Neutral Citation: 2016 ONFSCDRS 164

FSCO A13-006722

BETWEEN:

PAMILA VEERAN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

Before: Arbitrator Lynda Tanaka

Heard: In person at ADR Chambers March 28 and 29, 2016

Appearances: Mrs. Pamila Veeran participated Ms. Kaitlyn MacDonell participated for Mrs. Pamila Veeran Mr. Jonathan Barr participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mrs. Pamila Veeran, was injured in a motor vehicle accident on May 11, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended. The Applicant testified with the assistance of a Tamil interpreter.

The issues in this Hearing are:

Is the Applicant entitled to receive a weekly income replacement and for what period?
Is the Applicant entitled to interest on any overdue payments?
Is either party entitled to its expenses in respect of the Arbitration?

Result:

The Applicant is entitled to receive a weekly income replacement in the amount of $377.73 for the period of May 19, 2011 and ongoing in accordance with the Schedule, except for the period of September 10, 2011 to August 25, 2012 when the weekly income replacement is in the amount of $196.43.
The Applicant is entitled to interest on overdue payments without any stay on the time period in which interest runs.
If the parties are unable to agree on the entitlement to or quantum of the expenses of this matter, the parties may, within 30 days of the issuance of this decision, request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (“the Code”).

EVIDENCE AND ANALYSIS:

PRELIMINARY MATTERS

The Pre-Hearing letter in this matter, issued November 5, 2015, was issued as a result of a Motion to reopen the file which had been closed administratively when it was reported that a settlement had been reached and a Hearing date had been cancelled as a result of the report. State Farm requested the interest be stayed for a period because it said that the loss of Hearing date was the Applicant’s fault. Arbitrator Matheson ordered the file reopened, based on the evidence and submissions he received. He referred the matters of costs of the Motion and interest to the Hearing Arbitrator to be determined at a later date. I have reflected those issues in the statement of issues for this decision. Counsel requested deferral of the issue of expenses but spoke to the matter of interest.

In view of my conclusion that the Applicant is successful on her application for income replacement benefits, I agree with her counsel that interest should run during the entire period. I do not agree with State Farm that the Applicant should bear the burden of the delay. As will be made clear in my decision, I conclude that State Farm has failed to investigate and address her claim adequately and she has not obtained the treatment that might have avoided the extent of the impairments she now suffers as well as the loss of opportunity in the workplace. To add to her burden a loss of interest would not be an equitable outcome that fulfills the intent of the legislation.

At the outset of the Hearing, State Farm moved to exclude a report obtained by the Applicant from a chronic pain specialist which had been served in accordance with the Code prior to the Hearing commencement. I ruled that the report was admissible since the author of the report was listed on State Farm’s witness list for cross-examination. State Farm also sought to have excluded an accounting report that calculated the quantum of the income replacement benefits that should be paid. The report was served in accordance with the Code prior to the Hearing. Given the compliance with the Code, I ruled that the report would not be excluded. If an Insurer is concerned that it will not have sufficient time to serve responding material, it should address the issue of the timing of service of reports at the Pre-Hearing stage.

The Applicant sought to have additional medical records and an addendum report from the family doctor admitted despite failure to comply with the Code, and I refused the request.

In the opening statement, the Applicant’s representative indicated that she would be putting forward a special award claim based on the history of the handling of the file by State Farm. I held that the claim could not be brought at such a late stage in the circumstances of the case. The claim had not been indicated on the Application for Arbitration or in the issues identified at the Pre-Hearings, and the Applicant had failed to give the Insurer proper notice of the claim. Such claims can be brought in the course of a Hearing, but those are instances where the claim arises out of the conduct of the Insurer at the Hearing. The grounds of the claim as presented at this Hearing did not fall in that category.

