Caterina Serafini v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2016 ONFSCDRS 341

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

Neutral Citation: 2016 ONFSCDRS 341

FSCO A13-013246

BETWEEN:

CATERINA SERAFINI

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

REASONS FOR DECISION

Before:

Arbitrator Jeff Musson

Heard:

In person in Hamilton on April 12, 13, 14, 15, 21, 22 and May 24 and 27, 2016 and by written submissions received October 3, 2016

Appearances:

Mr. Ben Fortino for Mrs. Caterina Serafini

Ms. Sarah Reisler for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Mrs. Caterina Serafini, was injured in a motor vehicle accident (“MVA”) on January 14, 2008 in Ontario. She applied for statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Mrs. Serafini, 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 issues in this Hearing are:

1. Are Mrs. Serafini’s injuries catastrophic (“CAT”) as defined under the Schedule as a result of the MVA on January 14, 2008?

2. Is Mrs. Serafini entitled to Income Replacement Benefits (“IRBs”) in the amount of $400.00 per week for the period from January 14, 2010 and ongoing?

3. Is Mrs. Serafini entitled to Medical Benefits in the amount of $1,088.76 for physiotherapy, less amounts paid by the extended health provider?

4. Is Mrs. Serafini entitled to Medical Benefits in the amount of $5,131.55 for psychological treatment?

5. Is Mrs. Serafini entitled to interest for the overdue payment of benefits?

6. Is either party liable to pay the other party’s expenses in respect of the Arbitration?

Result:

1. Mrs. Serafini’s injuries are CAT as defined under the Schedule as a result of the MVA on January 14, 2008.

2. Mrs. Serafini is not entitled to IRBs in the amount of $400.00 per week for the period from January 14, 2010 and ongoing.

3. Mrs. Serafini is entitled to Medical Benefits in the amount of $1,088.76 for physiotherapy, less amounts paid by the extended health provider.

4. Mrs. Serafini is entitled to Medical Benefits in the amount of $5,131.55 for psychological treatment.

5. Mrs. Serafini is entitled to interest for the overdue payment of benefits for only those Medical Benefits that have been incurred.

6. The parties made no submissions on expenses. If they are unable to agree on the legal expense of this case, an Expense Hearing shall be requested within 30 days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code. If an Expense Hearing is requested, the request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submission regarding entitlement to and/or the amount of such expenses.

EVIDENCE AND ANALYSIS:

MOTION PRIOR TO THE HEARING: APRIL 12, 2016

At the beginning of the first day of the Hearing, the Applicant brought forward a Motion asking for an order to dismiss the preliminary issue raised by the Insurer pursuant to s. 55 of the Schedule in relation to the Applicant’s claim for IRBs. In the alternative, if the s. 55 preliminary issue was not dismissed, the Applicant would request an adjournment of the Arbitration Hearing to a later date in order to address the s. 55 preliminary issue prior to the start of the Hearing. Finally, the Applicant was requesting an Order of the Insurer to provide particulars to the Applicant as it related to the s. 55 preliminary issue.

Ruling on the Motions

After careful consideration, I determined that the s. 55 preliminary issue dismissal request would be denied. I also denied the request for an adjournment to allow a separate Preliminary Issue Hearing based on the fact that the outcome of the Preliminary Issue Hearing would not dispose of the actual Hearing itself and would only lengthen an already long process. Therefore, the s. 55 preliminary issue would be heard as part of the overall Hearing in order to streamline the process. Without an Order being required, the Insurer agreed to provide particulars to the Applicant supporting the Insurer’s s. 55 claim which would allow this issue to be addressed as part of the actual Hearing.

WITHDRAWAL OF ISSUES

Prior to the commencement the Hearing, the Applicant requested that the assessments in the amount of $13,686.40 be withdrawn. The Insurer agreed to this request and this issue was withdrawn on consent. The issues of IRBs, Medical Benefits, CAT determination, interest and costs were now remaining in dispute.

BACKGROUND

The Applicant is 45 years old. She is married with a young daughter. The Applicant was involved in a MVA on the morning of January 14, 2008. She was driving to work when the accident occurred. There was approximately $2,500.00 in damage done to the Applicant’s vehicle. The Applicant’s bumper was damaged. Both cars were still drivable after the collision. There were no first responders who attended the scene. Both parties involved in the accident exchanged information and the Applicant proceeded to go to work after the accident. The Applicant worked a full day but she never returned to that job after January 14, 2008, the date of the accident. On January 16, 2008, the Applicant phoned the insurance company to report the accident.²

The initial OCF-3 was filled out on January 25, 2008.³ The Applicant’s OCF-1 was submitted on February 1, 2008.⁴ In terms of physical injuries, the Applicant suffered soft tissue injuries. This was confirmed by the medical evidence and the testimony at the Hearing. The Applicant was involved in 2 prior MVAs in 2000 and 2005. In addition, she was also involved in a workplace accident in February 2005. The Insurer has paid approximately $62,000.00 in benefits on this file to date. The Applicant filed for Arbitration on October 17, 2013.

