Segrid Cumberbatch v. The Guarantee Company of North America, 2016 ONFSCDRS 39

Financial Services Commission of Ontario

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 39

FSCO A11- 001210

BETWEEN:

SEGRID CUMBERBATCH

Applicant

and

THE GUARANTEE COMPANY OF NORTH AMERICA

Insurer

REASONS FOR DECISION ON A PRELIMINARY ISSUE

Before: Stuart Mutch

Heard: February 9, 10, 11, 12, and April 21, 22, 23, 24, 2015 at the offices of the Financial Services Commission, Toronto

Appearances: Mr. Fabio Longo and Ms. Kristy Kerwin for the Applicant

Ms. Rose Bilash for the Guarantee Company

The Applicant, Segrid Cumberbatch was injured as the result of a motor vehicle accident on May 22, 2008. She applied for benefits from the Guarantee Company of North America (“Guarantee”), payable under the Schedule.¹ Disputes arose as to the Applicant’s claims. The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Background

At the time of the accident the Applicant was a busy 34 year old woman. She had married approximately ten months earlier and was four months pregnant with her first child. She was employed at John Vince Foods as a data entry clerk. She attended church twice per week and was active in the services, occasionally doing readings. She was a volunteer with two organizations associated with her church, Christian Youth Sports Academy (“CYSA”), and Pathfinders, an organization similar in purpose to Boy Scouts and Girl Guides. She socialized with members of her church, at their homes and at restaurants and she hosted dinners at her home. She was responsible for most of the housekeeping tasks. She had recently completed two semesters of night classes at Humber College. She was assisting her husband with his renovation business by taking care of the clerical side of the business including registration, preparation of contracts, business cards and flyers, bookkeeping and the preparation of income tax returns. She testified that she had energy and felt fulfilled. I agree with her counsel’s submission that she was a busy, high functioning individual prior to the accident.

The circumstances of the accident are undisputed. The Applicant was a passenger in the front seat of a vehicle that was hit from behind and then was scraped along the driver’s side. After the collision the Applicant was in shock and felt disoriented. She was concerned about her unborn child. She was taken to hospital where she was told the fetus was unharmed. She was given a prescription and referred to physiotherapy. In her testimony, she stated that she returned to the hospital after trying to work for one day because she was in “excruciating” pain. She testified she has daily pain in the head, neck, and shoulder which sometimes radiates into her hand and elbow. She also mentioned pain in her stomach, arms and knees. She is depressed, lacks motivation and avoids social situations. She has trouble concentrating and remembering things.

She tried to return to her employment but was not able to continue for more than a day. She has never returned to paid employment. She was unable to continue with most of her volunteer activities and she did not return to church services until 2012 and her attendance has been irregular since then. She was unable to continue to assist her husband in his business.

Her son was born approximately five months after the accident. Since the accident she has mostly stayed home and taken care of her son. She testified that she struggles to initiate and complete household tasks and she is inconsistent in her self-care with regard to such things as bathing, washing her hair and brushing her teeth.

Issue:

The sole issue in this hearing is whether the Applicant sustained a catastrophic impairment due to a mental or behavioural disorder, as a result of the accident. As set out below, the issue boils down to the degree of impairment the Applicant suffers in the adaptability domain. The Applicant’s expert says it is a marked impairment, Guarantee’s expert says it is a moderate impairment.

Result:

1. The Applicant is catastrophically impaired, as defined in the Schedule.

2. If the parties cannot agree on entitlement to, or the amount of expenses of the proceeding, they may request an appointment to determine expenses in accordance with Rule 79.1 of the Dispute Resolution Practice Code.

Definition of Catastrophic Impairment

The Applicant claims that she is catastrophically impaired (“CAT”) under the following definition as set out in the Schedule. Under subsection 1.2 (g) a catastrophic impairment is one that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”), results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. O. Reg. 281/03, s. 1 (5). (emphasis added).