DECISION

The Applicant testified that she was 35 years old at the time of the accident. She lived with her husband, one child, mother, and other family members and worked full-time and overtime. She was at the time of the accident five months pregnant and in good health. When the accident occurred, she was the seat-belted front passenger in a motor vehicle driven by her husband that sustained two impacts. She testified that she hit her head and thought she had a brief loss of consciousness. The paramedics who attended the scene noted that she was hyperventilating but she was able to be “talked into her breathing”.² She was taken to the hospital by ambulance where she was checked out and staff noted her concern about the health of the fetus.³ She was instructed to return the next day to have an ultrasound of the fetus. She returned the next day with complaints of abdominal pain and other issues. No issues were observed with respect to the fetus but she was told to follow up with her family doctor. She did so on May 13, 2011, two days after the accident, and the doctor noted that she complained of lower back pain, neck pain and headache.⁴

Her family doctor referred her to a chiropractor. She was seen on May 17, 2011 and the chiropractor assessed her as suffering from sprain and strain of the sacroiliac joint, sprain and strain of the lumbar spine, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, headache, other sleep disorders and other anxiety disorders as a result of the accident.⁵ State Farm approved treatment under the Minor Injuries Guideline (“MIG”). In August 2011, the chiropractor completed a report, dated August 11, 2011,⁶ indicating that she should have more advanced imaging since he found “some neurological involvement in the cervical region on the right side”. His opinion was that she was unable to meet the required tasks of her jobs and that her progress was slower than other patients since she was pregnant and active therapy is hard to perform in the last trimester.⁷

The Applicant testified as to her work experience. She has the equivalent of Grade 12 high school education. She immigrated in 2001 to Canada and, within a month, gave up her ESL classes because she was able to find factory work where the predominant workplace language was Tamil.

In the three months prior to the accident, she was working seven days a week. The Applicant was in good health and worked 40+ hours per week at her job on an assembly line trimming plastic components for chairs and packing them in boxes. The job required that she stand at her work station, trim the components and then carry them to pack them into boxes. She was a hard worker who worked quickly. Her employer indicated that the job description was:

use blades and trimming machine to trim edges of finished products.

[requires] Hand eye co-ordination, use of both hands, light lifting standing⁸

She testified that both she and her husband sent money to their families in Sri Lanka so she had also been working part-time at a party supply store for about three months prior to the accident. The job was described by her employer as:

organization/ shelfing[sic]/cleaning [illegible] items⁹

She described her work at the party supply store as general work, stacking shelves, cleaning, etc. Her chiropractor’s report of August 11, 2011 indicated that she worked as cashier there but in her evidence she denied that.¹⁰

The evidence of her bank account confirms her testimony that she was under pressure financially, as her account was usually overdrawn in the year prior to the accident.¹¹

She testified that it was always her intention prior to the accident to return to work since her mother lived with the family and could care for the children, as she had with the first baby. In addition, her brother and sister-in-law and their two children live with them, and her sister-in-law was available to help if needed. With the assistance of a friend she wrote a letter to her employer indicating her intention to commence her maternity leave on October 10, 2011 and to return to work on October 10, 2012.¹² The Applicant testified that she has not returned to work since the accident due to the pain from her injuries. She testified that she has run up a large credit card debt of $50,000 and is under considerable financial pressure.

The Applicant testified that she wants to return to work but she believes that the pain in her neck and back and headaches make that impossible. She testified that she could not return to her old full-time job as there could not be an accommodation for her in that workplace. Her back is 70 percent improved but she understands the demands of that job and believes that she cannot do it.

At both workplaces where she worked prior to the accident, the workplace language was Tamil and she did not need much English for her job. She is in touch with her co-workers from her full-time job on the assembly line trimming plastic components, but the company has been sold and the job she had is not available with accommodations that she would need because of the pain she still has. The company where she worked part-time has gone out of business. A friend arranged for her to work a couple of days recently, making coffee at a Tim Horton’s, but she was unsuccessful in getting a job there. She testified she worked too slowly and she mixed up some coffee orders. She had difficulty working at the fast pace and understanding what people said and what the orders were on the computer screen. She did not take part in any formal company training and there has been no functional abilities analysis undertaken. She has not gone to any agencies to see if they can assist with her job search.

She is limited in her employment opportunities because she speaks and understands little English, has only Grade 12 education, and her pain limits her ability to stand and to sit. She has a limited range of work experience. She regrets not pursuing her ESL studies and cannot afford now to pay for courses. Her family members include those with a good fluency in English and those without much fluency in English.