MRS. CATERINA SERAFINI – THE APPLICANT

The onus is on the Applicant to prove her case. I agreed with the Insurer when it stated that the Applicant had no objective injuries and that the Applicant’s credibility will play a significant role at this Hearing.

I found that the Applicant’s testimony withstood intensive scrutiny and was without guile. Her testimony confirmed the information that she gave to her assessors. The Applicant testified that she had some health issues prior to the accident. She testified that she was a happy individual in the past and was active.

She would participate in various activities like aqua fit classes, would go for walks and other outdoor activities. She and her husband would travel for pleasure and relaxation. Around the residence, the household chores would be split 50-50 with the Applicant mainly taking care of indoor tasks and her husband taking care of outside tasks. They had a larger bi-level house, which they built. After the accident, the house was difficult to manage, so they sold it and downsized to a 1900 square foot bungalow.

The Applicant graduated from McMaster University in 1994 with a B.A. in psychology. She has previously worked part-time at a grocery store while working her way through university. She also worked as a child and youth worker at an organization that operated numerous group homes across the Hamilton area. The Applicant testified that she typically would work 40-50 hours per week. As part of this job, she was responsible for supervising children who were relocated out of their family homes. She worked there from 1995 until 2005.

While working at the group home, an opportunity presented itself for the Applicant to work in a Section 11 school.⁵ In January 1999, she was hired and placed on the supply list by the Hamilton-Wentworth School Board which ran the Section 11 schools in the Hamilton area. After one month on the supply list, in February 1999, the Applicant was offered a position with the school board at a school as an educational assistant for special needs students. Eventually, in August of 1999, the Applicant was hired full-time with the school board. When she was hired by the board, the Applicant cut back on the hours that she was working at the group home. Eventually, the group home closed and the Applicant focused strictly on her job with the school board.

The Applicant was involved in a workplace accident in February 2005 while working at a school. A student became physically violent with the Applicant and the Applicant suffered some injuries and was briefly off work with a WSIB claim. She was given modified duties when she returned.

The Applicant was on maternity leave from February 2006 until September 2007. She was originally supposed to go back to work in April 2007; however, this was delayed so the Applicant could help care for a sick family member. She did return to work in September 2007 on a part-time basis. It was only four months later that the Applicant was involved in the January 14, 2008 MVA.

The Applicant’s tax returns in 2004 and 2005 showed income of approximately $26,000.00. In 2006, the tax return showed minimal income because the Applicant was on maternity leave starting in February 2006. In 2007, the Applicant was still on maternity leave and was also on extended leave to assist with a sick family member, thereby only leaving September, October, November and December of 2007 when she was working.

In 2008, she was working from the beginning of the year up until the accident two weeks later on January 14, 2008. Since the accident, there has been virtually no income claimed by the Applicant on her personal tax returns up to and including today.

The Applicant testified that after the accident, she was sore throughout the day at work and it got worse in the evening. As her symptoms progressively got worse, she visited the doctor on January 17, 2008. She was complaining to her doctor of pain in her shoulders, upper and lower back. The Applicant was sent for x-rays⁶ and was prescribed medication and given a doctor’s note to stay home. The Applicant suggested to her family doctor that physiotherapy might help in her recovery. The doctor agreed that she should try it and she referred the Applicant to a physiotherapist at Ancaster Sports Rehabilitation Clinic (“Ancaster Sports”).

The Applicant testified that she was in constant pain for weeks after the accident and there were times when she wouldn’t get out of bed. She testified that it was so bad that sometimes she didn’t feel like going to her physiotherapy appointments at Ancaster Sports. The Applicant testified that her physiotherapy sessions were scheduled for approximately three times per week. Sessions included light stretches, acupuncture and TENS machine treatment from January 2008 until August 2008.

As the pain was not subsiding, the Applicant was referred to back specialist Dr. Bentley in May 2008. Dr. Bentley assessed her and concluded that surgery would not help the Applicant’s condition, nor would injections. Dr. Bentley recommended an aqua fit program through St. Joseph’s Hospital. This program started in mid-June of 2008 and the Applicant had four sessions before the hospital unfortunately closed the aqua fit program.⁷ After the program closed, TD Insurance sent an occupational therapist to work on treatment with the Applicant in a public pool. The Applicant testified that she tried it, but the public pool wasn’t warm and she wanted the water at a higher temperature so those sessions were ended.

With the aqua fit program closed and the Applicant’s pain not subsiding, the Applicant asked her family doctor to refer her to a new specialist. In October of 2008, she was referred to Dr. Agnes Chmiel who specializes with acute pain, not chronic pain. As a result, the Applicant was then referred to a chronic pain specialist, Dr. Tunks. He concluded that the Applicant was a good chronic pain candidate.⁸

In order to do further testing, the Applicant requested an MRI by Dr. Feng and Dr. Loewith, who works at the same clinic. Both doctors denied this request for an MRI. In May of 2008, TD Insurance sent an occupational therapist to the Applicant’s residence in order to assess whether there were devices available to assist the Applicant with her daily living. The Insurer provided a light vacuum, duster, pillows, massager for her car seat and TENS machine to name a few items purchased on behalf of the Applicant. She also uses a cane and walker in order to be mobile.

