Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 212
FSCO A13-005640
BETWEEN:
TAMMY DUREPEAU
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Alec Fadel
Heard: November 11, 12, 13, 2014, in Ottawa, Ontario and by written submissions which were completed on April 24, 2015
Appearances: Christopher Kelly for Ms. Durepeau
Nicholaus de Koning for State Farm Mutual Automobile Insurance Company
Introduction:
The applicant, Tammy Durepeau, was injured in a motor vehicle accident on November 30, 2008. She received accident benefits from State Farm and continues to receive an income replacement up to the time of this hearing. She made an application for determination of catastrophic impairment under section 2(1.2)(g) of the Schedule.1 Under that section, a catastrophic impairment is one where a person suffers a marked impairment on account of a mental or behavioural disorder.
State Farm’s insurer examination conducted by Dr. Ken Suddaby, psychiatrist, concluded that Ms. Durepeau had a moderate impairment and did not meet the definition for catastrophic impairment. Ms. Durepeau’s own assessment team (consisting of Drs. Rosenblat and Ricci) found that she was catastrophically impaired because she has a marked impairment in one area of function being adaptation to work or work-like setting (adaptation). The parties were unable to resolve this issue through mediation, and Ms. Durepeau applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
Issue:
- Does Ms. Durepeau have a marked impairment on account of a mental or behavioural disorder in the area of adaptation?
Finding:
I find that Ms. Durepeau meets the definition of catastrophic impairment because she has a marked impairment in the area of adaptation due to a mental or behavioural disorder.
Background:
Ms. Durepeau is 45 years of age (at the time of the hearing) and resides in Pembroke, Ontario with her husband and two sons, (now adults). Ms. Durepeau has worked for most of her adult life. At the time of the accident, she was employed as a social worker for the Red Cross where she had been working since February 14, 2005. Prior to her employment at the Red Cross, Ms. Durepeau was employed in a number of retail jobs which she did not find particularly rewarding. There was evidence that she suffered from mental health difficulties including struggles with depression and stress prior to 2005. The evidence was, and I accept, that she wanted to better her life and at age 35, Ms. Durepeau enrolled in a personal support worker (PSW) college program at Algonquin College (in Pembroke) where she graduated with honours. This was paid for through employment insurance. In 2007 she completed a further course in the PSW program, “Wound Care for the PSW.” She testified that she thoroughly enjoyed her new career.
Ms. Durepeau has not worked since the accident. She continues to receive an income replacement benefit from State Farm as it determined that she had a complete inability to engage in any occupation for which she is reasonably suited by education, training or experience. Though Ms. Durepeau sustained some physical injury in the accident, the parties agree that her entitlement to an ongoing income replacement benefit is due to mental and behavioural impairments. More particularly, the parties agree that she suffers from major depression and a pain disorder and the insurer concedes that this psychiatric illness was caused by the accident.
The parties also agree that the issue in dispute requires consideration of the language used in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”) and, in particular, the table set out at page 301. The question involves consideration of whether Ms. Durepeau’s impairment levels in the area of adaptation is “compatible with some, but not all useful functioning” (in which case the impairment is moderate) or whether “impairment level significantly impede useful functioning” (in which case the impairment is marked).
ANALYSIS:
It is only necessary to have a marked impairment in one area of function to be considered catastrophically impaired as per the Schedule.2
The difference in the parties’ positions is in their interpretation of the Guides and the classification level that Ms. Durepeau meets. The table “Classification of Impairments Due to Mental and Behavioral Disorders” at page 301 illustrates the difference in the two levels of impairment, moderate and marked [emphasis added]:
Areas of aspect of functioning
Class 1: No Impairment
Class 2: Mild impairment
Class 3: Moderate impairment
Class 4: Marked impairment
Class 5: Extreme impairment
Activities of daily living Social functioning Concentration Adaptation
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all, useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
The question before me is whether Ms. Durepeau has suffered a marked impairment in regard to adaptation. Ms. Durepeau argues that the operative words in the definitions of classification of level of impairment must be given their plain meaning, within the context. She states that a marked impairment being “impairment levels significantly impede useful functioning” must be understood as a lesser level of impairment than extreme impairment (where “impairment levels preclude useful functioning”). Ms. Durepeau submits that the insurer is taking too restrictive an interpretation of this part of the Guides and the approach of her assessors is preferred.
