Financial Services Commission of Ontario / Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 290

FSCO A14-006479

BETWEEN:

ANTEA BOBETA

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before:

Arbitrator Lynda Tanaka

Heard:

In person at ADR Chambers on July 12 and 13, August 31, and September 1 and 2, 2016

Appearances:

Ms. Lindsay Charles and Mr. Rikin Morzaria for Ms. Antea Bobeta

Mr. Robert Rogers and Mr. Andrew Baerg for Aviva Canada Inc.

Issues:

The Applicant, Ms. Antea Bobeta, was injured on October 8, 2011 when she was struck by a car when she was crossing the street. She sought accident benefits from Aviva Canada Inc. (“Aviva”), 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, as amended.

The issues in this Hearing are:

1. Is the Applicant entitled to non-earner benefits for the period from July 17, 2013 to date and ongoing?

2. Is the Applicant entitled to interest on overdue benefits?

3. Is either party entitled to its expenses of the Arbitration?

Result:

1. The Applicant is entitled to non-earner benefits for the period from July 17, 2013 to date and ongoing.

2. The Applicant is entitled to interest on overdue benefits.

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

EVIDENCE AND ANALYSIS:

Preliminary Rulings

An Order was made at the beginning of the evidence excluding the lay witnesses from the Hearing room because of issues of credibility.

The Accident

The Applicant was crossing the street at an intersection with her older brother. A car, intending to turn right, had stopped to allow them to cross the intersection. A second vehicle struck the stopped car from behind, forcing the car to hit the Applicant. When she landed on the pavement, she struck her head hard. She testified that she remembers walking on her way home and then waking up on a gurney. She was taken by ambulance to a hospital where she was diagnosed with a complicated closed head injury and mild Traumatic Brain Injury (“TBI”).² A CT scan at the hospital after the accident revealed a left frontal subdural hematoma, and a diffuse axonal injury in the parietal lobes bilaterally (including the right subcortical white matter) was identified in an MRI. The diffuse axonal injury was described in evidence as a sign of pulling of the nerve fibres in the brain observed in a location towards the back of the head. The Applicant was in the hospital for four days and, when released, was cautioned about the need to avoid physical activity to minimize any risk of further head injury, as well as the need to return gradually to school work and attendance. She has little recollection of the initial weeks at home, except for really bad headaches and sleeping a lot.

Aviva concedes that the Applicant sustained a mild TBI and that the Applicant continues to experience some residual deficits as a result of the brain injury suffered in the accident.

Legislation and Case Law

The Schedule provides for the payment of non-earner benefits under s. 12(1)(2)(i) where:

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, and

i. was enrolled on a full-time basis in …secondary…education at the time of the accident…

Under s. 12(4), 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.”

So long as the insured person meets the criteria, the benefit payable is $185.00 per week for the first 104 weeks and increases to $320.00 per week thereafter. The benefit is not payable until the person reaches 16 years of age and is not payable for the first 26 weeks after the onset of the complete inability to carry on a normal life.

According to the case law, the threshold test for entitlement to a non-earner benefit is particularly strict, and requires a significant degree of impairment and a marked measurable impact on levels of function and consequent ability of the insured person to continue in her pre-accident activities.³ But while the test is strict, it should not be read so strictly as to make it virtually impossible for anyone to qualify.⁴

The starting point for the analysis to determine whether an Applicant suffers a complete inability to live a normal life is to compare her activities and life circumstances before the accident to her activities and life circumstances after the accident. This comparison requires more than a snap-shot of the life in the time frame immediately preceding the accident, but rather involves an assessment over a reasonable period prior to the accident. In this case, all the pre-accident activities in which the Applicant ordinarily engaged should be considered in determining whether the Applicant’s ability to continue engaging in substantially all of her pre-accident activities has been affected to the required degree, but greater weight may be assigned to the activities which the Applicant identifies as important to her pre-accident life. It is not sufficient for the Applicant to demonstrate that there were changes in her post-accident life, but rather to establish that those changes amounted to her being continuously prevented from engaging in substantially all of her pre-accident activities. It is the Applicant who must prove the incapacity of the requisite nature, extent or degree which is and remains uninterrupted. “Engaging in” activities means more than isolated post-accident attempts to perform pre-accident activities. The manner in which an activity is performed and the quality of performance must also be considered. If the degree of participation is sufficiently restricted, or the Applicant is merely going through the motions, then it cannot be said that she is truly participating. If the primary factor preventing the Applicant from engaging in her former activities is pain, the question is whether the degree of pain experienced is such that the Applicant is practically prevented from engaging in those activities.⁵

Post-accident activities must be measured against the Applicant’s pre-accident potential and trajectory.⁶

The phrase “substantially all” means more than “most”, a “goodly number” or “a majority” of the pre-accident activities. An Applicant should testify about which activities were more important to her own normal life before the accident, and the Arbitrator should be permitted to rely upon that testimony, and if accepted, to assign greater weight to those activities in determining his/her entitlement to non-earner benefits.⁷

Application of the Law to the Facts

i) Pre-accident life activities of the Applicant

Each witness who testified from personal knowledge of the Applicant spoke to a period of the Applicant’s life from primary grades forward. She was described consistently as happy, a high achiever, very organized with a strong work ethic and high energy, “a little firecracker”, a voracious reader. She never needed extra time to complete her work or projects, and she was interested in current events. She was interested in a broad range of activities and would help out at school with secretarial duties, answering phones and doing photocopying. Her mother described her as kind of shy in her early years and then coming out of her shell. She was popular with her teachers. Her brothers described her as “always on top of stuff”. She was the first of the children in the family up in the morning.

