Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 42

FSCO A13-004672

BETWEEN:

CAROL MORRISON

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: Isoken Osunde

Heard: May 4, 5, 6, 7, 8, 11, 12, 13 and July 24 2015, at the offices of the Financial Services Commission of Ontario in Toronto.Written submissions were completed on December 11, 2015.

Appearances: Philip Sang-Kyun Suh, Deborah Ikede and Michael Lee (Student–at—Law) for Ms. Morrison

Marlett Dobson for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Carol Morrison, was injured in a motor vehicle accident on February 5, 2008. She applied for and received statutory accident benefits for a period of time from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm subsequently terminated payment of benefits and a dispute arose between the parties which they were unable to resolve through mediation. Ms. Morrison 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:

Has Ms. Morrison suffered a catastrophic impairment as a result of the accident?
Is Ms. Morrison entitled to weekly income replacement benefits in the amount of $302.73 from July 3, 2013 and ongoing?
Is Ms. Morrison entitled weekly housekeeping and home maintenance benefits from February 5, 2010 and ongoing?
Is Ms. Morrison entitled to attendant care benefits before the 104 week mark? If yes, what is the quantum?
Is Ms. Morrison entitled to post 104 week attendant care? If yes, what is the quantum?
Is the treatment plan dated September 12, 2008 for active rehabilitation, chiropractic care, massage therapy and transportation in the amount of $3998.75 reasonable and necessary?
Is the treatment plan dated June 7, 2011 for functional restoration and proprioceptive neuromuscular stretching in the amount of $3152.08 reasonable and necessary?
Is the treatment plan dated July 16, 2012 for chronic pain treatment in the amount of $4509.73 reasonable and necessary?
Are the treatment plans dated February 11, 2008 and April 28, 2008 in the amounts of $2700.00 and $450.00 payable?
Is the cost of an in home assessment in the amount of $1868.24 dated March 20, 2010 reasonable and necessary?
Is a special award payable because State Farm unreasonably withheld benefits?
Which party is entitled to its expenses of the Arbitration?

Result:

Ms. Morrison has suffered a catastrophic impairment as a result of the accident.
Ms. Morrison is entitled to weekly income replacement benefits in the amount of $302.73 from July 3, 2013 and ongoing.
Ms. Morrison is entitled weekly housekeeping and home maintenance benefits at a rate of $50.00 per week from February 5, 2010 and ongoing.
There is no finding on the quantum of attendant care before the 104 week except for the period between January 13, 2009 and March 27, 2009. The quantum during this period is $3000.00 per month less amounts paid by State Farm.
Ms. Morrison is entitled to post 104 week attendant care at a rate of $780.82 per month from February 5, 2010 to May 18, 2011.
The treatment plan dated September 12, 2008 for active rehabilitation, chiropractic care, massage therapy and transportation in the amount of $3998.75 is not reasonable and necessary.
The treatment plan dated June 7, 2011 for functional restoration, proprioceptive neuromuscular stretching in the amount of $3152.08 is reasonable and necessary.
The treatment plan dated July 16, 2012 for chronic pain treatment in the amount of $4509.73 is reasonable and necessary.
The treatment plans dated February 11, 2008 and April 28, 2008 in the amounts of $2700.00 and $450.00 are payable.
The cost of an In Home assessment in the amount of $1868.24 dated March 20, 2010 is not reasonable and necessary.
A special award is payable on the unpaid pre 104 attendant care benefits.
The issue of expenses will be dealt with in accordance with Rule 75 of the Dispute Resolution Practice Code.

Background:

Ms. Morrison, who is presently a 53 year old, was involved in a motor vehicle accident on February 5, 2008. She was travelling eastbound on Eglinton Avenue when she was suddenly t‑boned by a vehicle coming from the other direction. The air bags deployed and she was taken by ambulance to Humber River Regional Hospital. At the time of the accident, Ms. Morrison worked on weekends as a personal support worker (PSW) for about 35 to 40 hours per week. She was also a full time nursing student at George Brown College. She lived in a two storey house with her boyfriend and five of her six children.

In this arbitration, Ms. Morrison claims that she has suffered a catastrophic impairment as a result of the physical and/or mental impairments she sustained from the accident under Section 2 (1.2)(f) and/or Section 2 (1.2)(g) of the Schedule. A designation of this nature, gives an Applicant access to enhanced benefits under the Schedule. She further claims that she is entitled to ongoing payments of attendant care benefits, housekeeping and home maintenance benefits and income replacement benefits. She also claims entitlement to payments for the treatment plans listed above. State Farm disputes that Ms. Morrison has suffered a catastrophic impairment as a result of the accident. Further, it disputes that Ms. Morrison is entitled to all the benefits claimed and payments for the treatment plans.

For the reasons set out below, I find that Ms. Morrison has suffered a catastrophic impairment as a result of the motor vehicle accident of February 5, 2008 under section 2(1.2)(g) of the Schedule and is entitled to further payment of benefits and some of the treatment plans listed above.

Pre – accident and Post – accident history:

Ms. Morrison’s pre accident physical and psychological history includes a right shoulder surgery in 2004, left knee injury in 2006, postpartum depression after the birth of one of her children, (for which she took anti-depressants for a brief period) and anxiety attacks in 2006 because of exams.²

Subsequent to the accident, she has been diagnosed with varying degrees of psychological impairments by her assessors, and State Farm’s assessors, including: Major Depressive Disorder, Chronic Pain Disorder associated with both psychological factors and a general medical condition, Post-Traumatic Stress Disorder and Depression. Ms. Morrison’s physical injuries as a result of the 2008 accident include a comminuted fracture of the ulnar shaft, intra – articular fracture of the distal radius and a minimally displaced fracture of the radial head and neck. As a result, she has undergone three surgeries precisely on February 8, 2008 and January 7, 2009 and July17, 2009.³ Consequently, she complains of ongoing pain to her neck, shoulder, upper extremity and lower back.

