Amanda McCready v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 128

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

Neutral Citation: 2017 ONFSCDRS 128

FSCO A15-006980

BETWEEN:

AMANDA McCREADY

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Jeff Musson

Heard:

In person at ADR Chambers on January 9, 10, 11, 12 & 13, 2017 and February 1, 2 & 3, 2017 and by written submissions due March 3, 2017

Appearances:

Ms. Supriya Sharma, Lawyer, and Ms. Iman Ahsan, Articling Student, participated for Ms. Amanda McCready

Mr. Jonathan Schrieder, Lawyer, participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Amanda McCready, was injured in a motor vehicle accident (“MVA”) on March 26, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. McCready, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Arbitration Hearing are:

1. Are Ms. McCready’s injuries considered to be Catastrophic (“CAT”) in nature?

2. Is Ms. McCready entitled to Attendant Care Benefits from December 22, 2013 to September 22, 2015 at the rate of $411.58 per month, and from September 23, 2015 to date and on-going at the rate of $2,378.68 per month?

3. Is Ms. McCready entitled to Medical Benefits in the following amounts:

i) $2,405.20 for services provided by Options Therapy, dated March 24, 2015;

ii) $2,497.50 for services provided by Stevenson Chiropractic, dated January 15, 2014;

iii) $251.82 for services provided by NKS Health, dated January 5, 2015; and

iv) $507.14 for transportation expenses, dated February 1, 2015?

4. Is Ms. McCready entitled to Cost of Assessments in the following amounts:

i) $1,511.40 per OCF- 18 by FunctionAbility Rehabilitation, dated September 29, 2015;

ii) $5,747.64 per OCF-18 by FunctionAbility Rehabilitation, dated September 29, 2015; and

iii) $2,200.00 per OCF-18 by Omega Medical, dated July 20, 2015?

5. Is Ms. McCready entitled to a Special Award?

6. Is Ms. McCready entitled to interest for the overdue payment of benefits?

7. Is either party liable to pay expenses in respect of the Arbitration Hearing?

Result:

1. Ms. McCready’s injuries are not considered to be CAT in nature.

2. Ms. McCready is not entitled to Attendant Care Benefits from December 22, 2013 to September 22, 2015 at the rate of $411.58 per month, and from September 23, 2015 to date and on-going at the rate of $2,378.68 per month.

3. Ms. McCready is not entitled to Medical Benefits in the following amounts:

i) $2,405.20 for services provided by Options Therapy, dated March 24, 2015;

ii) $2,497.50 for services provided by Stevenson Chiropractic, dated January 15, 2014;

iii) $251.82 for services provided by NKS Health, dated January 5, 2015; and

iv) $507.14 for transportation expenses, dated February 1, 2015.

4. Ms. McCready is not entitled to Cost of Assessments in the following amounts:

i) $1,511.40 per OCF- 18 by FunctionAbility Rehabilitation, dated September 29, 2015;

ii) $5,747.64 per OCF-18 by FunctionAbility Rehabilitation, dated September 29, 2015; and

iii) $2,200.00 per OCF-18 by Omega Medical, dated July 20, 2015.

5. Ms. McCready is not entitled to a Special Award.

6. Ms. McCready is not entitled to interest for the overdue payment of benefits.

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

MOTION #1: January 9, 2017

On the first day of the Hearing, the Applicant brought forward a Motion requesting that the surveillance submitted by the Insurer not be allowed to be entered into evidence. The Applicant had requested the Insurer provide her with a copy of the entire surveillance footage prior to the Hearing, but the Insurer did not comply with this request. For this reason, the Applicant requested that the edited surveillance not be allowed to be entered into evidence.

The Insurer stated it had no further surveillance than what was already produced. However, the surveillance was served to the Applicant within the 30 day time frame as per the DRPC. Therefore, the Insurer objected to the Applicant’s Motion to prevent surveillance of the Applicant from being submitted at the Hearing.

RULING

I had no reason to believe that the Insurer was not being truthful when it stated it had produced all surveillance in its possession. If the Applicant believed there was some surveillance footage missing, she could have subpoenaed the investigators who conducted the surveillance, but did not. Both parties confirmed that the surveillance that was produced to the Applicant complied with Rule 40 in the DRPC. Therefore, I allowed the surveillance to be entered into evidence at the Hearing. The Applicant’s Motion was denied.

MOTION #2: February 1, 2017

The Applicant put forward a Motion to include updated Clinical Notes and Records (“CNRs”) at the Hearing, in addition to updated OHIP and prescription summaries. The Insurer objected to these updated CNRs, OHIP and prescription summaries being added into evidence. The Insurer took the position that the Applicant wanting to submit updated documents mid-Hearing did not comply with the rules in the DRPC as they relate to document production.

RULING

I agreed with the Insurer’s position and I ruled that the Applicant could not enter these updated CNRs, OHIP and prescription summaries into evidence because it did not comply with Rule 32 in the DRPC, as it relates to document production. Further, some of the updated CNRs were related to the witnesses who had already completed their testimony. The Applicant’s motion was denied.