State Farm argues that the applicant and her medical witnesses took an incorrect and unduly narrow interpretation of what is meant by function being “significantly impeded” in the definition of marked impairment. State Farm asserts that Ms. Durepeau is relying on the fact that she continues to receive income replacement benefits beyond 104 weeks as proof that she has a marked impairment in this area of function.
State Farm submits that the preferred approach is that of its psychiatric assessor Dr. Suddaby, who took “a broader and more appropriate interpretation of ‘adaptation to work and work-like settings’” by not focusing as heavily on the fact that Ms. Durepeau continued to receive an ongoing income replacement benefit based on a complete inability to engage in any reasonably suited occupation.
State Farm relied on the case of Leach and Intact Insurance Company, where the arbitrator emphasized “the concept that adaptation is a measure of the stress tolerance of the individual and not simply an ability to work, and, one must consider evidence of the person’s functional abilities, both physical and psychological.”3 Importantly, I note that in making her finding, the arbitrator stated that the applicant did not have a marked impairment in the four areas of function, “based on the medical evidence and based on the evidence about Ms. Leach’s function.” I agree that the arbitrator was correct when she emphasized that her assessment included “the concept that adaptation is a measure of the stress tolerance of the individual rather than their ability to work,” however, she also noted that she must also assess the evidence surrounding the applicant’s functional abilities, both physical and psychological. The arbitrator noted some success in Ms. Leach’s teaching placement and referred to instances where the applicant “coped reasonably well” with some of the duties of her placement post-accident. Leach is distinguished on that basis.
Ms. Durepeau argues that the fact that she continues to receive an income replacement benefit due to a psychological impairment as a result of the accident is prima facie evidence that she has a marked impairment in the area of adaptation. However Ms. Durepeau also relies on the lay and medical evidence that supports that she has a marked impairment. Both Drs. Rosenblat and Ricci testified that they started their assessments with the understanding that she was receiving post-104 week IRBs but indicated that this information was only a piece of the puzzle.
In support of my finding, I accept the three “fundamental propositions” put forward by the applicant in her written submissions and adopt them into the framework of my analysis. She states that:
The phrase and concept of catastrophic impairment are to be given an inclusive and not a restrictive meaning
The findings and conclusions of Dr. Rosenblat should be preferred over those of Dr. Suddaby
The evidence taken as a whole supports the finding that Ms. Durepeau has suffered a catastrophic impairment
The Phrase and Concept of “Catastrophic Impairment” are to be Given an Inclusive and not a Restrictive Meaning
The Court of Appeal in the case of Pastore v. Aviva Canada Inc., confirmed that the phrase and concept of catastrophic impairment are to be given an inclusive and not a restrictive meaning.
While the majority may be correct that the legislation is structured to give the enhanced compensation only to those whose injuries have had a catastrophic effect on their lives and to limit payments to others less severely affected, that is achieved by adhering to the words used in the legislation, properly interpreted in context, particularly by those administrative decision-makers who interpret their home statute with expertise and experience. Those administrative decision- makers and this court have stated that the intent of the legislature is to give the phrase and concept of catastrophic impairment an inclusive and not a restrictive meaning.4
I do not disagree with Dr. Suddaby’s premise, that the language of the Guides suggests a lot more “fuzziness” between mild and moderate impairment, but for a marked impairment one had to be significantly unable to participate in the types of functions addressed in each of the areas being rated, however, I find in this instance there is sufficient evidence to support that Ms. Durepeau has an impairment that significantly impedes her useful functioning in the area of adaptation.