Ms. Morrison was involved in a subsequent accident on September 11, 2010 for which she suffered aggravated symptoms to her neck and back pain.

Has Ms. Morrison suffered a catastrophic impairment under Section 2 (1.2)(f) or 2(1.2)(g) of the Schedule?

Law:

Section 2 (1.2) (f) of the Schedule states that:

For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 30, 2003 is,

(f) subject to subsections (1.4), (2.1) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^thEdition, 1993, results in 55 per cent or more impairment of the whole person.

Currently in Ontario, Catastrophic impairments are evaluated in accordance with the fourth edition of the Guides to the Evaluation of Permanent Impairment,⁴ 4^th edition, 1993, (the “Guides”).⁵ Case Law⁶ has established that an Applicant may achieve the 55 per cent or more impairment of the whole person through a combination of physical and psychological impairments.

EVIDENCE AND ANALYSIS:

There is no dispute that Ms. Morrison does not meet the 55% or more WPI threshold due to her physical injuries alone. Therefore, in order for Ms. Morrison to be catastrophically impaired under section 2(1.2)(f), she must attain a WPI of 55% or more due to a combination of her physical and psychological impairments.

Catastrophic Assessments:

Catastrophic assessments were conducted on Ms. Morrison by two teams of assessors with regard to her physical and psychological impairments. At her request, Omega Medical Associates conducted one of the assessments.⁷ This team comprised of Dr. Davidson⁸, Dr. Becker⁹ and Dr. Sangha.¹⁰ On the other hand, at the request of State Farm, Custom Rehab and Assessment conducted Insurer Catastrophic Examinations. This team comprised of Dr. Ali¹¹, Mr. Hammond¹², Dr. Ladowsky Brooks¹³ , Dr. Wuertz¹⁴, Dr. Luczak¹⁵and Dr. Esmail.¹⁶ The executive summary of their reports was completed by Dr. Platnick.¹⁷

Evidence relating to physical catastrophic impairment:

The Omega team assigned a Whole Person Impairment (WPI)¹⁸ of 26% to 34% to Ms. Morrison for her physical injuries. On the other hand, the Custom Rehab team assigned a WPI of 21% to Ms. Morrison for her physical impairments.

Dr. Becker testified at the hearing on Ms. Morrison’s behalf. He was qualified as an expert in conducting catastrophic impairment assessments based on the AMA Guides. He testified that it was not his practice to provide a definite WPI rating as the Guides provide a range for various physical impairments without providing a specific methodology for selecting a number within the range. Therefore, it was his opinion that it is left to the trier of fact to select a number within the range after hearing the totality of evidence. The summary of results of both teams for Ms. Morrison’s physical injuries is set out below:

Team	Side effects of medication	Left upper extremity	Cervical Spine	Lumbar Spine	Scarring	Final Rating
Omega	1 – 3%	17%	5%	5%	0 – 9%	26 – 34%
Custom Rehab	1%	11%	5%	5%	0%	21%¹⁹

Skin:

Under this category, Dr. Becker assigned a WPI rating of 0 – 9% for Ms. Morrison’s scars. Dr. Platnick on the other hand, assigned a rating of 0%. The Guides, at page 280 provide for five classes for assigning a WPI for the skin.²⁰ Class 1 deals with scars with the least serious effects on an individual. Under class 1, the highest WPI that can be assigned for scars is 9% with the lowest being 0%. Ostensibly, both Doctors agree that Ms. Morrison falls under this class. In assigning a WPI for scars, the factors to be taken into consideration according to the Guides, include:

Signs and symptoms present or only intermittently
No limits or few ADL²¹ limits
No treatment or intermittent treatment.

In this case, the evidence is that Ms. Morrison has had three surgeries as a result of the accident and as a result, has various scars across her left forearm and small arthroscopic scars around her left shoulder.²² Ms. Morrison testified that she uses cocoa butter cream to reduce the prominence of the scars and a cortisone cream to reduce the itchiness. There is no evidence that these scars limit Ms. Morrison in her activities of daily living. I find it reasonable to conclude from the evidence that signs and symptoms of the scars are present and the use of cortisone for itchiness meets the intermittent treatment requirement. Given that the maximum that can be assigned under class 1 is 9%, I find a rating of 6% reasonable in the circumstance. Therefore, I assign a WPI of 6% to Ms. Morrison for skin.

Effects of Medication:

Under this category, Dr. Platnick assigned a WPI of 1% to Ms. Morrison for the effects of her medication. Dr. Becker on the other hand assigned a WPI of 1 – 3%. Page 9 of the Guides states that where medication is used to control signs and symptoms of an underlying condition that is likely to remain, an assessor may choose to increase the impairment percentage by 1 – 3%.

Ms. Morrison is currently on antidepressant medication, narcotics and a sleep aid. Some of the side effects of these medications include dizziness, nausea and vomiting. In fact, the nausea and vomiting became very apparent by the second day of the hearing to the point that I had to adjourn some of the proceedings at her request, earlier than scheduled. Given the seriousness of the effects of the medications on Ms. Morrison, I find a percentage of 3% reasonable in the circumstance.

Left Upper Extremity:

Under this category, Dr. Sangha assigned a WPI of 17% to Ms. Morrison. Dr. Platnick and Dr. Ali on the other hand assigned a WPI of 11%. On examination, Dr. Sangha noted a significant internal rotation impairment actively that was consistent on three attempts at the left shoulder. This led to an internal rotation impairment of 30 degrees on the left side and 90 degrees on the right side. Dr. Ali on the other hand, found no difference in the two hands.

The evidence is that Ms. Morrison sustained serious injuries to her left arm which resulted in two surgeries. Ms. Morrison testified that she continues to have pain and muscle weakness in her left shoulder. In addition, she is unable to hold up her arm except with support. She is able to raise up her left shoulder with pain. She continues to feel pain radiating down her left arm and is able to lift the arm half way up with pain.