None of these items in the Applicant’s opinion helped her condition and in fact, she testified that she asked to go back to Ancaster Sports for further physiotherapy, acupuncture and heat therapy in 2013 since her treatment concluded there in 2008. Her treatment provider at the Ancaster Sports suggested injections might help and the Applicant was recommended to see Dr. Trinh, even though the Applicant’s own back specialist, Dr. Bentley, felt that injections would not be helpful. The Applicant asked for a referral to Dr. Trinh in order to start receiving cortisone and anesthesia injections every three months.

In order to attempt to return to working and a normal daily routine, the Applicant testified that she was looking for a job, but nothing transpired. Since the accident, the Applicant tried working with a child in her home setting. The child’s mother hired the Applicant specifically because of her work history of working with children.

Another opportunity for employment came for the Applicant to work as an invigilator for the Ontario Real Estate Association. The job included being a proctor for people taking the Real Estate exam. Prior to the accident, she started doing this in 2003-2004 to make a little extra income. In August of 2008, the Applicant attempted to return to doing the job as an invigilator in order to get out of the house but she could not complete her work shift because of her pain.

The Applicant testified that after the accident, the school board tried to find a placement for her, but they never called the Applicant back and the Applicant didn’t follow up either. The school board sent forms to the Applicant so she could quit and her sick days were cashed in. The amount of sick days cashed in provided the equivalent of six months of wages. The Applicant testified that she doesn’t want to work because of the pain she experiences and because she doesn’t know what triggers it.

When asked about her daily routine after the accident, the Applicant testified that she has a limited daily routine which starts when she wakes up at 7:30 a.m. She will make breakfast for her daughter and drive her to school. However, for her own breakfast, she will typically have a bag of chips and a can of Coke. After dropping off her daughter, she will return to the house to watch television, complete some light cleaning and have a nap. The Applicant testified that she typically skips lunch. She will then pick up her daughter at the end of the school day to drive her home. She will then go back to bed. The Applicant’s husband will make dinner and he cleans up after dinner. If the daughter is involved in extracurricular activities, the Applicant’s husband will take their daughter to these activities. The Applicant will only sporadically appear at her daughter’s extracurricular activities.

From a psychological perspective, the Applicant testified that she has suffered psychologically since the MVA of January 14, 2008. She was under the care of professionals at Kaplan & Kaplan Psychologists from September 2013 up until June of 2014, attending sessions once a week. When asked what makes her depressed, the Applicant said that when looking at her life prior to the accident as compared to now, she gets depressed. She testified that she is dependent on her family as her support system for virtually everything whereas she was completely independent prior to the accident. The Applicant testified that her relationship with her husband is just okay. She said her relationship with her daughter is not good and her friendships that were once central to her social life are no longer there.

SURVEILLANCE OF THE APPLICANT

At the Hearing, surveillance was produced by the Insurer showing the Applicant going about her daily life. Gary Lockwood and Grant Lockwood were the private investigators who conducted the surveillance. I found their testimony to be truthful, but ultimately it was not beneficial to either the Insurer or the Applicant. The surveillance confirmed some aspects of the Applicant’s testimony and in my opinion, did not show any significant behaviour that varied from what the Applicant testified she was doing. The surveillance only showed the Applicant’s movements once she left the house. The Applicant testified that she has good days and bad days when shown the video, and the video surveillance was limited to the Applicant’s activities only in public.

The Applicant’s life before the accident when compared to after the accident is significantly restricted. She concluded her testimony by saying that prior to the accident, she had achieved what she wanted in life and after the accident, she has been living in hell.

MR. JOHN SERAFINI – THE APPLICANT’S HUSBAND

Mr. John Serafini has been married to the Applicant since 1998. He works full-time/40 hours per week as a health and safety consultant in the construction industry. He is the sole income provider for the family. I found Mr. Serafini incredibly well spoken and a credible witness. From his testimony, it was clear that he is his wife’s rock of stability.

When his wife was having trouble taking care of the couple’s daughter, Mr. Serafini testified that he would handle 100% of the work load. When he wasn’t able to because of other responsibilities, both the Applicant’s mother and mother-in-law would help out. He confirmed the testimony of his wife and was able to shed light on his wife’s daily activities and contribution to work around the house prior to the accident and his wife’s ability after the accident in these same areas. He testified that in his opinion, based on his daily observations, that his wife’s impairments have prevented her from doing activities that she did prior to the accident. Prior to the accident, they had an active social life, went on vacations and enjoyed life. Now, every day is a struggle.

