, Mr. Macedo denied threatening to kill anyone, and said that 60% of the statement was a lie. Ms. S. Bielawski, an occupational therapist, testified that Mrs. Macedo became much more anxious, intense and withdrawn after this incident.
(iv) Medical Opinions on the issue of Catastrophic Impairment
Mrs. Macedo underwent a number of assessments on the specific issue of whether she met the test of catastrophic impairment under section 2(1.2)(g) of the Schedule.
On August 26, 2010, Dr. Salmon submitted an Application for Determination of Catastrophic Impairment (an OCF-19 form), reported that “[r]elative to her premorbid occupation of housekeeper/cleaner, Mrs. Macedo appears to be totally disabled on the basis of her synergistic cognitive, emotional and physical/pain impairments” and, in this regard, demonstrated “poor sustained attention/concentration, and poor activity persistence/stamina/ productivity pertinent to any competitive employment setting” and sustained a “complete inability to carry on a normal life, and appears to meet Catastrophic Impairment minimally under the ‘g’ Mental/behavioural criterion.”
In October and November 2010, Mrs. Macedo underwent a multidisciplinary insurer’s examination to determine whether she was catastrophically impaired. Dr. P. Duhamel, a psychologist, reported that the “medical file contains insufficient data to conclude that [Mrs. Macedo] has developed a mental disorder, or sustained brain damage, as a result of the subject collision”, there is “evidence of symptom magnification and somatization” and a “review of OHIP, family medical, and WSIB records will be necessary for a differential diagnosis of symptoms.”
As part of the same assessment, and in respect of Mrs. Macedo’s claim that she is catastrophically impaired under section 2(1.2)(g) of the Schedule, Dr. N.E. Morris, a psychologist, reported that “while…Ms. Macedo may be experiencing intrusive psychological/ emotional symptomatology”, he was unable to establish “objectively valid evidence of psychological impairments of a degree that would substantiate [her] overall levels of purported and portrayed impairments.” Dr. Morris stated that he was “unable to offer reliable and defensible impairment classification ratings due to mental and behavioural disorders…to the four aspects or areas of functionality as outlined…” and, therefore, he was “unable to determine if Mrs. Macedo’s impairments meet defining criteria for Catastrophic Impairment…as per clause (g)….” Dr. Morris testified that it is rare for people with depression to totally disengage, and that he tried to administer memory and malingering tests to Mrs. Macedo, but there was very little effort on her part. Dr. Morris also testified that he could not reliably assess Mrs. Macedo and was, therefore, disinclined to provide a catastrophic impairment assessment. In cross-examination, Dr. Morris acknowledged that Mrs. Macedo may actually have serious impairments, and that, for example, the fact that Mrs. Macedo began to cry during the assessment when she heard a siren outside was significant and potentially a sign of post-traumatic stress disorder.
On November 29, 2011, Dr. Gerber reported that Mrs. Macedo was catastrophically impaired, since she met “criteria for a Class 4 (Marked Impairment) determination in 3 of the 4 categories, and for a Class 5 (Extreme Impairment) determination in the 4th category.”
The issue at this point is whether Mrs. Macedo suffered a mental or behavioural disorder or disorders as a result of the accident, which resulted in at least a marked impairment to her daily functioning in one or more of the four relevant categories. As noted earlier, the Insurer maintains that Mrs. Macedo’s claim of catastrophic impairment is significantly weakened by her lack of credibility. A number of assessors commented on the nature and veracity of Mrs. Macedo’s condition.
(v) Medical Opinions as to Mrs. Macedo’s Credibility
On April 25, 2008, Ms. Catalina Woldarsky, a psychometrist, and Dr. V. Kleiman, a psychologist, who assessed Mrs. Macedo at the request of her counsel, reported that Mrs. Macedo suffered from post-traumatic stress disorder and “appears to suffer from genuine impairments.”
On September 19, 2008, Dr. Mathoo reported that although Mrs. Macedo “denied any significant past medical history”, she did report a “history of depression.” Dr. Mathoo also reported that Mrs. Macedo’s “physical presentation is highly suggestive of self-limited movements and function associated with exaggerated pain behaviour and somatic amplification, far out of proportion from any objectively identified musculoskeletal impairments resulting from the index MVA.” Dr. Mathoo testified that there were inconsistencies in Mrs. Macedo’s presentation, but that he did not ascribe any motivation to this presentation, and was not saying that she was not, in fact, experiencing pain.
On September 12, 2008, Dr. Shapiro reported that Mrs. Macedo’s “seemingly poor acculturation to the country, limited knowledge of the English language, ongoing litigation and family dynamics, (husband being on Disability), further compounded her rehabilitative process.” On November 13, 2008, Dr. Shapiro reported Mrs. Macedo as denying any previous health problems, including any treatment for depression.
On May 9, 2009, Dr. Vitelli reported that on a memory test, Mrs. Macedo “scored in a manner that is usually suggestive of intentional or conscious effort to malinger…but which in her case may indicate severe problems in concentration and focusing.”
On June 8, 2009, Dr. R. Ladowsky-Brooks, a psychologist who assessed Mrs. Macedo at the request of the Insurer, reported that, although neuropsychological testing did not reflect Mrs. Macedo’s true ability as she was “not putting forth any effort”, the “diagnosis of malingering also needs to be ruled out….”
Dr. Fernandez testified that Mrs. Macedo has been significantly affected by the accident, that her symptoms and history-taking, as well as the history given by her family, have remained very consistent over time.
Mr. N. Altieri, an occupational therapist who conducted an in-home assessment on behalf of the Insurer, testified that, although he was not able to complete an assessment with Mrs. Macedo, there was no reason to believe that her presentation was not genuine.
Ms. Bielawski testified that, during her assessment of Mrs. Macedo, Mrs. Macedo shifted in her seat and stood frequently, she tried but struggled with the mental tests, got very upset and started crying. Ms. Bielawski testified Mrs. Macedo’s presentation as sad, fearful and very dependent on her husband, was consistent throughout the assessments, even when her husband was not present. Ms. Bielawski testified that most of the information she obtained during the assessments was from Mrs. Macedo’s husband, that she was not aware that Mr. Macedo had been under psychiatric care for many years, and that this might have affected what he said regarding his wife.