Ms. Morrison submits that the difference in the observations of the two doctors could be due to the fact that at the time of Dr. Sangha’s assessment, Ms. Morrison was receiving rehabilitation treatment once a week as opposed to twice a week at the time of Dr. Ali’s assessment. I find it reasonable to accept this conclusion. It makes sense to conclude that because of her pain and the effect of treatment, her range of motion would vary on different days. I am persuaded by Ms. Morrison’s submission that a fair assessment of her range of motion should be taken on her worst day. I accept Ms. Morrison’s submission that taking this approach fosters the spirit of Desbiens v Mordini²³ where the Court emphasised that the legislature’s definition of catastrophic impairment is intended to be inclusive and to ensure that victims with the greatest health needs have access to expanded medical and rehabilitation benefits.

Therefore, I prefer Dr. Sangha’s WPI rating of 17%.

Conclusion on physical WPI rating:

Based on my conclusions above and the undisputed ratings with regards to Ms. Morrison’s other areas (Cervical and Lumbar Spine), Ms. Morrison’s WPI ratings are:


Effects of medication	3%
Skin	6%
Left Upper Extremity	17%
Cervical Spine	5%
Lumbar Spine	5%

Under the Guides, individual WPI’s are combined using the combined values chart at pages 322 to 324 of the Guides. In utilising the table to arrive at a WPI for Ms. Morrison’s physical impairments based on the percentages above, her WPI is 32%. Therefore, I assign a WPI of 32% to Ms. Morrison for her physical impairments.

Has Ms. Morrison suffered a catastrophic impairment under section 2 (1.2) (g) of the Schedule?

The Law:

Section 2 (1.2) (g) of the Schedule states that:

2(1.2) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 30, 2003 is,

(g) subject to subsections (1.4), (2.1) and (3), 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. O. Reg. 281/03, s. 1 (5).

Under Chapter 14, impairments are classified by utilizing the Classification of Impairments Due to Mental and Behavioural Disorders Table, at page 301 of the Guides. The classifications are as follows:

Class 1 – No impairment (No impairment is noted)

Class 2 – Mild impairment (Impairment levels are compatible with most useful functioning

Class 3 – Moderate impairment (Impairment levels are compatible with some but not all, useful functioning)

Class 4 – Marked Impairment (Impairment levels significantly impede useful functioning)

Class 5 – Extreme Impairment (Impairment levels preclude useful functioning)

Jurisprudence has established that an Applicant may reach the catastrophic threshold under Section 2(1.2)(g) of the Schedule, if the applicant is markedly impaired in at least one of four spheres.²⁴

The Catastrophic Assessments:

As indicated above, Ms. Morrison was assessed by two teams of professionals with regard to catastrophic impairment. Omega Medical Associates conducted one on her behalf and Custom Rehab conducted another assessment on behalf of State Farm. Dr. Davidson conducted a psychological catastrophic assessment for the Omega team and Dr. Luczak conducted a psychiatric assessment for the Custom Rehab team. Both doctors agreed that Ms. Morrison had suffered a Major Depressive Disorder as a result of the accident but differed as to the severity of the disorder. Dr. Davidson opined that Ms. Morrison suffers from a Major Depressive Disorder, Moderate to Severe, and opined that Ms. Morison presents with features of a post – traumatic stress disorder with no signs of a possible opioid abuse. She concluded that Ms. Morison suffers from a marked impairment in the area of adaptation and assigned a GAF²⁵ score of 41 – 50 which resulted in a 30 – 40% WPI.

On the other hand, Dr. Luczak opined that she suffers from Major Depressive Disorder, Recurrent, Mild to Moderate, a specific phobia (driving) and a possible opioid abuse. He concluded that Ms. Morrison suffers from a moderate impairment in the domain of adaptation and assigned a GAF score of 55 to her which resulted in a WPI of 20 – 25%.

Both doctors testified and were qualified as experts at the hearing. Overall, I prefer Dr. Davidson’s opinion and I accept her conclusion that Ms. Morrison suffers from a marked impairment in the area of adaptation. My reasons for arriving at this conclusion are set out below:

First, I prefer Dr. Davidson’s diagnosis of a Major Depressive Disorder, Moderate to severe. This is because it more accurately reflects Ms. Morrison’s psychological and physical symptoms and the impact of the accident on her. Unlike Dr. Luczak who appeared to underrate the psychological impact of the accident on Ms. Morrison because he concluded that Ms Morrison’s’ symptoms were magnified on test results and that it raised questions about her reliability and the validity of her problems. This opinion stands contrary to the opinion of several other assessors some of whom were Insurer Examiners.²⁶ Therefore, I cannot accept it. I find that Dr. Luczak’s belief of Ms. Morrison’s symptom magnification affected his overall conclusion of the seriousness of her impairment.

Second, Dr. Luczak did not have a complete pre and post – accident medical history of Ms. Morrison at the time of his assessment. This is a protocol recommended in the Guides at page 293. At the time of Dr. Luczak’s assessment, Ms. Morrison had been committed to St. Joseph’s Hospital, Mental Health Short Stay Unit²⁷ for five days and upon examination by John Dimou, a psychiatrist, Ms. Morrison was said to have symptoms consistent with a major depressive episode as a result of the accident. There was no mention of this report and several other reports²⁸ including the ambulance call report and Humber River Hospital Discharge Summary in Dr. Luczak’s initial assessment of July 6, 2012 and at the time of his addendum report of March 4, 2015.²⁹ Dr. Davidson, on the other hand, had all of these records at the time of her assessment. I find this significant because, the Guides state specifically that obtaining evidence over a sufficiently long period before the date of an examination is very important. Examples of these evidence include treatment notes, hospital discharge summaries, work evaluations and rehabilitation progress notes. Without these records, I am not convinced that Dr. Luczak was fully aware of Ms. Morrison’s pre-accident and post-accident psychological health before forming his opinion.

