Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 165

FSCO A11-000204

BETWEEN:

NADIRA BISSESSAR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: Susan Sapin

Heard: April 23, 24, 25 and 26, 2012 at the Offices of the Financial Services Commission of Ontario

Appearances: Stephen Birman for Mrs. Bissessar

Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Nadira Bissessar, was injured in a motor vehicle accident on April 29, 2007. At the time, she was 31 years old and the mother of two children, Adam, age 6, and Alicia, 13 months. She applied for and received caregiver and other statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly caregiver benefits on July 15, 2009. Mrs. Bissessar claims she is entitled to ongoing caregiver benefits because the accident injuries caused her to suffer a complete inability to carry on a normal life. Mediation of this dispute failed, and Mrs. Bissessar applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mrs. Bissessar entitled to a caregiver benefit of $250 per week from July 15, 2009 and ongoing?
Is Mrs. Bissessar entitled to a special award under s. 282 of the Insurance Act, on the basis that State Farm’s termination of caregiver benefits was unreasonable?

Result:

Mrs. Bissessar is entitled to a caregiving benefit of $250 per week from July 15, 2009 and ongoing.
Mrs. Bissessar is not entitled to a special award.

Overview:

At issue is whether Mrs. Bissessar’s accident impairments are such that she meets the rigorous statutory test for entitlement to ongoing caregiver benefits which comes into effect 104 weeks after the accident. To satisfy this test, the injured person must suffer a complete inability to carry on a normal life, defined as follows:

2(4) For the purposes of this regulation, a person suffers a complete inability to carry on a normal life if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

The starting point for the analysis of whether Mrs. Bissessar suffered from a complete inability to carry on a normal life two years after the accident, and continues to do so, is to compare her activities and life circumstances before the accident, assessed over a reasonable period, to her activities and life circumstances afterwards.² As noted above, the threshold is very high, requiring as it does, an impairment that continuously prevents a person from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

There is no dispute that Mrs. Bissessar suffered significant soft tissue strains to her neck, upper and lower back and left knee as a result of the accident, and a serious injury to her right hand in the form of a permanent residual impairment of her right CMC (thumb) joint which has not healed.³

Mrs. Bissessar maintains that she has had no useful function in her right hand since the accident despite therapy. Her position is that chronic pain in the hand and wrist, and in her neck, back, left knee and foot, as well as recurring headaches and debilitating anxiety and depression since the accident continuously prevent her from engaging in substantially all of the activities of her pre-accident life.

State Farm argues that Mrs. Bissessar, her husband Donald and her mother Amina Nabbie are not reliable witnesses. It submits that Mrs. Bissessar is exaggerating her injuries and her disability in order to continue to claim caregiving assistance she may still need but for which she does not qualify under the stricter post-104 week entitlement test. State Farm submits that inconsistencies in Mrs. Bissessar’s presentation and complaints of symptoms to various medical assessors, and deliberately poor performance on psychological tests suggest that her subjective complaints and testimony ought not to be accepted at face value.

I find the evidence as a whole establishes that Mrs. Bissessar, at the time of the hearing, continued to meet the eligibility test for ongoing caregiver benefits. First, despite some inconsistencies, I accept her evidence about her pre-accident activities and her level of disability afterwards.

Second, I find the medical evidence supports her case.

Third, Dr. A. Cancelliere, the neuropsychologist who diagnosed her with a Somatoform Pain Disorder, which State Farm did not dispute, provided the most plausible explanation for her persistent physical and psychological symptoms and perceived impairment.

Although I find State Farm’s denial of ongoing caregiver benefits past the two-year mark was unwarranted, I do not find it was unreasonable in the circumstances, and does not merit a special award.

Background:

Mrs. Bissessar had just turned 31 on the Sunday evening of the accident. She testified she was due to return to her job as a receptionist and order taker at CS World Cargo the next morning after an extended maternity leave. She, her husband Donald, her mother-in-law and Alicia were on their way to a restaurant to celebrate with other family members when Donald crashed into a car that sped through a red light at an intersection. The air bags deployed, giving Mrs. Bissessar a bloody nose. She suffered immediate excruciating pain in her right hand and left leg. She described being in a daze from the pain and sat on the sidewalk, unable to raise her right hand, until an ambulance took her to the hospital. There she was told she had a fractured thumb (later determined to have been a dislocation of the carpal metacarpal, or MCP, joint at the base of the thumb.) Her hand was bandaged and she was sent home.