Dr. Hanick testified that Mrs. Macedo’s behaviour was “not conscious” and that it could “not be done for long.” Dr. Hanick stated that he believed Mrs. Macedo, that she was “consistently inconsistent”, meaning that, from a psychiatric perspective, it was possible for a patient to forget things one day and remember them the next. Dr. Hanick also stated that she honestly believes she is experiencing severe impairment, and that, although her situation is rare, he has seen it before. Dr. Hanick testified that it would require a “level of sophistication to maintain the pretence” and that malingerers generally do not wish to continue therapy, but that he has seen Mrs. Macedo approximately 40 times. Dr. Hanick stated that Mrs. Macedo has gotten worse over time, and that it is unclear why, although he did say that people can consciously or unconsciously mimic the disabled behaviour of another injured family member. Dr. Hanick stated that, in this case, given the history of her husband’s condition, Mrs. Macedo may be mimicking that, and that, if she is, it is unconscious, not deliberate, and not deceitful. Dr. Hanick stated that he was unaware of Mrs. Macedo’s pre-accident psychiatric treatment, and that this could affect his ability to opine on this case.
On November 29, 2011, Dr. Gerber reported that there was “nothing to indicate that Ms. Macedo was purposefully presenting herself as being worse off than she actually is”, she “clearly is very regressed, limited, and extremely fragile, and this presentation has been extremely consistent over time” and the “collateral information clarified just how severely limited she is in virtually every area of her life, and how different this is to the way that she was prior to the accident.” Dr. Gerber also reported that there was “absolutely no indication that there is any aspect of malingering, and unfortunately Ms. Macedo appears to be genuinely distressed and limited the way that she presents.”
Dr. Gerber testified that, although Mrs. Macedo’s presentation was extreme, and her answers selective, they were a reflection of her situation, and did not show a significant difference between her ability to answer and her actual answers. He stated that she did not seem engaged in the process, but that there was nothing to indicate that she was lying about her situation. Dr. Gerber stated that Mrs. Macedo would have to be a “superb actress” to behave so consistently with him and the other assessors. Dr. Gerber indicated that it was impossible to know whether Mrs. Macedo was not genuinely trying in the assessments. He stated that Mrs. Macedo’s motivation was a feature of her symptomatology, she presented as a severely depressed person would, that she was like this with everyone, and she was not consciously making her symptoms up for gain. In cross-examination, Dr. Gerber acknowledged that he had not been told about Mrs. Macedo’s pre-accident emotional problems and treatment, and stated that it would be easier to determine if a person were acting, if they were more engaged in the process, but that it is very hard to “fake it” for the full 2 hours of the assessment, and very difficult to voluntarily act as she did. Dr. Gerber acknowledged that a lack of effort during assessments could be a sign of malingering (as well as an attempt to gain from her situation in the same manner as her husband did from his work injury), but that, due to her depression, she likely would not do well on testing. Dr. Gerber testified that Mrs. Macedo’s presentation was so severe for so many years, it was very unlikely that she would put the important relationships in her life on hold with the intention of getting money.
(vi) Findings on the Issue of Catastrophic Impairment
(a) Mrs. Macedo’s Credibility
The validity of Mrs. Macedo’s claim of catastrophic impairment turns, to a large extent, on the reliability of her evidence, in terms of both her complaints of widespread pain and social withdrawal following the accident, as well as her presentation to the various assessors. While this is a challenging case, complicated in part by her husband’s pre- and post-accident conduct, I find that Mrs. Macedo provided reliable evidence of the nature and extent of her accident-related impairments.
While Mrs. Macedo may not have fully disclosed her pre-accident medical history, I find that this was likely the result of her diminished memory following the accident, and that, in any event, it did not significantly alter her evidence that she was in good health in the months and years leading up to the accident. I note, in this regard, Dr. Fernandez’s evidence that Mrs. Macedo only saw him five times in the three years preceding the accident, that she had no significant medical problems, including any major depression, and that she was totally well before the accident. I also accept the evidence of her family and others that she was a happy, active, outgoing, hard-working and communicative person prior to the accident.
Mrs. Macedo’s husband has received funds from the Workplace Safety and Insurance Board as a result of an employment-related accident in 1998. Whether his evidence before the Financial Services Commission is at odds with the evidence he provided at the Workplace Safety and Insurance Appeals Tribunal, and whether this undermines his claim for compensation there, are not issues before me. It appears, however, that Mrs. Macedo did not provide accurate evidence before the Appeals Tribunal about whether she had stopped working after her husband’s accident in order to be with him. She also appears not to have reported the income she received from working as a cleaning lady before the accident. The question, though, is whether these undermine her claims in the current proceeding as to the nature and extent of her disability. I find that it does not.
In relation to her evidence before the Appeals Tribunal, Mrs. Macedo was asked whether she would lie in order to get money, to which she responded that she did not know. While this is a confusing answer, I find it consistent with Mrs. Macedo’s overall presentation following the accident, which, though extreme, I find to be genuine.
At the hearing, Mrs. Macedo seemed generally confused, being very slow in responding to questions. Her family, acquaintances, and the various assessors who saw her after the accident, consistently commented on Mrs. Macedo’s vacant, confused demeanor, to the point that she either did not recognize people close to her or became almost completely unresponsive with them. The Insurer suggested that this has been a ruse by Mrs. Macedo in order to obtain compensation for her accident. I do not accept this. Even the assessors who had difficulty in completing their assessments of Mrs. Macedo (for example, Drs. Vitelli and Ladowsky-Brooks, and Mr. Altieri) could not conclude that she was malingering. I find significant that Dr. Vitelli felt that a plausible explanation for Mrs. Macedo’s presentation was her problems with “concentration and focusing.” Neither Dr. Mathoo nor Dr. Shapiro, who experienced similar problems assessing Mrs. Macedo, found that she was not genuinely suffering as a result of the accident. The remaining assessors found Mrs. Macedo to be presenting in a credible fashion.
However, the most compelling evidence of the credibility of Mrs. Macedo’s complaints is the consistency of her presentation over time. In stark contrast to her previous life, Mrs. Macedo has lived a significantly diminished and sheltered life since the accident, cut off from even those closest to her. In this regard, I find the evidence of Drs. Hanick and Gerber particularly helpful. In determining the legitimacy of Mrs. Macedo’s claims, both experts emphasized the importance of the length of time for which Mrs. Macedo has remained in her current, severe state. She has presented in the same way, regardless of who she is with. The Insurer submitted surveillance reports (based on 27 days of surveillance) which only seem to corroborate the evidence of Mrs. Macedo and her family that she has lived an extremely limited life following the accident. I also find significant Dr. Hanick’s evidence that he has seen Mrs. Macedo dozens of times, whereas malingerers tend not to wish to continue with therapy. I note physiotherapy reports in March 2008 and June 2009 that Mrs. Macedo’s “attendance and compliance with treatment” were good. Similarly, Dr. Gerber indicated that Mrs. Macedo’s limited ability and lack of motivation during testing was a function, not of malingering, but of severe depression (in respect of which she presented as a severely depressed person would). I also accept Dr. Hanick’s evidence that, although it was possible that Mrs. Macedo was mimicking her husband’s condition, this would not be occurring in a conscious or deceitful way.