EVIDENCE AND ANALYSIS:

BACKGROUND

The Applicant is divorced and has a daughter. On March 26, 2011, the Applicant was involved in a MVA with a police car on Highway 403 in Hamilton. Her vehicle was overturned as a result of the collision, and the Jaws of Life were required to extricate her from the vehicle. The Applicant was transported to the hospital by ambulance and after a thorough examination, including x-rays, she was discharged later that same day. During the hospital exam and afterwards, the Applicant said she experienced pain in her neck, shoulders and back. She was instructed to schedule a follow-up visit with her family doctor, Dr. Koole. The Applicant visited with her family doctor, the Tuesday morning following the MVA (March 29, 2011), where she obtained a referral to a physiotherapist and was prescribed medication.² She received physiotherapy treatment for soft tissue injuries beginning in April 2011 until August 2011. After her family doctor appointment, the Applicant returned to work 5 days after the MVA.

Approximately 2 years and 9 months later, on December 22, 2013, the Applicant was in the shower at her home when she doubled over in pain. Her back had seized up when she bent over and was unable to move without assistance. The Applicant scheduled an emergency appointment with her family doctor and sought treatment for her injuries.

Eventually, on July 20, 2015 the Applicant proceeded to submit an OCF-19 - Determination of Catastrophic Impairment Form claiming entitlement from her MVA 4 years and 4 months prior.³ The Applicant asserts she has a whole person impairment (“WPI”) of 41%-53%. The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (“AMA Guides”) allows that a score of 53% may be rounded to 55% (the nearest whole percent ending in 0 or 5), thereby establishing that her injuries from the MVA were CAT in nature. Prior case law has also endorsed that WPI scores may be rounded up to the nearest whole percent ending in 0 or 5.⁴

DECISION

Ms. Amanda McCready, The Applicant

The Applicant testified that this MVA has affected her personal relationships with her daughter and fiancé. The evidence presented at the Hearing showed that the Applicant suffered from some pre-existing medical conditions prior to the MVA, but it was mostly noted as being unremarkable. In 2006, the Applicant’s mother passed away after an illness and the Applicant testified that she had trouble dealing with the situation. She was also in an abusive relationship with her husband whom she subsequently separated from and eventually divorced. These are traumatic experiences, but for the purposes of this Hearing, they bear little weight.

Regarding the MVA, the Applicant testified that she did not suffer any fractures; however, she had bruising and soft tissue injuries. The Applicant confirmed that immediately following the MVA, she experienced pain on the left side of her body including her left arm and hip. She also testified that she has ongoing injuries which now include severe left shoulder, neck and left hip pain.

At the time of the MVA, the Applicant worked as a Dietary Aid, preparing food and cleaning up after meals for residents at a long-term care facility. The Applicant confirmed that she returned to her Dietary Aid job 5 days after the MVA. She testified that she needed the money, so she had to return to her job. Approximately 1.5 years after the MVA, the Applicant decided to return to school in order to upgrade her employment to a more physically demanding job as a Personal Support Worker (PSW). In September 2012, she enrolled in a level 1 college program to pursue a PSW diploma.⁵

The Applicant testified that she and her family doctor, Dr. Koole, filled out the mandatory medical forms for her to enroll in the college-level PSW program. The forms specifically asked about the Applicant’s ability to handle the physical aspects of being a PSW. On these forms, the Applicant and her family doctor indicated that she had the capacity to fulfill the physical demands of a PSW.⁶ When cross-examined as to the validity of the answers on these forms, the Applicant stated that she had lied and said whatever she could to get into the PSW program. The Applicant testified that even though she said at the time on the forms that she was physically recovered from the MVA, the reality for her was that she did not have the physical capacity required of a PSW, in her opinion.

The Applicant continued to work at the long-term care facility for 1 year and 10 months after the MVA, with only sporadic days off. In January 2013, the Applicant testified that she took time off work to complete her school work related to her PSW certification and focus on her responsibilities related to being a mother. The Applicant graduated from the PSW program with honours in May 2013.

She testified that a PSW was a more physically demanding career than a Dietary Aid. The Applicant worked 4-hour shifts from May 2013 to July 2013. From July 2013 until December 2013, she worked full-time at the same long-term care facility where she previously worked as a Dietary Aid. Her last day of work was December 22, 2013. She testified that she has not returned to work since.

The Applicant testified that on December 22, 2013, while in the shower, her back seized when she bent over. She could not move without assistance because of the pain and immediately sought medical attention. The pain was intense for 4 days afterwards and she has never recovered. In an Affidavit, signed June 27, 2016, the Applicant stated that her life changed “definitively” during the December 2013 holidays. She now suffers from debilitating back, neck and shoulder pain.⁷

Since the shower incident of December 22, 2013, the Applicant testified she leads a sedentary lifestyle. She no longer works and instead sleeps all day. She hired a cleaning lady and relies on friends and family for grocery shopping. Her typical day since the incident consists of waking up at 6:30 a.m. She takes her daughter to school and then comes home to sleep. On good days, she will take the dog for a 15-minute walk. Occasionally, she will drive her daughter to her various extracurricular activities, such as swimming and music lessons.

Under cross-examination, the Insurer entered into evidence documents that the Applicant submitted after the incident in the shower in December 2013. In these documents, the Applicant never mentioned the MVA. She only referenced the incident in the shower. The Applicant confirmed that she was the person who filled out these documents, which included her Employment Insurance (“EI”) Benefits Application and her chiropractic intake questionnaire.