The Applicant testified that she continues to this day to suffer from headaches and neck pain, and that she has been waiting for treatment at a chronic pain clinic. She started treatment promptly after seeing her family doctor after the accident but it was discontinued in the final trimester of her pregnancy, given the difficulties in providing active therapy when she could not lie on her stomach. Medication-based therapy for her pain was limited because of her pregnancy and later breastfeeding. She successfully delivered a baby in October 2011 by caesarean section. Seven months after the baby was born, she restarted her treatment for the injuries and pain caused by the accident.¹³ Her third child was born in mid-June 2014. Over the period since she was married, she has had three miscarriages, one prior to the first child, one in 2010 before the second child,¹⁴ and a third, the date of which she could not remember.

The Applicant was the only witness. She bears the onus of proving that her physical condition meets the tests in the Schedule for entitlement to income replacement benefits. None of the medical experts testified but I was provided with reports, treatment plans proposed by various chiropractors, clinical notes and records, most notably:

Ambulance Call Report¹⁵ and Emergency Department notes and records;¹⁶
Clinical notes and records of the family doctors, Dr. R. Krubaharan and Dr. F. Jayarajh, and report of her chiropractor Dr. M. Chahrour;¹⁷
Disability Certificates by Dr. F. Jayarajh (family doctor), dated June 24, 2011,¹⁸ by Dr. M. Chahrour, dated May 17, 2011,¹⁹ by Dr. Leo Karabellas, dated January 23, 2015,²⁰ and by Dr. H. Grigoropoulos, dated August 29, 2012;²¹
Reports of independent examinations conducted on behalf of State Farm by:

a) Dr. Melissa Hershberg, M.D., General Practitioner, dated August 1, 2011 (two reports of that date),²² November 8, 2012,²³ January 31, 2013²⁴ and August 11, 2015 (two reports of that date);²⁵

b) Dr. Anna Czok, Chiropractor, dated May 6, 2013;²⁶ and

c) Dr. J. Joel Jeffries, M.D., Psychiatrist, dated May 18, 2013;²⁷

Report of Dr. Michael A. Boucher, Physician, dated February 26, 2016.²⁸

The claim for income replacement includes both the first entitlement in the 104 weeks after the accident and also for the period after 104 weeks.

State Farm’s position is that the Applicant’s injuries are predominantly minor injuries. It relies on the reports of Dr. Hershberg and Dr. Czok.

State Farm’s position is that the Applicant has not returned to work because she now (five years later) has three children under age 8 (two under age 5), and that this workload is too much for the Applicant’s mother. State Farm says the Applicant’s failure to return to work is not because of her injuries sustained in the accident and any ongoing pain symptoms but rather for other reasons. Much of the cross-examination and the submissions of State Farm focused on what it argued was the Applicant’s lack of credibility, her inconsistent reporting of pain and an alleged pattern of reporting more pain for insurance assessments than in her reports to her family doctor.

There is ample evidence provided by the Applicant that she complained to her family doctor about ongoing back and neck pain. The recommendations were consistently for physiotherapy, Tylenol or Advil, Voltaren, and heat, as shown in the clinical notes and records and the Applicant’s testimony.

In the period of November 30, 2011 to December 21, 2012, her doctor’s notes record her frequent pain complaints.²⁹ Her family doctor’s notes for the period of November 7, 2012 to February 24, 2014³⁰ include several notes of neck and back pain. The doctor notes “Restrictive neck pain” in her note of May 6, 2013. The doctor also notes that the cervical range of motion is normal but painful and she recommends physiotherapy and massage. Similar symptoms are noted in the family doctor’s notes of November 7, 2012, April 24, 2013, June 3, 2013, and June 26, 2013, and the notation of the pain as “chronic” first appears in the June 26, 2013 note, together with a note that there are no neurological symptoms. The clinical notes and records for the period of April 16 2014 to April 21, 2015³¹ include a note of chronic pain on August 22, 2014 and of persisting neck pain with “no neuro sym[ptoms]” on December 31, 2014.³² Other notes of neck pain are in the records for June 5, 2015 and August 16, 2015.³³ Imaging reports included in the family doctor’s files do not appear to identify anything that could account for the pain in her neck.³⁴

The latest records I have of the family doctor were marked as Exhibit 6. They indicate that on August 16 and October 8, 2015, and January 13, 2016, the Applicant complained of neck pain.