Third, Dr. Luczak questioned whether, aside from the accident, there were other contributing factors to Ms. Morrison’s state at the time of the assessment. Although there is evidence to suggest that Ms. Morrison had other stressors in her life such as a separation from her boyfriend, financial stress and estrangement from her children, there is no evidence to contradict Ms. Morrison’s testimony (which I accept) that these were all secondary to the accident. Several assessors opined that the accident was a contributing factor to her mental state.³⁰ More importantly, it is trite law that an Applicant need not prove that an accident is the sole cause of her injuries but that there has been a material contribution³¹. Therefore, I find that Dr. Luczak’s concern is not supported by the evidence and case law.

Fourth, Dr. Luczak diagnosed Ms. Morrison with possible opioid abuse which he opined in his report that her denial of a previous history of opioid dependence was contradicted in her medical file and that it raised questions about her reliability and the validity of her problems. Dr. Luczak appeared to rely on the opinion of Dr. Wendy Campbell³², an IE assessor in arriving at this conclusion. I am not convinced that these conclusions are supported by the evidence because, Ms. Morrison had a documented history of substance abuse denial in several reports such as the reports of Dr. Norkus³³, Dr. Dimou³⁴ and Dr. Driver³⁵. Under cross examination, it became apparent that neither Dr. Luczak nor Dr. Campbell had these reports at the time of their assessments. Dr. Davidson on the other hand, reviewed all of Ms. Morrison’s pre and post-accident records and arrived at the conclusion that albeit Ms. Morrison had been prescribed opioid pain medication post-accident, there was nothing in Ms. Morrison’s file to convince her of any abuse of it. Without a proper review of Ms. Morrison’s medical file, I cannot accept Dr. Luczak and Dr. Campbell’s conclusion. In the circumstance, I find Dr. Davidson’s conclusion more reliable and I accept her opinion that Ms. Morrison does not suffer from an opioid abuse or dependence.

Fifth, Dr. Davidson’s approach in arriving at her opinion was more compliant with the Guides protocol because it was more detailed and considered all the factors recommended by the Guides. Unlike Dr. Luczak, who took a too narrow approach. He only considered factors such as the fact that Ms. Morrison is independent at home, able to drive and keep appointments (these are two of many areas which the Guides recommend that an assessor takes into consideration under adaptation) and also that there were other contributing factors to her presentation. I find it pertinent to note at this juncture, that I found Ms. Morrison credible at the hearing and her evidence with regard to her symptoms was consistent with her reporting to various assessors. Therefore, I find Dr. Davidson’s conclusion more consistent with the Guides and the evidence.

Sixth, Dr. Davidson was more familiar with the Guides than Dr. Luczak. Dr. Davidson is certified by the American Board of Forensic Professionals in impairment and disability ratings based on the AMA Guidelines — Fourth Edition and aside from being qualified as an expert in the field of psychology, she was qualified with specific expertise in the area of catastrophic impairments, psychological evaluations based on the AMA Guides. Unlike Dr. Luczak whose qualifications were limited to the field of psychiatry. In addition, it is worth mentioning that State Farm did not cross examine Dr. Davidson’s evidence at the hearing. Therefore, her evidence stands uncontradicted. Albeit, I am under no obligation to accept Dr. Davidson’s testimony, given her wealth of experience, her greater expertise, her knowledge of Ms. Morrison’s medical history, her compliance with the Guides and the well-reasoned basis for her opinion, I prefer her opinion to Dr. Luczak’s. On this basis, I have given more weight to Dr. Davidson’s opinion.

Has Ms. Morrison suffered at least a marked impairment in the area of adaptation?

I find that Ms. Morrison has suffered a marked impairment in the area of adaptation.

Under chapter 14 of the Guides, this domain looks at an individual’s repeated failure to adapt to stressful circumstances by having difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stresses common to the workplace include attendance, making decisions, scheduling, completing tasks and interacting with supervisors and peers.

In making a determination on whether Ms. Morrison has suffered a marked impairment in the area of adaptation, I have taken into consideration Ms. Morrison’s pre and post - accident functionality, the medical evidence adduced and Ms. Morrison’s ability to adapt to stressful circumstances.

Pre – Accident functionality:

Ms. Morrison is a mother of six children who immigrated to Canada from Jamaica in 1987. Prior to the accident, Ms. Morrison lived with five of her children and worked 35 to 40 hours on weekends as a Personal Support Worker (PSW) and attended nursing school on a full time basis during the week. Ms. Morrison reportedly struggled with her academics initially and as a result failed some courses but as Dr. Davidson puts it in her report: “she persisted and ultimately passed”.

At the time of the accident, she was in her final semester of study.

There is no evidence that any of Ms. Morrison’s pre accident health issues impacted on her functionality.

Ms. Morrison had a boyfriend who lived with her and five of her children at the time of the accident.

Post-Accident Functionality:

Since the accident, Ms. Morrison has stopped working and schooling because of her pain, depression and lack of drive. She has made two trips; one to Cuba for a period of 8 days in 2009 and another, to Jamaica between 2011 and 2012 for three weeks. Her relationship with her boyfriend has broken down. It was Ms. Morrison’s testimony that this was because it lacked physical intimacy on account of her pain. This testimony is corroborated by her reporting to Dr. El—Hague as stated in his report dated June 6, 2008.³⁶ Dr. Pilowski, Ms. Morrison’s treating psychologist also testified on her behalf that the separation from her boyfriend was a compounding stressor arising from the accident.

Ms. Morrison’s daughter, Grace–Anne, testified that she moved out of Ms. Morrison’s house after the accident because, she could no longer handle her mother’s irritability and sadness after the accident. Her boyfriend and two of her children also moved out of the house.

Ms. Morrison is able to drive and is independent with self-care. She feels sad, useless and worthless most of the time and wishes she had died in the accident. Two days per week, she spends most of the day indoors.