Finally, while not determinative of the issue, I find significant that, although the Insurer challenged Mrs. Macedo’s credibility at the hearing, its Senior Claims Advisor, Ms. Francine Tremblay, testified that the Insurer has paid all of Mrs. Macedo’s claims for medications (for anxiety, psychosis, pain and insomnia), and that it has never been an issue as to whether these medications were reasonably required as a result of the accident. In my view, this supports Mrs. Macedo’s claim of severe and legitimate psycho-emotional problems arising from the accident.
In all of the circumstances, I conclude that Mrs. Macedo has provided credible and reliable evidence of her accident-related impairments.
I return, then, to the three-step process set out in Pastore to determine Mrs. Macedo’s substantive claim of catastrophic impairment.
(b) Mrs. Macedo’s Substantive Claim of Catastrophic Impairment
In respect of the first branch of the test, namely, the diagnosis of any mental disorders, I find that Mrs. Macedo suffered significant psycho-emotional injuries as a result of the accident. Mrs. Macedo was miraculously able to walk away from the scene of the accident, and there is some debate as to whether she suffered a closed-head injury. Even if Mrs. Macedo did not suffer any obvious physical injuries or a closed-head injury as a result of the accident, I find that she suffered various non-organic mental or behavioural disorders as a result of the accident. The preponderance of evidence (even from the assessors proffered by the Insurer) establishes that Mrs. Macedo suffered from chronic pain syndrome, post-traumatic stress disorder, major depressive episode, anxiety and panic attacks, and driving phobia.
The evidence is also overwhelming that the accident had a significant impact on Mrs. Macedo’s daily life. As noted earlier, the AMA Guides indicate that the assessment of an impairment due to mental or behavioural disorder is to be done in relation to four areas of a person’s functioning: (1) activities of daily living, (2) social functioning, (3) concentration, persistence and pace, and (4) deterioration or decompensation in work or worklike settings. I find that Mrs. Macedo’s accident-related injuries affected her in each of these areas. As discussed, Mrs. Macedo’s life changed drastically as a result of the accident. She was gainfully employed as a cleaning lady, socially active, and a caring and involved wife and mother. Following the accident, Mrs. Macedo’s psycho-emotional problems have resulted in her leading a dreary, cloistered and semi-conscious existence.
There is some question as to whether Mrs. Macedo continued to escort her husband to his own medical appointments with Dr. Fernandez following the accident. While the letters from Dr. Fernandez, as well as his testimony suggest that this may have been the case, based on the significant evidence to the contrary, namely, that Mrs. Macedo rarely left her house, did not drive, and was accompanied by others to assist her whenever she did leave the house, I do not accept that Mrs. Macedo continued to be responsible for taking her husband to his appointments at Dr. Fernandez. In my view, this may call into question some of Dr. Fernandez’s practices, but it does not undermine the nature of Mrs. Macedo’s claims of catastrophic impairment. I, therefore, find that her mental or behavioural disorders significantly affected her ability to function in the four noted areas.
The final step in the analysis is to determine the level of Mrs. Macedo’s impairment. The AMA Guides set out a range of impairment levels, from Class 1 (no impairment) to Class 5 (extreme impairment). Pursuant to section 2(1.2)(g) of the Schedule, and the decision in Pastore, Mrs. Macedo must establish that she suffered at least a Class 4 impairment (marked impairment) in at least one of the four areas of functioning.
Neither of the two assessors who provided opinions on this issue at the request of the Insurer was prepared to indicate one way or another whether Mrs. Macedo had been catastrophically impaired as a result of the accident. Dr. Duhamel stated that there was insufficient evidence to conclude that Mrs. Macedo had developed a mental disorder from the accident, and that he required additional information before he could offer a diagnosis of Mrs. Macedo’s symptoms. Dr. Morris indicated that he was unable to reliably assess Mrs. Macedo and, therefore, could not say whether she suffered a mental or behavioural disorder that markedly impaired her daily functioning. I have found that Mrs. Macedo’s lack of participation in, or engagement with, the assessments she attended is a function of, and not an argument against, the significant psycho-emotional injuries she suffered as a result of the accident. While Dr. Salmon only submitted an Application for Determination of Catastrophic Impairment, and did not offer a definitive opinion on the question, his preliminary diagnoses and findings were consistent with the other evidence that Mrs. Macedo suffered significant impairments to her daily functioning as a result of accident-related mental and behavioural disorders. Dr. Gerber, on whose evidence I relied in finding that Mrs. Macedo presented in a credible fashion, squarely addressed the question of catastrophic impairment and found that she had suffered a Class 4 impairment in 3 of the 4 categories of functioning, and a Class 5 impairment in the fourth category. This opinion was consistent with all of the other evidence before me, that Mrs. Macedo suffered at least a marked impairment in the four areas of daily functioning.
I, therefore, conclude that Mrs. Macedo suffered a catastrophic impairment as a result of the accident, within the meaning of section 2(1.2)(g) of the Schedule.
2) Mrs. Macedo’s Claim for Attendant Care Benefits
Mrs. Macedo claims attendant care benefits, from the date of the accident, onward, at a rate of $6,000 per month, less amounts already paid by the Insurer. Pursuant to section 16 of the Schedule, an insurer is required to pay reasonable and necessary expenses, as a result of an accident-related impairment, incurred by a person for an attendant. Pursuant to section 16(4) of the Schedule, the monthly amount payable for attendant care is to be determined in accordance with an Assessment of Attendant Care Needs (Form 1). Pursuant to section 16(5), the amount of attendant care benefits is a maximum of $6,000 per month for individuals who have sustained a catastrophic impairment as a result of the accident.
Mrs. Macedo maintained that, as a result of the injuries she suffered in the accident, she was rendered incapable of taking care of her basic personal needs, and required the assistance of an attendant, which role was assumed by her husband and sons, as well as a lady the family hired to assist her, Ms. Margaret Hanson. The Insurer maintained that Mrs. Macedo was not legitimately disabled by the accident, did not require attendant care assistance, and in any event, submitted unreliable records of the amount of time and expenses incurred in respect of attendant care provided.
(i) The Evidence on Attendant Care
Mrs. Macedo submitted an Application for Expenses (an OCF-6 form) for attendant care expenses provided by Ms. Hanson, for the period of November 20, 2007 to June 30, 2008, at roughly $7,000 per month. Ms. Hanson testified that she did not start in November 2007, and was not working 24 hours per day (as suggested in the expenses that were submitted). She stated that she began working for the Macedo family in June 2008, 4 days per week, 20 hours per week, 2-8 hours per day depending on the day. She was promised $1,600 per month (20 hours per week at $20 per hour). She stated that although there were no records of the time she worked for the Macedo’s, her time was always the same, and that is what she had agreed on with them. She said that she was told from the beginning that the family would pay her what they could and that they would reimburse her the rest when they received money from the insurance company.