In school, she was identified as Exceptional/Gifted at age 9 in 2007. She rejected transfer, even on a part-time basis, into the Gifted Program to stay with her friends. She testified that she “liked being the smart one.” Her Grade 8 Individual Education Plan (“IEP”)⁸ noted her areas of strength as “can conceptualize and generalize easily, resourceful and imaginative, works cooperatively in groups, mathematical reasoning skills and problem solving skills”, consistent with the earlier plans in her file. She had achieved school grades in Grade 7 and Grade 8 ranging in the 70s to 90s with the vast majority over 80 per cent. She was given advanced placement in math and science when she entered Grade 9. She was an eager, well-organized student who had read at least some of the Grade 9 English course books prior to starting school that fall, and her family members all acknowledged her high level of engagement, organization and success in school. Even though she was just starting high school, the Applicant had already expressed a preference to go into architecture at the University of Waterloo. She testified that this career appealed to her because in architecture you can change communities for the better.

At the time of the accident, the Applicant had just started Grade 9 and was 14 years old. She was a physically active person. Everyone in the family was physically active. She had a number of close friends with whom she enjoyed swimming in her family pool after school, as well as playing on house league basketball teams (and one year on a rep team) and volleyball teams, shopping, and other activities consistent with her age.

Her immediate family consists of mother, father and two older brothers, all of whom testified. The family is close-knit. Her parents are intelligent, well-educated individuals who have achieved high levels of success individually. The older brother has now completed university, including a semester at a European university, and the younger brother is now in an applied science/engineering program at university. The parents have provided a disciplined, structured family life: the children greeted their father at the door when he came home from work, Sunday was family day, and the family ate dinner together each evening. In the summer, the family went to Croatia to spend time with the paternal grandparents who lived there and where the father had business interests. All three children speak Croatian as well as English, and attended Croatian school on Saturday mornings. The father was away from the family on business frequently, but he has always had a close relationship with the Applicant. The mother works as a high school art teacher and also had a close relationship with her daughter; she has creative talent and was educated in Italy as a jewellery designer. The Applicant is closer to the younger of the two brothers. The older brother’s evidence indicated a deep caring and respect for his sister, despite the distance between them by personality, experience and age. Prior to the accident, the brothers walked to school with the Applicant in the morning because all three attended the same high school. Each would then engage with friends in after-school activities.

Friends were an important part of her life, and her mother described her home as having a lot of kids there after school. One of the Applicant’s friends lived with them for a period while her home was being renovated. Her friends would sleep over at the Bobeta home frequently. They played in the swimming pool and used the volleyball net in the backyard.

The Applicant had a solid foundation for future success. Her family and her personal history and relationships seemed to indicate, without question, that her future path would be a successful completion of high school (including engagement in school sports and other extra-curricular activities) and of university education, just like her brothers and consistent with her parents’ and her own expectations.

The Applicant testified to the most important activities in her life. Success at school was very important to her. She really liked math, learning and doing projects. She had a good number of friends and enjoyed being with them. She has always been artistic. She enjoyed physical activity including her team sports. She was close to her family members.

ii) Post-accident life activities of the Applicant – Medical Care and Therapy

With respect to ongoing medical care, the Applicant was followed after her release from hospital by both the Hospital for Sick Children and Sunnybrook Hospital TBI Clinic until the spring of 2012. At the end of Grade 9 (spring 2012), the Applicant was first assessed by a speech language pathologist. The conclusions of the speech pathology assessments were set out in Exhibit 32, which consists of separate reports tabbed A to I dating from August 2012 to January 2016, the last being the Medical/Legal Report.⁹ The referral to the speech pathologist was made due to ongoing concerns as to the Applicant’s short-term memory and fatigue, as well as intermittent headaches, ongoing difficulty with multi-tasking, concentration and inappropriate or exaggerated emotional responses such as disinhibited laughter. She was routinely handing in late assignments and her grades were suffering. Fatigue kept the Applicant from keeping up with her friends. She and her family agreed that her verbal expression and discourse skills were decreased, with an impaired ability to retrieve words and to organize her thoughts. She often had trouble understanding what she read.

The conclusions of the first assessment were that she had developed cognitive-communication deficits with decreased skills within several areas of communication including attention, working memory, auditory comprehension, verbal expression, reading, writing and executive functions. All of these deficits would adversely impact her academic success and also her social success with her peer group.¹⁰ The recommendation was for weekly intervention sessions and collaboration with the family and others treating her.¹¹ The subsequent reports tracked her progress, the challenges she faced over the subsequent four years of treatment with maintaining attention over extended periods, auditory memory, word retrieval and executive functions, including organization, self-monitoring and self-evaluation. She required maximal to moderate support in all of those areas at first. According to the report for the period July 2014 to March 2015, which included most of her Grade 12 year, she required only minimal to moderate support except in the area of executive functions where she still required moderate to maximal support. By March of 2015, it was obvious that stress and anxiety levels were overwhelming her, and she seemed to her parents less able to handle stress and to require more sleep than ever and a referral for psychological services was made.¹² The speech therapist recommended ongoing support as the Applicant moved on into work or education at the university or college level.¹³

In the summer between Grades 9 and 10, the Applicant also began occupational therapy (OT). The reports produced by the occupational therapists spanned the period of June 20, 2012¹⁴ to January 21, 2016.¹⁵ The initial assessment by the occupational therapist recommended attendant care in the form of occupational therapy services to monitor her overall functioning, specifically cognitive functioning. In the course of the initial assessment, the therapist observed that the Applicant “began to ramble, get off topic and presented with word finding problems as her fatigue set in”.¹⁶ The initial assessment recommended assistance with her going to school and coming home, since the Applicant had become fearful and nervous crossing the street. In addition, the assessment recommended basic supervisory functions to ensure the comfort, safety and security of the Applicant to meet her emotional difficulties coping with the car accident.¹⁷ The Applicant’s goals started with therapy to decrease fatigue, improve memory and concentration, improve initiation and decrease procrastination, and improve organizational skills. Reassessments were conducted in December 2012 (after the fall term of Grade 10),¹⁸ in March 2013 (later in Grade 10),¹⁹ and in June 2014 (at the end of Grade 11).²⁰

In the March 2013 Report when she was in Grade 10, the occupational therapist reported that the goals of decreasing fatigue, improving initiation and decreasing procrastination, improving organizational skills, and improving memory and concentration had all been partially achieved, but her recommendation was for continued support for each of the areas. At the end of Grade 11, the Applicant continued to need functional cognitive rehabilitation with sessions every 4 to 6 weeks to address executive functioning, stress management, sleep hygiene strategies and maintain a good school/life balance.