The Four Domains of Catastrophic Impairment

It has been well-established by Aviva Canada Inc. and Pastore²that an insured person need only demonstrate a marked impairment in one of four categories of function set out in the AMA Guides³ (“the Guides”), in order to be found to be catastrophically impaired. These four domains of function are:

• Activities of daily living

• Social Functioning

• Concentration, Persistence and Pace

• Deterioration or decompensation in work or work-like settings (Sometimes referred to as Adaptability)

The following chart sets out the impairment ratings in each category of function:

Area or aspect of functioning	Class 1: No impairment	Class 2: Mild impairment	Class 3: Moderate impairment	Class 4: Marked impairment	Class 5: Extreme impairment
Activities of daily living Social functioning Concentration Adaption	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all, useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning

[emphasis added]

Because the adaptability domain is in issue in this arbitration I will quote directly from the Guides:

Adaptability

Deterioration or decompensation in work or worklike settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks.

EVIDENCE

The Applicant’s Evidence

I will discuss the Applicant’s evidence under various functional headings later in this decision.

Evidence of Health Care Professionals

Dr. Zakzanis, neuropsychologist, is of the opinion that the Applicant suffers from a marked impairment in the adaptability domain.

Dr. Rosenblat, psychiatrist, is of the opinion that the Applicant suffers from a moderate impairment in the adaptability domain.

The diagnoses of the Applicant made under Axis I of the Diagnostic and Statistical Manual⁴ by Drs. Zakzanis and Rosenblat are similar.

Dr. Zakzanis diagnosed the Applicant as suffering from:⁵

• a cognitive disorder,

• a major depressive disorder,

• an adjustment disorder with anxiety

• a chronic, pain disorder associated with psychological factors and a chronic general medical condition

Dr. Rosenblat diagnosed the Applicant as suffering from:⁶

• a major depressive episode

• an anxiety disorder not otherwise specified

• a pain disorder associated with both psychological factors and a general medical condition.

Other medical professionals made similar diagnoses. Dr. John Lee, psychiatrist, found the Applicant to suffer from an adjustment disorder with mixed anxiety and depressed mood. Dr. Alfonso Marino, psychologist, found the Applicant to suffer from a major depressive disorder and chronic pain with psychological factors. He felt her condition is chronic and severe and recommended ongoing treatment sessions. Dr. Kakard, psychiatrist, found the Applicant to suffer from major depression and a panic disorder. Dr. Frank, psychologist, found the Applicant to suffer from an adjustment disorder with mixed anxiety and depression, but felt she was capable of being employed.⁷

There is no question that the Applicant suffers from a mental disorder, as required by the CAT definition. The question is the degree to which she is impaired.

Evidence in Support of the Applicant’s Position

The Applicant was assessed by Jas Assessment Services, which included an assessment by Dr. Zakzanis, neuropsychologist, and Elyse Freedman, Occupational Therapist.

Dr. Zakzanis

Dr. Zakzanis thinks the Applicant is catastrophically impaired on the basis that she is markedly impaired in the adaptation domain. In his initial report dated July 9, 2012,⁸ issued four years after the accident, he opines that she was markedly impaired in both the adaptation and social domains. In his 2014 report he found the Applicant to be markedly impaired in only the adaptation domain. He modified his initial opinion on the basis that by 2014 the Applicant had resumed going to church, albeit much less frequently than before the accident, had taken steps to repair her marriage and had taken trips outside of Canada with her husband and son.

In his 2012 report, Dr. Zakzanis was satisfied that his assessment of the Applicant was accurate because validity measures were in the normal range indicating that the assessment was valid and there were no indications of feigning or exaggeration. He also found that:

• Test results indicate slow processing speed

• Testing found her to be mildly to moderately impaired in cognitive tests and attention, mild to severely impaired in memory. This impacts upon executive functioning in terms of her ability to keep organized, plan, problem solve and make decisions efficiently

• She is mildly to moderately impaired in executive functions

• The trauma symptom inventory is valid, indicating anger, irritability and defensive avoidance

Dr. Zakzanis bases his finding that she has a mild traumatic brain injury on the fact that the Applicant was disoriented after the accident and had “islands of memory” regarding the accident. He is of the opinion that while a mild brain injury can heal in three months, cognitive problems can persist and they can interfere with function, as individuals with cognitive problems have difficulty concentrating and feel less confident in themselves. Dr. Zakzanis is of the opinion that one’s function in the adaptability domain is characterized by the degree to which one can sustain independent function. Dr. Zakzanis thinks that the Applicant has lost the ability to meet and effectively engage in her everyday needs and if she were left alone, (without the support of her husband, marriage counselor, and treatment providers) she would decompensate and could not meet life’s demands. He thinks that she is impeded in tasks that involve useful function. He stresses that she is not prevented from functioning independently but that she is significantly impeded from functioning independently. Dr. Zakzanis bases his finding of “marked” in the adaptability category on that basis.