Mr. Macedo testified that he could not recall exactly when Ms. Hanson started providing attendant care assistance, but it was not until several months after the accident. Mr. Macedo stated that Ms. Hanson worked 1-3 hours per day, 2-3 days per week, doing housekeeping.
Mr. Macedo said that he agreed to pay Ms. Hanson $20 per hour, that he paid her initially, but has long since stopped that.
Mrs. Macedo testified that Ms. Hanson helps her get her medicine and sometimes washes and brushes her hair. She said that she is able to put on some of her clothes, but that she needs help putting on her socks and jacket, and doing the laces on her shoes. She said that she also needs help taking a shower. She stated that she can sometimes get out of bed in the morning by herself, but that her sons and husband usually help her to do this. She said that her family helps her to walk, and that she is afraid of falling. She stated that Fabio cuts her nails for her. She said that Nuno goes to the store to buy her medication, and that he and sometimes her husband takes her to her medical appointments. She said that she needs people around her, and that if she were left alone, she might die.
Mr. Macedo testified that his wife is scared to turn on the stove, does not cook for herself, needs help walking, and going outside. He said that she needs help putting on her shoes and sometimes her shirt and sweater. He said that she does not bathe regularly and that she has to be encouraged to take a shower, which she does by sitting on a chair in the shower. Mr. Macedo says that someone is always with his wife, although he has left her by herself at times, but for at most an hour. He said that he accompanies his wife to all of her medical appointments, and assists with translation, since she has lost any ability to speak in English since the accident. Mr. Macedo acknowledged that he told the Workplace Safety and Insurance Board that his condition was getting worse, but denied that, despite that, he was doing most of the attendant care for his wife.
Nuno stated that he often woke up at night from his mother’s screaming, and that he goes to help her. Fabio testified that he said that he helps to brush his mother’s hair, cut her nails, wake her up in the morning, cook for her, and put her coat on.
Ms. Hanson stated that she assisted Mrs. Macedo with personal grooming, such as cutting and painting her nails, washing her hair, shaving her legs, and putting on her clothes. Ms. Hanson testified that Mrs. Macedo was very unresponsive, rarely talked, and that she was no better with her family or others, than she was with her. She said that she had never seen anyone “catatonic like that.” Ms. Hanson said that her hours were reduced in July 2011, when she became a “supervisor” for the family; she felt she was not needed, and Nuno did a lot of the cooking and cleaning.
Dr. Fernandez testified that Mrs. Macedo comes to her appointments accompanied by her husband or her son.
On December 24, 2007, Ms. Bielawski reported that, as Mrs. Macedo experienced “severe pain, cognitive difficulties, dizziness, severe mobility and balance difficulties…and is at high risk of falling, she requires 24 attendant care.” Ms. Bielawski also noted that, in the event of an emergency, Mrs. Macedo was “unable to exit her house in a timely manner.” From August 7, 2008 to November 2, 2011, Ms. Bielawski submitted several Assessments of Attendant Care Needs (Form 1), recommending attendant care assistance at a rate of $7,122.42 per month.
In her November 2, 2011 report, Ms. Bielawski reported as follows:
The client’s husband assists, supervises and cues the client with personal care (grooming, dressing, undressing, and showering). The client eats when her husband makes her meals and encourages her to eat. She attends appointments as required with the accompaniment of her husband. The client’s husband/cleaner now complete all the housekeeping, shopping, laundry and cooking tasks….[T]he client’s husband has become their only caregiver.
Mr. Macedo testified that not all of this was true, that his sons also provide help, that he only helps with some things (such as putting shampoo on his wife’s hair, small housekeeping tasks, and reminding his wife to take her medication), and that Ms. Bielawski might have misunderstood that when he said, “I”, he was referring to the “family.”
On September 19, 2008, Dr. Mathoo reported Mrs. Macedo as saying that she was “independen[t] with hygiene, grooming and toileting, though she said that on some occasions she actually requires assistance with these activities of self care” and that she “requires some assistance with dressing her lower body.” Mrs. Macedo also indicated that she could walk without assistive devices, that her husband does “all the household cooking, banking and shopping”, and that she has a “housekeeper who does the household cleaning and laundry.”
On January 14, 2008 and April 30, 2008, Beverly Bernabe, an occupational therapist who conducted an in-home assessment on behalf of the Insurer, reported that Mrs. Macedo required $792.37 of attendant care assistance per month.
On June 30, 2008, Mr. Altieri reported that Mrs. Macedo required attendant care of $454.14 per month. However, upon reassessment in November 2008, Mr. Altieri reported that Mrs. Macedo was able to perform her pre-accident personal care activities. Mr. Altieri testified that Mrs. Macedo demonstrated certain physical abilities, her cognitive issue were not limiting her function, she could walk independently within her home, and that she could leave her home in the event of an emergency. Mr. Altieri, therefore, stated that Mrs. Macedo did not require 24 hour per day assistance, and that the provision of assistance would only reinforce her problems.
On September 18, 2008, Irina Murariu, a clinical therapist who was treating Mrs. Macedo, reported that Mrs. Macedo suffered from post-traumatic stress disorder, and that it was “advisable that she [be] allowed to be accompanied by a member of her family [when] leaving the house or attending various examinations” since “[s]he is otherwise at risk of severe emotional disturbance.”
On November 13, 2008, Dr. Shapiro reported Mrs. Macedo as saying that she was “independent in the majority of the aspects of self-care”, although her husband “assists her sometimes with bathing.”
On October 15, 2009, Dr. Hanick reported that Mrs. Macedo suffered significant impairments as a result of the accident, and that, until there was any improvement in her condition, “she will require some level of attendant-care assistance, given her inability to more fully attend to her own dress and hygiene and meal preparation, for example.”
On January 31, 2010, Dr. Kirwin reported that Mrs. Macedo suffered, in part, from chronic pain syndrome and fibromyalgia, suffered a substantial inability to perform her pre-accident caregiving and housekeeping activities, and required attendant care for the foreseeable future.
On December 16, 2010, as part of his catastrophic impairment assessment, Dr. Morris reported that, given Mrs. Macedo’s presentation during the assessment, there was “some question whether she has the necessary cognitive skills to enable her to adapt or cope to environmental changes, particularly in cases of an emergency.”
On November 29, 2011, Dr. Gerber reported that Mrs. Macedo was “substantially disabled from…self-care activities…” and requires 24-hour attendant care “in the form of supervision”, and that “leaving somebody who is so severely limited unattended would clearly be putting her at significant risk.”
(ii) Findings on Attendant Care
I find that Mrs. Macedo is entitled to attendant care benefits from the date of the accident, onward, at a rate of $6,000 per month, less amounts already paid by the Insurer.