I also agree that the operative words in the definition of classification of level of impairment in the table at p. 301 of the Guides must be given their plain meaning, within the context. Accordingly, “impairment levels significantly impede useful functioning” (marked impairment), must be understood as a lesser level of impairment than “impairment levels preclude useful functioning” (extreme impairment). The wording “preclude useful functioning” connotes a total inability and therefore “significantly impedes” refers to a level of impairment that is less than a total inability. This interpretation is supported by the Guides at page 300 where it states: “[t]aken alone, a ‘marked’ impairment would not completely preclude functioning. . .” Therefore, I find that based on an inclusive and non-restrictive interpretation of the phrase “significantly impede useful functioning,” Ms. Durepeau has suffered a catastrophic impairment, even assuming she were capable of “some vocational activities” as supported by Dr. Suddaby.
The Psychiatric Findings and Conclusions of Dr. Rosenblat are Preferred over those of Dr. Suddaby
Dr. Harry Rosenblat, psychiatrist, completed the OCF-19 dated October 25, 2012, which was submitted to State Farm, accompanied by his report dated October 10, 2012. Dr. Rosenblat confirmed that Ms. Durepeau had a catastrophic impairment as described in section 2(1.2)(g) of the Schedule being, “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 behavioral disorder.” Dr. Rosenblat, in his report, concluded that Ms. Durepeau suffered a marked impairment in respect of the area of function identified in the Guides as “Deterioration or decompensation in work or worklike settings.” Dr. Rosenblat classified Ms. Durepeau’s impairment in respect of the other three areas of function as “moderate” or class 3.
Ms. Durepeau attended an insurer’s assessment with Dr. Suddaby and in his report dated January 4, 2013, he assigned her an overall class 3, moderate impairment. In the area of adaptation, he concluded that she had a moderate impairment. Dr. Suddaby noted that Ms. Durepeau, despite her pain and depression, had some preserved ability to adapt.
In examining the evidence as a whole, I find Dr. Rosenblat’s assessment and conclusions are preferred over those of Dr. Suddaby. I prefer the evidence of Dr. Rosenblat because his findings and conclusions were consistent with Dr. Ricci who assessed Ms. Durepeau on several occasions. The conclusions of Drs. Rosenblat and Ricci are based on a thorough and informed clinical assessments and a fair and reasonable interpretation of the Guides. Dr. Rosenblat described the nature and severity of Ms. Durepeau’s mental and behavioural impairments in a way that was consistent with her “real world” day-to-day functioning. Dr. Suddaby’s description of Ms. Durepeau in both his report and testimony, stands in stark contrast to the evidence presented by Ms. Durepeau.
I find that Drs. Rosenblat and Ricci’s description of Ms. Durepeau’s mental and behavioural impairments are consistent with Ms. and Mr. Durepeau’s testimony and that of her occupational therapist, Ms. Laurie Warren regarding Ms. Durepeau’s ability to function. Although on the one occasion that Dr. Suddaby assessed Ms. Durepeau, he concluded that she would be able to complete some volunteer work, the preponderance of evidence is that Ms. Durepeau’s appearance and behaviour is that of a remarkably depressed and anxious person.
I find that Dr. Rosenblat’s approach is consistent with the Guides. In his report of October 10, 2012, when assessing “Work Adaptation” he stated that the domain related to “issues such as failure to adapt to stressful circumstances.” His conclusions with regard to Ms. Durepeau included:
She finds it confusing to make even simple decisions (going to the waterfront and deciding where to sit can be problematic).
She has difficulty prioritizing what needs to be done.
She finds it very difficult to multi-task.
It may take her as long as 2 hours to get ready for the day in terms of getting dressed, washing and drying her hair.
She has missed her appointments which suggests that she may have problems with scheduling at work.
She is irritable which is likely to result in problems dealing with colleagues at work.
She has not returned to work since the index accident.