She received EI Benefits from December 2013 until April 2014 and then began receiving welfare benefits. In order to apply to receive EI Benefits, the Applicant had to disclose if she had been involved in a MVA. When asked on the EI Benefits questionnaire if she was applying for EI Benefits because of a MVA, the Applicant denied it.⁸ When the Insurer’s Counsel asked the Applicant under cross-examination if she misled Service Canada with her EI Benefits Application, or was she in fact fully recovered from the MVA, she said yes, she misled Service Canada because she was still injured from the MVA.

While still under cross-examination, the Insurer asked the Applicant if she went for treatment at Stevenson Chiropractic on December 30, 2013. The Applicant stated that she in fact did attend the clinic on December 20, 2013 for treatment and because it was her first visit, she had to fill out an intake form. The Insurer entered into evidence the form that the Applicant filled out where she stated that she required treatment for middle and upper back issues. On the questionnaire, the Applicant answered that it was “yesterday” that her back pain issues appeared.⁹ When asked by the Insurer if this was the truth, she testified that no it was not the truth and it was in fact another lie she told.

The Insurer entered into evidence the Applicant’s social media accounts.¹⁰ The Applicant confirmed it was her seen in the pictures. The pictures showed the Applicant out and about doing various activities which exceeded the physical and psychological limitations that the Applicant testified that she suffered from as a result of the MVA. When the Applicant was asked to explain this, she said she couldn’t.

The Insurer entered into evidence surveillance of the Applicant, which was taken on numerous occasions. It recorded and showed the Applicant at various locations going about her daily routine with little difficulty. The surveillance showed the Applicant filling up her truck with gas, carrying and lifting a large bag of dog food into her vehicle and watering her plants, which entailed carrying water. In a final scene of surveillance footage, the Applicant is observed jogging across the street and walking the dog.¹¹ This surveillance was conducted after December 22, 2013. The Insurer, under cross-examination, asked the Applicant to confirm that in fact it was her in the surveillance. The Applicant testified that it was her. The Insurer also asked the Applicant to explain how she was able to do all of these activities she was recorded doing on surveillance and yet testify that these activities were beyond her limitations. She responded that she didn’t have an answer.

Overall, I found the Applicant’s testimony to be contradictory and lacking credibility.

Mr. Mike Parker-Assinck, Attendant Care Service Provider

Prior to the MVA, the Applicant testified that she didn’t require attendant care. She was able to attend to her personal care needs. In addition, she was also able to complete chores around the house such as snow removal, cooking, and buying groceries. In 2015, the Applicant told her treating psychologist, Dr. Frank, she was able to manage with life activities.¹² Under cross-examination, she testified that she was able to do all of these activities up until December 2013, and it was only after her episode in the shower on December 22, 2013 that she now requires assistance.

The Applicant’s fiancé, Mr. Mike Parker-Assinck, was listed as the service provider for the Applicant’s attendant care needs. He stated that he has known the Applicant since February 2012, approximately 1 year post-MVA. He testified as to the abilities and limitations of the Applicant prior to the MVA; however, I found little value in this testimony because he did not know the Applicant at the time of the MVA.

Mr. Parker-Assinck confirmed that the Applicant stopped working on December 22, 2013. Since that time, he stated that the Applicant struggles with the rigors of daily life. As the Applicant’s attendant care provider, he is no longer able to work out of town and is limited to taking jobs as a restoration carpenter in town. He also said from a personal standpoint, he no longer has any leisure time because his duties taking care of the Applicant take up most of his time.

The Applicant never paid for attendant care services rendered and only promised to pay at a later date. To claim Attendant Care Benefits, a service provider has to show an economic loss and that the services required were reasonable and necessary as a result of the MVA. The Applicant claims Attendant Care Benefits from December 22, 2013 until September 22, 2015 at $411.58 per month, and then from September 23, 2015 to date and on-going at a rate of $2,378.68 per month.¹³ When asked by the Insurer at the Hearing what caused the increase in the amount claimed for Attendant Care Benefits as of September 23, 2015, neither the Applicant nor Mr. Parker-Assinck could provide an answer. When asked by the Insurer as to what attendant care tasks he assists the Applicant with, he stated he helps the Applicant dress in the morning, he fixes her hair, assists her getting in and out of the bathtub, and all other associated duties.

When asked by the Insurer how much he was making on a yearly basis, in the years from 2012 to 2015, the amounts that he testified to were much less than the evidence showed. For example, he testified that in 2014, he made between $48,000.00 and $52,000.00. When presented with his actual pay stub, it showed he made $73,000.00 in 2014.¹⁴

The Applicant and her service provider failed to produce any evidence showing that the attendant care the Applicant required was as a result of the MVA. The Applicant only required attendant care after the December 22, 2013 shower incident, and the only invoices submitted were post-December 22, 2013.

CAT Assessment

The Applicant submitted an OCF-19 form on July 20, 2015 claiming a WPI rating of 41%- 53%.¹⁵ In order to claim CAT impairment, the Applicant must have a score of 55%. The AMA Guides allows that a score of 53% may be rounded to 55% (the nearest whole percent ending in 0 or 5). Since the Applicant has the onus of proving CAT impairment, there is zero margin for error in the Applicant’s WPI number. If any number used by the Applicant’s assessors to calculate their 53% WPI is off by 1%, the Applicant fails to meet the minimum threshold.