As discussed, Mrs. Macedo was catastrophically injured in the accident, and as a result, has been confined to a significantly diminished life. The Insurer submitted, in part, that much of the information provided to the assessors on Mrs. Macedo’s need for attendant care originated with her husband, and that this significantly compromised her claim for round-the-clock care. While Mr. Macedo’s evidence is tainted to a certain degree by the inconsistencies with his previous evidence before the Workplace Safety and Insurance Appeals Tribunal, the information he provided on the extent of Mrs. Macedo’s need for assistance around the house was largely corroborated by his sons and Ms. Hanson. In this respect, I accept that Mrs. Macedo has required assistance with certain personal care activities, such as getting up out of bed in the morning, washing and brushing her hair, putting on some of her clothes, showering, cutting her nails, taking her medication, and going to her medical appointments. However, as suggested by the initial Form 1 submitted by Mr. Altieri and the reports of Ms. Bernabe, even if she required some assistance in these areas, this would not amount to 24 hour a day care, at a sum of $6,000 per month. Further, based on Ms. Hanson’s evidence, I do not accept that she began providing assistance from the date of the accident, or that she provided care 24 hours per day, as indicated in the expense documentation submitted.
The more significant issue in this case is Mrs. Macedo’s need for supervision and accompaniment throughout the day and night. I acknowledge that Mrs. Macedo has, at times, been left unattended, while the people around her have attempted to go about their daily lives, but this does not, in my view, mean that Mrs. Macedo was not in need of care and supervision. Given the severity of Mrs. Macedo’s impairments, I accept the evidence of Ms. Bielawski, Ms. Murariu, Dr. Morris and Dr. Gerber that Mrs. Macedo required significant supervision in her daily activities, particularly in leaving the house, and in the event of an emergency. I do not accept the conclusion that Mr. Altieri ultimately reached that Mrs. Macedo was not in need of attendant care (based in part on his view that Mrs. Macedo could walk sufficiently and her cognitive problems were not restricting her function), in light of the more significant and persuasive medical evidence (consistent with that of the other occupational therapists and lay witnesses) that Mrs. Macedo was in an extremely fragile and vulnerable state, both physically and emotionally, and that she needed to be watched and cared for during the day and night, and especially in the event of an emergency.
I, therefore, conclude that Mrs. Macedo is entitled to attendant care benefits, from November 20, 2007, onward, at the maximum rate of $6,000 per month, less the amounts already paid by the Insurer.
3. Mrs. Macedo’s Claim for Caregiver benefits
Mrs. Macedo claims caregiver benefits in respect of her husband and two sons, from the date of the accident to September 3, 2008, at a rate of $350 per week, and in respect of her husband and younger son, Fabio, from September 4, 2008, onward, at a rate of $300 per week, less amounts already paid by the Insurer. Pursuant to section 13 of the Schedule, an insurer is required to pay reasonable and necessary expenses incurred by an insured person as a result of an accident-related impairment in caring for a person in need of care, and with whom the insured person resided at the time of the accident. The meaning of the term “incurred” has been interpreted to be broad enough to include situations where an insured has established the need for the relevant services, without in fact receiving or becoming financially liable for them.2 Pursuant to section 13(1)2, a person is entitled to caregiving benefits if, within the first two years of the accident, the person suffered a “substantial inability” to perform their pre-accident caregiving activities. Pursuant to section 13(4), caregiving benefits are payable beyond the two-year mark if the person suffers a “complete inability to carry on a normal life.” Caregiving benefits are to be paid at a maximum rate of $250 per week for the first person in need of care, and $50 per week for each additional person in need of care. Section 2(1) of the Schedule defines “person in need of care” as a person who is “less than 16 years of age” and a person who requires care because of “physical or mental incapacity.”
While Mrs. Macedo initially claimed caregiving benefits in respect of her husband and sons, her final submissions only referred to her younger son, Fabio, maintaining essentially that Fabio’s need for care was clear, and that given the catastrophic nature of her injuries, she was entitled to benefits on an ongoing basis after the two-year mark. The Insurer maintained that Mr. Macedo was either not in need of care or was already in receipt of funds from the Workplace Safety and Insurance Board sufficient for any care he required. The Insurer also submitted that, although Fabio was only 10 years old at the time of the accident, he was in need of very little care.
(i) Evidence on Caregiving
Mrs. Macedo testified that, before the accident, she took care of her younger son, Fabio, doing everything for him, including cooking, taking him to and picking him up from school, helping him with his homework, playing with him at the park, and attending parent-teacher meetings. She said that she has been unable to do these things since the accident, and that Fabio and his older brother do these things. She said that she does not talk to her sons anymore because she is always sad.
Mr. Macedo testified that his wife no longer helps her sons with their homework or attends their sports games, and sometimes does not even speak to them. He said that his sons have essentially taken care of themselves since the accident.
Fabio testified that his father and brother now help him with his homework, and that Ms. Hanson is now like his mother, making him lunch, and reminding him to take a shower and brush his teeth. He said that he is capable of his personal care on his own, and usually takes the bus to school. However, Ms. Hanson testified that it is “completely false” that the boys, and especially Fabio, were capable of taking care of themselves, whether cooking, making their beds or helping their mother. She said that she has to remind Fabio to take a shower, brush his teeth and eat certain foods. Ms. Hanson testified that she began working for the Macedo family in June 2008, 4 days per week, 2-8 hours per day depending on the day. She stated that she cooked, cleaned, and did the laundry and housekeeping.
On July 29, 2008, Dr. Dost reported that Mrs. Macedo did not require caregiving assistance.
On September 12, 2008, Dr. Shapiro reported that Mrs. Macedo suffered from adjustment disorder with depressed and anxious mood, that this was of a “mild to moderate intensity” and that it did not prevent her from engaging in her pre-accident caregiving activities.
On September 19, 2008, Dr. Mathoo reported that, from a musculoskeletal perspective, there were “no valid indicators of impairment suggesting need for physical restrictions or imposed limitations”, Mrs. Macedo did not suffer a substantial inability to engage in the caregiving activities she engaged in at the time of the accident” and that “any limitation in function is self-imposed due to exaggerated pain behaviour….” Dr. Mathoo testified that Mrs. Macedo’s presentation was suggestive of chronic pain syndrome, and that there was no physical reason that she could not care for her husband and sons.
On December 24, 2007, Ms. Bielawski reported that Mrs. Macedo required 46 hours of caregiving assistance per week in respect of her husband and sons.
On January 14, 2008 and April 30, 2008, Ms. Bernabe reported that Mrs. Macedo required 9.4 hours of caregiving assistance per week.
On October 15, 2009, Dr. Hanick reported that Mrs. Macedo suffered a “severe and significant disability in terms of her previous household obligations....”