He testified that the Applicant has good and bad days, with the bad days outnumbering the good days. He has taken the lead role in parenting and testified that this accident has changed his wife in profound ways. His wife gets irritated easily and no longer has a social life. She is withdrawn, she has lost her passion for doing things and because of her injuries, whatever activities that she was good at prior to the accident, she is no longer good at and it frustrates the Applicant in numerous ways.

He summed up his life in these words. “After the accident, there is no longer spontaneity in their lives. Everything needs to be planned”. He is also incredibly concerned for what the future holds.

DR. FENG – FAMILY DOCTOR

Dr. Feng has been the Applicant’s family doctor since approximately 2000. She sees the Applicant as her patient on a regular basis with the most recent time being February 2016. Dr. Feng examined the Applicant as a result of the accident on January 14, 2008. At that time, Dr. Feng noted that the Applicant told her that she had a lot of pain and a lot of tenderness in her neck and back. As a result, Dr. Feng ordered x-rays to be taken. She also prescribed muscle relaxers and suggested the Applicant start physiotherapy and schedule a follow up exam in a week’s time.

Dr. Feng testified that on the follow up exam on January 25, 2008, the Applicant’s x-ray came back as normal. She prescribed the Applicant Tylenol for pain and Celebrex as well. On February 22, 2008, Dr. Feng noted that there was no change in the Applicant’s condition and that the Applicant’s recovery was slow. On March 6, 2008, she recorded that the Applicant’s pain got worse. The Applicant was referred to Dr. Bentley, a back specialist, in May of 2008.

Dr. Feng agreed with the recommendations that the Applicant should consider an aqua fit program and a chronic pain program for her condition.⁹ Ultimately though, Dr. Feng testified that there has been no change in the Applicant’s condition, positive or negative, since June 24, 2010.

POST-104 WEEK IRBS

The Applicant, when given her initial accident benefits package after reporting the accident to the Insurer, elected to receive Caregiver Benefits when given the choice of Non-Earner Benefits, IRBs or Caregiver Benefits on February 20, 2008.¹⁰ When asked why she elected Caregiver Benefits, she said that she might have elected it because sick benefits at work covered her lost wages and it was more advantageous in her opinion to receive Caregiver Benefits from TD Insurance. TD Insurance paid $28,486.00 in Caregiver Benefits.

The Applicant confirmed that she has had legal representation since September 2008; however, her current counsel came on the file on May 15, 2012 and sent a letter to the insurance company advising them at this time. On July 21, 2012, current counsel advised TD Insurance that the Applicant wanted to claim post-104 IRBs.¹¹ The Applicant confirmed in her testimony that she never submitted an OCF-2 form¹² and can’t remember why she didn’t. In addition, the Applicant also confirmed that she had never filled out a new (2nd election) form for IRBs.

In order to support her claim for post-104 IRBs, the Applicant was assessed by Dr. Levitt. In his report, he found that the Applicant suffers a complete inability to work and therefore qualifies for post-104 IRBs. His prognosis of the Applicant’s impairment is poor and he concludes that the Applicant will not be able to return to work and will not recover past the 2 year mark.

Dr. Nashef, the Insurer’s assessor, came to the opposite conclusion. He felt that the Applicant was smart, intelligent and has skills such that with the proper treatment, she can go back to work.

All of these points are moot because in Section 32¹³ of the Schedule, it states that a re-election of benefits is acceptable but it must be completed within 30 days of the initial election. The Applicant attempted to re-elect Caregiver Benefits to IRBs four years after the fact but a new OCF-10 and an OCF-2 were never submitted. The Applicant testified that she didn’t know why she waited so long to make her re-election of benefits. In Abbany and Pafco, Arbitrator Miller stated that while a breach of Section 32 would not disentitle an individual to a benefit if the person had a reasonable explanation for the breach, if there was a significant delay involved, then that was a consideration.¹⁴

In conclusion, the legislation addresses the process required of an Applicant should they choose to re-elect benefits after an initial election. The Applicant missed the period in which she was able to re-elect her benefit choice and did not provide any explanation for the lengthy delay. Therefore, I have determined that no IRBs will be payable to the Applicant.

MEDICAL BENEFITS – PHYSIO AND PSYCH

Before the accident, the Applicant had a number of prior medical issues but, for the medical issues she did suffer from, for the most part, they all appear to be unrelated to the complaints she is suffering from now. For example, she had a prior history of using anti-inflammation medication and physiotherapy in two periods in particular. One period was when the Applicant was in her 20s and the second period was after the Applicant gave birth to her daughter. As part of the second period, there was also a follow up of physiotherapy treatment which concluded in December 2007, right before the MVA of January 14, 2008.

In the evidence presented at the Hearing, the Applicant’s physical condition progressed well for three months post-accident and then plateaued in April 2008. The Applicant had issues with right ankle injury in 2010. It has gotten worse over time in 2012 and 2013. The OCF-18 for a right ankle treatment is the one treatment plan in dispute in the amount of $1,088.76¹⁵ The Applicant testified that she was getting treatment for her ankle in 2013 from Ancaster Sports and as she explained, her ankle issues stem from the fact that she is not walking properly due to the pain and it is adversely affecting her ankle.