She has difficulty following instructions and directions and when reading has problems with focus and recall.
She finds it difficult to recall and understand a conversation and may have difficulty finding words.
She has problems expressing herself.
When attempting to manage the finances she has paid bills more than once.
She requires the instruction and decision making of her husband in terms of on-line banking.
When she is under stress she closes up and does not wish to speak with people.
She may leave a stressful situation.
She has difficulty with completing tasks.
She believes she is not a good mother. She is unable to discipline her children. Activities with her children have become limited.5
Dr. Rosenblat testified that it was striking that Ms. Durepeau was unable to make a decision of the simplest nature with relatively few implications, such as where to sit.
Importantly, Dr. Rosenblat’s findings are supported by the findings and conclusions of Dr. Ricci, who assessed Ms. Durepeau independently. The consensus between Drs. Rosenblat and Ricci is particularly significant since Dr. Ricci assessed Ms. Durepeau on three separate occasions over a four year period (one of which was conducted by a psychologist under her supervision and the other two conducted by her directly). Dr. Ricci’s findings are particularly persuasive given that she conducted psychometric testing, and other written work, which is specifically recommended in the Guides. Dr. Suddaby testified that he did not administer any psychometric tests during his assessment and that was not unusual for a psychiatric assessment.
When commenting on the psychometric test results, Dr. Ricci, in her report of 2014 stated that “[e]motionally, she is presenting with severe depressive symptomatology and suicidal ideation. She is very likely to be pessimistic, lack energy and to display vegetative symptoms of depression. She is reporting feelings of hopelessness and helplessness as well as social avoidance and withdrawal. Again this is consistent with clinical interview data, BDI-II results as well as previous psychological assessment findings.”
It is also significant that Dr. Rosenblat’s findings were consistent with the most recent of Dr. Ricci’s assessments conducted weeks before the arbitration, despite his not having the current evidence as of the date of the hearing. This congruency is particularly noteworthy given that Dr. Ricci was fully up to date with all medical evidence, including the OT report of Laurie Warren dated September 8, 2014.
Dr. Rosenblat also referenced the Global Assessment of Functioning (GAF)6 which “is for reporting the clinician’s judgement of the individual’s overall level of functioning.” Dr. Rosenblat testified that a GAF score gives you an overall sense of a person’s functioning and symptomatology in relation to psychiatric issues. Dr. Rosenblat referred to the GAF Scale noting that one of the limitations in the scale from 41 to 50 was “unable to keep a job” and stated that since this was the case with Ms. Durepeau, one could not rate her higher than 50 on this scale. Dr. Rosenblat’s GAF score for Ms. Durepeau was a range of 48 to 50. Dr. Ricci testified that Dr. Suddaby’s global assessment of functioning rating (GAF) was 51 which is at the bottom of the moderate scale and as close to severe without crossing the line. Dr. Ricci’s GAF rating was 48 to 55 with the lower score reflecting consistency in the depression and anxiety with no periods of time when things are better. I find that Dr. Rosenblat’s GAF score better reflected the realities of Ms. Durepeau’s situation and that Dr. Suddaby’s score appears to be optimistic given that Ms. Durepeau has been unable to work since the accident. Dr. Suddaby assigned a GAF score of 51 which, according to the other expert’s testimony, appeared to not take into account the more serious aspects of Ms. Durepeau’s impairment.
Although the DSM-IV states that the clinician should pick a single value that best reflects the individual’s overall level of functioning, both Drs. Ricci and Rosenblat provided a range. Dr. Ricci testified that she was taught to provide a range. The DSM-IV states that “in situations where the individual’s and level of functioning are discordant, the final GAF rating reflects the worse of the two.”
Dr. Ricci testified that her rating for major depressive disorder included the moderate range only as a result of utilizing the Minnesota Multiphasic Personality Inventory (MMPI) but that Ms. Durepeau’s depression overall was closer to severe with only “moments” of more moderate depression.