On January 31, 2010, Dr. Kirwin reported that Mrs. Macedo suffered, in part, from chronic pain syndrome and fibromyalgia, and suffered a substantial inability to perform her pre-accident caregiving.
On November 29, 2011, Dr. Gerber reported that Mrs. Macedo was “substantially disabled from…being able to complete any household chores,…and in her relationship with her husband and her kids.”
(ii) Findings on Caregiving
I find that Mrs. Macedo is entitled to caregiving benefits, but not to the extent claimed. I find that she is only entitled to caregiving benefits in respect of her younger son, Fabio, and from the date of the accident, onward, at a rate of $150 per week.
The evidence establishes that Mrs. Macedo’s older son, Nuno, was 16 at the time of the accident, and, therefore, pursuant to section 2(1) of the Schedule, Mrs. Macedo would not be eligible for caregiving benefits on his behalf.
I do not accept that Mr. Macedo was a “person in need of care”, within the meaning of section 2(1) of the Schedule. While Mr. Macedo may have suffered a workplace injury, I have significant concerns that he required any type of significant care as a result of that injury. Mr. Macedo testified before the Workplace Safety and Appeals Tribunal in 2005 that he was so emotionally disabled that he needed to be awakened in the mornings, fed and encouraged to go outside for exercise. However, within approximately a year of that proceeding, he began to look for a house to purchase and viewed 80-100 homes in the process. I find significant that Mr. Martins, the real estate agent who helped Mr. and Mrs. Macedo buy their new house, testified that, during this time, there did not seem to be anything wrong with Mr. Macedo. Dr. Fernandez reported that Mrs. Macedo used to escort her husband to his medical appointments, but this evidence has been undermined by the inaccuracies acknowledged by Dr. Fernandez. While Mr. Macedo testified that his wife “did everything around the house” before the accident, he also said that he and his wife took care of the kids, and did the housekeeping. Mr. Macedo also now escorts his wife to her medical appointments, and his sons testified that he also assists with the housekeeping. This further undermines his claim of significant disability prior to the accident, requiring care from Mrs. Macedo. I, therefore, conclude that Mr. Macedo was not a “person in need of care” such as to entitle Mrs. Macedo to caregiving benefits on his behalf.
Fabio was only 10 years old at the time of Mrs. Macedo’s accident. He was clearly being cared for by his mother at that time, and I accept Ms. Hanson’s evidence that he was not capable of taking care of himself. However, I agree with the Insurer that Fabio was not in need of significant care. Based on Ms. Bernabe’s January 14, 2008 report, I find that Fabio was independent in respect of basic grooming and dressing activities, but required assistance with meal preparation and transportation to school and extra-curricular activities, for which Mrs. Macedo was responsible before the accident. I also accept that Fabio required general supervision in respect of some of his grooming and dietary needs, help with his homework, and the attendance of his mother at parent-teacher meetings. Other activities for which Ms. Bernabe identified a need for assistance, namely, laundry and grocery shopping, are, in my view, more properly addressed in relation to Mrs. Macedo’s claim for housekeeping benefits (particularly as Ms. Bernabe addressed them in that context as well).
Given the severity of Mrs. Macedo’s impairments (as discussed earlier), I find that she was substantially disabled from providing the care to Fabio that she did before the accident, and that she, in fact, suffered a complete inability to carry on a normal life. I, therefore, find that she is entitled to caregiving benefits in respect of Fabio. While Ms. Bielawski recommended 46 hours of caregiving assistance, this was based on the needs of Mr. Macedo and Nuno, as well as Fabio. Ms. Bernabe’s report appears to be focussed on the needs of Mrs. Macedo’s sons, and I find it a more reasonable framework within which to determining the required caregiving assistance. Based on Ms. Bernabe’s overall recommendation of 9.4 hours of caregiving assistance per week, the consideration of laundry and grocery shopping under the head of housekeeping, and Fabio’s modest need for care, I find that a reasonable amount of caregiving assistance would be 7.5 hours per week.
Finally, I acknowledge that the expense claims submitted in respect of Ms. Hanson’s work at the Macedo household do not accurately reflect the time she spent there. I note that Ms. Hanson did not start working there until June 2008 and worked at reduced hours in July 2011. I also note that Ms. Hanson’s evidence differed from that of Mr. Macedo as to how many hours she spent at the house each week. I am, nevertheless, satisfied that Mr. Macedo did, in fact, pay Ms. Hanson for her services, promised to pay more when funds became available, and that in the time before
Ms. Hanson began working for the Macedo’s, and when her hours were reduced, the assistance she provided in caring for Fabio was done by Mr. Macedo and Fabio’s older brother, Nuno. I, therefore, find that Mrs. Macedo is entitled to caregiving benefits as having been “incurred” within the meaning of section 13 of the Schedule.
Based on Mr. Macedo’s promise to pay Ms. Hanson $20 per hour (which I find to be reasonable in the circumstances), and given that Mrs. Macedo is entitled to 7.5 hours per week of caregiving assistance, I find that she is entitled to caregiving benefits, from November 20, 2007, onward, at a rate of $150 per week.
4. Mrs. Macedo’s Claim for Housekeeping Benefits
Mrs. Macedo claims housekeeping benefits and home maintenance benefits, from the date of the accident, onward, at the maximum rate of $100, less amounts already paid by the Insurer. Pursuant to section 22 of the Schedule, an insurer is required to pay for reasonable and necessary expenses incurred by an insured person if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. Pursuant to sections 22(3) and 22(4), a person is eligible for housekeeping benefits beyond the two-year mark, if they have sustained a catastrophic impairment as a result of the accident.
The substantive test of entitlement for housekeeping benefits is set out in Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006):
…the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.
(i) Evidence on Housekeeping
Mrs. Macedo testified that, before the accident, she cooked and cleaned for her family, but was unable to do these things after the accident. She said that she can no longer do the grocery shopping and that her sons now do this, although she sometimes accompanies them. She stated that her sons are older now, that Ms. Hanson and her husband help them, and that they do the rest.
Mr. Macedo testified that, as a result of the significant problems his wife suffers as a result of the accident, she has not been able to do any of her previous housekeeping tasks. He said that, after the accident, his children did the housework, and then some months later, he hired Ms. Hanson to come in to do these things. He said that he has only paid Ms. Hanson a small amount, but that she understands that he will pay her one day.
Fabio testified that his mother used to do the laundry before the accident, but that now, he, his father and brother, and Ms. Hanson, now do this. Nuno testified that, since the accident, he has done most of the cooking, and that cleaning, laundry and shopping are done by different combinations of himself, his father and brother and Ms. Hanson.