By comparison, the Insurer calculated a WPI rating of 27% based on a Psychological Assessment by Dr. Gnam, a Medical Assessment by Dr. Castiglione, an Occupational Assessment by Ms. Stanulis-Duz, and an Orthopedic Assessment by Dr. Paitich.¹⁶

Dr. Harold Becker

Dr. Harold Becker was retained by the Applicant. The CAT Report authored by Dr. H. Becker included the findings from an assessment conducted by a Physiatrist, Dr. Lisa Becker, and an assessment conducted by a Psychologist, Dr. Dory Becker. In addition, the observations from an Assessment Report conducted by Ms. Stacey Baboulas, an Occupational Therapist, were also included in the CAT Report.

Dr. H. Becker testified that he authored and completed the WPI calculation of the Applicant’s CAT Report. He stated that when he combined criteria 7 & 8 (physical and psychological components), the Applicant had a WPI rating of 41% - 53%, which allows that a score of 53% may be rounded to a WPI of 55%, as defined in the AMA Guides.

Dr. H. Becker testified as to his methodology in converting and calculating the scores from both assessments. In my opinion, after hearing his testimony and based on the evidence submitted, Dr. H. Becker was very liberal in the manner in which he calculated the WPI of the Applicant.

Dr. Lisa Becker, Physiatrist

As part of the Applicant’s CAT determination, she was examined by Dr. Lisa Becker, a Physiatrist. Dr. L. Becker found that the Applicant had a 30-34% WPI score for criteria 7.¹⁷ Her report concluded that the Applicant, from a physical standpoint, had numerous impairments. Dr. L. Becker concluded that the medication that the Applicant was taking caused digestive impairment/heartburn/GERD (Gastroesophageal Reflux Disease). She was then required to take further medication to counteract this. Dr. L. Becker’s report found the following breakdown when compared to Dr. Castiglione’s report:¹⁸

OMEGA-Applicant’s CAT Report

ISRI-Insurer’s CAT Report

Medication

3%

N/R

Cervicothoracic Spine

5%

5%

Digestive Impairment/GERD

12%-15%

0%

Upper Extremity

2%

0%

Lower Extremity

3%

0%

Headaches

3%-5%

N/R

When comparing the assessments of the parties, there were vast areas of disagreement, especially in the calculation of digestive impairment/heartburn/GERD. Dr. L. Becker assessed the Applicant with a score of 12-15% for GERD, because she felt that the GERD was caused by medication that the Applicant was taking because of the MVA. The Applicant was prescribed the medication after the MVA, and therefore Dr. L. Becker concluded that it was MVA-related. The Applicant was on a cocktail of drugs that she claimed caused her heartburn. However, based on evidence presented at this Hearing, GERD can be caused by a number of different factors, including being overweight, slow emptying of the stomach, alcohol consumption as well as coffee drinking. To diagnose GERD, the veracity of the patient must be counted on. As stated earlier, numerous examples brought the Applicant’s credibility into question.

Dr. L. Becker testified under cross-examination that she was not an expert in the area of GERD. She also confirmed that when rating an individual, it is dependent on a loss of function and how it affects one’s life. The assessment is but a snapshot of a moment in time. Dr. L. Becker came to the conclusion that since the Applicant was taking pain medication, it must be the cause of her heartburn, but there was no conclusive evidence that this in fact was the case. If the Applicant didn’t mention that she had heartburn at the time of the assessment, she would have not received a score of 12-15% for GERD. In essence, without the heartburn, the Applicant could not be deemed CAT. With the heartburn, Dr. L. Becker assessed the Applicant as CAT.

Dr. Dory Becker, Psychologist

As part of her assessment, Dr. Dory Becker testified that she first takes the Applicant’s medical history and then begins her assessment. Dr. D. Becker found that the Applicant lacked motivation. The Applicant’s social activities had been declining and she told Dr. D. Becker that she had feelings of guilt about being a burden to her daughter and fiancé with her current condition. Dr. D. Becker also said that in her professional opinion, the Applicant wasn’t taking good care of herself both physically and mentally.

In terms of psychological testing, Dr. D. Becker conducted a Personality Assessment Inventory (“PAI”) profile test, and the responses confirmed that the Applicant had a valid profile—in essence, her answers were not fabricated. This meant that the Applicant’s test results aligned with her self-reporting; however, under cross-examination, Dr. D. Becker testified that there were some mild exaggerations noted in the Applicant’s answers. This meant that to a certain degree, the Applicant’s reported symptoms were greater than what Dr. D. Becker observed. The Applicant also scored high on her cognitive testing.

After completing her assessment, Dr. D. Becker calculated the Applicant as having a Global Assessment of Functioning (“GAF”) score of 53-57. The pain that the Applicant is suffering from affects her activities of daily living, socialization, concentration and adaptation. Dr. D. Becker assessed the Applicant’s “4 spheres”, and the results are below:¹⁹

Sphere

Rating

Activities of Daily Living

Moderate

Socialization

Mild

Concentration

Mild/Moderate

Adaptation

Moderate

The DSM-IV confirmed that the Applicant had major depressive disorder, and she met the threshold for a post-traumatic stress disorder (“PTSD”) diagnosis. All four spheres were affected at the time of testing. However, since the Applicant continued to function in her everyday life, Dr. D. Becker testified that the Applicant could not be considered marked, but could be rated either mild or moderate.