The Applicant has complained of neck pain, headaches, shoulder pain and lower back pain after the accident. The Applicant wanted to complete treatment using physiotherapy rather than taking drugs for the pain even though her own family doctor recommended otherwise. She’s been using a TENS machine and electrical stimulation since 2008, which was the year of the accident. There were a number of OCF-18s approved by the Insurer, including a chronic pain plan on February 19, 2009.¹⁶ In fact, the Insurer paid out $23,879.77 in Medical Benefits to the Applicant.

Based on the above evidence, I find that the Applicant is entitled to the treatment plan for $1,088.76, less amounts paid by the extended health care provider. Based on the evidence, I believe the injuries requiring treatment on the OCF-18 treatment plan for $1,088.76, on the balance of probabilities, are caused by the MVA of January 14, 2008. I also found based on the evidence that this treatment was reasonable and necessary.

PSYCHOLOGICAL TREATMENT

The Insurer in its submission stated that the Applicant didn’t make herself available for psychological treatment because she waited over one year post-accident before seeking treatment. It was only after May 2009 that the Applicant was referred to a psychologist. The Applicant testified that the last time that she visited the psychologist was in June 2014.

The Applicant was being treated at Kaplan & Kaplan Psychologists by Beverly Gordon for her psychological issues. The Insurer paid for the psychological treatment sessions up to June of 2014. The Applicant stated that she wanted more sessions. Dr. Amber Smith at Kaplan & Kaplan Psychologists submitted an OCF-18 in the amount of $5,131.55 for further treatment, but the insurance company denied more sessions. One of the Insurer’s psychological assessors was Dr. Murray. The Applicant met with him twice. Dr. Murray stated that in his opinion, “the Applicant would be doing better psychological wise if she got out working”.¹⁷ With all assessors and together with the Applicant’s testimony itself, the consensus was that when the Applicant talks about her issues, she feels better. The evidence presented at the Hearing shows that the Applicant’s psychological issues can be directly tied to the accident on January 14, 2008.

Based on the evidence and the testimony of the Applicant, I believe, on the balance of probabilities, that when the Applicant utilized the approved psychological treatment that it helped her out. The Applicant even testified that it was not her choice to terminate her sessions at Kaplan & Kaplan Psychologists and if more treatment was approved, she would go. Therefore, I find as a result of the January 14, 2008 accident, that the Applicant is entitled to the psychological treatment plan in the amount of $5,131.55, dated June 2, 2014.¹⁸ I also find that this treatment plan is reasonable and necessary.

CAT DETERMINATION

An OCF-19 (Application for Determination of CAT Impairment) was filled out by Dr. Henriques, a physiatrist and associate at Kaplan & Kaplan Psychologists. Dr. Henriques signed the OCF-19 after consulting with Dr. Levitt and submitted the CAT Assessment Report.

Dr. Levitt states that, in his opinion, based on the psychological diagnosis of the Applicant as a result of her MVA, she is catastrophically impaired under criteria 8.¹⁹ The Insurer said that the Applicant doesn’t meet the criteria for CAT. The Applicant is basing her claim for CAT determination on psychological impairment only.

DR. BRIAN LEVITT – THE APPLICANT’S CAT ASSESSOR

Dr. Levitt is a clinical and rehabilitation psychologist and a partner at Kaplan & Kaplan Psychologists. He testified that the majority of his practice is centered around WSIB claims, auto insurance claims and therapy treatment sessions for his patients. He testified that he has authored two books in the subject area of CAT Impairment. He’s written numerous articles, published four CAT Impairment papers and has completed more than 100 psychological assessments per year. Dr. Levitt specifically has written over 50 CAT Assessment Reports per year as well as over 500 CAT Assessment Reports over the past 10 years. He sees hundreds of patients in a year as part of his practice.

In order to stay current and become a leading expert in his field, Dr. Levitt has been on the board of the Canadian Academy of Psychologists in Disability Assessments for the past 10 years. He has served as President of the Association for two years and also two years in the position of past president. Most importantly, as part of his expertise, Dr. Levitt conducts workshops and conferences on CAT impairment. He trains and educates lawyers and health professionals in his area of CAT assessment expertise at these conferences.

I found Dr. Levitt to be a most impressive expert in his field. In addition, his testimony at the Hearing withstood a strong cross-examination. I found him to be a very credible witness who is a leader in his field.

Dr. Levitt conducted a 2010 assessment of the Applicant and treatment was denied.²⁰ He was not the Applicant’s treating psychotherapist, so in 2013, when treatment was approved, Beverly Gordon at Kaplan & Kaplan Psychologists treated the Applicant. Dr. Levitt authored two CAT Assessment Reports on the Applicant’s behalf. The first report was dated August 7, 2014²¹ and the second report was dated April 30, 2015.²² The purpose of the second report was to respond to the Insurer’s CAT Assessment Report and to update records, interviews and testing.