Ms. Hanson testified that she began working for the Macedo family in June 2008, 4 days per week, 2-8 hours per day depending on the day. She stated that she cooked, cleaned, and did the laundry and housekeeping.
On December 24, 2007, Ms. Bielawski reported that Mrs. Macedo required 14.75 hours per week of housekeeping assistance.
On January 14, 2008 and April 30, 2008, Ms. Bernabe reported that Mrs. Macedo required 10.2 hours of housekeeping assistance per week.
On June 30, 2008, Mr. Altieri reported that Mrs. Macedo required 7 hours of housekeeping per week. However, in his November 2008 reassessment, Mr. Altieri reported that Mrs. Macedo did not suffer a substantial inability to perform her pre-accident housekeeping activities.
On September 19, 2008, Dr. Mathoo reported that there was no physical reason that Mrs. Macedo could not do the housekeeping.
On October 15, 2009, Dr. Hanick reported that Mrs. Macedo suffered a “severe and significant disability in terms of her previous household obligations…” and that given her “level of distress and disability,…[she]…would greatly benefit from an ongoing housekeeping and home maintenance service….”
On January 31, 2010, Dr. Kirwin reported that Mrs. Macedo suffered, in part, from chronic pain syndrome and fibromyalgia and suffered a substantial inability to perform her pre-accident housekeeping activities.
On November 29, 2011, Dr. Gerber reported that Mrs. Macedo was “substantially disabled from…being able to complete any household chores….”
(ii) Findings on Housekeeping
I find that Mrs. Macedo is entitled to the housekeeping benefits claimed. I accept that she was responsible for most, if not all, of the housekeeping before the accident, and that, as a result of the catastrophic injuries she suffered from the accident, she was and continued to be substantially disabled from performing her usual housekeeping activities. As with the analysis on caregiving benefits, while the evidence is somewhat inconsistent as to the exact hours Ms. Hanson worked for the Macedo’s, I am satisfied that expenses were “incurred” for housekeeping assistance, within the meaning of section 13 of the Schedule. Further, based on the relatively consistent evidence of Ms. Bielawski and Ms. Bernabe on the amount of housekeeping required by Mrs. Macedo (namely, a minimum of 10 hours per week), I find that she is entitled to housekeeping benefits, from the November 20, 2007, onward, at the maximum rate of $100 per week.
5. Mrs. Macedo’s Claim for Home Renovations
Mrs. Macedo claims the cost of renovating her main floor bathroom, in the amount of $11,807.07. Pursuant to sections 15(1) and 15(2) of the Schedule, an insured person is entitled to a rehabilitation benefit for reasonable and necessary measures undertaken to reduce or eliminate the effects of any disability resulting from an accident-related impairment or to facilitate the insured’s reintegration into his or her family. Pursuant to section 15(5)(i), an insured person is entitled to a rehabilitation benefit for all reasonable and necessary expenses incurred as a result of the accident for home modifications to accommodate the needs of the insured person. While Mrs. Macedo maintained that she required renovations to her bathroom as a result of her accident-related impairments, she also seemed to argue that if she were awarded attendant care benefits (in part, to assist her to use her downstairs bathroom), then she would not be entitled to benefits for the cost of renovating her main floor bathroom. The Insurer argued that Mrs. Macedo was not disabled to the point that she required assistance to use the downstairs bathroom, and that, in any event, Mrs. Macedo and her husband had planned on renovating the main floor bathroom prior to the accident, thus releasing the Insurer from any liability to cover the costs of those renovations.
Mr. Macedo testified that, at the time of the accident, the house in which he and his wife lived only had a working bathroom in the basement, that it was very difficult for his wife to go downstairs to use it, and that they needed to put in a new bathroom for her on the main floor. Mr. Macedo testified, at the time of the accident, they were renovating their house and planning on renovating the bathroom on the main floor (paying for the renovations out of their own pocket). He said that neither he nor his wife could do the work and so they needed to pay tradesmen to do the work. Mrs. Macedo’s son, Fabio, testified that his mother could not go down to the basement on her own. Ms. Hanson testified that Mrs. Macedo would lean on her when she went downstairs to have a shower. The renovations were completed in the spring of 2008.
Only a few assessors commented on the need to renovate the bathroom. On December 24, 2007, Ms. Bielawski reported that Mrs. Macedo required renovations to her main floor bathroom for “accessibility and safety.” On July 14, 2008, Mr. Altieri indicated that Mrs. Macedo was expected to “see improvement in her symptoms, and as a result in her daily functioning, and performance of her activities of daily living”, and that she was able to “ambulate within the home safely.” Mr. Altieri, therefore, reported that Mrs. Macedo did not need renovations to her bathroom, and that temporary assistive devices were more reasonable in the circumstances, which would allow Mrs. Macedo to become more independent. On July 29, 2008, Dr. Dost reported that home renovations were not required. And on September 19, 2008, Dr. Mathoo reported that, “from a physical perspective, no home renovations to the bathroom or any other part would be reasonably required as a result of physical injuries sustained at the time of the accident, or residual physical impairments.”
I find that Mrs. Macedo is not entitled to the costs of renovating her bathroom. While I have accepted that Mrs. Macedo suffers from significant impairments as a result of the accident, one of the factors entitling her to attendant care benefits was her need for assistance getting around her house, including in particular using the downstairs bathroom. I find that Mrs. Macedo is not entitled to both attendant care benefits for this purpose and renovations to the main floor bathroom. However, even if she were entitled to benefits for both, or at least to benefits simply for renovating her bathroom (to accommodate her needs and to assist in her reintegration into family life, within the meaning of section 15 of the Schedule), I find that she would not be entitled to those benefits by virtue of the fact that she and her husband had fully planned on doing these renovations prior to the accident. While Mrs. Macedo may have benefitted from the modifications, I do not accept that they were required and/or undertaken as a result of the accident. I, therefore, find that she is not entitled to the costs of renovating her main floor bathroom.
6. Mrs. Macedo’s Claim for the Cost of Examinations
Mrs. Macedo claims the cost of an assessment and two medical-legal reports. Pursuant to section 24(1)11 of the Schedule, an insurer must pay, in part, for “reasonable fees…charged by a member of a health profession…for conducting an assessment or examination and preparing a report if the assessment or examination is reasonably required in connection with a benefit that is claimed…, and…the insured person applied for approval of the assessment or examination either in a treatment plan…or by way of a separate application submitted under section 38.2. [for the approval of an assessment or examination not submitted as part of a treatment plan].”