Analysis:

In taking a close look at page 294 of the Guides, I find that it is important to consider an individual’s overall ability to:

adapt to stressful circumstances by having difficulty maintaining activities of daily living, continuing social relationships and completing tasks

Activities of daily living include self-care, personal hygiene, , communication, travel, sexual function, sleep and social and recreational activities.

Some of the more specific evidence includes:

i. Self Care

Ms. Morrison is independent in self-care. She reported this to several assessors.

ii. Personal Hygiene

Ms. Morrison reported to Dr. Davidson that she has less interest in dressing up and wearing make-up. Ms. Stacey Babolous’(Occupational Therapist) ³⁷ who conducted a three day situational assessment on Ms. Morrison in her report dated March 3, 2015, noted that by day three of the assessment, Ms. Morrison arrived in the same clothes she had been wearing from day one and she noted a slight odour. This in my view confirms her reporting to Dr. Davidson that she has less interest in dressing.

iii. Communication

Ms. Morrison is able to communicate but sometimes experiences word finding difficulty.

iv. Ambulation and Travel

Ms. Morrison is able to drive locally.

v. Sexual Function

Her relationship with her boyfriend broke down in part because of a lack of intimacy on account of her pain.

vi. Sleep

Ms. Morrison experiences significant sleep disturbance and gets only two hours of sleep on some nights.

vii. Social and Recreational Activities

Ms. Morrison no longer attends church regularly and does not engage in her pre accident activities such as attending movies and having dinner and coffee with friends because of her pain, lack of motivation and interest. Three of her children moved out of her house after the accident because they could no longer handle her irritability and her relationship with her boyfriend of four years prior to the accident has broken down.

Other areas to be considered when considering an individual’s failure to adapt to stressful circumstances include:

viii. Withdrawal from the situation and exacerbation of signs and symptoms of a mental disorder:

Ms. Morrison spends most of her day in bed two days per week and wishes she had died in the accident. Dr. Davidson opined that Ms. Morrison demonstrates a pattern of withdrawal. State Farm put Ms. Morrison under surveillance for a period of twenty four hours over a period of five days in 2014 and eight days in 2015. The total duration of the videos was thirteen minutes out of the five days in 2014 and three out of the eight days in 2015. Nothing in the videos contradict Ms. Morrison’s testimony that she is unable to do her household tasks or that on most days, she is indoors doing nothing.

ix. Attendance, Making Decisions, Scheduling, Completing Tasks and Interacting with Supervisors and Peers:

Ms. Morrison reportedly missed several of her psychotherapy sessions because she had no motivation. Dr. Davidson opined that the synergistic impact of depression, anxiety, irritability, post traumatic symptoms, pain disorder, sleep disturbance and fatigue will result in an inability for Ms. Morrison to consistently and effectively engage in these tasks. She further opined that Ms. Morrison does not present with the ability to carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, complete a normal work day/work week without interruptions from psychologically based symptoms or perform at a consistent pace without an unreasonable number of and unreasonably long rest period.

Ms. Morrison submits that prior to the accident, she was able to manage her life despite the stressors she had. She maintained a full time job, kept a relationship with her boyfriend and took care of her children. To her credit, she was enrolled in school full time to become a nurse. This in my view, suggests that Ms. Morrison was a hardworking, very functional, independent and goal driven. However, since the accident, she has lost her independence and has become unable to manage her life.

Based on the evidence, I find that Ms. Morrison’s mental and behavioural impairment as a result of the accident significantly impedes her useful function. Therefore, I conclude that Ms. Morrison has suffered a marked impairment in the area of adaptation.

Assigning a WPI for Mental Impairment

As stated earlier, Jurisprudence has established that an Applicant may reach the catastrophic threshold under Section 2(1.2)(g) of the Schedule, if the applicant is markedly impaired in at least one of four spheres.³⁸ Having found Ms. Morrison to be marked impaired in the area of adaptation, I do not find it necessary to assign a WPI for her mental impairments.

Is Ms. Morrison entitled to weekly income replacement benefits in the amount of $302.73 from July 3, 2013 and ongoing?

Section 4(b) of the Schedule states that an Insurer is not required to pay Income Replacement Benefits beyond 104 weeks after the accident unless an Applicant suffers a complete inability to engage in any employment for which he or she is suited for by reason of his or her education, training, or experience.

Ms. Morrison’s position is that she suffers a complete inability to engage in any employment for which she is suited for by reason of her education, training or experience. State Farm’s position is that Ms. Morrison does not suffer from a complete inability to engage in any employment for which she is suited for by reason of her education, training or experience.

I find that Ms. Morrison meets the test for entitlement to income replacement benefits beyond 104 weeks which is, that she is completely unable to engage in any employment for which she is suited by reason of her education, training or experience.

EVIDENCE AND ANALYSIS

Prior to the accident, Ms. Morrison had worked at various points as a seamstress, bus driver, commercial cleaner and personal support worker. With regard to her education, she completed up to Grade Eleven in Jamaica and obtained a high school diploma after immigrating to Canada. At the time of the accident, she was enrolled as a fulltime student at George Brown College in the Nursing Program and was in her final year of study when the accident occurred. She subsequently stopped school due to fatigue and pain.

State Farm paid Ms. Morrison income replacement benefits up to July 3, 2013 and terminated the benefits on the basis of a Vocational Evaluation and Transferable Skills Analysis and Labour Market Report dated May 4, 2010 authored by Francois Paradis, and David Cohen, and a Transferable Skills Analysis report dated February 2, 2012.³⁹ The reports concluded that by reason of her education, training or experience, Ms. Morrison was reasonably suited to work at a gas bar, as a box office cashier, a telemarketer, a retail sales person and as a parking lot and garage attendant.