She found her mother, Amina Nabbie, waiting for her at home with Adam, having let herself in with her key. Mrs. Nabbie, who had been living with Mrs. Bissessar’s older sister since the death of her husband in 2004, testified that Mrs. Bissessar was clearly in a very bad way and in no shape to look after herself or her children, or return to work the next morning, so she agreed to stay and help her look after the children and the house until her daughter was back on her feet. Everyone understood this to be a temporary situation. Unfortunately, five years later, Ms. Nabbie is still there, having taken over virtually all of her daughter’s pre-accident childrearing and housekeeping duties.

Pre-accident Activities:

I accept Mrs. Bissessar’s testimony that at the time of the accident, she was at the end of a year-long maternity leave, and so I find that being a working mother, homemaker and caregiver were essential components of Mrs. Bissessar’s normal life before the accident. I find a reasonable period to consider her pre-accident activities and life circumstances for the purpose of the eligibility test is the 13 months of her maternity leave (March 18, 2006 to April 30, 2007), as well as the seven months she worked full time before that.

Mr. and Mrs. Bissessar attested to a busy life before the accident. Before Alicia was born in March 2006, Mrs. Bissessar had worked 8 a.m. to 4 p.m., Mondays to Fridays since September of 2005 (about 7 months) as a receptionist/order taker at a shipping company in Mississauga. She would wake up around 5:30 a.m., get herself ready for work and make lunches and snacks for herself and Adam. She testified that she travelled by bus and subway from her home in Scarborough to her job in Mississauga, a commute she stated was just over 1-1/2 hours each way. She agreed on cross-examination that travel time was probably closer to 2 hours each way, and that she was away from home for 12 hours per day.

Mrs. Bissessar described her duties as a receptionist and order-taker at CS World Cargo, where she answered the phone, took messages, sorted the mail, entered orders, and filed.

Adam attended afternoon kindergarten. He would be dropped off at a neighbour’s home in the mornings, who would take him to and from school together with her own son. Depending on who got home first, either Mr. or Mrs. Bissessar would pick Adam up from the neighbour’s at the end of the day. Mrs. Bissessar testified that in the evenings, she would make dinner, clean up, vacuum, do laundry, help Adam with homework and put him to bed.

Weekends were spent shopping and socializing with family, particularly Mr. Bissessar’s extended family (he has over 50 cousins). According to Mrs. Bissessar, there was “always something going on” in the way of weddings, birthday celebrations, anniversaries, or parties. She enjoyed dancing, dressing up, wearing makeup, getting her hair and nails done, shopping and being “out and about.” She did not like to stay home. According to Mr. Bissessar, his wife was the decision-maker and initiator in their relationship - an outgoing, energetic, affectionate and happy person with a “Julia Roberts smile.” Their intimate life was mutually satisfactory.

Other than to state that Alicia’s premature birth on March 18, 2006 was very “exciting” and occasioned “a lot of extra work” ⁴ for Mrs. Bissessar, with no further detail provided, Mr. and Mrs. Bissessar’s description of their pre-accident life did not distinguish between life before and after Alicia. The couple testified that after Alicia was born, Mrs. Bissessar continued to do all of the housework, cooking and other domestic chores, looked after Alicia, helped Adam with his homework, played with the children, bathed them and put them to bed. Mr. Bissessar handled all the outside tasks (lawn, garbage, snow shovelling). He testified that his wife was very physically active, used workout videos, and played with the children outdoors. Their social, leisure and intimate life, apparently, continued as before.

Mrs. Bissessar denied requiring or receiving any help caring for her home or her children, including from her mother, at any time before the accident, stating that she could manage on her own. She intended to return to work after her maternity leave ended in January 2007, because the couple needed the money. The plan was for her mother to look after Alicia while Mrs. Bissessar was at work.

Mrs. Bissessar admitted to health problems before the accident, which included a seizure disorder for which she took medication, and intermittent anxiety of varying severity, which also required medication and sometimes resulted in hives. One particularly bad episode occurred after her father’s death in 2004. Dr. S. Louli, her family doctor of fourteen years, stated that Mrs. Bissessar suffered from a longstanding generalized anxiety disorder and chronic hives;⁵ Mrs. Bissessar testified that she herself was unaware of Dr. Louli’s diagnosis. She felt she had “a bit of anxiety” which was treated with medication and then went away.