Dr. Oren Gozlan’s clinical notes and records were admitted as Exhibit 15 and, at page 49 of those notes, the initial intake screening indicates that on March 26, 2013, the Applicant complained of neck pain, left shoulder pain, lower back pain, mid back pain and right leg pain. Dr. Gozlan notes that she complains of problems with activities of daily life including cooking and meal preparation, cleaning, laundry, vacuuming, gardening, shoveling snow and repairs which her husband “helps” with.³⁵

Dr. J. Joel Jeffries, M.D., on the retainer by State Farm, assessed the Applicant on May 17, 2013, just over two years after the accident. His psychiatric assessment was secured following submission of an OCF-18 requesting approval of a psychiatric assessment by Dr. Oren Gozlan. Dr. Jeffries diagnosed the Applicant as follows:

She has primarily a somatoform pain disorder, essentially of psychological origin. In addition, there is some mild passenger anxiety. She also has a very mild adjustment disorder with depressed and anxious mood. There is a somewhat dramatic presentation, which parallels that seen during physical examinations.

Dr. Hershberg’s examination suggests that there may be some conversion disorder complicating her physical presentation with a loss of sensation that does not reflect any tissue injury.³⁶

When asked for his opinion as to whether the injuries fall outside the MIG, his opinion was:

In my opinion, [Applicant] would fall outside the Minor Injury Guideline. Her somatoform pain disorder is of such a degree that it warrants further assessment.³⁷

He recommended that she would likely benefit from an assessment by a chronic pain specialist, though he did not find the psychiatric assessment proposed by Dr. Oren Gozlan to be reasonable or necessary.³⁸

State Farm denied the OCF-18 proposed by Dr. Gozlan but requested that the Applicant submit an OCF-18 for a chronic pain assessment.

The Applicant has not explained why she did not pursue in 2013 the request by State Farm to provide an OCF-18 for a chronic pain assessment. Nor do I have evidence explaining why State Farm did not send her for a chronic pain assessment, given the diagnosis and recommendation by its own assessor.

Dr. Michael A. Boucher, M.D., saw the Applicant on November 26, 2015. The clinical notes and records of various practitioners indicate that in the period between 2013 and 2015, the Applicant sought treatment for her pain. Between Dr. Jeffries’ report and Dr. Boucher’s, the Applicant had another child. She testified that this was an unplanned pregnancy.³⁹ Both her evidence and the clinical notes and records indicate that this was a difficult emotional process for her and in the end, she decided to continue with the pregnancy.

State Farm questioned whether or not the Applicant truly continued to suffer from impairments as a result of the accident because the Applicant did not move forward to obtain an OCF-18 for a chronic pain assessment in response to the OCF-9 in 2013. The record of refusals by the Insurer to approve any treatment is very clear and must have been frustrating for the Applicant. Obtaining an OCF-18 from a treatment provider is not the same as obtaining the Insurer’s approval of an OCF-18, as the Applicant had learned. There were references in her evidence and the clinical notes and records of her waiting to see a chronic pain specialist. In all the circumstances of this time period, I give no weight to the delay in obtaining the OCF-18 as evidence that the Applicant is not being truthful as to her ongoing impairments.

Dr. Boucher’s diagnosis was consistent with Dr. Jeffries in that he also diagnosed the Applicant with somatoform pain disorder as a result of the accident. His opinion was that she has Chronic Pain Syndrome (“CPS”), probably of permanent impairment, related to lumbosacral myofascial strain, myofascial neck strain (WAD II Injury), chronic daily cervicogenic headache, adjustment disorder with depressed and anxious mood, depression, somatoform pain disorder and insomnia.