I am not persuaded that in making these recommendations, the assessors have taken into account Ms. Morrison’s physical and psychological limitations as a result of the accident and the effects of her medication. It was Ms. Morrison’s testimony that she is in constant pain for which she takes pain medication and because of the side effects of the medication which are nausea, vomiting and headaches, it had become a cycle for her. She is as a result sometimes left to choose between staying in bed all day and dealing with the pain or dealing with the side effects of her medication. I accept her evidence.

Ms. Morrison complained of ongoing pain to her neck, left arm and lower back at several assessments. She also reported feeling dizzy and nauseous on several occasions. This nausea, is consistent with her presentation during the hearing and it was in her testimony that it was one of the side effects of her medication. On the second day of the hearing, Ms. Morrison vomited several times to the point that I had to adjourn proceedings for the day at her request. I am not convinced that Ms. Morrison can survive in a work- like environment doing any of the jobs recommended by the assessors given the extent of her pain and the effects of her medication. At the hearing, she changed positions several times and to accommodate her, I granted several short breaks. Most of the jobs recommended by the assessors require sitting for long periods of time and standing. I find that they are not suitable for Ms. Morrison given her physical restrictions.

The jobs also require interaction with individuals. In Mr. Paradis’ report, he notes that Ms. Morrison has acquired interpersonal skills from doing her pre–accident job of a personal support worker and those skills would be an asset in doing the jobs recommended. While I agree that she may have acquired these skills, I find that the evidence does not support Mr. Paradis’ optimism. At the time of Dr. Davidson’s assessment, Ms. Morrison was spending a lot of days in bed and she continued to suffer from depression, anxiety, irritability, post – traumatic symptoms, pain disorder, sleep disturbance, fatigue and the side effects of her medication. I find this opinion sufficient to establish that Ms. Morrison will be unable to interact with individuals in a regular work setting.

I am further persuaded by Ms. Stacey Babolous’⁴⁰ report dated March 3, 2015, where she chronicled her observations over the course of a three day situational assessment conducted on Ms. Morrison from February 17 to 19, 2015. Ms. Babolous noted that Ms. Morrison was tested for a number of job related tasks including telemarketing tasks and sedentary desk jobs. Ms. Babolous noted that by the second day of the test, Ms. Morrison’s participation was limited secondary to her feeling nauseous as a result of taking her medication. By day three, Ms. Babolous noted that Ms. Morrison arrived in the same clothes she had worn over the last two days and had a slight odour. Ms. Morrison reported pain in her left shoulder and arm.

I find that Ms. Morrison’s ongoing complaints of pain continues to prevent her from returning to any kind of job.

Francois Paradis and David Cohen reported that computer skills, short term administrative/ customer service vocational training would help to increase Ms. Morrison’s employability in the jobs recommended. I reject their opinion. It cannot be correct in this case especially with Ms. Morrison reporting to Mr. Paradis and Mr. Cohen that reading increases her fatigue, dizziness and nausea. Dr. Davidson opined that the side effects of Ms. Morrison’s medication would prevent her from performing in a work- like setting. I accept this opinion and I find that the same can be said of the training and learning environment proposed by Mr. Paradis and Mr. Cohen.

State Farm filed Ms. Morrison’s income tax returns for 2009, 2010, 2011 and 2012⁴¹ which show other employment income of $6000.00 and above in each year as evidence that Ms. Morrison has worked since the accident. There is no evidence of what the other employment was. I am not convinced that this evidence establishes that Ms. Morrison is able to do any work for which she is reasonable suited by reason of her education, training or experience or that the income reported above is comparable to her pre–accident income.

I find that based on her physical and psychological constraints, the limits of her training and education and the effects of her medication, Ms. Morrison is not able to perform any job for which she has the education, training and experience. Therefore that Ms Morrison is entitled to payments for weekly income replacement benefit from July 3, 2013.

ATTENDANT CARE BENEFITS:

Two disputes arose under this issue: the amount payable for attendant care before the 104 week period and the amount payable after the 104 week mark.

What is the quantum of attendant care benefits payable to Ms. Morrison before 104 weeks:

Under the Schedule, an insured person is required to submit an Application for Attendant Care Benefits to the Insurer in the form of a Form 1. This form must be prepared by a health professional authorised by law to treat the person’s impairment.

Ms. Morrison received attendant care benefits from State Farm for the first two years of the accident. Ms. Morrison disputes the amounts of attendant care paid to her by State Farm during this period. I find that all the amounts paid are reasonable except for the period of January 13, 2009 to March 27, 2009. My reasons for this finding are set out below.

On January 7, 2009, Ms. Morrison underwent a surgical procedure at Humber River Regional Hospital to remove hardware from her left forearm.⁴² Dr. Palmer, Ms. Morrison’s treating chiropractor, completed a Form 1 dated January 13, 2009⁴³ on her behalf and recommended 212.86 hours per month of level 1 attendant care,⁴⁴ 41.57 hours per month of level 2 attendant care⁴⁵ and 67.73 hours of level 3 attendant care⁴⁶ per month for a total monthly rate of $3940.54. At this time, State Farm continued to pay Ms. Morrison attendant care benefits at the rate of $507.33 based on an Occupational Therapy In-Home Assessment report by Johanna Harding dated December 18, 2008,⁴⁷ a few weeks before the surgery. There were no further assessments until March 27, 2009, about three months after the surgery when Rudo Adams, Occupational Therapist⁴⁸ conducted an In Home assessment on Ms. Morrison. In his report, in response to the question:

“Do you agree with the Assessment of Attendant Care Needs Form 1 dated 01/13/2009 as being reasonable and necessary?”.

Mr. Adams responds:

“Although I did not conduct the assessment on 01/13/2009, it is possible that the claimant required attendant care assistance at that time.