From outward appearances, the Applicant was able to function after the MVA – she went to school and became a PSW, and her academic records show that she did well, including completing all physical requirements to graduate. Even though the Applicant’s pain is a stressor, it was noted that she could cope with the pain she was suffering from and adapt. Dr. D. Becker testified she agreed that based on the pain that the Applicant was reporting, she should have retrained for a less physical job, and not a more physical one as that of a PSW. She was surprised to learn that the Applicant’s family doctor encouraged the Applicant to retrain as a PSW. Based on what Dr. D. Becker knew of the Applicant, she would not have had the same recommendation.

When comparing Dr. D. Becker’s report to Dr. Gnam’s report, many of the opinions were similar. There were differences in the areas of concentration and adaptation. Dr. D. Becker’s methodology when conducting the assessment took a more overall approach. The Applicant’s score was comprised of the issues identified in the exam in addition to her observations of the Applicant. Dr. Gnam’s assessment and rating was only comprised of issues identified as part of the exam. Due to this methodology, Dr. D Becker acknowledged and accounted for a pain disorder of the Applicant; Dr. Gnam did not.

Dr. D. Becker testified that in her opinion, the Applicant had the hallmark signs of depression. These included a loss of enjoyment of activities, weight gain, and problems concentrating. The Applicant told Dr. D. Becker that she was having problems with multi-tasking. Dr. D. Becker agreed that it is important for a patient to be truthful during an assessment.

Dr. D. Becker testified that in her observations of the Applicant, the symptoms the Applicant reported were confirmed by her assessment. The Applicant also required medication and her symptoms were consistent when related to extended pain. Ultimately, the Applicant’s pain complaints were objective as opposed to subjective.

Ms. Stacey Baboulas, Occupational Therapist

The Applicant had an Occupational Therapy (“OT”) Assessment completed as part of her CAT Assessment.²⁰ This was an In-Home Assessment, and as Ms. Stacy Baboulas stated, it is a snapshot of time over a 4-6-hour period. Ms. Baboulas performed a Functional Abilities Evaluation which included a physical and cognitive component. The purpose of an OT Assessment is to test the Applicant’s impairments.

The assessment requires the Applicant to give her opinion of how her injuries have affected her and what her limitations are. When compared to the Applicant’s OT Assessment, the Insurer’s OT was more of a physical exam and did not take into account any psychological aspects, while the Applicant’s OT Assessment took into account both physical and psychological aspects.

Ms. Baboulas testified that depending on the day, and more importantly the condition of an Applicant on any given day, a person may be able to complete more or sometimes less activities in a day. In essence, it is a moving scale. An OT Assessment Report only supports the findings in a CAT Assessment Report, it doesn’t provide a rating.

Dr. Jeremy Frank, Treating Psychologist

Prior to Dr. Jeremy Frank’s testimony, he made an objection on the record based on the advice of his own legal counsel to provide this Hearing with the raw test data of the Applicant’s test score. I ordered Dr. Frank to produce the raw test results against his objections. I advised Dr. Frank that once this Tribunal has completed the adjudication of the Applicant’s case, that he would be entitled to request the raw test data be returned to him. In the meantime, it will be locked in a secure location.

Dr. Frank was the Applicant’s treating Psychologist. He testified that the Applicant was being treated for issues related to her pain, along with PTSD. Dr. Frank testified that the Applicant presented with no clinical psychological issues, just life-related psychological issues. He found her to suffer from severe passenger anxiety, high levels of depression and panic symptoms. She also had difficulty with sleep.

Dr. Frank performed a psychological test on the Applicant. The results from this validity test were similar to the validity test results from Dr. Dory Becker, mainly that the Applicant’s score was normal with some mild exaggeration. The Applicant also had a valid pain profile. Dr. Frank said that the last time he treated the Applicant was on June 12, 2015. In his opinion, she required further treatment, but the Applicant was not following the prescribed treatment and ultimately, she moved away to another city.

The Insurer declined to cross-examine Dr. Frank. In its opinion, Dr. Frank’s testimony provided little in the way of evidence to prove the Applicant’s entitlement to psychological treatment. I have reached a similar conclusion.

Dr. Janice Koole, Applicant’s Prior Family Doctor

Dr. Janice Koole was the Applicant’s Family Doctor up until 2015. She testified that the Applicant was in relatively good health prior to the MVA. After the MVA, the Applicant had complaints of pain in her neck, back and joints. Dr. Koole stated she referred the Applicant to physiotherapy, but ultimately the Applicant stopped attending physiotherapy and massage therapy sessions in August of 2011 because the Applicant felt it wasn’t helpful.

The Doctor’s CNRs of May 8, 2012 indicate the Applicant was referred to Dr. Winemaker for pain in her right knee that she had suffered from since 2006.²¹ The CNRs as of May 2012 showed that other than the right knee issues from 6.5 years prior, the Applicant was otherwise well.

In the CNRs there were MVA-related entries, but that was only for the immediate 6-month period after the MVA. On subsequent dates after September 20, 2011, there was virtually nothing written in the CNRs related to the MVA.²² I found this to be odd. It was only after the back seizure of December 2013 that treatment notes started to appear.