Dr. Suddaby’s assessment seems at odds with the other evidence. He rated the depressive disorder as mild to moderate, noting partial remission and testified that it was based on Ms. Durepeau’s self-reporting, his evaluation of the accuracy of the self-description and his observations and review of the medical information. He noted that during his interview she did not appear like someone sad all the time, as reported, and noted that she was able to smile and interacted well. He stated that it would be a stressful thing to come into the city (from Pembroke to Ottawa) for the assessment, but Ms. Durepeau was able to settle in and not show any anxiety.
Dr. Suddaby seemed to be speaking of a different person than the one who testified before me and the person described by her husband. Dr. Suddaby testified that he had no recollection of Ms. Durepeau and relied on reviewing his report for his testimony. He also testified that he had no knowledge of her current condition except for reviewing the most recent report of Dr. Ricci.
I find that Drs. Ricci and Rosenblat’s description of Ms. Durepeau’s impairment explained why Ms. Durepeau appeared so disconnected at the hearing when she gave her evidence. Ms. Durepeau testified for a number of hours and only once did she show any noticeable difference in her tone and that was when she answered that she would love to be working. Immediately after making that comment, however, Ms. Durepeau concluded that she is unable to work as a result of her depression and chronic pain. Otherwise, she seemed unemotional, unconnected to the proceeding, involved but not really caring. Ms. Durepeau did testify that she was more anxious because of the proceeding.
Dr. Suddaby provided the most optimistic assessment of Ms. Durepeau’s ability to work. In his report of January 4, 2013, he stated “[a]lthough Ms. Durepeau’s current level of Major Depression may not be commensurate with full-time work, it is my opinion that Ms. Durepeau’s current level of impairment arising out of her Major Depression would not preclude her from participating in some vocational activities, either volunteer or paid.” Dr. Suddaby testified that it was important not to accept what people say at face value, in reference to Ms. Durepeau’s view that she is unable to work. He stated that it is important to look at what the person is able to do and how they are presenting themselves.
However, the reality is that Ms. Durepeau held a full-time job that she enjoyed before the accident and has not worked at all since the accident despite her evidence, which I accept, that she would love to be working. Despite this desire to be working, Ms. Durepeau has been unable to even look for volunteer work as a result of her impairments.
Further, Dr. Suddaby, in cross-examination, agreed that “independence” and “effectiveness” was a crucial overall consideration when looking at function in the context of work and work-like settings and acknowledged that there was no mention of these considerations in his assessment report. According to other evidence, to date Ms. Durepeau has not succeeded in simple initiatives such as seeking a volunteer position. Accordingly, I place more weight on the evidence of Dr. Ricci who assessed Mr. Durepeau on several occasions and had a recollection of her and Dr. Rosenblat who I find completed his assessment in accordance with the Guides including an analysis of her independence and effectiveness which the Guides specifically states should be considered when looking at the four aspects of functional limitation.
Dr. Suddaby looked at Ms. Durepeau’s regular interaction with her sister and one friend to suggest that her social functioning has improved since the accident. I reject this suggestion. In fact, Ms. Durepeau testified that her circle of friends is limited to her one girlfriend and her sister and she is anxious with other people feeling like she has to pretend that everything is okay. Dr. Rosenblat testified that the change in her marital relationship with her husband was significant evidence of a decrease in social function but agreed that her ongoing socialization with her sister and a friend prevented a “marked” rating in social functioning.
I find that overall, Drs. Rosenblat and Ricci undertook fair and well-rounded assessments that accurately described Ms. Durepeau, in accordance with the Guides. Their conclusion that she had a marked impairment in the area of adaptation reflected the real-life situation of Ms. Durepeau. Their conclusion that she would be unable to perform even a volunteer job on any regular basis is supported by the evidence. I therefore prefer this evidence over that of Dr. Suddaby.