Without a prompt assessment of Ms. Morrison’s attendant care needs at the acute stage of her recovery from the January 7^th surgery, I cannot accept that the amounts paid by State Farm to her at that time were reasonable. In the circumstance, I prefer Dr. Palmer’s Form 1 and I find entitlement to attendant care up to the allowable maximum of $3,000.00 per month for the pre- 104 week, from January 13, 2009 to March 27, 2009 less any amounts paid by State Farm during this period.

Post 104 Entitlement:

I find that Ms. Morrison is entitled to post 104 attendant care benefits from the 104 week from February 5, 2010 to May 18, 2011 at a rate of $780.82 per month.

Albeit, I have found Ms. Morrison to be catastrophically impaired, this does not automatically qualify her for attendant care benefits. A catastrophic designation is only a gateway for an applicant to have access to enhanced benefits. Therefore, In this case, Ms. Morrison must establish that attendant care is reasonable and necessary. Under the Schedule, an insured is required to submit an application for attendant care benefits to the Insurer in the form of a Form 1. This form must be prepared by a health professional authorised by law to treat the person’s impairment.

State Farm terminated payments of attendant care to Ms. Morrison on February 5, 2010 at a rate of $780.82 per month because it took the position that Ms. Morrison did not suffer a catastrophic impairment as a result of the accident. Between January 14, 2010 and December 10, 2014 - a period of about four years, there were no Form 1’s filled on Ms. Morrison’s behalf until December 10, 2014. During this period, Ms. Morrison was involved in a second accident and made a trip to Jamaica for three weeks. It was Ms. Morrison’s testimony that she required attendant care services while she was in Jamaica and these services were provided by family members and that she still requires attendant care services.

Her daughter, Grace-Anne testified, on her behalf, that she helps Ms. Morrison with doing her nails, make-up and hair.

Ms. Morrison reported to several assessors (some of whom assessed her on behalf of Allstate, her Insurer for the subsequent accident) at various times that she was independent with her self-care tasks.⁴⁹ Doctors Luczak and Davidson noted in their reports that Ms. Morrison was independent with her self-care tasks. .Although Ms. Morrison submitted receipts to State Farm during this period for attendant care services⁵⁰, the receipts only check off attendant care tasks such as hair, nails grooming and make up. There is no indication of the amount of time spent on these tasks or how often they were provided to Ms. Morrison. Therefore, I give no weight to the receipts.

I find that attendant care services were reasonable and necessary for Ms. Morrison at the rate of State Farm’s last Form 1 being $780.82 from the date of termination until May 18, 2011 at which time Ms. Morrison started reporting to assessors that she was independent with her self-care tasks.

HOUSEKEEPING AND HOME MAINTENANCE SERVICES:

Law:

Section 22 of the Schedule states that:

The Insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she performed before the accident.

EVIDENCE AND ANALYSIS:

State Farm paid Ms. Morrison housekeeping and home maintenance expenses for two years following the accident and then terminated the benefits on the basis of its position that Ms. Morrison did not suffer a catastrophic impairment as a result of the accident.

As indicated above, a finding that an individual has suffered a catastrophic impairment does not automatically entitle him or her to payments for housekeeping and home maintenance expenses beyond the two year anniversary of the accident. The individual must continue to meet the legal tests for entitlement to housekeeping and home maintenance expenses.

Dr. Matthews, Ms. Morrison’s family Doctor in a report dated February 18, 2010⁵¹ stated that Ms. Morrison is prevented from performing her daily activities because of her disability.

Jag Dhirayain, an occupational therapist conducted an In Home assessment on Ms. Morrison’s behalf on December 10, 2014⁵² and concluded that Ms. Morrison requires sixteen hours of housekeeping assistance per week.

Several assessors reported that Ms. Morrison was not able to perform heavier housekeeping tasks following the accident. It was Ms. Morrison’s and Grace- Anne’s testimony that Grace -Anne assists Ms. Morrison with cooking, cleaning, laundry, vacuuming and shovelling the driveway and that even after she moved out of the house, she continued to assist Ms. Morrison with her housekeeping tasks.

Given Ms. Morrison’s ongoing complains of pain to her left upper extremity, left hips and left knee as a result of the accident, I am persuaded that Ms. Morrison continues to meet the substantial inability test post the 104 mark.

Ms. Morrison submitted various OCF 6’s⁵³ for a five year period from the date of the accident which indicate that Grace Anne provided housekeeping assistance to Ms. Morrison, in areas such as laundry, snow removal, cooking and bed making. I give little weight to the receipts because they all look identical and cover periods for which Ms. Morrison was away in Cuba and Jamaica. I am however persuaded that Ms. Morrison requires some housekeeping assistance beyond the 2 year mark and ongoing. Therefore, I find 16 hours reasonable and I find an amount of $50 per week reasonable from the date of termination and ongoing.

MEDICAL BENEFITS:

Procedural Issues:

At the outset of the hearing, I asked for a clarification of the issues in dispute from the parties. Counsel for Ms. Morrison was not able to identify the specific treatment plans in dispute but rather, gave a general outstanding balance with the treating facility. I informed her that prior to hearing any evidence on the issues, she would have to identify what specific treatment plans were in dispute. By the second day of the hearing, she was able to identify some of the treatment plans and noted that Dr. Palmer, who was her treating chiropractor, would be able to assist with clarifying what treatment plans had been paid for by State Farm. Dr. Palmer, testified on Ms. Morrison’s behalf and his evidence spoke to some of the treatment plans in dispute. Upon filing submissions, I note in Ms. Morrison’s submissions that the outstanding balance has changed. Therefore, in making a determination on the reasonableness and necessity of the treatment plans in dispute, I am mindful of the fact that evidence was only presented at the hearing regarding some of the treatment plans identified by Ms. Morrison.

Is the treatment plan dated September 12, 2008 for active rehabilitation, chiropractic care, massage therapy and transportation in the amount of $3,998.75 reasonable and necessary?

There was no evidence presented at the hearing to convince me that this treatment plan is reasonable and necessary.