Dr. Louli’s clinical notes and records also indicate complaints of headaches, back pain and other physical ailments pre-accident. However, it was the uncontradicted evidence of Mr. and Mrs. Bissessar and her mother, Mrs. Amina Nabbie, that Mrs. Bissessar did not need or want help looking after her daughter or her home while on maternity leave, nor while working full time prior to that.

I reject State Farm’s submission that Mrs. Bissessar was not credible, and its suggestion that she downplayed her pre-accident medical condition and exaggerated her symptoms after the accident for secondary gain. Her testimony indicates Mrs. Bissessar is an unsophisticated person with little insight into her condition. I find the medical evidence, discussed further below, that she suffers from both chronic pain and a Somatoform Pain Disorder, which causes her to translate her anxieties into physical symptoms, provides a plausible explanation for her self-perception and behaviour after the accident.

Mrs. Bissessar suffered extreme anxiety about returning to work and leaving her daughter in her mother’s care before the accident. The episode was so severe she was covered in hives from head to toe. She stated she had to extend her maternity leave from January to April 30, 2007 (the day after the accident) as a result, but that by April 29, she nevertheless felt ready to go back to work.

State Farm suggested Mrs. Bissessar was not intending to return to work at the time of the accident and that she was not well enough to do so in any case. In fact, State Farm went so far as to suggest that Mrs. Bissessar, contrary to her and her husband’s testimony, might not have been working at all prior to Alicia’s birth. State Farm submitted I should draw an adverse inference from the fact that Mrs. Bissessar tendered no evidence from her employer, CS World Cargo, about her pre-accident employment, about the extension to her maternity leave, or that she was expected back to work at all.

I find these allegations to be baseless. Mrs. Bissessar indicated on her Application for Benefits to State Farm dated May 13, 2007 that she was receiving Employment Insurance Benefits at the time of the accident. This evidence was not contradicted by State Farm. If State Farm had doubts about Mrs. Bissessar’s status as a working person before the accident, it had ample time to raise them before the hearing, and, if necessary, to investigate and obtain independent evidence to contradict Mrs. Bissessar. It did not do so.

I find it reasonable that Mrs. Bissessar would be anxious about returning to work after her maternity leave, considering the long commute and time away from home – perhaps even reluctant. This is understandable. I do not find it detracts from her credibility, nor do I find there is sufficient evidence to support State Farm’s speculation, that she would have been unable to manage a return to work.

I also reject State Farm’s submission that the Bissessars’ evidence lacked sufficient detail to be credible. I find they described their pre-accident life in sufficient detail for me to determine what, for Mrs. Bissessar, was a “normal life” before the accident and what it was like afterwards.

Injuries and post-accident activities

As noted, the injury to Mrs. Bissessar’s thumb, first thought to be a fracture, was later determined to be a dislocation of the joint at the base of the thumb. It was casted at the hospital but when the cast was removed two weeks later, the thumb would not bend. Surgery was required to insert, and later remove, metal pins. Mrs. Bissessar testified that after the second cast was removed, she still could not bend her thumb, even after intensive physiotherapy. She was told by her surgeon that her hand would not heal and could not be fixed. Arthritis set in, and she suffered, and continues to suffer from, painful spasms that last from a half hour to two and half hours, and pain in her wrist. Her hand becomes rigid and she cannot grasp anything. She also had pain in her left knee and calf, and back pain from her neck to her waist.

In an Insurer’s Examination (IE) report, Dr. E.P. Urovitz, an orthopaedic surgeon, found a great deal of tenderness around the base of the thumb, very limited movement, and markedly diminished grip strength. He noted Mrs. Bissessar’s complaints of daily pain that varied in intensity from 7 to 10, depending on the amount of physical activity performed. He determined Mrs. Bissessar had reached maximum medical improvement but had not reached pre-injury status, confirming Dr. Zorn’s view, and the Bissessars’ belief, that this was an injury that was not going to get better. Dr. Urovitz determined Mrs. Bissessar was substantially unable to engage in her caregiving and housekeeping activities, largely because of continuing impairments related to her hand injury and ongoing impairments secondary to it.⁶