The Applicant herself testified that she cannot function “day to day” without the support of a psychologist, a marriage counselor, physiotherapist, chiropractor and a speech pathologist.

Elyse Freedman

In her assessment dated July 17, 2012,⁹ Elyse Freedman, Occupational Therapist, also expressed the opinion that the Applicant is catastrophically impaired, on the basis that the Applicant is markedly impaired in the Adaptation domain. She based her finding on the Applicant’s functional presentation during the in-home and work simulation assessments. She thought that the Applicant’s pain limits her task completion and could affect her ability to focus for lengthy periods of time. This accords with the Applicant’s testimony that she cannot multi-task and has trouble initiating and following through.

Evidence in Support of Guarantee’s Position

The Applicant was assessed by Centric Health Medical Assessments in September and October 2012.¹⁰The assessment team consisted of Dr. Oshidari, physiatrist, Dr. Rosenblat, psychiatrist and Laura Youm, Occupational Therapist.

Dr. Rosenblat

Dr. Rosenblat found the Applicant to suffer mild or moderate impairment in all four domains. He therefore finds her not to be catastrophically impaired.

The key to Dr. Rosenblat’s reasoning is that the Applicant could not have fulfilled her role as the primary caregiver of a child born shortly after the accident if she was more than moderately impaired. He opined that coping with the demands of an infant and later, small child, involve a whole series of critical skills. He stated “if someone can work as a mother, it’s no more than Class 3 impairment”.

Unlike Dr. Zakzanis, he does not think the Applicant has a cognitive disorder. Dr. Rosenblat stated that she came across as straightforward and “grossly fine”. She scored 30/30 in the Mini-Mental Status Exam. He admitted this is “not a great test” and mostly used for screening. He felt that further testing was not required.

I give Dr. Rosenblat’s evidence less weight than I do Dr. Zakzanis’ for the following reasons. The facts upon which Dr. Rosenblat bases his opinion are incomplete, and in some instances, inconsistent with the Applicant’s situation, both as described by her and by other assessors and treatment providers. For example, he was unaware that the Applicant’s mother had been providing her with assistance and emotional support for a five month period just prior to the assessment. He was unaware that her attendance and participation in church was a small fraction of what she was doing before the accident. On cross-examination he indicated that he was surprised to learn that she was not attending to her personal hygiene or household matters on a regular basis. This last point is not the fault of Dr. Rosenblat as apparently the Applicant told him she was not having a problem completing her self-care and household chores.

This conflict between her testimony and what she told Dr. Rosenblat calls into question Ms. Cumberbatch’s credibility. However the Applicant’s difficulties are not so much the completion of tasks, but that she has difficulty initiating tasks, and that she does things on an irregular and haphazard basis.

I also take note of the evidence that the Applicant feared being seen as providing her son with seriously inadequate care and resulting intervention by child welfare authorities. I accept the submission that the Applicant presented a more positive picture of her functionality to assessors for this reason.

The Applicant demonstrated considerable distress when giving her testimony and when otherwise present in the hearing room. This included closing her eyes, rubbing and icing her neck, unresponsiveness and crying. The Applicant also requested several unscheduled breaks during her testimony. This is consistent with the evidence, as set out in reports of Dr. Zakzanis, Elyse Freedman, Laura Youm, and Stephanie So, O.T.¹¹ that the Applicant has had to terminate several assessments, and various kinds of testing prematurely, with complaints of fatigue, pain and inability to concentrate.