In May 2015, three-and-a-half years after the accident and two-and-a-half years after the initiation of speech pathology therapy and occupational therapy, the Applicant was referred to a social worker, R. Leese, to assess the psychosocial and emotional impact the accident had had on her. The assessor found that the Applicant:

is experiencing some difficulty coping with the traumatic experience of being in a collision and the significant changes it has brought to her daily life. Confused future goals, emotional irregularity, cognitive challenges and feeling like she is always disappointing her loved ones are all impacting her ability to cope with and adjust to her post-collision reality.²¹

The social worker reported that the Applicant continued to suffer from headaches, trouble falling asleep and difficulty waking up in the morning, as well as cognitive impairments with short-term memory loss, difficulty with work finding and concentration in class. She presented as indecisive and commonly misplaced or lost personal items.

The Medical Legal Report,²² dated January 7, 2016, by the social worker reported that the Applicant had had six counselling sessions. The social worker noted that the issues facing the Applicant included strained relationships with her mother and older brother, which the social worker recommended should be addressed in therapy. In the testing undertaken in June 2015, the Applicant showed moderate symptoms of depressed mood and a clinically significant problem with self-esteem. Her low mood and negative view of herself as someone with a brain injury were addressed in the therapy and she had progressed somewhat. The recommendation was to continue with the counselling to provide an outlet for the Applicant to vent her concerns, provide constructive feedback and formally reflect her personal narrative. The Applicant continued to have inconsistent sleep hygiene, which was not healthy as sleeping allows the brain to recharge and refresh. In addition, after a poor sleep, the Applicant would be irritable and anxious. The social worker commented as follows:

The cognitive impairments manifested from the [the Applicant’s] head injury continue to affect her performance in school and work. Despite having good grades and obtaining a competitive part time job…, these cognitive limitations affect [the Applicant] emotionally, as she often regrets not being able to perform at the high level she used to. [She] is also continuously affected by her daytime fatigue, which influences both her low mood and initiation…

[She] struggles to recapture elements of her pre-injury life that brought her joy and meaning.²³

The final Social Work Report of February 21, 2016 was prepared after the Applicant had been out of school for almost 8 months, and when her friends from high school had gone to university or college. She reported being less social, even though she was busy with two courses, work and university applications. The social worker recommended continued social work support to develop her self-esteem and confidence, as she was still experiencing challenges in managing her mood, increased anxiety, coping and adjustment to the injury and poor sleep hygiene.²⁴ A further twelve sessions of counselling were recommended.

iii) Post-accident life activities of the Applicant - Academics

As a result of the accident, the Applicant lost time at school both at the outset of the recovery period and throughout the school year. Her mother was not teaching the first semester and so was able to observe her daughter in this early period more closely than would otherwise be the case. The Applicant went back to school a couple of weeks after the accident, even though the medical advice was to stay home for a month. The Applicant was anxious to return and not fall too far behind in her school work. The Applicant unsuccessfully struggled to attend school full time. Her parents drove her to and from school because she showed no interest in walking with her brothers. She suffered from such overwhelming fatigue that she had difficulty getting up in the morning and in putting in a full school day. She slept after school deeply, and the family discipline was relaxed to allow her to be late for family meals as well as for school. She napped during lunch period and had difficulty focusing for extended periods in class. She was sensitive to light and to loud noises, such as at school dances. Her father testified that after a few weeks, it became clear to him that her recovery was not going to be an easy or quick one. She withdrew from the Advanced Placement courses and moved to the regular academic stream courses.

The stress on the family was very high; the mother testified that her blood pressure would drop at follow-up appointments for the Applicant at the hospital, such that she fainted five or six times. The Applicant was anxious not to upset her mother, and so she would not talk to her about her injuries or struggles with school. The Applicant testified that she went into her bedroom when she came home from school and closed the door so her mother could not see her crying and sleeping.

Both parents spoke to the school principal and teachers to alert them at first to the injury and constraints on the Applicant’s activities, and later, from time to time, to remind them of the ongoing impairments. The mother encouraged the Applicant to stay after school to get help with her work, especially her math where she was struggling. She also encouraged the Applicant’s friendship with one of her own close personal friends, a fellow teacher who was at their house frequently (“MM”). The mother and MM did rollerblading together, as well as being gym and running buddies. The Applicant had known MM since she was a young child, and so she was comfortable seeking her help. The relationship was strong enough that, in addition to after school help, MM and the Applicant would meet on Saturdays for hours to go over school work, with MM tutoring the Applicant, assisting with prioritizing projects and completing them, and acting as scribe as the Applicant organized her thoughts. MM testified (and the Applicant confirmed) that the Applicant came to her house because it was too loud at home. MM taught the Applicant at summer school between Grade 10 and 11. Her evidence is consistent that the Applicant struggled with fatigue from the very first point of coming home from the hospital and ongoing. The Applicant was not able in Grades 9 and 10 to maintain the high grades she had had before.

The Applicant’s younger brother helped with her science and math subjects in the years after the accident, until his own time was too constrained by his own university courses when the Applicant was in Grade 12. He continued to provide some support, but not as frequently as during the years when he was also in high school.

Academically, the Applicant struggled through Grade 9. She could not finish work in time and assignments were late. MM testified that the Applicant had frequent mood changes. She would cry and fret about being a burden, about meeting expectations and failing herself. The Applicant was explicitly worried about her future. She was surprised that other students could complete tests and exams within the time limits set. By March of Grade 10, when the literacy test was required, the Applicant’s anxiety levels were high as she fretted about not being able to get into her dream job. She was not able to keep up with her friends academically.

The brothers testified to the loosening of the family discipline to accommodate the Applicant’s fatigue and that the Applicant no longer kept her bedroom door open. The younger brother testified that each time he checked on the Applicant, she was either in bed or had just gotten up from sleeping. The Applicant gradually withdrew from what had been a close relationship with her mother. The father testified that he did not press the Applicant about school work because he did not want “to be left on the other side of the door”, as the mother appeared to have been.