Dr. Westbrook, Applicant’s Current Family Doctor

Dr. Westbrook has been the Applicant’s Family Doctor since June 2015 and testified that the Applicant’s medical history was well-documented. The Applicant had visited Dr. Westbrook to address issues of pain, headaches and an inability to walk properly. There were no new medications prescribed for the Applicant by Dr. Westbrook. Similar to Dr. Frank’s testimony, the Insurer declined to cross-examine Dr. Westbrook when given the opportunity.

Ms. Melissa Anne Kelter, Applicant’s Sister and Co-Worker

Ms. Melissa Anne Kelter is the Applicant’s sister as well as her co-worker at the long-term care facility. Her testimony corroborated many details already entered into evidence; mainly that the Applicant worked at the long-term care facility as a Dietary Aid at the time of the MVA. She testified that the Applicant was fine before the MVA and returned to work after the MVA. Ms. Kelter confirmed that the Applicant was promoted to a PSW at the long-term care facility after successfully completing her PSW diploma. Ms. Kelter also confirmed that the Applicant’s last day of work as December 22, 2013, when the Applicant suffered the injury in the shower.

Ms. Kelter testified that prior to the Applicant’s meeting her now fiancé, she was the one who would help the Applicant with her personal care needs. No attendant care invoices were submitted, nor were such benefits claimed at the time. Little insight was gained from this testimony.

Dr. Hany Demian

Dr. Hany Demian testified on behalf of the Applicant as her chronic pain management expert. The Insurer objected to Dr. Demian being called as an Expert Witness on behalf of the Applicant. I noted this objection; however, after a thorough review of the witness’ qualifications in this area of expertise, I felt that Dr. Demian was able to provide expert testimony in the area of chronic pain management, and allowed him to testify.

Dr. Demian testified that the Applicant presented herself as a pain-suffering person during her exam of March 28, 2014.²³ Observations, such as the Applicant not walking in a normal manner, along with exhibiting a lot of stiffness in her movements, confirmed in Dr. Demian’s opinion that the Applicant was suffering from pain.

He also testified that the Applicant’s social life and activities of daily living were affected by the MVA. Dr. Demian testified that massage and chiropractic treatment only provided minimal pain relief. As a result, as part of the Applicant’s Chronic Pain Assessment of March 28, 2014,²⁴ he prescribed pain blockers for the Applicant, but only as a last resort. Dr. Demian tried botox treatment on the Applicant, but it produced minimal results. He also tried both non-narcotic and narcotic medications, but the Applicant suffered side effects, and these were discontinued. The Applicant also suffered from migraines, which in Dr. Demian’s opinion won’t get better and thereby prevent the Applicant from maintaining normal activities of daily living.

INSURER’S CAT ASSESSMENTS

Dr. William Gnam, Psychiatrist

Dr. William Gnam was retained by the Insurer to conduct a Psychological Assessment on the Applicant. He has over 20 years’ experience as a Psychiatrist. He is a Rhodes Scholar having degrees from Oxford, Harvard, McGill, and the Universities of Toronto and Calgary. Dr. Gnam has expertise in assisting individuals return to work, and has completed numerous CAT Assessments throughout his career. The Insurer put forward Dr. Gnam as an expert in psychology.

Dr. Gnam testified that he and Dr. Dory Becker, who completed the Applicant’s Psychological Assessment, agreed in their findings more than they disagreed. Some of their findings were in a similar range. For example, Dr. Dory Becker gave the Applicant a GAF score of 53-57; Dr. Gnam gave the Applicant a GAF score of 54-56.²⁵ Where there was disagreement was in the conversion from a GAF to a WPI score. Dr. Harold Becker did the conversion for the Applicant’s CAT Report, even though Dr. Dory Becker did the actual assessment. In Dr. Gnam’s opinion, Dr. Harold Becker was too liberal in his conversion of the Applicant’s score. Dr. Gnam testified that Dr. Harold Becker had a range of 12-29%, with 29% applying in the most severe case. Dr. Gnam believed that the Applicant was not the most severe. Therefore, Dr. Gnam assessed a lower score of 23% for the Applicant’s criteria 8.

Dr. Gnam scored the Applicant as having a mild impairment for adaptation versus the moderate impairment that Dr. D. Becker assessed because the Applicant successfully retrained for a more physically and demanding job. She achieved high grades in her course work and was acknowledged as being an honours student. Dr. Gnam testified that he couldn’t have rated the Applicant as moderate because she was able to adapt as evidenced by the demanding cognitive and physical tasks of work, and to attend school, where she was able to function. An ability to retrain successfully is rare for someone attempting to claim CAT impairment, but the Applicant was able to achieve this feat.

Dr. John Castiglione

The Insurer called Dr. John Castiglione as its second Expert Witness. Dr. Castiglione has an expertise in the area of family medicine. Throughout his career he has completed over 100 CAT Assessments. He completed a full Medical Assessment Report as part of the Insurer’s CAT Assessment.²⁶

Dr. Castiglione disagreed with Dr. Lisa Becker’s finding that the Applicant’s GERD was directly caused by the MVA. He stated that Dr. L. Becker did not complete a physical exam of the Applicant’s abdomen to find out what was causing the GERD. No x-rays were taken, and no ultrasound or a PH/acidity study was conducted. In addition, Dr. L. Becker is a Physiatrist, not a Gastroenterologist, and as such does not have an expertise in diagnosing GERD. Dr. Castiglione on the other hand has worked for 40 years in this area treating patients who suffer from GERD.