In order to conduct his assessment, Dr. Levitt relied on five sources of information to conduct his analysis: 1) file review; 2) clinical interview; 3) collateral interview; 4) behavioural observations (which was completed by Dr. Deffendall under Dr. Levitt’s supervision); and 5) self-administered psychological testing. In addition, Dr. Levitt testified that he used tests that were robust and had a validity scale. He also used the PAI (Personal Assessment Inventory) test and the MMPI II (Minnesota Multiphase Personality Inventory) test on the Applicant. Dr. Levitt confirmed that all the results of the Applicant’s test were valid and consistent.²³

In his testimony, Dr. Levitt confirmed that he used Chapter 14 of the 4th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment and he used the DSM IV with the 5 different axes when conducting the initial CAT Assessment. Dr. Levitt came to the following conclusions in his report:

Axis I: Pain Disorder associated with both Psychological Factors and a General Medical Condition, Chronic Major Depressive Disorder, Single Episode, Moderate and Chronic Adjustment Disorder with Anxiety.

Axis II: None.

Axis Ill: Refer to Medical File.

Axis IV: Limitation of activity due to disability; unable to work; inadequate social support; delay in obtaining access to health care services.

Axis V: Global Assessment of Functioning (“GAF”) = 45 (with serious impairment in multiple areas; unable to work, difficulty meeting parenting obligations, socially isolated).

A GAF Score was also recorded for the Applicant as part of Axis 5. As Dr. Levitt testified, a GAF Score has been used for decades, but is not used in the new DSM V. The scale on a GAF Score is from 0-100. A score of 0 means no functioning and a score of 100 would be someone with a maximum level of functioning. He stated that a range in which one would expect to find a catastrophically impaired person is between 41-50. Dr. Levitt determined that the Applicant had a score of 45.

CAUSATION

To address causation, Dr. Levitt stated that he looked at the Applicant’s overall medical history. In his expert opinion, he testified that the Applicant’s psychological issues have been attributed directly from the accident on January 14, 2008. Prior to this date, in his opinion, the Applicant was not suffering from a pain disorder similar to what she is suffering from now. Dr. Levitt even commented that Dr. Zakzanis, who was the Insurer’s assessor in 2009, stated that “there’s no clear evidence before me of a pre-existing condition” as he was referring to the Applicant’s psychological condition.²⁴

FUNCTIONAL AREAS RATING

In order to qualify as catastrophically impaired, an Applicant need only to be found to have a marked impairment in 1 out of 4 functional areas. Dr. Levitt concluded that the Applicant was marked in 1 out of 4 functional areas. He, along with Dr. Deffendall, looked at the Applicant’s test results and felt that the scale scores for the Applicant looked in an acceptable range so the validity of the scores in their minds was confirmed with the Applicant’s answers, i.e., she wasn’t trying to skew her answers. He also found her answers were consistent through the exam.

With his overall exam he gave the following ratings to the 4 separate functional areas:²⁵

Functional Area – Activities of Daily Living. He stated that the Applicant is pain focused, does very little and is guilty about doing very little. She could attempt to do activities, but was not reliable. He concluded that the Applicant might ultimately “get motivated” to do 1 task. He gave her a moderate rating in this area.

Functional Area – Social Functioning. He stated that the Applicant would avoid activities and not go out regularly. She was not interested in sex. The Applicant does not go to her daughter’s functions, gets irritated, becomes despondent, etc. He gave her a moderate rating in this area.

Functional Area – Concentration, Persistence & Pace. He stated that the Applicant’s tolerance for tasks was limited. He noted significant impairment because of the pain she is experiencing, and fear of pain in her day to day function. He gave her a moderate rating in this area.

Functional Area – Ability to adapt. He stated that the Applicant can’t deal with stress. She has a lack of adaptations. The Applicant tried to go back to work and tried to volunteer at her daughter’s school but would go home emotionally deteriorated. This causes a decrease in functioning and impedes her activity. He gave her a marked impairment in this area.

REBUTTAL REPORT

Dr. Levitt issued a Rebuttal Report on April 30, 2015.²⁶ This Rebuttal Report had updated records, updated interviews and updated testing. Dr. Levitt testified that the Applicant’s answers were still valid. Her answers were consistent with pain disorder and most of all, there had not been any improvement since the last assessment.

Dr. Levitt tried to administer an aptitude and achievement test. The Applicant completed the aptitude test, but couldn’t complete the achievement test because of pain she was experiencing.

The doctor updated the Applicant’s diagnosis and used the DSM V scale which is now accepted. In his follow up report, he stated that he should have given the Applicant marked impairment in all 4 areas instead of 1, which was in the first report. Regardless, the Applicant only needs to be found marked in one function area in order to be determined catastrophically impaired.

DR. NASHEF – THE INSURER’S CAT ASSESSOR

I found Dr. Nashef’s testimony to be fact driven and straight forward. He stated that he saw his first patient back in 1966 and now decided to sell his practice and semi retire in August of 2015. He was summonsed out of retirement by the Insurer in order to provide his testimony for this Hearing.