The impact of the injury on the Applicant’s non-school activities was soon evident. She did not have the energy to keep up with her friends. She could only stay 15 minutes at the school dance in October after the accident because of the adverse impact of the lights and sound. Her friends gradually slipped away as they no longer invited her to go places. Since she no longer walked home because of her fatigue, she was not included in their plans. When her 16th birthday arrived, she did not want a party and did not want to go to parties because they were too loud and she did not want to bother her parents to come and get her early at the party.

She could not play basketball or volleyball, both of which she enjoyed, and there was evidence that the high school, at least at the level of the individual teachers, was poorly prepared to accommodate the needs of a student with a TBI. The physical education teacher, for instance, objected to the Applicant being excused from those classes, despite the clear risk of the TBI and a letter from Sunnybrook Hospital identifying the danger of physical education class participation. The Applicant testified that, throughout high school, there was a real problem with teachers lacking the necessary understanding of the issues facing her as someone with an invisible disability and needing accommodation; after all, she looked the same as she did before the accident. The assumption among the school staff, both teaching and administrative, was that no accommodation was appropriate, especially for a student who was identified as Gifted.

The Applicant continued to show signs of inappropriate fatigue during the family summer vacation in Croatia, when the Applicant did not return to her usual habits of waking early to enjoy the beach and the town, as well as being on time for events with her grandparents.

The Applicant completed Grade 10 with occupational and speech pathology therapy supports in place, as well as the assistance of her younger brother for her math and science courses and the continued support of MM. However, it became clear that a formal IEP to specifically address the accommodations she needed as a result of the TBI was needed. This was put in place in November 2014 (her Grade 12 year),²⁵ but the Applicant did not take advantage of the accommodations because of the demeaning attitude of some of the teachers and staff to students who were to be provided with accommodation. The Applicant cried in the witness stand, recounting her own and other students’ embarrassment caused by the teachers and staff.

In the June 2015 Occupational Therapy Report (at the end of Grade 12), the Applicant was noted as having struggled during the school year and her father had to intercede with the teaching staff to provide appropriate accommodation at school since the Applicant did not advocate for herself. The occupational therapist recommended ongoing therapy on a monthly basis, working with the social worker and speech language pathologist.

While the Applicant more or less brought her grades back up to the range they had been in Grades 7 and 8, she achieved less than the percentage in two courses in Grade 12 that she needed to be accepted in architecture. She was accepted at one university in a social science program, but she did not even complete the applications for the program that she really wanted, architecture at the University of Waterloo. She took a year off, instead of continuing with her education as her classmates and friends were doing, and completed the two courses with somewhat higher grades through a continuing education program offered by the school board; but the marks were still not sufficient for architecture. She has been accepted at the Ontario College of Art and Design and was to start there in September 2016.

iv) Post-accident life activities of the Applicant – Extra-Curricular

The Applicant did continue to go to her heritage language school for Croatian.

After the year of restrictions imposed by the Sunnybrook Hospital TBI Clinic on physical activities, she did try to return to playing on a basketball team in Grade 10, but her attendance was irregular and she had difficulty remembering the plays. As high school proceeded, the school work became more demanding and complex, and the number of assignments and self-study increased, as did the pace of work. The Applicant’s evidence is that to succeed as she did at school was very difficult and that her other activities, including the time to build friendships and to participate in a broad range of physical and school activities, were compromised and limited by her fatigue and difficulties in completing the work. She became overwhelmed, and by Grade 12, with the additional responsibilities of applications to university, she suffered from significant stress levels. She cut back on her occupational and speech language pathology therapy sessions, with the hope of gaining better control of her time. She testified that she participated in activities such as one weekend as a counsellor at a camp experience for the school and the Model UN, because she knew they were required in support of university applications and chose them on the basis of the limited time commitment. I note that high school students are required to complete community service hours to earn their high school diploma.

The Applicant testified that she shared her ongoing impairments with only a limited number of close friends. Both brothers testified to the noticeable difference in the Applicant’s contact and engagement with friends. Her friends did not stay for sleepovers or even come after school to the house with her. At high school, she made one new friend in particular who is an accomplished athlete and who had suffered a concussion. She apparently could identify with the Applicant’s struggles and tried to bring the Applicant into more activities, although not very successfully because of the Applicant’s fatigue.

In Grade 12, the Applicant was advised to get physically active, and she began a personal training program to develop her strength, with her younger brother as her training buddy.

There is a consensus among the assessors that the Applicant will continue to need attendant care on a weekly or bi-weekly basis in the form of occupational therapy and speech language therapy for the indefinite future. Her lingering impairments are such that she will be disadvantaged in the workforce and that, in a competitive environment, there is a risk that she will not complete her university education and that her job potential is limited. In her year off, the Applicant worked as a barista, at first full time and gradually on more limited hours. Her impairments manifested to the extent that there were complaints from other members of the team that she was too slow. Also, she testified that she was unaware that she was doing one of the processes wrong for quite a while, a sign of either ineffective training or, alternatively, her inability to absorb information given orally because of her compromised ability to concentrate and learn from spoken word. Since her job was in an organization with a well-developed and well regarded training program, and given the opinions from the health care providers regarding her impairments, I find the latter is the more likely of the two.

Medical Evidence

The only ongoing impairments suffered by the Applicant relate to the TBI. While she has been examined by orthopaedic surgeons, the claim does not flow from any issues in that regard.