Guarantee, in its submissions, has attempted to normalize her behaviour, stating ‘[it] does not amount to repeated signs of decompensation”. I disagree. The Applicant required considerable accommodation in delivering her testimony. This is not a criticism of the Applicant, whose distress appeared to be genuine. It speaks to her difficulty adapting to stressful circumstances, in a work-like setting and the degree of accommodation and support she requires to cope.

I accept the explanation given for her comments to Dr. Rosenblat. I find the Applicant to be a credible witness.

Laura Youm, O.T.

Laura Youm, Occupational Therapist, produced a report dated December 18, 2012.¹². She is part of the team that found the Applicant not to be CAT. She completed an in-home functional assessment and a situational assessment¹³ of the Applicant shortly after the five month visit by the Applicant’s mother. While Ms. Youm noted that the Applicant could initiate, organize and execute a meal plan, she had to prematurely terminate other exercises, including a situational assessment, due to pain, fatigue and feeling nauseated. Ms. Youm noted reduced mental persistence and reduced tolerance to work when there were additional distractions. As this decision turns on the Applicant’s degree of impairment in the Adaptation domain, I note Ms. Youm’s observation under that domain: “Further compromised integration of her daily activities when she has lack of support (e.g.when she had no support from her mother) or external structure (e.g. when her son did not attend school)”.¹⁴ I take this to mean that Ms. Cumberbatch is less than independent in her daily activities.

This comports with Dr. Zakzanis’ observation that the Applicant cannot function without structure. While it is true that the Applicant can perform some tasks without supervision or assistance, the bulk of the evidence, as outlined later in this decision, suggests that she does so in a haphazard fashion, on an irregular basis and cannot always complete her work. I find that Ms. Youm’s assessment corroborates other evidence that the Applicant has difficulty following through and completing tasks and that she needs structure and support in order to do so.

Analysis

The analysis in this case is complicated by several factors.

The first is the facts particular to this case. The assessments of Drs. Zakzanis and Rosenblat were conducted during or very shortly after a six month visit by the Applicant’s mother. The Applicant’s evidence is that her mother’s encouragement and assistance had a palliative effect and improved the Applicant’s ability to function. As stated earlier, I believe that the picture presented by the Applicant to these assessors is likely more positive than what her life has generally been like since the accident.

The Applicant gave birth to her first child approximately five months after the accident. For anyone who is the primary caregiver, as I understand the Applicant was, this will result in a significant shift in focus and activity. No doubt the Applicant would have had to, at least initially, reduce or otherwise modify many of her fields of activity in order to attend to the needs of the child. Therefore I cannot make a strict comparison of how the Applicant was functioning immediately before, and after the birth of her son. She did state that, prior to the accident, it was her plan to be a “working mom” and to have her own bookkeeping and accounting business. She had a solid work history up until the accident and I find it more likely than not that she would have resumed some kind of paid work at some point after the birth of her son. It was also apparent throughout her evidence that the Applicant’s religious faith is very important to her. While she might have had to reduce or eliminate her volunteer activity for a period, I find, on the balance of probabilities that, in the absence of the accident, the Applicant would have resumed regular attendance at church services shortly after the birth of her child.

Finally, as in all cases involving a question of catastrophic impairment, there is the clumsiness of the nomenclature defining it. There is a great deal of overlap between the four domains. Trying to fit the nuances of an individual’s circumstances into one definition or another at times feels artificial and forced.

While it is difficult to precisely distinguish between “moderate” and “marked” impairment, I agree with the observation of Arbitrator Sapin, as set out in Ms. M.G. and The Economical Mutual Insurance Company¹⁵, that the descriptions of “moderate”, “marked” and “extreme” impairment are part of a continuum.

One can only assume that a marked impairment means that the individual is impeded in more than just “some” useful functioning. Taken together with the description of adaptability,

I can only conclude that a marked impairment would mean that an individual would, more often than not,(although not all of the time) fail to adapt to stress in work or work-like settings and fail to maintain activities of daily living, including social relationships and the completion of tasks.

As stated by in Desbiens v. Mordini¹⁶ the focus of the analysis in the area of adaptation is on the psychological stress tolerance of the individual.