Dr. Nashef testified that in the past four years, he has been involved in three Arbitrations and one trial, where he was brought in as an expert witness. He did between one to two CAT Assessments per month when he was working full-time, but he has scaled back his practice. He also testified that he, like Dr. Levitt, is a member of the Canadian Academy of Psychologists in Disability Assessment. Whereas Dr. Levitt has been a board member, educator and conference presenter for the past 10 years, as well as President of the organization, during that time, Dr. Nashef stated he would consider himself more “in close contact” with the organization.

When asked how he assesses a patient, he stated that he performs a document review, he relies on the on-boarding documents that a patient fills out, and most importantly, conducts a clinical interview/exam in order to come to the conclusions in his report – in this case, the report, dated November 20, 2014.²⁷

The Applicant completed intake tests that were administered prior to her assessment. The Doctor also reviewed clinical notes and records of the Applicant and the reports from Kaplan & Kaplan Psychologists. The Applicant also completed a clinical interview as part of her assessment by Dr. Nashef. He testified that the Applicant’s answers were all consistent and the responses were all determined to be valid.

Dr. Nashef also performed a Dack Depression Identity Test and a Beck Test as part of his assessment. The Dack Test identifies issues with depression in clients. On the Beck Test, Dr. Nashef testified that the Applicant scored a 32 on this test. 0-12 is considered minimal depression. Anything over 30 is considered severe depression. Dr. Nashef also testified that the issue of depression surfaced in all of the test results that he administered to the Applicant and as a result, he found the Applicant to suffer from major depression. He also noted this from his observations. He concluded that this accident helped to trigger a lot of psychological issues. Dr. Nashef found the Applicant had an adjustment disorder and also chronic pain. He also diagnosed the Applicant with Dysthymia, which means that an individual is depressed, but functional. As part of his testimony, Dr. Nashef stated that the Applicant’s results were elevated for Dysthymia. He concluded that the Applicant had life management difficulties and has struggled to cope.

When compiling his results of the CAT Assessment, Dr. Nashef rated the Applicant as being moderate in all functional areas. The major difference when compared to Dr. Levitt’s CAT Assessment is in the functional area of an ability to adapt. Dr. Levitt, in his August 7, 2014 report, determined the Applicant to be marked in this area; Dr. Nashef determined the Applicant to be moderate. The reason for his conclusion was that Dr. Nashef determined that based on the information gathered, that the Applicant can live with the issues that she is facing. Dr. Nashef stated that the Applicant has problems, not difficulties. Dr. Nashef compiled the following results in the various 5 axis areas:²⁸

Axis I: Major Depressive Episode – recurrent adjustment disorder – Unspecified Resolving Other Chronic Pain, Dysthymia, Problems related to life-management difficulty.

Axis II: Personality Disorder – NOS – (Depressive and dependency features)

Axis Ill: Reserved for Medical Practitioners.

Axis IV: Living with pain, limited mobility, reduced social interaction due to physical and emotional limitations, worries about future developments and uncertainty about achieving complete recovery.

Axis V: GAF Score: Current Year 60 – 65; Past Year 60 – 65.

The other difference between Dr. Levitt’s report and Dr. Nashef’s report was in the Applicant’s GAF Score. Dr. Nashef gave the Applicant a GAF Score of 60-65, whereas Dr. Levitt gave the Applicant a GAF Score of 45. It also came out in the testimony that Dr. Nashef based his 4 functional area results off of the GAF Score that he calculated for the Applicant. This is not typically done according to the testimony of Dr. Levitt.

REBUTTAL REPORT

Dr. Nashef completed an Addendum Report on June 15, 2015, after he reviewed Dr. Levitt’s report.²⁹ Dr. Nashef stated that he reviewed Dr. Levitt’s report but found no new evidence that would compel him to modify the results of his initial report.

Dr. Nashef stated in his testimony, “some people can have an accident and end up with big problems. Some other people have a rollover like in the Indy 500 and they come out and they have been fine.”³⁰ He stated that the Applicant’s pain is a constant reminder of the accident, but he still stands by his diagnosis that the Applicant is not catastrophically impaired.

CONCLUSIONS – CAT

Out of the total group of psychologists that the Applicant saw, only the CAT assessors testified at the Hearing: Dr. Levitt on behalf of the Applicant and Dr. Nashef on behalf of the Insurer, both of whom were retained by each side for their expert opinion. Both Dr. Levitt and Dr. Nashef found the Applicant gave genuine answers and therefore the answers passed the validity tests.