Dr. Michel P. Rathbone, Neurologist, testified that he assessed the Applicant on December 17, 2015 to address the issues of concentration, focus and memory troubles. He issued a report, dated February 26, 2016.²⁶ She complained of headaches. He reviewed the progress reports from 2012 to 2015 and concluded that she met the DSM-IV criteria for an Adjustment Disorder and Anxiety. His view was that most people tend to get better and many have no residual symptoms after six months to a year. Approximately 15% of cases have features that make it more probable that recovery will have a longer course. His opinion was that her impairments are not likely to resolve or improve and that, when brain tissue is torn as in this case, she will be constantly at a disadvantage. He recommended that she have ongoing psychological intervention and monitoring to prevent further deterioration or any future relapses. He recommended that she continue with speech therapy, occupational therapy and accommodation at school. His opinion was that if she does not have support, she will not move forward and that the post-traumatic headaches will continue to interfere with her functioning. In his opinion, the ongoing therapy will keep her functional while recognizing that she will likely never return to pre-accident status. He was also of the opinion that she will probably encounter difficulties with employability in the future.

Dr. Robert D. Gates, Psychologist, testified and provided his report of January 11, 2016²⁷ setting out his neuropsychological assessment. Dr. Gates had assessed the Applicant in 2012²⁸ and in 2014.²⁹ When he first assessed the Applicant she was being treated by a psychiatrist in the follow up of the head injury. By 2014 and his second assessment of her, she was no longer seeing the psychiatrist but she was seeing a speech pathologist and occupational therapist. At this stage she showed significant improvement from his 2012 assessment of her, though her processing speed was still quite low. For the purpose of the January 11, 2016 Report, the Applicant was given a standardized test of intellectual functioning, which showed that there were significant differences among some of the composites making up the overall Full Scale IQ Score. The lowest scores were in the Working Memory Index, in which she scored in the Average range (63rd percentile), and in the Processing Speed Index which was in the Low Average range (16th percentile). Other scores, such as the Verbal Comprehension Index (she scored in the 94th percentile)³⁰ were in the Superior range or High Average range. In the core academic skills tests, she scored Mid-Average in sentence comprehension, while the other sub-tests were in the High Average range. Dr. Gates concluded that

In the present evaluation her overall level of intellectual function was in the superior range. However she demonstrated a significant reduction of processing speed, both relative to her own level of ability and also in respect of average range students. In addition there was compelling evidence of a deficiency in her immediate auditory memory, with particularly deficient immediate recall of narrative information (such as one would hear in a lecture or in reading a text.)…her visual memory for configural information is quite weak, within the low average range.³¹

Dr. Gates concluded that the Applicant has mild, chronic impairment of brain function that will be a challenge to her as she goes on in her education and into the workforce. He “strongly suspect[ed]” that she will not be able to carry a full or standard load of courses and that she will take longer and have to work much harder to complete a degree. He recommended that she will require continued support of occupational therapists and speech-language pathologists and individual personal counselling.³² In his testimony Dr. Gates explained that a brain injury impairs one’s ability to evaluate one’s own impairments, and therefore patients do not realize how it affects their function. The Applicant had initially resisted assistance of a psychologist, but she was now open to it. He also explained that the impact of the brain injury on her cognitive skills would cause her fatigue, though he acknowledged that there were other potential sources such as unhealthy sleep hygiene. He attributed her symptoms of anxiety to the brain injury. While he saw some improvements between his assessments, he did not see the same improvement between the second and third assessments that he had seen between the first and second, and some test results were worse, but he explained that the results are never the same in the testing from one time to another. The results, however, still matched the observations of the therapists. In his opinion, without the support of the therapists, the Applicant would have failed her high school courses.

The February 25, 2015 Report of Dr. Daune L. MacGregor of the Hospital for Sick Children in Paediatric Neurology was provided as Exhibit 2. The report provided Dr. MacGregor’s neurological assessment of the Applicant. Dr. Rathbone agreed with the opinion of Dr. MacGregor that a psycho-vocational assessment would be of value. Dr. MacGregor recommended a sleep study and a regular physical exercise program. Dr. MacGregor observed that the Applicant had deficits of cognition, but said that the cognitive deficits were very mild and had very little functional effect at the present time. He also observed her disordered mood and emotional stress.

Aviva had independent assessments conducted of the Applicant which were marked as Exhibits 23 to 28 inclusive, and Exhibit 29 set out the qualifications of the assessors. The assessors included occupational therapists and an orthopaedic surgeon, and a psychologist who conducted a neurocognitive assessment and psychology assessment. The psychologist, Dr. I. Valentin, was the only assessor retained by Aviva who testified.

The Orthopaedic Surgeon’s Report³³ noted that the Applicant denied any significant musculoskeletal injury at the time of the accident, and that she had full pain free range of motion in her neck, back, both upper limbs and lower limbs. She had superficial soft tissue injuries from which she had made full recovery.

With respect to the Occupational Therapists’ Reports (Exhibits 23, 24 and 28), I note that the first of these reports was a File Review, which resulted in an assessment that the OCF-18 prepared by the Applicant’s treating occupational therapist be approved as reasonable and necessary to address the Applicant’s impairments. The impairments she described included: difficulty with attention and concentration, short term memory deficits, some inappropriate behaviours, higher executive functions such as problem solving and multi-tasking, fatigue and diminished school performance. The second report, dated April 10, 2013, was an in-home assessment to address attendant care. The Form-1 completed by the assessor identified $462.79 of Level 2 attendant care per month as reasonable and necessary. The assessor observed that while the Applicant had progressed physically, she continued to have cognitive and emotional impairments. The assessor noted that the Applicant was tearful in the assessment on several occasions, and one of the losses she sustained was missing one year of competitive sports to which she attributed her inability to successfully join the school varsity volleyball and basketball teams. The assessor noted that the Applicant was stressed, particularly when multiple demands clustered in the same time frame, and that she became nervous with a direct impact on school performance. The assessor recommended an IEP, with specific accommodations including increased time, writing in a separate room and use of assistive technology.

In the third Occupational Therapist Report, Exhibit 28, prepared October 15, 2013, the occupational therapist had read the reports prepared by the psychologist, Dr. I. Valentin. The assessment was done early in the Applicant’s Grade 11 year. The assessor noted that the Applicant’s level of emotional lability was higher than seen in the earlier assessment. The Applicant became tearful when discussing the stress at school, and the assessor noted that the participation in academic learning comprises a significant portion of this adolescent development stage. In the conclusions to this assessment, the assessor relied on the neurocognitive assessment and psychology assessment by Dr. Valentin in arriving at her conclusion that the Applicant did not suffer a complete inability to carry on a normal life. The assessor did note the support from the Applicant’s family, the guidance counsellor at school and her speech therapy and occupational therapy, as well as her use of assistive devices.