Is the treatment plan dated June 7, 2011 for functional restoration, proprioceptive neuromuscular stretching in the amount of $3,152.08 reasonable and necessary?

This treatment was submitted by Dr. Palmer on Ms. Morrison’s behalf. State Farm denied this treatment plan on the basis of a chiropractic Insurer Examination conducted by Dr. Steve Balsky on January 30, 2012.⁵⁴ Dr. Palmer testified that the treatment plan was necessary because the treatment provided temporary relief of Ms. Morrison’s symptoms to her. Dr. Balsky concluded that Ms. Morrison presented with chronic residual physical impairments as a direct result of the accident. Dr. Balsky opined further that Ms. Morrison has achieved maximum medical recovery with respect to the injuries she sustained in the accident from the perspective of physical rehabilitation. Dr. Balsky opined that it was admirable that a purely active approach was being proposed by the treatment plan. However, based on the fact that Ms. Morrison had been educated on a self-directed exercise program, there would be no need for further facility based programs. He concluded that the treatment plan was not reasonable and necessary.

Dr. Palmer testified that Ms. Morrison was unable do home exercise programs on her own because she was afraid of getting injured. He testified further that Ms. Morrison requires structure and motivation.

Arbitral jurisprudence⁵⁵ has established that pain relief, in and of itself can, in some circumstances, be a legitimate medical and rehabilitative goal, and therefore can be reasonable and necessary, even if it does not promote recovery. It was Ms. Morrison’s testimony that she was not motivated to do her exercises at home because there was no one to show her what to do and she did not want to take the risk of getting reinjured.

I am persuaded that the treatment plan is necessary to provide programs for pain relief to Ms. Morrison. I am further persuaded by Dr. Palmer’s opinion that Ms. Morrison requires structure and motivation to do her exercise programs. Therefore, I find that the treatment plan dated June 7, 2011 for functional restoration, proprioceptive neuromuscular stretching in the amount of $3152.08 reasonable and necessary.

Is the treatment plan dated July 16, 2012 for chronic pain treatment in the amount of $4509.73 reasonable and necessary?

This treatment plan⁵⁶ was submitted by Dr. Palmer on Ms. Morrison’s behalf. Dr. Pervez Ali⁵⁷ , an orthopedic surgeon did a review of the treatment plan on behalf of State Farm in order to determine whether the treatment plan is reasonable and necessary. Dr. Ali concluded in his report that based on his paper review and previous assessments, the treatment plan was not reasonable and necessary.

Given Ms. Morrison’s history of chronic pain, I find that this treatment for chronic pain will be beneficial to her. Therefore, I find that the treatment plan is reasonable and necessary.

Are the treatment plans dated February 11, 2008 and April 28, 2008 in the amounts of $2700.00 and $450.00 payable?

Dr. Palmer submitted the treatment plans⁵⁸ on Ms. Morrison’s behalf. The treatment plan includes several proposed goods and services totalling $6837.51. State Farm paid medical portion of the treatment plan in full except for the transportation portion of $2700.00 because it took the position that Ms. Morrison was not catastrophically impaired. Therefore, Ms. Morrison is not entitled to reimbursement for her transportation expenses because she lives within fifty kilometers of the treatment facility.

Section 14(6) of the Schedule states that an insurer is not liable to pay for a medical benefit for expenses related to the first fifty kilometers of transportation to and from a treatment session if the insured has not suffered a catastrophic impairment as a result of the accident.

There is no dispute that Ms. Morrison lives within fifty kilometers of the treatment facility. The treatment plans are both dated at time periods when Ms. Morrison would have been at the acute stages of her injuries. Therefore, having found that Ms. Morrison has suffered a catastrophic impairment as a result of the accident, I find that the treatment plans are payable.

Is the cost of an In Home assessment in the amount of $1868.24 dated March 20, 2010 reasonable and necessary?

There was no evidence at the hearing to convince me that this treatment plan is reasonable and necessary.

SPECIAL AWARD:

Ms. Morrison submits that a special award is payable to her on all outstanding benefits. State Farm’s position is that the evidence presented at the hearing does support such a claim.

I find that a special award is payable only on the pre-104 week attendant care payments awarded.

Section 282(10) of the Insurance Act states as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Unreasonably Withheld or Delayed Payments:

State Farm’s reason for the nonpayment of most of the benefits was because it took the position that Ms. Morrison did not suffer from a catastrophic impairment as a result of the accident. State Farm relied on the opinion of its assessors in making this determination. I find that State Farm was entitled to rely on the opinion of its assessors in making such a determination. Although I do not approve of the fact that the IE assessors did not have Ms. Morrion’s complete pre and post-accident records, I am not convinced however that Dr. Luczak’s opinion that Ms. Morrison did not suffer from a marked impairment would have changed because the bottom line of his reason for forming that opinion was because Ms. Morrison is independent with self-care and able to drive. Therefore, I do not find State Farm’s decision not to pay benefits beyond the 104 week unreasonable.

Pre 104 Week Attendant Care:

I find that a special award is payable on this benefit. Subsequent to her surgery, Ms. Morrison submitted a further form 1 outlining the need for more attendant care services but at a rate of over $3000.00 which is the maximum allowed for non-catastrophic cases under the Schedule. State Farm did not have the Form 1 addressed or reviewed until three months later and its assessor concluded that there might have been a need to provide attendant care services based on the Form 1. I see no reason why the payment of this benefit was delayed. I find that State Farm’s failure to assess Ms. Morrison promptly after the surgery amounted to an unreasonable delay of payment of benefits. I find that a Special Award is payable on the difference between the payments made and my award at a rate of 20%. I have not attempted to do the calculations. Therefore the parties are encouraged to do it on their own.

EXPENSES:

There were no submissions on expenses. This issue will be dealt with in accordance with Rule 75 of the Dispute Resolution Practice Code.

February 4, 2016

Isoken Osunde Arbitrator

Date