He described CPS as pain that continues beyond the normal healing time for the patient’s diagnoses and includes significant psychosocial dysfunction. The major characteristics recognized by the American Medical Association that he flagged as relevant to this patient were 5 of the 6 major characteristics of this syndrome, as follows:

Excessive dependence on healthcare providers, spouse, or family;
Secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain;
Withdrawal from social milieu, including work, recreation, or other social contacts;
Failure to restore pre-injury function after a period of disability, such that physical; capacity is insufficient to pursue work, family or recreational needs; and
Development of psychosocial sequelae after the initial incident, including anxiety avoidance, depression, or non-organic illness behaviour.

Dr. Boucher states in his report that it is reasonable to conclude that the Applicant would not have significant symptomatology including pain, fatigue, cognitive disturbance and emotional adjustment issues, had she not been involved in the motor vehicle collision. He concluded that the collision has played a key role in the initiation of the clinical problems that continue to plague her on a daily basis.⁴⁰

His prognosis at p. 17 of his report was that she may never fully recover based on the nature of her injuries, the long-standing duration of her problems and her current presentation which includes physical and significant emotional factors. She has substantial physical deconditioning, and her mood and physical condition may present as major barriers to further improvement. He recommended various treatment plans including potentially occupational therapy, a guided return to exercise and assistance with housekeeping and home maintenance for a period of 1 to 2 years. The program would afford her the possibility of returning to some form of sedentary employment. He also recommended a multi-disciplinary pain program.⁴¹

In terms of her return to work, he concluded at p. 20 of his report that:

She lacks more than a basic education and does not possess the physical stamina to manage her previous employment; successful reintegration into the workforce will likely require retraining. She may be capable of managing a sedentary employment position in the future. Repetitive and prolonged activities involving the neck and lumbar spine should be avoided.

He also points out at p. 20 of his report that individuals with CPS may exhibit evidence of inconsistency on clinical examination and pain related behaviour but this is a reflection of the chronic pain and does not delegitimize the diagnosis but rather verifies it.

State Farm relies on the written evidence of the reports of Dr. Hershberg and Dr. Czok. Dr. Hershberg provided two reports, one marked Exhibit 25 and one marked Exhibit 26, both based on the same examination conducted July 26, 2011. Exhibit 26 addresses an OCF-18 by Dr. M. Chahrour proposing various types of chiropractic treatment. Exhibit 25 addresses whether or not the Applicant has sustained a substantial inability to perform the essential tasks of her employment as a trimming operator and general helper and whether income replacement benefits are required. Because the issue before me is income replacement benefits, I will focus on Exhibit 25.

Dr. Hershberg found in her examination of the Applicant that she was:

Uncooperative and hesitant as well as displayed signs of pain-amplification, pain focused, and fear-avoidance behaviors [sic] throughout the physical examination.⁴²

Dr. Hershberg found that, from a musculoskeletal perspective, the Applicant has sustained minor soft tissue injures as a direct result of the motor vehicle accident and therefore income replacement benefits are not required. She recommended that the Applicant improve her overall muscular strength and endurance and returning to all of her pre-accident activities of daily living including all her employment tasks. Her recognition of the Applicant’s “very subjective neurological deficits as well as her ongoing complaints” resulted in her recommendation that the Applicant follow up with her family physician who would be in the best position to recommend a future plan of management.⁴³

In her report of November 8, 2012 (Exhibit 27), Dr. Hershberg was asked again to determine if the Applicant’s injuries were predominantly minor injuries. She did so, and noted that the Applicant:

presented with significant distress; subjective reports of decreased general sensation over the general left arm in a non-dermatomal distribution; and guarding/resistance with orthopaedic testing of the lumbar spine.⁴⁴

She concluded that from a musculoskeletal perspective the Applicant had sustained uncomplicated minor soft tissue injuries in the accident. At the date of the examination (November 1, 2012), the examination revealed minor sprain/strain injuries of the neck and low back with only mildly limited lumbar spinal ranges of motion. She found no positive hard neurological or orthopaedic findings to indicate the presence of a significant functional impairment. There were, in her view, no objective signs of significant osseous, muscular or neurological injury. She attributed the Applicant’s ongoing headaches, as well as discomfort to the neck and low back, to deconditioning and possible non-organic overlay. She found no consistently reproducible signs of an overt functional impairment.⁴⁵