Dr. Valentin’s Neurocognitive Assessment was completed in early Fall 2013, and reported in Exhibit 26. The Applicant was reported as tearful in discussing her progress in school, at this time early in Grade 11. Dr. Valentin administered tests to obtain direct measures of cognitive functions, and diagnosed her with a Mild Neurocognitive Disorder due to TBI.

When the Applicant was tested in Grade 4, she was designated Gifted because of her high scores on the CCAT and Wechsler Intelligence Scale for Children-IV. On the former, her composite test results placed her in the 92nd percentile, and in the latter, her verbal comprehension was in the 79th percentile (High Average), her Perceptual Reasoning was in the 99.6th percentile (Very Superior) and her General Abilities Index was in the 98th percentile (Very Superior). In contrast, Dr. Valentin’s test results showed Above Average and Superior and Very Superior ranking in some areas, but notably the Applicant’s scores in processing speed were in the lower end of average and she showed slow speed in reading. Executive Functions tests resulted in scores falling between Borderline and High Average, and Receptive Language Skills ranged between Low Average and Average ranges. Even though the evidence was that the Applicant enjoyed great success at math prior to the accident, her math skills test results at this time ranged between Low Average and Superior.

Dr. Valentin confirmed that the deficits in the speed of processing information, especially in reading and writing and executive functions, may drain the Applicant’s mental energy quickly. The result is that the Applicant needs more time to learn and she would benefit from further cognitive rehabilitation as well as accommodations at school.

In the Psychological Assessment (Exhibit 27) done in the same time frame as the Neurocognitive Assessment, Dr. Valentin concluded that the Applicant had residual symptoms of Adjustment Disorder with Anxious Mood. She referred to the tearful reaction of the Applicant when discussing the accident and when discussing her progress, anxiety and difficulties at school, as well as describing her treatment with her occupational therapist and speech pathologist. The Applicant expressed severe anxiety, that sometimes she was overwhelmed by the work facing her and so anxious that she “couldn’t breathe”.

Dr. Valentin concluded that the Applicant did not suffer a complete inability to carry on a normal life as a result of the accident from a psychological perspective. She wrote:

[The Applicant] reported that she is experiencing no physical pain aside from the occasional headache. She reported getting more headaches when she is stressed or when she is upset. She reported that she is not currently taking medication aside from the occasional Advil for a headache. [She] reported that her sleep, energy, and appetite are ‘normal’. She stated that she can focus but noted that in class she can sometimes feel herself ‘drifting, looking behind the teacher’ and that she has to ‘pull’ herself back. She reported no difficulties with reading. [She] reported that she has approximately 5 close friends and that she is a social person who is generally able to makes [sic] ‘friends in every class’. She reported that she goes out with friends to eat, movies and walks on Bloor Street. For pleasure, she stated that she watches TV and reads fiction. [She] reported that she is not anxious while travelling as a passenger or as a pedestrian but that she is more careful now as a pedestrian, especially when crossing the road.

Analysis

The Applicant must establish a significant degree of impairment and a marked measurable impact on levels of function and consequent ability of the insured person to continue in her pre-accident activities. It is not sufficient for the Applicant to demonstrate that there were changes in her post-accident life but, rather, to establish that those changes amounted to her being continuously prevented from engaging in substantially all of her pre-accident activities. That is, the Applicant must prove the incapacity of the requisite nature, extent or degree which is and remains uninterrupted.

The Applicant did not turn 16 until January 2013, a period of about 16 months after the accident. Therefore the benefits did not and could not start until six months after that date. I have concluded that the Applicant is entitled to non-earner benefits for the period from July 17, 2013 and ongoing.

Aviva admits that the Applicant did suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident, but benefits ceased in November 2013 on the basis of independent examination conducted by Centric Health Medical Assessments (Exhibits 23 to 29).

Aviva relies on the evidence of its assessors set out above as well as on the Applicant’s achievements despite her impairments in successfully completing high school, in being accepted at two universities, in having several friends and extracurricular activities, and in her maintaining a close relationship with her family. I am not persuaded by Dr. Valentin’s reports or the others prepared by Centric Health Medical Assessments that the Applicant does not suffer a complete inability to carry on a normal life. I note that, despite the frequent references in the body of Dr. Valentin’s Psychology Report to the Applicant’s tearfulness and anxiety, Dr. Valentin’s conclusions on the non-earner benefits make not a single reference to the Adjustment Disorder with Anxiety which she diagnosed, but instead she included references to physical conditions (not psychological) and the Applicant’s use of Advil for headaches. Her observations of the Applicant’s emotional stress are consistent with the observations of the treating therapists made during the same time period as this assessment, as well as the evidence of the family and the Applicant. I find that the Applicant was well aware at least by Grade 11 that she could not process the information in class or in her self-study as quickly as her peers, and that she could not meet the expectations of her teachers and her parents as to the workload and speed that she could work at. I find that this caused her considerable stress and confusion, and the Adjustment Disorder and Anxiety diagnosed by Dr. Rathbone. More weight should have been given and further analysis provided regarding the interrelationship between her impairments and her activities.

There is no discussion in either of Dr. Valentin’s reports respecting the Applicant’s pre-accident activities and how the impairments altered her activities. I note that the Occupational Therapists’ Reports, and those of the speech language pathologist prior to and after the fall of 2013, portray a very different picture of the Applicant’s condition than is set out in Dr. Valentin’s reports. Finally, Dr. Valentin did not address in her reports how the stress caused in the tension between expectations of school and parents as well as comparison to her peer group and what the Applicant could accomplish, impacted on her ability to carry on a normal life.