Dr. Castiglione testified that even if the Applicant was found to have GERD, it did not prevent her from her daily activities of living. Many actions cause GERD, including drinking coffee, smoking, obesity, and drinking alcohol. Dr. Castiglione testified that any of these actions could have caused the heartburn the Applicant said she was suffering from on the day of the assessment by Dr. L. Becker. Dr. Castiglione stated that Dr. L. Becker never conducted a proper assessment of GERD, and as such, did not narrow down what caused it on the day of her assessment. If the Applicant didn’t suffer from heartburn/GERD on the day of her assessment, she would not have met the CAT impairment threshold based on WPI. Doctors Lisa and Harold Becker agreed with this proposition.

Dr. Castiglione noted that since the GERD was treatable, it was not affecting the Applicant’s daily living, and therefore a rating of zero should be given. When Dr. Castiglione assessed the Applicant, the Applicant never complained about heartburn/GERD. Consequently, he did not account for a 12-15% rating that was found in Dr. Lisa Becker’s report.

Dr. Castiglione was asked to explain other impairment areas where he gave 0% ratings, as opposed to Dr. Lisa Becker who gave between 2%-5% ratings. He testified that there was no medical evidence showing that these injuries were a direct result of the MVA, and if anything, the documents showed the Applicant suffered from uncomplicated soft tissue sprain/strain injuries. Dr. Castiglione stated that the Applicant acknowledged she was well in 2012, prior to her physical condition deteriorating after becoming a PSW.²⁷

CONCLUSION

The onus is on the Applicant to prove her case. The Applicant failed to submit sufficient evidence to meet this threshold. The Applicant must show a direct connection between her claim for CAT impairment and the MVA. The evidence did not match the story that the Applicant is telling. There is a significant lack of medical continuity between her MVA and her condition today.

There was no disagreement from either party that the Applicant was involved in a serious MVA and had many stressors in her life. Where there is disagreement is in determining how the Applicant’s injuries are related to the MVA. The Applicant is claiming CAT impairment based on a 53% impairment rating, which with rounding could be 55% and qualify as CAT. This razor-thin calculation places the Applicant in the unenviable situation that if the Insurer could prove any one of the multiple factors false, then her application for CAT impairment fails.

She was involved in the MVA. There were minimal MVA related complaints from late 2011 until late 2013, when the Applicant’s back seized up while in the shower. In addition, the Applicant signed an Affidavit on June 27, 2016 wherein she stated, under oath, that her life changed “definitively” during the December 2013 holidays.²⁸ In the same Affidavit, she stated that she had occasional neck, shoulder and back pain after stopping physiotherapy in August 2011, but it was by no means debilitating. She was able to work, socialize and raise her daughter as a single parent despite her injuries.²⁹

The surveillance footage of the Applicant fits with her signed Affidavit statement of June 27, 2016, more so than her testimony and her evidence that attempted to show that she could not function in a normal capacity.

The evidence corroborated that the Applicant was feeling fine up until the shower incident of December 2013. The Applicant returned to work five days after the MVA. When she reduced her work hours, it was because of school and family responsibilities. The Applicant subsequently retrained as a PSW, a more physically demanding job than that of a Dietary Aid. Her family doctor noted that in 2012, she was supportive of the Applicant retraining to be a PSW. Dr. Koole stated that the Applicant was fit for physical work and was able to do it, and her CNRs showed that the Applicant’s back was injured in December 2013. The Applicant testified that she suffered from migraines even though there was also no reference to them either before December 2013 or afterwards in the Applicant’s family doctor’s notes. Ultimately, Dr. Koole’s notes show that the last time the Applicant was 100% healthy was 2013, which was two years post-MVA.

Between the MVA and the back seizure, Dr. Frank’s 2015 report showed that the Applicant was active. She was able to take care of her personal care and light housekeeping. Absent any medical explanation, the Applicant had recovered from the MVA by the time of her back seizure on December 22, 2013.

The Applicant’s credibility completely undermined her case. On her EI Benefits Application, she did not acknowledge any injuries related to a MVA. The Applicant testified that she lied about this, which calls into question whatever else was she not truthful about.

I prefer the evidence of Dr. Gnam and Dr. Castiglione over Drs. Lisa, Dory, and Harold Becker. There was no room for error with the Applicant’s CAT Report. It only succeeds if every calculation in the assessment is 100% accurate. If a difference of 1% on any factor used to calculate the 53% WPI appeared, the Applicant’s CAT impairment application fails.

Dr. Gnam was well-spoken and his testimony was impressive. He has an impressive training, educational and work experience background. Dr. Gnam completed his own conversion from a GAF to a WPI rating. Dr. Dory Becker did not do her own conversion, but instead left this task to Dr. Harold Becker, who did not conduct the assessment. Dr. Gnam explained the reasons for his simple and straight-forward conversion of GAF to a WPI. He based his number on clinical information from the Applicant and other sources, along with his clinical judgment. Dr. Harold Becker did not because he was not the person conducting the assessment.