Dr. Hershberg produced an addendum report on January 23, 2013⁴⁶ following on production of the family doctors’ clinical notes and records and other documents, and refused to change her opinion that the Applicant had not sustained a substantial inability to perform the essential tasks of her employment. She specifically found that the documentation did not provide any objective evidence/information that would indicate “accident related pathology/significant functional impairment” that would require treatment beyond the confines of the MIG or that would result in a substantial inability to perform the essential tasks of her employment.⁴⁷

Exhibit 30 is the final report in this series by Dr. Hershberg, prepared August 11, 2015, following her receipt of a disability certificate OCF-3, dated January 23, 2015, signed by Dr. L. Karabellas and a treatment plan proposed by him, and a treatment plan proposed by Dr. O. Gozlan in an OCF-18, dated March 26, 2015. She also had received reports prepared by Dr. Jeffries described earlier here and the physiatry report of Dr. A. Czok.⁴⁸ In Exhibit 30, Dr. Hershberg refers back to her July 26, 2011 examination of the Applicant and her observations, both of the Applicant’s “extreme pain-focused and fear-avoidance behaviours” and lack of consistently reproducible signs of significant impairment that would require treatment outside the MIG. Dr. Hershberg refused to change her opinion.

Dr. Anna Czok’s report⁴⁹ was prepared following an assessment of the Applicant on May 6, 2015. She was asked to assess the Applicant with respect to whether or not the OCF-18 submitted by Dr. L. Karabellas for chiropractic treatment was reasonable and necessary. Dr. Czok noted the Applicant’s complaints of neck pain, bilateral arm numbness, lower back pain, bilateral knee pain and bilateral posterior heel pain.⁵⁰ Dr. Czok notes that the Applicant was in no distress in the examination and that she was co-operative throughout. She found that the Applicant demonstrated “symptom magnification behaviour and pain behaviour”.⁵¹ Dr. Czok found that the Applicant had normal muscle strength, normal reflexes and normal sensation in both upper extremities with the exception of the right index finger, full mobility in the lumbar spine, and normal muscle strength, reflexes and sensation in both lower extremities. Her conclusion was that the cervical and lumbar sprains and strain from the accident had resolved and that the Applicant had reached pre-accident status or maximum medical improvement relative to the injuries sustained in the accident.

Dr. Czok offered no opinion on why the Applicant would complain of such a wide range of areas of pain. If she had Dr. Jeffries’ report identifying somatoform pain disorder, she does not indicate that in her report; nor does she acknowledge his recommendation of a chronic pain assessment.

Nor do either Dr. Czok or Dr. Hershberg acknowledge Dr. Jeffries’ conclusion that the Applicant’s impairment falls outside the MIG. While Dr. Czok’s assessment is closer to the date of Dr. Boucher’s assessment of the Applicant’s condition, Dr. Hershberg’s is out of date and I give her opinion no weight. Dr. Hershberg’s opinion in 2011 should not be preferred over that of the treating chiropractor and the family doctor, both of whom were actively engaged in the Applicant’s treatment over months following the accident. I prefer their evidence to that of Dr. Hershberg.

Reviewing all the evidence in the medical reports, there are significant elements of consistency, despite the varying conclusions. It is clear on the evidence that the impairments suffered by the Applicant in the accident have spiralled into CPS. Dr. Boucher’s report provides the chronic pain assessment that Dr. Jeffries recommended in 2013. State Farm chose not to cross-examine Dr. Boucher and, on review of the reports of Dr. Czok and Dr. Hershberg, I am satisfied that they do not provide an adequate answer to rebut Dr. Boucher’s opinion; indeed they provide evidence consistent with his diagnosis of CPS.

Dr. Boucher makes the point that inconsistency in pain symptoms does not delegitimize the diagnosis of CPS; rather it is an inherent part of the condition. State Farm attacked Dr. Boucher’s report by reviewing the areas of pain identified in Dr. Boucher’s file notes from the interviews with the Applicant. State Farm argues that these are not the same areas of complaint that the Applicant testified to in March 2016. They do, however, bear a substantial resemblance to the areas she complained of to Dr. Czok in 2015. As noted in Dr. Boucher’s report, inconsistent reporting of symptoms in fact supports the CPS diagnosis.