On October 29, 2008, Dr. Mester submitted an Application for Approval of an Assessment or Examination (an OCF-22 form), stating that Mrs. Macedo was “more than likely suffering from some…neuropsychological symptoms”, and would require a neuropsychological assessment “in order to ascertain the depth and dimension of the problems, and to develop a Treatment Plan appropriate for her.” The cost of the proposed assessment was $3,899. On October 15, 2009, at the request of Mrs. Macedo’s counsel, Dr. Hanick prepared a medico-legal report, providing a “psychiatric evaluation of Mrs. Macedo, with special emphasis as to the sequelae suffered by Mrs. Macedo as a result of the somewhat unusual motor vehicle accident….” The cost of the report was $5,275. On January 31, 2010, Dr. Kirwin provided another medico-legal report, summarizing his treatment of Mrs. Macedo and addressing questions on the nature and extent of her disability, with specific regard to her need for attendant care, caregiving and housekeeping assistance. The cost of the report was $2,415.
Mrs. Macedo only specifically addressed the reasonableness of the assessment recommended by Dr. Mester. The Insurer submitted that, given the difficulties other assessors had experienced in testing Mrs. Macedo, Dr. Mester’s proposed neuro-psychological assessment was not reasonable and necessary. The Insurer also submitted that Dr. Hanick’s and Dr. Kirwin’s reports addressed tort issues, as well as questions regarding Mrs. Macedo’s entitlement under the Schedule, and that the Insurer is, therefore, not liable for the costs of those reports, or at most only 50% of the costs.
On July 29, 2008, Dr. Dost reviewed Dr. Mester’s proposed assessment, and reported that “it is questionable if [Ms. Macedo] sustained a brain injury, but if she did,…it would be no greater than mild”, “neuropsychological testing is of no value in determining the etiology of any potential impairments” and “a neurological evaluation is deemed not medically necessary, and so not reasonably required” (emphasis in original).
I find that Mrs. Macedo is entitled to the cost of Dr. Mester’s proposed assessment, but not the two medical-legal reports. In my view, Dr. Dost took an overly narrow view of the purpose of Dr. Mester’s proposal. As set out in the application for the assessment, the goal of the evaluation was not only to address the etiology (or cause) of Mrs. Macedo’s condition, but to “determine the nature and…extent of her complaints and to determine what if any intervention is necessary to help her deal with the trauma of the accident”, as well as to “obtain a thorough understanding of these difficulties and plan…reasonable and necessary treatment that [will] allow her to return to normal activities of life and familiarize her with effective cognitive processing skills.” I find that it was not necessary to first establish that Mrs. Macedo had suffered a brain injury, to conduct this type of assessment. I find significant that, although the Insurer denied Dr. Mester’s request as not reasonable and necessary, it had Mrs. Macedo undergo a section 42 insurer examination in June 2009, by neuro-psychologist, Dr. Ladowsky-Brooks, which included neuro-psychological testing. I, therefore, find that Dr. Mester’s proposed assessment was reasonable and necessary, within the meaning of section 24 of the Schedule and that Mrs. Macedo is entitled to the cost of that assessment, in the amount of $3,899.
In respect of the two medical-legal reports, no section 38.2 applications were submitted for approval, they did not arise out of an actual assessment or examination of Mrs. Macedo (although there had been prior assessments and treatment by the two physicians), and they were more in the nature of reports properly addressed in the context of an award of arbitration expenses pursuant to Rule 75 of the Dispute Resolution Practice Code and Section F of the Expense Regulation, Regulation 664, R.R.O. 1990, as amended. I, therefore, find that
Mrs. Macedo is not, at this time, entitled to the costs of the reports of Dr. Hanick or Dr. Kirwin.
Special Award
Pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, where an insurer has unreasonably withheld or delayed payments, an Arbitrator can, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. Mrs. Macedo sought a special award on the basis that the Insurer’s adjuster on the file, Ms. Tremblay, did not give sufficient consideration to the opinions provided to her that supported Mrs. Macedo’s claim for attendant care, caregiving and housekeeping assistance, and that Ms. Tremblay simply “rubber stamped” the reports requested by the Insurer without any assessment of their merits.
Ms. Tremblay’s notes do not reflect any analysis of the relative weight to be attributed to the different reports as they were received. Nothing in her testimony suggests that she gave any significant consideration to the competing medical opinions, other than her statement that her approach “seemed reasonable at the time.” In my view, an insurer is required to fully assess the medical and other information it receives, regardless of the source. Ample evidence was provided to the Insurer to cause it to reconsider the payment of Mrs. Macedo’s benefits, and yet, no reconsideration or reassessment appears to have taken place. In this sense, I find that the Insurer failed in its responsibilities to Mrs. Macedo, and unreasonably withheld or delayed payments. I, therefore, find that Mrs. Macedo is entitled to a special award.
However, I am not prepared to conclude that the Insurer’s conduct was sufficiently egregious to warrant a substantial special award. Mrs. Macedo did not suggest that the Insurer had breached any of its procedural obligations, or that it made its decisions without adequate supporting documentation. In all of the circumstances, therefore, I find that Mrs. Macedo is entitled to a modest special award of 10% of the attendant care, caregiving and housekeeping benefits owing. However, given that the quantum of these benefits must still be worked out by the parties, I am unable to determine the amount owing for the special award at this time. If required, I will remain seized of this issue, pending the parties’ calculation of the benefits and interest owing.
Interest
Finally, pursuant to section 46(2) of the Schedule, an insurer is required to pay interest on any amounts found to be overdue for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly. Mrs. Macedo sought interest on the amounts ordered to be paid. The Insurer did not dispute this. I see no basis for not awarding interest in this case. I find that Mrs. Macedo is entitled to interest on all of the benefits to which I have found her entitled.
EXPENSES:
The parties did not address the issue of expenses. If required, they may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.
December 12, 2013
Eban Bayefsky Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 161
FSCO A10-000421
BETWEEN:
MARIA DA CONCEICAO MACEDO
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mrs. Macedo sustained a catastrophic impairment as a result of the accident.
Allstate shall pay to Mrs. Macedo attendant care benefits, from November 20, 2007, onward, at a rate of $6,000 per month, less amounts already paid.
Allstate shall pay to Mrs. Macedo caregiver benefits, from November 20, 2007, onward, at a rate of $150 per week, less amounts already paid.
Allstate shall pay to Mrs. Macedo housekeeping and home maintenance benefits, from November 20, 2007, onward, at a rate of $100 per week, less amounts already paid.
Allstate shall pay to Mrs. Macedo the cost of the assessment proposed by Dr. Mester on October 29, 2008.
Allstate shall pay to Mrs. Macedo a special award, in an amount to be determined.
Allstate shall pay to Mrs. Macedo interest on the benefits ordered to be paid.
December 12, 2013
Eban Bayefsky Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- See, for example, Watson and TTC Insurance Company Limited (FSCO A04-000346, July 18, 2006), appeal dismissed (FSCO Appeal P06-00027, September 24, 2007), and Stargratt and Zurich North America Canada (FSCO Appeal P01-00045, March 31, 2003).