The Guides state that:

a) Any limitations in these activities should be related to the mental disorder rather than to other factors and the quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability;

b) It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision and direction;

c) What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.(Emphasis added)

In the Applicant’s case, is she impeded in more than some useful functioning? I will examine her functioning using terms taken directly from the description in the adaptability domain. They are:

• Difficulty maintaining activities of daily living

• Continuing social relationships

• Decompensation in work or work-like settings

Difficulty Maintaining Activities of Daily Living:

Self-Care

As noted earlier, several assessors indicated that the Applicant was independent with regard to self-care. I accept that the Applicant does not need assistance to complete these tasks. However, the Applicant testified that she lacks motivation to engage in self-care and grooming in any consistent way. She testified she does not bathe “for days”, had not washed her hair in over a month and sometimes did not brush her teeth “for weeks”. She stated she doesn’t have the motivation to do it. On cross-examination she stated she had not brushed her teeth for one month. However, Guarantee, in its submissions, indicates that the Applicant later stated that she brushes her teeth once per day, either morning or evening. My notes reflect something similar, although they are not entirely clear. I am not sure whether the Applicant became confused over the course of questioning, or whether she is not being entirely forthright on this point. Given the Applicant’s obvious distress in the hearing and a consistent of record of difficulties concentrating, I give the Applicant the benefit of the doubt and find that, at the time of the hearing, she had not brushed her teeth for one month.

She stopped caring for her hair after the accident and eventually had her hairdresser close crop it, which resulted in a much shorter hairstyle. She testified she has only been to the hairdresser twice since the accident; she used to go every six weeks. She now wears a hat or a wig to go to church. There is no evidence to contradict this.

I find that the Applicant is significantly impeded in carrying out her self-care tasks in a routine and regular way.

Homemaking

Prior to the accident, the Applicant was chiefly responsible for caring for the home she shared with her husband, including meal preparation. Since the accident, she testified that because of pain, fatigue and lack of motivation, she is unable to perform her housekeeping tasks in a consistent way. She noted that she only does laundry when the family runs out of clean clothes and when she is able to do some household tasks, she has to stop by midday due to fatigue. She told Guarantee’s occupational therapy assessor that she does about 40% of what she did prior to the accident¹⁷ and she confirmed this in her testimony. She is forgetful, and food and cookware gets burned. Both in her testimony and in the sessions with her marriage counsellor, she indicated that meals don’t get prepared, and laundry and dishes pile up. She indicated she can make her son’s lunch about two days per week but he buys his lunch on the other three days. She can’t do prolonged shopping. She handles bill paying by arranging to have bills paid by automatic withdrawal.

In his report, Dr. Rosenblat states that the Applicant can “completely manage her household with virtually all of the chores”.¹⁸ It became evident in Dr. Rosenblat’s cross-examination that he was unaware the Applicant was having difficulty completing household tasks because she had told him she didn’t have a problem. He was unaware that the Applicant’s household tasks would “pile up”.

Dr. Rosenblat also seemed to be under the impression that the Applicant is alone much of the time and that her husband does not assist with housework. Yet he states in his report “She feels guilty because her husband had to do chores around the house after the index accident”.¹⁹Her husband gave up his construction business to become superintendent in the condominium complex in which they live and as a result is around the home more. The Applicant confirmed in her testimony that her husband assists her, as does her son, now that he is older.

Part of household management is that tasks are completed in a timely fashion. I find that Dr. Rosenblat did not have the complete picture when he assessed the Applicant, either because of her own evasiveness, or his failure to probe, or both. I therefore question Dr. Rosenblat’s conclusion that the Applicant is competently managing her household duties.

Continuing Social Relationships:

Marriage

At the time of the accident, the Applicant had been married less than a year. All indications were that the Applicant and her husband were very happy. The Applicant testified that her marriage deteriorated after the accident because of her ensuing depression. Her pain was such that she found relief only by sleeping on the couch and that she had no interest in sex. She testified that her husband becomes angry when she is unable to prepare meals or do laundry. By 2012 the Applicant was considering ending the marriage. She testified that the visit from her mother, beginning in April 2012, helped her, and she was able to organize a renewal of vows party that took place in July 2012. The Applicant and her husband began seeing a marriage counselor, Caron Gan, in January 2013.²⁰ The couple’s marital difficulties, which by all accounts appear to be the result of both the accident and the Applicant’s husband’s response to the changes in the Applicant are well documented in the report.