Mrs. Bissessar testified that she has continued to suffer from pain and spasms in her right hand, as well as frequent pounding headaches; neck, back and shoulder pain; and pain behind her left knee. She uses an arthritis rub for her hand several times a day, and keeps it in a brace to keep it warm. The pain in her hand wakes her up, and her husband has to open it and it is very painful. She stated she also suffers from right foot and heel pain and left hand pain, which she attributes to overuse due to her accident injuries. I accept this testimony, and reject State Farm’s contention that no independent expert medical opinion supports it.⁷

I find the medical evidence overall indicates the injury to Mrs. Bissessar’s right hand is a genuine, permanent, painful and significant physical impairment, despite inconsistencies in her presentation to various medical experts. Dr. R. Richards, orthopaedic surgeon, opined that she was unable to use her right upper extremity for anything except the lightest non-repetitive activity.⁸

In a report dated June 26, 2009, physiotherapist Marianne Lawton noted Mrs. Bissessar’s considerable dysfunction, aggravated by her protective guarding behaviour, which resulted in a frozen right shoulder, and recommended physiotherapy to reduce pain and restore more effective movement control and mobility in her left leg, right shoulder and elbow. She recommended referral to a pain specialist programme with a full team approach including occupational therapy and psychological intervention to deal with anxiety and pain management.⁹

This echoes the opinion of State Farm’s own occupational therapy assessor, Rod Pritchett, who in July, 2008, accepting Dr. Urovitz’ finding that Mrs. Bissessar’s right hand injury had reached maximum medical improvement, noted Mrs. Bissessar required assistance with body mechanics, advised her to avoid over use of the non-dominant uninjured left hand, and recommended non-dominant hand training to increase its dexterity and strength. He also recommended 40 hours of assistance with housekeeping and caregiving.

In a second examination in September 2008, Dr. Urovitz reversed his previous opinion about Mrs. Bissessar’s impairments, opining that she was not substantially disabled from her caregiving and housekeeping tasks, contrary to Mr. Pritchett’s opinion of two months previous. He stated that despite Mrs. Bissessar’s pain complaints, some of them new, and Mr. Pritchett’s report, he could not find any “ . . . major, consistently reproducible, ongoing objective signs of residual musculoskeletal impairment” that correlated with her accident injuries. He concluded that the results of the physical examination revealed certain signs suggesting “inorganicity and/or psychoemotional overlay”. His report indicates his opinion was based in part on the fact that although Mrs. Bissessar would not make a full fist actively, he was able to make one passively, and that she had greater movement passively when she was “encouraged to relax,” in her right shoulder, elbow and arm.

I place little weight on this opinion. I find it does not diminish the genuineness of Mrs. Bissessar’s complaints, her presentation, or her level of disability. Dr. Urovitz was simply unable to explain Mrs. Bissessar’s pain complaints and guarding behaviour from a narrow orthopaedic perspective. That does not make Mrs. Bissessar’s symptoms any less genuine. I note that not one single medical assessor has ever suggested that Mrs. Bissessar is malingering. I prefer the evidence of her family doctor, Dr. Louli, and those medical experts who identified chronic pain and genuine, significant psychological issues as contributing factors to Mrs. Bissessar’s level of disability.

Dr. Richard Kaminker, an orthopaedic surgeon who examined Mrs. Bissessar on behalf of State Farm in June 2009 and testified at the hearing, also noted that Mrs. Bissessar demonstrated numerous inconsistencies and non-organic findings, in particular, significant discrepancies between the active and passive range of motion of her thumb. He felt her description of almost complete uselessness of her right hand was inconsistent with the natural history of the injuries she sustained and his clinical findings that demonstrated no objective impairment.¹⁰ State Farm terminated caregiver benefits on the basis of Dr. Kaminker’s opinion. He later revised this opinion somewhat after reviewing Dr. Zorn’s medical brief, acknowledging that there was in fact an objective impairment of the thumb in the form of narrowing of the joint, residual subluxation and evidence of posttraumatic arthritis, which would affect right hand function and interfere with activities requiring repetitive gripping and heavier carrying using the right arm.¹¹ This did not affect his opinion that she did not meet the complete inability test. I find Dr. Kaminker’s opinion suffers from the same deficiencies as Dr. Urovitz’, particularly as it ignored the effect of pain on function, and I give it little weight for the same reasons.