Based on the evidence presented, it appears the Applicant’s entire CAT impairment claim hinges on the Applicant suffering from heartburn/GERD on the day that she was assessed by Dr. Lisa Becker. The Applicant didn’t suffer from (or at least mention she was suffering from) heartburn on the day that she was assessed by Dr. Castiglione, the Insurer’s assessor. Dr. L. Becker gave a 12-15% rating for GERD. This is not supported by the evidence, and there was no further examination completed to determine or at least narrow down the cause of the Applicant’s GERD. Dr. L. Becker, without being an expert in the causes/diagnosis of GERD, provided no evidence to back up her assessment findings. In order to receive a rating in this category, the heartburn had to impede the Applicant from completing her activities of daily living. There was no evidence presented at the Hearing that the Applicant continues to suffer from heartburn. As a result, I prefer the evidence presented in Dr. Castiglione’s report over Dr. L. Becker’s report. In order for the Applicant’s injuries to be considered CAT, she must suffer from GERD and be given a rating of 12-15%. Consequently, a finding of a 0% rating for GERD makes everything else moot, and the Applicant fails to meet the WPI threshold to be found CAT.

Alternatively, the Applicant failed to produce evidence directly linking the MVA to the physical ailments that she suffered in the December 22, 2013 shower incident. I agree with Dr. Castiglione’s findings that gave the Applicant a 0% rating for upper and lower extremities owing to this fact. Without a direct link, the Applicant’s rating must be 0% and accordingly, the Applicant’s injuries are found to not be CAT.

When it came to Attendant Care Benefits, there was no evidence given as to why the amount of attendant care went from $411.58 per month to $2,378.68 per month. The Applicant’s fiancé was the Applicant’s attendant care provider, but neither he nor the Applicant could explain why the amount increased. Ultimately, the Applicant failed to demonstrate that the requirement for attendant care was directly caused by the injuries from the MVA. It should also be noted that the invoices for Attendant Care Benefits were submitted after the Applicant’s back seizure in December 2013.

Finally, there were medical issues in dispute, which included a request for a special bed for the Applicant. No evidence was submitted at the Hearing that would show any of the treatment plans or assessments in dispute were reasonable or necessary. I find that the Applicant solely focused on the issue of the CAT impairment determination and forgot to present evidence for the treatment plans and assessments that were included as issues in dispute. With the onus on the Applicant to prove that these issues in dispute were reasonable and necessary, the Applicant failed to produce evidence that this was the case.

Therefore, and for the above stated reasons, I find that the Applicant failed to prove her case, and as a result, all claims in dispute are denied.

SPECIAL AWARD

Since no benefits were found to be payable, there is no Special Award to be granted.

EXPENSES:

The parties made no submissions on expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the DRPC.

May 1, 2017

Jeff Musson Arbitrator

Date

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

Neutral Citation: 2017 ONFSCDRS 128

FSCO A15-006980

BETWEEN:

AMANDA McCREADY

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Ms. McCready’s injuries are not considered to be Catastrophic in nature.

2. Ms. McCready is not entitled to Attendant Care Benefits from December 22, 2013 to September 22, 2015 at the rate of $411.58 per month, and from September 23, 2015 to date and on-going at the rate of $2,378.68 per month.

3. Ms. McCready is not entitled to Medical Benefits in the following amounts:

i) $2,405.20 for services provided by Options Therapy, dated March 24, 2015;

ii) $2,497.50 for services provided by Stevenson Chiropractic, dated January 15, 2014;

iii) $251.82 for services provided by NKS Health, dated January 5, 2015; and

iv) $507.14 for transportation expenses, dated February 1, 2015.

4. Ms. McCready is not entitled to Cost of Assessments in the following amounts:

i) $1,511.40 per OCF- 18 by FunctionAbility Rehabilitation, dated September 29, 2015;

ii) $5,747.64 per OCF-18 by FunctionAbility Rehabilitation, dated September 29, 2015; and

iii) $2,200.00 per OCF-18 by Omega Medical, dated July 20, 2015.

5. Ms. McCready is not entitled to a Special Award.

6. Ms. McCready is not entitled to interest for the overdue payment of benefits.

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

May 1, 2017

Jeff Musson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 3, Tab 3B, p. 9.
3. 3Exhibit 1, Tab E3, p. 1.
4. 4Jaggernauth and Economical Mutual Insurance Company, FSCO A08-001413.
5. 5Exhibit 4, p. 5.
6. 6Ibid., p. 6.
7. 7Ibid., p. 7.
8. 8Ibid., Tab L2, p. 10.
9. 9Exhibit 3, Tab 12B, p. 2.
10. 10Exhibit 6, p. 1.
11. 11Exhibit 2, Tab A, p. 23.
12. 12Exhibit 3, Tab 13, p. 7.
13. 13Exhibit 1, Tab B1.
14. 14Ibid., Tab E3.
15. 15Exhibit 1, Tab E2, p. 2.
16. 16Exhibit 3, Tab 21DD, p. 1.
17. 17Exhibit 1, Tab E2, p. 17.
18. 18Ibid., Tab E12, p. 3.
19. 19Ibid., Tab E2, p. 27.
20. 20Ibid., Tab E2, p. 28.
21. 21Exhibit 3, Tab 3B, p. 24.
22. 22Ibid., Tab 3A.
23. 23Exhibit 1, Tab C5, p. 1
24. 24Ibid.
25. 25Exhibit 2, Tab 2, p. 1.
26. 26Ibid., Tab W, p. 2.
27. 27Ibid., Tab W, p. 11.
28. 28Exhibit 4, p. 5.
29. 29Ibid., p. 4.