Church and Volunteer Work

Before the accident the Applicant was active in her church, attending services twice per week. She testified that she found church to be uplifting, that it helped her and her husband’s relationship, and that she enjoyed dressing up and being well-groomed for the services. The Saturday services took up most of the day. The Applicant was involved with the church school, and would present a Scripture reading or lead a prayer from the podium. She participated in two volunteer organizations associated with her church. She was a recording secretary for CYSA, which involved recording and distributing the minutes of meetings and organizing and recording the results of track and field events. She also acted as an informal mediator within this organization. Every Sunday she acted as a counsellor and mentor to young adolescents in an organization associated with her church called Pathfinders.

She also indicated that she socialized with church members once per week through such activities as going to restaurants and entertaining in each other’s homes. She described cooking complicated meals for her guests. She travelled to Niagara Falls and Montreal with members of her church.

After the accident she stopped going to church. She resumed going with the encouragement of her mother in 2012, four years after the accident, but much less frequently, a couple of times per month and for the morning service only. She indicated at the February sitting of this case that she had not attended church “since the beginning of the year”. She stated that she did not participate or enjoy it as much as she did before, that she was more of “an onlooker”, that the excitement is too much and she feels like she will pass out. She declines social invitations from fellow members. She stopped acting as a secretary for CYSA as she had difficulties keeping up at meetings and preparing the minutes. She says she suffers from “brain freeze” where she cannot formulate a sentence, or process information. She mentions that she has difficulties reading at times. She did continue as a member but “never in the capacity I was before”. She testified there is a new group associated with CYSA for women but that she has trouble expressing herself in a socially appropriate way and that people tell her she is aggressive. In her testimony, she echoed the statements she made to Rhoda Breen O.T., as set out in the assessment report of December 13, 2014²¹ that she feel disconnected to those around her and that she feels like “a ghost” during social engagements. She is embarrassed when people notice she is not “who she used to be”. She testified she was unable to continue her work with Pathfinders because she can’t study the materials and can’t teach the children. She does take her son to Adventurers, a branch of Pathfinders for younger children. She would like to assist the leader, but feels she cannot.

The Applicant went from having a very happy marriage to having major marital problems. She went from attending church twice per week, involvement two volunteer associations and an active social life to no church attendance for four years and then only on an infrequent basis, and very limited volunteer involvement. I find that she is significantly impeded in maintaining continuing social relationships.

Decompensation in Work or Work-Like Settings

Parenting

Dr. Rosenblat was of the opinion that parenting a small child was a work-like activity. The Applicant testified that she was and is limited in her ability to care for her son, who was born five months after the accident. She was not able to take him out on a regular basis when he was younger because she was depressed and didn’t want to go anywhere. As a result, she feels that he has lagged in the development of social skills. She reported this to Caron Gan, her marriage counselor.²² She states he has trouble focusing in class because he wants to interact with the other children. He is now seven years old. She would like to take him to extracurricular activities but feels unable to. She stated that she is “locked down by headaches and depression”. Now that her son is in school, she finds it draining to keep him focused on homework in the evening. She says that she still does not have the mental energy to play with her son and that he wants to stay in school and play with his friends rather than go home. She relies on prepared foods and has her son buy lunches at school more often than she would like to. She was unable to throw her son a birthday party. The Applicant testified that she exaggerated to assessors the frequency that childcare tasks were completed because she was afraid her son would be taken away, as she felt inadequate as a mother.

This is a critical area of function. As stated earlier, it is Dr. Rosenblat’s opinion that the Applicant could not have fulfilled her role as the primary caregiver of a child born shortly after the accident if she was more than moderately impaired. Dr. Zakzanis emphasized that the Applicant is impeded in her parenting functions, not precluded from exercising them. Dr. Zakzanis believes that without her child, the Applicant would be worse. He seems to think that the demands placed on her by the child provide the Applicant with a kind of structure that supports her.