The evidence taken as a whole supports the finding that Ms. Durepeau has suffered a Catastrophic Impairment
In considering the level of Ms. Durepeau’s impairment, one must examine the substance of the “work and work-like settings” sphere of function identified in the Guides. A key descriptor of the area of function described as “Deterioration or decompensation in work or work-like settings” is the “ability to tolerate increased mental demands (stress).” The Guides are instructive on how to assess “the stress tolerance of the individual” noting that stress may be looked at objectively and subjectively. Stresses common to the work environment are identified in the Guides and include “attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.”
The Guides provide that there must be the existence of a mental disorder documented by a medical expert. The Guides note that the expert should document functional limitations and that “[d]ata gathered during a period of years are particularly useful.” The Guides state that “[t]he individual’s own description of his or her functioning and limitations is an important source of information,” and that information from family members “may be useful in indicating the level of functioning and the severity of the impairment.”
The importance of Ms. and Mr. Durepeau’s evidence cannot be discounted and is considered in my decision. They testified that Ms. Durepeau is so impaired by her mental and behavioural condition that she is unable to work at anything. I find that Ms. Durepeau was genuine in her testimony and gave evidence in a straightforward, though slow manner. In the hearing of this case there was no real challenge to her, or her husband’s credibility.
Ms. Durepeau, in her testimony and in the medical reports, described a busy life prior to the accident, this was confirmed by her husband’s testimony. She enjoyed camping, swimming, and leisure walks and was a mediator between her children and her husband. Prior to the accident, Ms. Durepeau did the majority of the housekeeping activities with her husband completing the rest.
After the accident, there was an immediate and significant shift in the family roles. Mr. Durepeau assumed many of the tasks including the majority of the cooking, cleaning, grocery shopping and laundry. Ms. Durepeau described her life post-accident as “stressful” and “frustrating,” referred to bouts of forgetfulness and constant lack of energy.
Ms. Durepeau has had limited treatment for her mental impairment. She takes prescription medication daily and has seen a psychiatrist at the hospital in Pembroke on two occasions. She was not happy with the treatment received but did not seek out any other treating psychiatrist. She was referred to a social worker and saw her on three or four occasions. As the insurer points out, there was approved psychological treatment that was never utilized. She also has been assessed by Dr. Ricci, psychologist, on three separate occasions.
The evidence shows that Ms. Durepeau went from a fully functioning individual who performed the majority of the household responsibilities in a busy household to one who does significantly less after the accident and at her own, much slower pace and time. I acknowledge her history of depression that existed when she was a stock clerk in the retail industry before 2005 and that she has been asymptomatic at the time of the accident. Her marital life went from one of social and sexual intimacy to the point now where Ms. Durepeau no longer has sexual relations with her husband and thinks her marriage is at an end. Mr. Durepeau relates this change directly to the accident. In fact, his evidence was that the accident had an ongoing effect on the whole family with the most notable changes in Ms. Durepeau being: irritability, depression, constant pain and wanting to be alone.
Ms. Durepeau did describe doing errands and tasks for her family, but she noted that it was hard to get motivated and she would panic about the various tasks she had to complete. Her frustration would lead to anger or forgetfulness and she would “close up” feeling “like a dummy” and cry in the evenings. She stated that it was difficult for her to get even her day-to-day tasks completed noting a lack of energy, frustration and forgetfulness with only a rare good day (one day per month as an estimate). Although, Ms. Durepeau seemed improved on a vacation to Bahamas, she testified that upon return everything went back to as it was and she felt the same as before.