In the course of her testimony, Dr. Valentin also underscored the “mild” nature of the adjustment disorder, going so far as to describe it as “very mild” in her evidence. But when pressed on the kind of accommodations that the Applicant should have to address her impairments, she was willing to add additional accommodations, including a scribe, to the tools that had already been offered. The scribe would overcome the difficulties the Applicant has in the significant reduction of processing speed (which the testing of both Dr. Gates and Dr. Valentin confirmed) and maintaining attention during training and education to overcome her deficiency in her immediate auditory memory, with particularly deficient immediate recall of narrative information (such as one would hear in a lecture or in reading a text) identified by Dr. Rathbone.

Finally, in the conclusions to the Psychology Report, Dr. Valentin relies on an observation by the Applicant that she had no difficulties with reading, but in the Neurocognitive Report the Applicant’s test results indicated her processing speed in reading was slow and that this impairment meant that she requires extra time to complete her work. Nowhere does she address this apparent inconsistency.

The principal activities of the Applicant’s life prior to the accident were her family, her school and her extra-curricular activities including her friends. I have reviewed her pre- and post-accident activities as described in the evidence of her parents, her brothers, and MM, as well as the documentation of her therapy with her therapists.

The differences between the pre-accident life and the post-accident life is easily discerned in the evidence. There was no reasonable expectation in October of 2011 prior to the accident that this young woman would require five years for successful high school completion with decent grades, or that for those five years she would need the ongoing support of an occupational therapist, speech language pathologist, almost daily educational support, and tutoring from time to time in the subjects in which she had previously been highly skilled and successful (math and science). There was no suggestion in her health history that she would be burdened with fatigue and loss of focus, and with disruption of executive functions. There was no suggestion that she would not be able to keep up with her friends either academically or socially. There was no suggestion in looking at her brothers’ history, that her family life would be so stressed that she would seek the quiet of MM’s home and that she would be isolated from her mother. There was no suggestion that she would require psychological therapy or support of a social worker to address the emotional outcomes of the impairments, would develop an Adjustment Disorder with Anxiety, or that her immediate auditory memory and recall of narrative information would be so deficient as to undermine every aspect of her life, as it has.

Aviva’s position is that non-earner benefits are intended for those so injured that they cannot even complete high school when they were expected to do that, and that the Applicant’s accomplishments indicate that she has not met the test. Aviva acknowledges that the Applicant has had a much tougher high school experience than would otherwise be expected with limitations on her activities, but its position is that the test is too high for her to meet on these facts.

The Applicant’s trajectory of life, both in its path over the past five years and in its direction in the future, has been significantly altered, and it is not yet clear that the Applicant will have a successful university experience or work career. The opinions of Dr. Rathbone and Dr. Gates have been confirmed in the Applicant’s work experience since graduating from high school, and I prefer their evidence to that of Dr. Valentin. The accomplishments relied on by Aviva are only a cover that hides the significant impact on the functioning of this person, who struggles with the symptoms of Adjustment Disorder and Anxiety and the cognitive deficiencies identified by Dr. Gates and Dr. Rathbone.

The Applicant is a resilient individual. The Applicant has suffered considerable anxiety, and the tearful interviews with assessors indicate that the Applicant was participating in a way that is not comparable to the way she would have participated but for the impairments. In other cases, participation by an individual has met the criteria of the non-earner benefit if it could be described as sufficiently restricted or “going through the motions”. Here, the Applicant’s post-accident activities are significantly restricted compared to her pre-accident activities. Her fatigue, loss of concentration and deficits in immediate auditory memory and immediate recall of narrative information meant that everything took longer and was subject to an undercurrent of vagueness. Time is finite, and I note the disconnect in Aviva’s argument that the Applicant’s unhealthy sleep hygiene is the cause of her fatigue (implying her fatigue is her own fault because she stayed up too late with all her activities and that’s why she was tired). All the health care professionals treating her (and Dr. Valentin) acknowledge that everything she did took longer because of her cognitive fatigue due to her TBI. If everything takes longer to do, then the hours available for work must alter if one has any hope of achieving the same result.

The Applicant took a year between Grade 12 and entering university to work as a barista and to take courses to improve her marks. Her work experience confirms the warnings of Dr. Gates that her inability to acquire information orally and retain it will cause her difficulties in a competitive workplace. Her difficulties in achieving success in the on-line courses indicates that her impairments have narrowed her options as to how she may learn and achieve success in both formal education and life experience.

With respect to physical activities during all four years of high school after the accident, the Applicant was not able to return to the levels that she had previously experienced prior to the accident. Her fatigue forced her to prioritize in favour of her school work, and when combined with her inability to focus, follow oral instructions and to remember the plays, it also made it difficult for her to play basketball. She participated in the house league games, but not with the level of consistency and enthusiasm she once had before. Her attendance from time to time does not satisfy me that she was in fact “engaging in” the activity—her impairments interfered with her truly participating.

When her brother was no longer able to assist her with her math and science, and his active support was withdrawn through no fault of his own or hers, she stumbled in Grade 12. Even the effort to free up time by cutting back on therapy sessions to allow more time for her work was a double-edged sword in that the support she required was minimized. The result was that her anxiety and stress levels increased. The continuous support she received from her family and therapists from 2012 onward allowed her to develop an understanding of her impairments, and to develop the necessary coping strategies to achieve success, albeit at a much reduced level from what she would have achieved without the impairments.

The evidence of her work experience which included: her co-workers complaining of her slowness, and her inability to acquire the required information to successfully fulfill all the job requirements, show a trajectory different from the one that could have been contemplated from her academic record and the observations of her teachers and family prior to the accident.

The ongoing support of therapists and personal academic support (including one-on-one tutoring and the IEP that gave her additional time and a quiet place to write her exams and tests) are the only ways she was able to engage practically in the academic and school activities. Without those supports, she would not have been able to engage successfully in the most important activity, her school, and to achieve academic success. The evidence establishes that her failure at school would have caused severe anxiety and would have had adverse impacts on her sense of self-worth, and therefore her relationship with her family and friends. I am required to take into account the therapy she was provided when assessing whether or not she meets the criteria of the Schedule. I have evidence in this case that but for those supportive therapies, including the attendant care provided by her parents, by her brother and by MM, and the occupational therapy, speech pathology and social worker counselling, she would have failed to achieve the success she did. Throughout high school, her life was constrained by the need to learn to cope with the impairments, with a lot of support and accommodation. Her life was also constrained by the time requirements of the therapy, and will continue to be so constrained.