I prefer the evidence of Dr. Louli and Dr. Cancelliere, because I find they provided credible, reasonable, and medically based explanations for why Mrs. Bissessar’s physical and psychological condition has become so severe and so entrenched that every aspect of her life is affected.

I found Dr. Louli, who has seen and treated Mrs. Bissessar regularly since the accident, to be in the best position to assess her medical condition over the long term. In a very detailed rebuttal to Dr. Kaminker, Dr. Louli outlined Mrs. Bissessar’s symptoms and impairments and how they affected her functional abilities. ¹² He disagreed particularly with Dr. Kaminker’s finding that Mrs. Bissessar “could actively adduct and abduct the thumb fully,” on the basis of his own experience that any attempted passive abduction caused severe distress and pain. In his testimony, he elaborated that he was unable, using force, to abduct the thumb at all. He considered Dr. Kaminker’s finding on that point a “complete impossibility.” He reported that the combination of limited flexion of the fingers and the condition of the thumb gave Mrs. Bissessar a severely weakened grip and that she could not make a fist or hold and use objects in any meaningful way. I agree with Dr. Louli’s opinion that passive motion of a joint does not translate into any meaningful ability to use it in a practical way.

Dr. Louli also diagnosed Mrs. Bissessar as suffering from chronic pain, disrupted sleep, and severe anxiety and depression, the last since at least the summer of 2008, when State Farm terminated her caregiver benefits. He candidly admitted that his 2009 examination had opened his eyes to the severity of her limitations, and that he had become complacent in accepting her complaints as chronic issues. He confessed at the hearing that he felt he had not responded early enough to address her psychological and pain issues.

The report and testimony of Dr. Cancelliere, who conducted a neuropsychological assessment involving a number of tests on March 1 and 2, 2010, was also persuasive.¹³ His review of Mrs. Bissessar’s medical history was very thorough. He noted her very poor - and anomalous - performances on most of the cognitive tests, as well as on tests that measured engagement. He explained that this could indicate either conscious exaggeration or a mental disturbance such as a somatoform disorder. Personality and emotional status testing did return a valid clinical profile, however, and overall, Dr. Cancelliere concluded that Mrs. Bissessar met the DSM-IV criteria for a pain disorder associated with both psychological factors and a general medical condition. He explained this was a specific form of somatoform disorder, a psychiatric disturbance where a person has physical injuries but their experience of pain is far beyond what would be expected based on the injuries sustained. A diagnosis of this disorder rules out factitious disorder or malingering. That, together with her dependent personality type, anxiety and depression, explained Mrs. Bissessar’s constant guarding and hypervigilance about pain, and accounted for her inability to cope with her pre-accident roles.

State Farm’s assessors appear to concur with the views expressed, that Mrs. Bissessar’s symptoms were genuine and needed to be addressed. In a paper review and subsequent in-person assessment in October 2010, Dr. T. Walters, G.P. opined that a chronic pain assessment and the intervention of a psychiatrist was warranted, and that 6-8 months in a specialized hand treatment facility, coordinated with psychiatric treatment, would be necessary.¹⁴

In a psychiatric paper review dated February 15, 2012 in response to a request for a psychiatric assessment, Dr. H. N. Sahyoun, a psychiatrist, agreed with Dr. Cancelliere’s diagnosis of a “persistent Somatoform Pain Disorder,” stating that “. . . it is well known that somatoform disorders represent a group of disorders characterized by physical symptoms suggesting a medical disorder. These physical symptoms can dramatically improve with successful treatment of the anxiety and/or [sic] mood disorder.” He felt that Mrs. Bissessar “continues to merit attention to her physical/psychological needs,” but felt this could be handled by Dr. Louli. The only shortcoming with this opinion is that it does not account for the distinct objective impairment to the thumb joint, and the resulting painful arthritis and reduced functionality, which I find the evidence indicates would not likely improve with psychological treatment, and would require lengthy and specific physiotherapy.