Dr. Rosenblat also raised the point that the Applicant’s depression may colour her perception of herself as a mother. She may view herself as inadequate, when in fact she is not.

At the same time, the Applicant indicated, and has told assessors, that she will forget to do such basic routine tasks as meeting her son at the bus stop at a scheduled time. I find that the Applicant is significantly impeded in adapting to the stressful circumstances of caring for her son.

Employment

After completing secondary school, the Applicant was employed as an accounts payable clerk/ receptionist at Haworth Ltd. from 1993 to 2007 when the business closed down. Her performance evaluation of December 2006 rates her performance of various tasks as “solid” or “exceptional”.²³ The Applicant testified that she enjoyed the work and wanted to advance as far within the organization as she could and eventually open her own accounting practice. After Haworth closed she took a similar position with John Vince Foods, where she was employed at the time of the accident.

The Applicant testified that after the accident she returned to work but could only manage one day. The following day she went to the hospital “in excruciating pain”. Her family doctor recommended that she stop and she has not returned to any form of employment since then. She testified that she finds it very hard to process information and she cannot produce efficiently.

I find it significant that the Applicant, who had a very solid employment history, and who testified she enjoyed her work, has been unable to return even in a limited capacity.

The Applicant indicated that before the accident she also acted as an office manager for her husband’s construction business, as described earlier. She could not continue in that role after the accident.

Night School

The Applicant had completed three courses in a business program over the 2007/2008 fall and winter semesters at Humber College, just prior to the accident. She attained grades of 75%, 95%, and 98%.²⁴ She testified that she was unable to continue in this program after the accident.

With regard to paid employment and in assisting her husband in his business, I find the Applicant was a motivated individual who was diligent in her work and who was making an effort to upgrade her skills. I find she is now significantly impeded in those activities.

Surveillance

I have viewed videotaped surveillance of the Applicant taken on June 22, 25, 26, 27, 28, 29, July 31, and August 3, 2012. The tapes show the Applicant going into church, shopping for what she described as her renewal of vows event and taking her niece to the movies. I note that the Applicant was able to carry three bags and load 24 bottles of water into a car.

In its submissions, Guarantee notes that on one day, June 25, 2012, the Applicant was out and about on a variety of errands, accompanied part of that time by a friend, for nearly eight hours, a not inconsiderable length of time.

At the same time, the surveillance was taken during what could be described as an optimal period. It was at this time that the Applicant’s mother was visiting (and was shown on some of the videos to be assisting the Applicant), which the Applicant found to be a considerable boost to her well-being. The activities the Applicant was engaged in on the June dates were in preparation for the renewal of vows ceremony and party. The evidence of the Applicant was that she was highly motivated to salvage her relationship with her husband and that the renewal of vows was an important step in this process and she wanted to make the event a success.

One scene showed the Applicant rubbing her head and chest while waiting in the car for her husband. This was consistent with her behaviour during the hearing, as described earlier. There is nothing in the surveillance that suggests that the Applicant is functioning at a higher level than she has portrayed.

I have been urged to consider Leach v. Intact Insurance Co.²⁵ wherein Ms. Leach was found to be not catastrophically impaired, in circumstances allegedly similar to those of the Applicant. However Ms. Leach’s psychological difficulties were considerably less severe. Unlike the Applicant, she did not suffer from major depression (as diagnosed by both Dr. Zakzanis and Dr. Rosenblat). Ms. Leach was diagnosed with an adjustment disorder with depressed mood, in remission, and a pain disorder with psychological factors affecting a physical condition. This represents a much lower barrier to adaptation to stress, than the Applicant’s major depression and what was variously described as “an adjustment order with anxiety” (Dr. Zakzanis) and “an anxiety disorder not otherwise specified” (Dr. Rosenblat). The arbitrator in Leach noted that “Ms. Leach appears to be engaged in most activities except certain kinds of work”.²⁶ This is certainly not the case with the Applicant.

Conclusion

My attention has been drawn to the fact that the Applicant is able to drive. She has taken two trips to visit family in the Caribbean with her husband and child. It would appear that her seven year old son has been and is adequately cared for. She has taken the initiative to seek medical attention, schedule rehabilitative activities, marital counselling and arrange the renewal of vows with her husband.