Also, Dr. Boucher concluded that part of the Applicant’s issues was physical deconditioning. Dr. Hershberg, in her August 2011 reports, stressed the importance of physical conditioning for the Applicant’s recovery and of her returning to pre-accident levels of activity. The deconditioning observed by Dr. Boucher is consistent with the need that Dr. Hershberg identified in 2011. As noted earlier, the Applicant’s treatment was discontinued prematurely because she was in the third trimester of pregnancy. In assessing the Applicant’s credibility it is unreasonable to discount the potential disruption for physical conditioning that flows from the last trimester of pregnancy and a caesarean section. The Applicant showed her motivation in returning for further treatment promptly and her ongoing pain interfered with her plans.

State Farm argues that the Applicant is not a credible witness, that she has other motivation for not returning to work, such as the young age of her children. State Farm questions the connection between the back pain suffered by the Applicant and the accident. I find that the Applicant is a credible witness whose complaints of pain after the accident have been reported on a consistent basis. She was extensively cross-examined and explained the alleged gaps in the clinical notes and records of her family doctor. She testified that she did not always raise the neck pain and back pain and headaches because she always got the same answers recommending heat, rest and over the counter medication.

State Farm also attacked the qualifications of Dr. Boucher to make the diagnosis of an adjustment disorder or a somatic pain disorder. In view of the fact that State Farm chose not to cross-examine the expert and in view of the explanation of his expertise, training and experience in the field of chronic pain syndrome in his report, I accept his qualifications to give the opinions contained in his report. I am assisted in this because Dr. Jeffries first made the diagnoses of somatic pain disorder and adjustment disorder in his report in early 2013 and Dr. Chahrour also identified the anxiety and insomnia issues in August 2011. Her family doctor has labelled the pain as chronic in the notes and records, as noted above, since 2013.

State Farm is obliged under the Schedule to pay income replacement benefits for a 104 week period after the accident if the Applicant can establish that she suffers a substantial inability to perform the essential tasks of her employment as a result of the accident.

I am convinced on the balance of probabilities that the Applicant was substantially unable to perform the essential duties of either of her jobs because of the injuries and sequelae of those injuries from the accident in the 104 weeks after the accident. In the period of May 11 to the birth of her child in October 2011 she was assessed by her chiropractor and her family doctor as being unable to work because of the injuries and, while she underwent treatment, the treatment and pain relief were constrained because of the advanced stage of her pregnancy. The treatment was ended when she entered her final trimester.

I find that the Applicant consistently sought treatment for pain for her injuries and that she sought to return to the functionality she had before the accident. She returned to the chiropractor in 2012 to have further treatment and continued that treatment into 2013. She also sought out and obtained treatment in 2014.

I find that the Applicant was motivated by her financial constraints and pressures to work if she could have.

I am satisfied that the Applicant has established that she suffered a substantial inability to perform the essential tasks of her employment as a result of impairments suffered in the motor vehicle accident, and she is entitled to be paid income replacement benefits in accordance with s. 6(1) of the Schedule.

Under s. 6(2)(b) of the Schedule, State Farm is obliged to pay income replacement benefits after the first 104 weeks of disability if, as a result of the accident, the insured person suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. I am satisfied on the evidence provided by the Applicant that she meets that test due to her CPS and accompanying impairments. I accept the evidence of Dr. Boucher as to her impairments, her ability to function and her prognosis. No other chronic pain assessment was provided even though Dr. Jeffries identified the benefit of it in 2013.

As noted by Dr. Boucher, the Applicant has only minimum education. She herself acknowledges limited ability to speak and read English, and no evidence was submitted to the contrary. State Farm conducted surveillance but the tape was viewed in the course of the Hearing and withdrawn on the basis that the investigator had not filmed the Applicant but rather her sister-in-law. Therefore no conclusions relevant to the Applicant could be drawn from the functional ability of the person observed on the tape. The Applicant could cope with her limited English in her workplace so long as Tamil was the language that predominated. I have not been provided with a functional abilities evaluation by State Farm, and, while State Farm professes surprise that the claim is continuing into the post-104 period, Exhibit 22 clearly contains the claim for the period post-104. She made ongoing claims for treatment in 2014 and 2015, all of which were recommended against by Dr. Hershberg and Dr. Czok. State Farm should have been aware of her ongoing struggles. Her impairments now include CPS and reduced physical stamina and endurance. I accept Dr. Boucher’s opinion as to her complete inability to engage in any employment for which she is reasonably suited by education, training or experience unless and until the CPS is addressed through a plan or plans as outlined in his report.