With each of the principal activities (school and its activities, family, and friendships), the primary factors preventing the Applicant from engaging in her former activities are fatigue and the slowness of her processing as a result of her impairments. Therefore, the question is whether the degree of fatigue and the extent of the slowness is such that she is practically prevented from engaging in those activities.³⁴

According to the case law, pre-accident life activities are determinative in assessing the post-accident activities and what a normal life is for this Applicant. The manner in which an activity is performed and the quality of performance must also be considered. If the degree of participation is sufficiently restricted, or the Applicant is merely going through the motions, then it cannot be said that she is truly participating.

The Applicant was driven by her anxiety to engage and not disappoint those who loved her, but with impairments such that whatever she did took much longer than it would have, compared to her pre-accident health. I am not suggesting that living a normal life requires that one never be tearful or anxious or fretful; those are essential elements of life as are the challenges of adjusting to the adolescent growth and the increase in work in the later years of high school. Nor am I suggesting that the sleep patterns of adolescents, even those without TBI, are necessarily healthy or unhealthy. I find that the evidence is clear that her functioning in all categories was not merely different but significantly altered. While her relationships with her siblings and parents would normally evolve as she developed her adult separateness, I find that her relationship with her mother and older brother in particular were significantly different than the trajectory they were on prior to the accident. Further she relied more heavily on her younger brother for help in the subjects that she had no difficulty with prior to the accident. He became one on whom she relied so much that when he was not available, she struggled. That relationship must by definition be significantly different than one between siblings where the reliance is less intense.

I am satisfied on the evidence that the denial of the non-earner benefits in November 2013 was not properly supported by the assessments relied on by Aviva, and that the Applicant did suffer a complete inability to lead a normal life as defined in her life. Her impairments are a significant restriction on her participation in the significant activities and relationships in her life. Throughout high school, the manner in which she participated in school and the quality of the performance, not just the grades she achieved, but the way she achieved those results, is such that she was substantially unable to live a normal life as defined by her pre-accident life. She required significant increases in time to accomplish tasks post-accident. She required significant support from her family, MM, and her therapists. Time constraints and supports were required that her trajectory would never have contemplated but for the accident. She has been left behind by her school friends. She contends with an Adjustment Disorder and Anxiety and cognitive deficiencies which are well-documented in the evidence.

I find therefore that the Applicant is completely unable to lead a normal life due to the impairments suffered in the accident, and that she has been continuously unable to do so for the period since the accident.

EXPENSES:

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

October 31, 2016

Lynda Tanaka Arbitrator

Date

Financial Services Commission of Ontario / Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 290

FSCO A14-006479

BETWEEN:

ANTEA BOBETA

Applicant

and

AVIVA CANADA INC.

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant is entitled to non-earner benefits for the period from July 17, 2013 to date and ongoing.

2. The Applicant is entitled to interest on overdue benefits.

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

October 31, 2016

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2I note that the evidence of Dr. Michel P. Rathbone, Neurologist, was that the adjective “mild” refers to how likely it is that the patient will end up on the operating room table, not the impact on the patient.
3. 3Nguyen and Economical Mutual Insurance Company, FSCO A11-002508, Arbitrator Richards, August 28, 2013.
4. 4Marchildon and State Farm Mutual Automobile Insurance Company, FSCO A97-000643, Arbitrator Joachim, November 3, 1998, at p. 5.
5. 5Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, 2009 CarswellOnt 2443, [2009] I.L.R. I-4838, [2009] O.J. No. 1877, at para. 50.
6. 6Mulhall and Wawanesa Mutual Insurance Company, 2005 CarswellOnt 7566, at para. 53, Appeal P06-00002, Arbitrator Makepeace, October 15, 2007, at p. 4.
7. 7N.I. and Allstate Insurance Company of Canada, FSCO A04 B 002030, 2007 CarswellOnt 4532, at paras. 13 and 20.
8. 8Exhibit 3, pp. 86-87.
9. 9Exhibit 2, Tab G, January 18, 2016.
10. 10Speech-Language Pathology Assessment Report, August 2, 2012, Exhibit 2, Tab A, pp. 2, 8-9 and 12.
11. 11Ibid., at p. 13.
12. 12Speech-Language Pathology Progress Report #3, March 1, 2015, Exhibit 2, Tab E.
13. 13Speech-Language Pathology Transfer & Progress Report, August 13, 2015, Exhibit 2, Tab F.
14. 14Exhibit 31, Occupational Therapy Report.
15. 15Exhibit 33, Occupational Therapy Medical Legal Report.
16. 16Exhibit 31, at p. 7.
17. 17Ibid., pp. 12-13.
18. 18Exhibit 37, Reassessment Report, dated January 4, 2013.
19. 19Exhibit 38, Progress Report #1.
20. 20Exhibit 39, Progress Report #2.
21. 21Exhibit 36, Tab A, at p. 5.
22. 22Exhibit 36, Tab B.
23. 23Ibid., pp. 13-14.
24. 24Exhibit 36, Tab C.
25. 25Exhibit 3, Tab 2 B, IEP for school year 2014/2015.
26. 26Exhibit 1.
27. 27Exhibit 6.
28. 28Exhibit 4, October 8, 2012.
29. 29Exhibit 5, January 24, 2014.
30. 30In the second assessment in January 2014, she had scored in the 53rd percentile or the Grade 4 level of Verbal Comprehension.
31. 31Ibid., at p. 10 of 12.
32. 32Ibid., at p. 11 of 12.
33. 33Exhibit 25, Orthopaedic Surgery Assessment of Dr. Patrick Tansey, October 15, 2013.
34. 34Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, 2009 CarswellOnt 2443, [2009] I.L.R. I-4838, [2009] O.J. No. 1877, at para. 50.