None of this overrides the fact that the bulk of the evidence shows that the Applicant, despite having the support of her husband and a variety of treatment providers, is impeded in her day to day activities and in what ought to be regular, routine activities. I do not think that the activities that the Applicant engages in are merely “mundane” or that she is necessarily living in a “sheltered, narrow and confined world” comparable to that described in the case of M.D. and Aviva Canada Inc.²⁷While many of the aspects of childrearing could be termed mundane, the overall management and decision-making involved in effective parenting is complex and demanding. At the same time, when one compares her pre-accident life with her life now, it is indeed significantly restricted, and, to use the words of Arbitrator Rogers, “dramatically reduced…in terms of responsibilities and social contact”.²⁸

Some things the Applicant did prior to the accident, such as being employed, she cannot do at all. It is not insignificant that she has managed to provide her son with adequate care. At the same time, she has difficulty consistently performing routine tasks, such as remembering to meet him at the bus, which could have serious consequences. Other activities, such as church and volunteer work, she has cut back dramatically. Some routine activities, such as self-care and housework, are done on an erratic and inconsistent basis. This is a dramatic change from her pre-accident self. She is unable to adapt to stressful circumstances. While the Applicant is clearly capable of some useful functioning, I believe she is significantly impeded in performing most of the tasks she did prior to the accident. I find that, as a result of the accident, she has suffered a marked impairment and is, therefore, catastrophically impaired within the meaning of the Schedule.

January 28, 2016

Stuart J. Mutch

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 39

FSCO A11- 001210

BETWEEN:

SEGRID CUMBERBATCH

Applicant

and

THE GUARANTEE COMPANY OF NORTH AMERICA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is determined that:

1. The Applicant, Segrid Cumberbatch, is catastrophically impaired within the meaning of the Schedule.

2. If the parties cannot agree on entitlement to, or the amount of expenses of the proceeding, they may request an appointment to determine expenses in accordance with Rule 79.1 of the Dispute Resolution Practice Code.

January 28, 2016

Stuart J. Mutch

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 22012 ONCA 642
3. 3Guides to the Evaluation of Permanent Impairment, American Medical Association, 4th Edition, 1993, pages 300-301
4. 4American Psychiatric Association. (2000). Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.). Washington, DC
5. 5Exhibit 3, Tab N(B), page 22
6. 6Exhibit 4, Tab O (1), page 26
7. 7Exhibit 4, Tab O (1), page 16
8. 8Exhibit 3, Tab N(B)
9. 9Exhibit 3, Tab N(6)(C)
10. 10Exhibit 4, Tab O
11. 11Zakzanis and Freedman, referred to earlier, Youm, Exhibit 4, Tab O, page 32, So, Exhibit 3, Tab M(2)
12. 12Exhibit 4, Tab O, page 32
13. 13This was essentially a work simulation assessment, conducted by Stephanie So, O.T. of Galit Liffshiz & Associates, Exhibit 3, Tab M(3)
14. 14Exhibit 4, Tab O 1, page 90
15. 15Ms. M.G. and The Economical Mutual Insurance Company (FSCO A09-002443, November 23, 2012)
16. 162004 CanLII 41166 (ON SC), [2004] O.J. No. 4735, 135 A.C.W.S.(3d) 90 (Ont. S.C.)
17. 17Exhibit 6, Tab 10, page 24
18. 18Exhibit 4, Tab O(1) page 29
19. 19Exhibit 4, Tab O(1), page 22
20. 20Exhibit 5, Tab R9
21. 21Exhibit "6" Tab 14, page 4
22. 22Exhibit "5", Tab R(9)
23. 23Exhibit 5, Employment, Education & Economic tab, Subtab A(3)
24. 24Exhibit 5, Employment, Education & Economic tab, Subtab B(3)(f)
25. 25Leach v. Intact Insurance [2011] O.F.S.C.D. No. 91
26. 26Ibid, paragraph 34
27. 27(FSCO A10-001381, December 19, 2013)
28. 28Mujku and State Farm Mutual Automobile Insurance Company (FSCO A10-002979, January 14, 2013)