There remains only the issue of quantum of the income replacement benefit.

The Applicant has provided her pay stubs and income tax assessments to assist with the calculations. She did not report the income from her part-time job for tax purposes and it is agreed that it does not form part of the gross employment income for this calculation. The Applicant produced a report, Exhibit 22, being an ADS Forensics Income Replacement Benefit Calculation Report, dated February 25, 2016 (“ADS Report”). The ADS Report was admitted without the need to call the witness. The ADS Report concluded that after the one week waiting period and without taking into account the employment insurance (“EI”) sick benefits paid to the Applicant, the total income replacement benefit for the period of May 19, 2011 to February 24, 2016 is $84,989.77 (70% x $539.62 = $377.73 per week) with an adjustment of benefits for the period of September 10, 2011 to August 25, 2012 to take into account the payment of maternity benefits and reducing the weekly payment to $196.43 for that period. If the EI sick benefits received after the accident are deductible, the total income replacement benefit payable would be overstated by $2,632.00. The ADS Report also notes that the amount is subject to adjustment for other income replacement assistance, post-accident losses, the policy limit of $400.00 per week and post-accident income.⁵²

In argument, State Farm put forward the position that the calculation was flawed in that it included improperly the employer’s CPP contributions to the gross employment income.⁵³ I note that State Farm did not share this position in its opening (or any of its challenges to the calculations and opinions expressed in the ADS Report), but rather chose to bring it forward only in closing submissions. State Farm submits that the appropriate figure is $324.89 per week. The ADS Report notes that the Applicant’s EI benefits for sick leave ended and were converted to maternity benefits on September 11, 2011 and all such benefits ceased on August 25, 2012. State Farm takes the position that the sick leave benefits as well as the maternity benefits should be deducted from the income replacement benefits that the Applicant is entitled to receive.

I have determined that the Applicant is entitled to income replacement benefits as calculated in the ADS Report. The Applicant says that the EI sick benefits should not be taken into account as she only applied for them because State Farm denied her the income replacement benefits that she was owed. I have found that she was indeed owed those benefits. On my reading of the Schedule, I find that the EI sick benefits should not be deducted in these circumstances and that the calculation in the ADS Report of the benefits is correct. The EI benefits for maternity are taken into account in the ADS Report and the result is to reduce the weekly benefit to $196.43 based on the decision of Nelson and State Farm Mutual Automobile Insurance Company (FSCO A14-000848) as referenced in the ADS Report. The weekly benefit returns to the $377.73 for the balance of the period calculated in the report to February 24, 2016.

I find the tactic of State Farm to not raise these issues until closing submissions to be demonstrably unfair and a form of trial by ambush. State Farm could have asked to cross-examine the author of ADS Report but it chose not to do so; nor did it provide evidence of its own calculation or notify the Applicant’s counsel so that a determination could be made by her as to whether or not to call the witness to deal with the issue. I have the ADS Report as unrebutted opinion evidence served in accordance with the Code and addressing the single issue of quantum in this case.

I have no evidence that the income replacement benefits should terminate on February 24, 2016. So far as I can discern from the evidence before me, the Applicant’s impairment continues, and therefore the I income replacement benefits should continue on an ongoing basis unless and until the CPS is addressed through a plan or plans as outlined in Dr. Boucher’s report.

INTEREST

The Applicant is entitled to interest on overdue payments. In the event that the parties are unable to agree on the quantum of the interest, and, in particular, whether or not interest should be permitted for the period from the date of the adjourned Hearing in January 2015 forward, the parties may request a date to speak to that matter before me.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may, within 30 days of the issuance of this decision, request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

June 13, 2016

Lynda Tanaka Arbitrator

Date

Financial Services Commission of Ontario