I find the medical evidence on both sides of the fence supports that of Mrs. Bissessar and her family that her physical condition has been aggravated by significant emotional difficulties that worsened as time went on and were not adequately treated. Her anxiety is now continuous, causing palpitations and breathlessness, and she now requires regular prescriptions for Lorazepam at higher doses. She takes Tylenol 3 regularly for pain, and has suffered from depression since 2008, for which Dr. Louli prescribes Cymbalta. She testified that she cries frequently for no reason, cannot concentrate for long, feels she doesn’t know what is going on, spends most of her days alone in her room sleeping or watching television, does not want to socialize, see or be seen, especially by her husband’s family, and feels people are looking at her or talking about her. She stated, “I am lost.” She broke into tears at one point, stating, “I cry when I see myself, I never looked like this.” She stated her husband forces her to go to the mall on weekends, or grocery shopping, she does not like to go, she does not want to leave her room.

I accept the evidence of Mrs. Bissessar, her husband and her mother that Mrs. Bissessar does little to nothing around the house. She finds it difficult to get up in the mornings. She has little energy, initiative or motivation. Mrs. Nabbie gets Alicia ready for school, bathes her, dresses her, feeds her, brushes her hair – even has her sleep in her bed with her. Mrs. Nabbie does all the housework in the four-bedroom, three-bathroom home, does laundry and makes all the meals. Mrs. Bissessar takes Alicia to school a few doors down from their house, most often getting a ride in a neighbour’s van. She sits for brief periods with her children but cannot help Adam with his homework. Her medication makes her sleepy during the day, as does her fitful and disrupted sleep at night.

Despite rigorous and detailed cross-examination intended to discredit Mr. Bissessar’s testimony that he did not observe his wife doing anything around the house, and to get him to agree many tasks could be done one-handed, Mr. Bissessar stood his ground, maintaining that it would take so much longer for his wife to accomplish all of the tasks she had before the accident, and would cause so much pain, that he did not believe it was possible. I agree, given that it is not simply a question of having lost the use of her dominant right hand, but of aggravating factors that include chronic pain, depression and anxiety.

Similarly, when specific questions were put to Mrs. Nabbie on cross-examination, she insisted her daughter could not lift anything, open a dresser drawer, prepare a meal for herself using an electric can opener, or even carry a glass across the room, because of pain or because her hand would seize and she would drop it. She testified that she still washes and towel dries her daughter’s hair. She was adamant that it was “obvious” that her daughter could not do any household tasks at all, and that she did not even ask her daughter to help, because she could see that she could not do it because it would be too painful. Although Mrs. Nabbie may have overstated her daughter’s case, I find this was due more to a genuine fixed belief in her daughter’s helplessness than in any attempt to exaggerate her inability to function.

I find Dr. Louli’s evidence about complicating and perpetuating factors in Mrs. Bissessar’s situation, such anxiety, depression, chronic pain, her dependent personality, the fact that she is deconditioned and housebound, isolated and withdrawn, and surrounded only by enabling family members who no longer expect her to do much of anything, to be particularly insightful.

State Farm pointed to a series of occurrences in 2007 and 2008 that it submits undermines the credibility of Mr. and Mrs. Bissessar and Mrs. Nabbie and showed that Mrs. Bissessar either did not meet the post-104 week disability test for caregiver benefits, i.e., her accident-related impairments did not continuously prevent her from engaging in substantially all of the activities she engaged in before the accident; or she was capable of more activity than she admitted.

The first of these occurrences is a driving holiday the family took to visit an aunt in Florida in December 2007. In my view, this trip proves nothing. I accept the Bissessars’ testimony that the trip was a disaster; that they went only at the insistence of Mrs. Bissessar’s sister, who thought it would do her good; that they thought Mrs. Bissessar would be able to manage it; and that it had to be cut short because Mrs. Bissessar was in pain and had an episode of anxiety.

The credibility issue arises because the Bissessars both testified that they went to see Dr. Louli as soon as they returned from Florida, but neither Dr. Louli’s notes nor the OHIP summary show any visit between December 6, 2007 and January 11, 2008, and Dr. Louli, who testified at the hearing, had no independent recollection of a visit. When confronted with this evidence on cross-examination, neither Mr. nor Mrs. Bissessar was able to provide an explanation. When viewed in the context of the evidence as a whole, however, I do not find this inconsistency to be significant.