In order to be considered catastrophically impaired, a patient only needs to be found with a marked impairment in 1 out of 4 spheres based on prior case law from the Court of Appeal’s decision in Pastore v. Aviva Canada Inc.³¹ When assessing the Applicant for psychological impairment under criteria 8, the Insurer’s psychological assessors found she only had a moderate impairment of all 4 spheres. The Applicant’s assessment found that she had a marked impairment in 1 out of 4 spheres. As Arbitrator Sapin stated in M.G. and Economical Mutual Insurance Company, the descriptions of moderate, marked and extreme impairment are part of a continuum.³²

When identifying psychological issues, the results from an assessor are subjective. Based on the evidence including the testimony of both doctors, I am of the opinion that I prefer the findings of Dr. Levitt’s report over Dr. Nashef’s report. The Applicant’s opinion is that the results of Dr. Nashef’s report are unreliable as a result of the information that Dr. Nashef obtained from his assessment of the Applicant. Based on the evidence and the testimony at the Hearing, I agree. I found Dr. Levitt’s testimony and clinical results to be reliable and I accept his findings. Therefore, I find the Applicant to be determined to be catastrophically impaired.

CONCLUSIONS

The onus of proof is on the Applicant to prove her entitlement to benefits. Based on the evidence presented at this Hearing, she has achieved this threshold as it related to her claim for CAT entitlement, the OCF-18 in the amount of $1,088.76 and the second OCF-18 in the amount of $5,131.65. In terms of IRBs, I found that the Applicant unduly delayed in electing this benefit without explanation for the delay and therefore this claim is denied.

INTEREST FOR THE OVERDUE PAYMENT OF BENEFITS

The Applicant is due interest on all payments incurred as of the denial date of all benefits that I approved in this dispute. Interest is payable at 1% per month, compounded on outstanding payments as per s. 51(3) of the Schedule.

EXPENSES:

The parties made no submissions on expenses. If they are unable to agree on the legal expense of this case, an Expense Hearing shall be requested within 30 days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code. If an Expense Hearing is requested, the request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submission regarding entitlement to and/or the amount of such expenses.

December 19, 2016

Jeff Musson Arbitrator

Date

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

Neutral Citation: 2016 ONFSCDRS 341

FSCO A13-013246

BETWEEN:

CATERINA SERAFINI

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. 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. Mrs. Serafini’s injuries are catastrophic as defined under the Schedule as a result of the motor vehicle accident on January 14, 2008.

2. Mrs. Serafini is not entitled to Income Replacement Benefits in the amount of $400.00 per week for the period from January 14, 2010 and ongoing.

3. Mrs. Serafini is entitled to Medical Benefits in the amount of $1,088.76 for physiotherapy, less amounts paid by the extended health provider.

4. Mrs. Serafini is entitled to Medical Benefits in the amount of $5,131.55 for psychological treatment.

5. Mrs. Serafini entitled to interest for the overdue payment of benefits for only those Medical Benefits that have been incurred.

6. The parties made no submissions on expenses. If they are unable to agree on the legal expense of this case, an Expense Hearing shall be requested within 30 days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code. If an Expense Hearing is requested, the request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submission regarding entitlement to and/or the amount of such expenses.

December 19, 2016

Jeff Musson

Date

Arbitrator

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “new SABS”) came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “old SABS”) shall be paid under the new SABS, but in amounts determined under the old SABS.
2. 2Insurer’s Arbitration Brief, Tab 37, pg. 21.
3. 3Ibid., Tab 12A.
4. 4Insurer’s Medical Brief, Tab 20.
5. 5A Section 11 school is a school for kids who, for a variety of reasons, could not be integrated into a standard school situation.
6. 6Ibid., Tab 12F, pg. 26.
7. 7Ibid., Tab 8A.
8. 8Ibid., Tab 3C, pg. 3.
9. 9Applicant’s Brief, Tab 24, pg. 124.
10. 10Insurance Brief, Tab 22, pg. 1.
11. 11Insurance Arbitration Brief, Tab 36, pg. 171.
12. 12An OCF-2 is a form that is submitted by an Applicant’s employer to the Insurer.
13. 13Schedule, Section 32.1, Procedure for claiming benefits.
14. 14Insurer’s Book of Authorities, Tab G, A10-003864.
15. 15Insurance Medical Brief, Tab 1H.
16. 16Insurance Medical Brief, Tab 3D.
17. 17Ibid., Tab 1E.
18. 18Ibid., Tab 2G.
19. 19Criteria 8 on the OCF-19 is an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
20. 20Insurance Medical Brief, Tab 2J.
21. 21Ibid.
22. 22Ibid., Tab 2K.
23. 23Ibid., Tab 2J.
24. 24Ibid., Tab 6A, pg. 10.
25. 25Insurance Medical Brief, Tab 2J.
26. 26Ibid., Tab 2K.
27. 27Insurance Arbitration Brief, Tab 13A.
28. 28Ibid.
29. 29Insurer’s Medical Brief, Tab 13C.
30. 30Insurer Medical Brief, Tab 13A.
31. 31Insurer’s Book of Authorities, Tab 3, Pastore v. Aviva Canada Inc., 2012 ONCA 642, 112 O.R. (3d) 523, 2012 ON CA 642.
32. 32Applicant’s Book of Authorities, Tab 5, A09-002443.