I find that the applicant’s condition precludes her from any active participation in the work force, either for pay or on a volunteer basis. Despite any excitement the applicant may have shown to Dr. Suddaby regarding the potential of her completing some volunteer work, all that resulted was one email voicing interest in same with no follow-up. This is not a result of any malingering on the part of Ms. Durepeau but as explained by Dr. Ricci in testimony, Ms. Durepeau lacks the motivation to follow through on activities. Dr. Ricci stated that there was no evidence that Ms. Durepeau could initiate and/or maintain any structured activity. Dr. Ricci confirmed in her testimony that there would be days where Ms. Durepeau could complete the tasks of employment or volunteer work but that more often she would be unable to do so. Dr. Ricci pointed out that Ms. Durepeau will do things at her own pace, and if she is not up to a task she will put it off until she thinks she can manage it. This was confirmed by Ms. Durepeau in her testimony. I accept this view and reject the suggestion that at this time Ms. Durepeau is capable of some volunteer work on any sort of regular basis as put forth by Dr. Suddaby. The only evidence of this is Dr. Suddaby’s own overly optimistic view of Ms. Durepeau’s potential which is not supported by any other evidence.
Mr. Durepeau testified that his wife was very happy after starting her career as a PSW and told him on occasion how she wished she changed her career earlier. I believed her when she stated that she would love to work and find that her inability to even look for volunteer work is evidence that she is unable to physically attempt to do so.
Unlike the arbitrator in Leach, I am convinced by the medical evidence and the testimony of Ms. Durepeau, concerning her ability to function, that she does have a marked impairment in the area of work and work-like settings. The reports of Drs. Ricci and Rosenblat document in detail the many difficulties that Ms. Durepeau faces as a result of her psychological impairment in stark contrast to the functioning motivated individual she was before the accident. In her report of November 1, 2014, Dr. Ricci documents Ms. Durepeau’s current status and under “Depressive symptoms” notes that Ms. Durepeau described “pervasive sadness, irritability, feelings of hopelessness and emotional lability.” Under “Anxiety symptoms” noted “ongoing anxiety symptoms and difficulty handling day-to-day stressors and issues, particularly at home.” Under “Reduced cognitive efficiency” it was noted that “Ms. Durepeau describes reduced concentration as well as memory problems. She reports that she often forgets to pick up items when she goes to the store, even if her list is very short. She has difficulty focusing mentally on a task and completing any one task.”
There are other factors that I consider relevant in making my finding that Ms. Durepeau has a marked impairment in work or work-like setting, they include:
Dr. Rosenblat testified that Ms. Durepeau took twice as long than usual to complete his questionnaire before his assessment
Dr. Rosenblat’s assessment took one hour and 50 minutes to complete which was more than twice as long as one usually takes
Ms. Warren, OT, testified that it took the applicant an inordinate amount of time to fill out the written material during her assessment, stating she had never seen anyone take this long
At her assessment with Dr. Rosenblat, set several months in advance, she failed to know what day of the month it was
Ms. Durepeau had a late departure for the hearing, a date she would have been aware of for some time and known the importance of, causing her to withdraw
The applicant’s appearance and demeanour when giving testimony reflected low mood, lethargy, absence of any gesticulation and tearfulness yet it appeared she was doing her best to carry on
CONCLUSION:
Based on the evidence as highlighted above, I find that Ms. Durepeau has a marked impairment in the area of work or work-like setting or adaptation as illustrated in the Guides. As a result, Ms. Durepeau meets the definition of catastrophic impairment on account of a mental or behavioural disorder.
EXPENSES:
If the parties cannot agree on expenses, they may ask for a determination in accordance with the Dispute Resolution Practice Code.
October 21, 2015
Alec Fadel Arbitrator
Date
Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 212
FSCO A13-005640
BETWEEN:
TAMMY DUREPEAU
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Ms. Durepeau suffered a catastrophic impairment as a result of the motor vehicle accident of November 30, 2008 because she has a marked impairment on account of a mental or behavioural disorder in the area of work or work-like setting or adaptation.
October 21, 2015
Alec Fadel Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Pastore v. Aviva Canada Inc., 2012 ONCA 642
- (FSCO A09-001346, November 7, 2011)
- See footnote 2, supra
- I acknowledge that her children are now adults and that one has schizophrenia.
- The fifth axial of the DSM-IV-TR (DSM) which sets out the multiaxial system involved in an assessment.