The second occurrence relied on by State Farm was Mrs. Bissessar’s pregnancy in May 2008, which ended in a miscarriage in June. A report by Dr. L. Georgevich, a neurologist,¹⁵ who treated Mrs. Bissessar for her seizure disorder, indicates the Bissessars were actively trying for a third child since October 2007, and Mrs. Bissessar’s seizure medication was reduced to make this more likely. State Farm suggested this indicated the Bissessars believed that Mrs. Bissessar was more capable of caring for a baby than she represented to others, and that this undermined their credibility. I reject this suggestion. Mrs. Bissessar readily admitted she had always wanted a third child. She and her husband both stated that at that time, they hoped she would “get better” and be able to manage. State Farm suggested the decision to have a third child was unwise, if not unreasonable in the circumstances. I find the Bissessars’ faith in the future, and their explanation, not unreasonable one year after the accident.

The third occurrence was the Bissessars’ purchase of a larger home in the summer of 2008, still well within two years of the accident. State Farm views this as another example of her family accepting that Mrs. Bissessar was more capable of managing a household or living a normal life than she claimed. I reject this argument for the same reasons as the previous one: it has no bearing on the post-104 week test, and Mr. and Mrs. Bissessar provided a plausible explanation. In this case, Mr. Bissessar and Mrs. Nabbie testified that the house was larger, detached, had an extra bedroom and was much closer to the children’s school, and Mrs. Bissessar did not actively participate in the move other than to direct where things should be put by Mr. Bissessar’s extended family members, who carried out the move. Mrs. Nabbie testified that she was the one who did most of the packing and unpacking. I find these explanations to be reasonable.

The Legal Test

To be eligible for caregiver benefits 104 weeks after the accident, Mrs. Bissessar must establish, on a balance of probabilities, that she sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. This disability test is the same as for non-earner benefits. It is not restricted to a complete inability to perform only caregiving activities.

In Heath, the Court of Appeal adopted a number of general principles as part of a proper approach to applying this complete inability test, namely:

Although all of the pre-accident activities in which the person ordinarily engaged should be considered, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to activities the claimant identifies as being important to her pre-accident life;
The claimant must establish that she is continuously prevented from engaging in substantially all of her pre-accident activities, and “continuously prevented” means she must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”
The phrase “engaging in” should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be “engaging” in an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity.¹⁶
In cases where pain is a primary factor that allegedly prevents the insured from engaging in her former activities, 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.

In Marchildon and State Farm Mutual Insurance Company,¹⁷ the arbitrator found that the test should not be read so strictly as to make it virtually impossible for anyone to qualify.

Applying these principles to the facts of this case, I find that Mrs. Bissessar has indeed established, on a balance of probabilities, that her accident-related impairments continuously prevent her from genuinely engaging in substantially all pre-accident activities of normal life.

To summarize, I find the contrast between Mrs. Bissessar’s life before and after the accident is stark. She has gone from a high quality of life, functioning independently in all activities of pre-accident life – working, homemaking, caregiving, interacting normally within her immediate family and with extended family and friends – to an existence, and it is merely existing – where she is withdrawn, isolated, mostly housebound, and lacking the motivation or energy to change. Not any aspect of her life at two years and more after the accident can be considered “normal.”

The medical evidence corroborates Mrs. Bissessar’s testimony and that of her family that the impairment to her right hand is such that it is virtually useless for anything but the lightest non-repetitive activity, assuming she could grip and hold items, which I find she cannot. The hand has reached maximum medical improvement. She has been unable to effectively recruit her left hand, which now causes pain due to overuse. At the time of the hearing, she had yet to receive the lengthy and specific non-dominant hand training recommended by State Farm’s own assessors.

Although Mrs. Bissessar’s soft tissue injuries from the accident should have healed, from an orthopaedic perspective, her evidence and that of her family is that they clearly have not. Poor body mechanics, overuse of uninjured limbs, physical deconditioning and excessive guarding have added to her dysfunction. Chronic pain has set in, in the form of a genuine diagnosable Somatoform Pain Disorder that State Farm’s assessors do not dispute and which has not been adequately addressed through a multidisciplinary chronic pain programme.

Depression, anxiety, disturbed sleep, and continuous medication further aggravate matters, affecting her self-perception, her will and her energy. She does not have the mental or physical ability to take on all of the components of her life as she did before. I find it cannot be said that she genuinely “engages” in any of her pre-accident activities, because her participation in any activity is so restricted by the combination of physical and psychological impairments. Although her husband and mother are able to persuade her to accompany them grocery shopping or to the mall on weekends, she does not initiate these activities and does not enjoy them, does not want to be seen by anyone she knows, and wants to be back home in her room as soon as possible. This is a far cry from the young woman who liked parties, dancing, occasions to dress up and wear makeup, and who never wanted to stay home. She spends little time with her own children, and that only in a passive capacity. She does not minister to her daughter. She cannot, either physically or mentally, run her own household. She cannot accomplish the simplest chores unassisted. It is unreasonable to suggest she could return to a job requiring order-taking and data entry on a keyboard. Every aspect of her life is compromised.

I find Mrs. Bissessar is caught up in a vicious cycle of mutually reinforcing physical and psychological impairments that continuously prevent her from engaging in all the activities of her normal life before the accident, and so meets the complete inability test. Until she receives the benefits of the type of multidisciplinary chronic pain programme and specific hand therapy training that has been recommended, this is unlikely to change.

Special Award

Mrs. Bissessar claims a maximum special award under s. 282(10) on the basis that State Farm’s termination of caregiver benefits was unreasonable. Specifically, she argues that it was unreasonable to rely on the medical opinion of Dr. Kaminker to deny the benefit when he did not have full medical information about the objective injury to her thumb and did not consider the effect of the actual injury or her complaints of chronic pain on her ability to actually use the hand. Mrs. Bissessar also maintains that it was the termination of caregiver benefits that precipitated her severe depression, and that State Farm failed to take her psychological impairments into account in adjusting her claim.

I do not agree that a special award is merited in this case. This characterization of State Farm’s conduct is not entirely fair. Mrs. Bissessar’s case is somewhat unique and unusually complex. When State Farm received Dr. Louli’s rebuttal to Dr. Kaminker’s report in August 2009, it sent Mrs. Bissessar an Explanation of Benefits acknowledging Dr. Louli’s advice that she was suffering from anxiety and depression.¹⁸ State Farm noted that it had not up to then received a Treatment Plan for psychological intervention, and requested that she have her treating provider submit one. State Farm also advised it would await total body x-ray, MRI and bone scans Dr. Louli had ordered, to put to Dr. Kaminker. These were the right things to do. For his part, Dr. Louli testified that it was his belated realization that Mrs. Bissessar’s psychological problems were more severe than he had thought. This is not the responsibility of State Farm.

When a Treatment and Assessment Plan was eventually submitted in September 2010, not by Dr. Louli but by a chiropractor, for assessments by a chronic pain specialist, a chiropractor, a kinesiologist and a psychologist, State Farm’s assessor agreed a pain specialist evaluation was reasonable, but suggested that, as Mrs. Bissessar was already on anti-anxiety and anti-depressant medication, an evaluation by a psychiatrist would be valid.¹⁹ This is not an unreasonable response.

After it received Dr. Kaminker’s second report which concluded Mrs. Bissessar was able to return to her pre-accident activities of daily living, including caregiver activities, State Farm sent Mrs. Bissessar an OCF-9 stating it was maintaining the stoppage of the caregiving benefit.²⁰ State Farm based its continued denial of caregiving benefits on Dr. Kaminker’s report, choosing to rely on that rather than on Dr. Louli’s rebuttal report. Although it ultimately turned out to be wrong, it was not an unreasonable position to take, considering the strict disability test involved.

It is not accurate to say that State Farm simply ignored Dr. Louli’s rebuttal report or failed to acknowledge Mrs. Bissessar’s psychological condition. State Farm accepted Dr. Cancelliere’s diagnosis of a Somatoform Pain Disorder. Although it might have been wise to obtain its own assessment by a psychiatrist, I do not find it unreasonable that State Farm chose instead to dispute Mrs. Bissessar’s entitlement to ongoing caregiver benefits. I note it continued to adjust the claim and to continue to pay for medical benefits, such as $4,098 for a massage chair.

I accept Mrs. Bissessar’s evidence that State Farm’s denial of caregiver benefits may have deepened her depression. However, State Farm was entitled to dispute her claim, even if it was later proven wrong. That does not make the denial unreasonable or deserving of a special award.

EXPENSES:

I encourage the parties to resolve the matter of expenses between themselves. If the parties are unable to agree on the amount of expenses, either party may request, in writing within 30 days of receipt of this decision, a determination by way of written submissions, of the amount of expenses to be paid.

December 18, 2013

Susan Sapin Arbitrator

Date