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

Neutral Citation: 2017 ONFSCDRS 241

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BETWEEN:

TAMMIE LEE LAFORTUNE

Applicant

and

PAFCO INSURANCE COMPANY

Insurer

Before: James Robinson

Heard: August 1, 2 & 4, 2017, in London, Ontario

Appearances: Nicolas Canizares for Ms. Lafortune Victoria Fraser for Pafco Insurance Company

Issues:

The Applicant, Tammie Lee Lafortune, was injured in a motor vehicle accident on March 18, 2013. She applied for and received statutory accident benefits from Pafco Insurance Company (“Pafco”), payable under the Schedule.¹ Disputes arose between the parties with respect to the payment of certain accident benefits. The parties were unable to resolve their disputes through mediation, and Ms. Lafortune 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:

Is Ms. Lafortune entitled to receive a weekly income replacement benefit of $261.63 from October 4, 2013?
Is Pafco liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Lafortune?
Is Pafco liable to pay Ms. Lafortune’s expenses in respect of the arbitration?
Is Ms. Lafortune liable to pay Pafco’s expenses in respect of the arbitration?
Is Ms. Lafortune entitled to interest for the overdue payment of benefits?

Result:

Ms. Lafortune is entitled to receive a weekly income replacement benefit of $261.63 from October 4, 2013 to date and ongoing.
Pafco is not liable to pay a special award to Ms. Lafortune.
Pafco is liable to pay Ms. Lafortune’s expenses in respect of the arbitration.
Ms. Lafortune is entitled to interest for the overdue payment of benefits.

EVIDENCE AND ANALYSIS:

On March 18, 2013 Ms. Lafortune was driving her passenger van, at or below the speed limit, on a county road not far from her home when an oncoming vehicle, coming fast, suddenly swerved over the centreline and struck her vehicle. The other driver did not stop at the scene and it was subsequently determined that the vehicle responsible had been stolen. The applicant’s vehicle came to rest against a utility pole in a field adjacent to the road, substantially damaged on the driver’s side. Two of the applicant’s young children were passengers in the middle row of seats. Fortunately, they were uninjured.

The applicant’s testimony was that she blacked out for some period of time after the moment of impact and that she subsequently recovered only a partial recollection of the aftermath of the accident. The applicant was able to return to her home in the damaged van where she was assisted by her husband, who called the police and ambulance services. The applicant was transported to Hagersville Hospital, on a stretcher, wearing a neck brace.

The ambulance report confirms that when they arrived the applicant reported neck pain and shoulder pain radiating to her right shoulder. The report also notes that on the way to the hospital the applicant reported “tingling” in her hands. The ambulance attendant noted that the applicant’s neck “appeared red.” The applicant complained of dizziness and headache. Oxygen was administered. At this point, the report noted that the applicant reported the severity of her neck and shoulder pain a nine on a scale of ten and described her neck and shoulder as “tight.” In her testimony the applicant confirmed that she felt dizziness, a “swirling around” feeling and headache in the aftermath of the accident. It was obvious from her testimony and her manner of giving it that her recall of the events was spotty at best.

The applicant testified that in the period following the accident she began to suffer “excruciating” headaches and that she could not “stand light or noise.” She was unable to concentrate. She began to watch old movies because she could not follow the storyline of new movies or of television. She no longer did crafts with her children because she felt frustration in dealing with simple things like dealing with paints and cutting paper. She testified that she “couldn’t do it,” that her head would hurt and that she would end up yelling at the children. Both she and her husband testified that there was much more conflict in the family after the motor vehicle accident than before. The applicant’s evidence was that “I used to do all the cooking” for the family before the accident. She testified that, now, if her husband does not cook then the applicant will prepare a simple meal, usually from processed food.

The applicant, her husband and her mother gave evidence that the applicant’s mental functioning changed after the accident. The problems centre upon her inability to focus and her poor memory. I will only refer to only three examples for present purposes. She is consistently unable to remember on which day to send which child on the school bus. As a result her younger children are frequently marked absent and her husband gets calls from the school.

The applicant is often unable to remember her original reason for going to the grocery store. A friend provided the applicant an opportunity to assist her at work, in a junior administrative capacity. The applicant has lost her organizational skills. She could not succeed at that work.

By way of contrast, prior to the accident the applicant had qualified, through online training, to work at a travel agency. Her employment was detail-oriented quality-control work. When tickets were sold to clients of her employer, it was the applicant’s task to review the selling agents’ files to ensure that there had been no errors in flight dates and times.

There were other indications, after the accident, of impaired function. The applicant would miss physiotherapy appointments. She experienced driving anxiety and PTSD. Simple strategies for household scheduling such as notebooks or charts were unhelpful. She would lose them or forget to consult them. She has chronic headache for which she was ultimately given injections at the base of her skull. She suffers from sleeplessness for which she has been prescribed medications.

On the basis of her testimony, and her manner of giving it, I am satisfied on a balance of probabilities and on the basis of the available evidence that the applicant has suffered an impairment of her mental function.

The insurer submits that the accident was not the cause of any impairment the applicant may have suffered, for two reasons.

First, the insurer argues that the applicant suffered from a pre-existing condition, depression, which would itself account for any functional difficulties that the applicant reported. The clinical notes and records of the applicant’s family physician certainly disclose episodes of depression. Medication was certainly prescribed although the applicant was disinclined to take it. But those episodes were clearly associated with post-partum periods, especially following the birth of her twins. On the basis of common sense and life experience, the applicant’s emotional life – as the mother of three children, living in the country, with her husband often out-of-town because of his work – would not strike the ordinary observer as unusual.

I found the testimony of the applicant, corroborated by that of her husband, completely credible when she explained that her feelings had resolved after the husband made adjustments to his work commitments and her mother made herself available to help.

Moreover, the success of the applicant in completing an online course and in finding and maintaining employment, and the consistent testimony of the applicant, her mother and her husband that she had found happiness in her job, leads me to conclude that the applicant was not in a depressed state at any material time prior to the accident.

Second, the insurer raises causation issues with respect to any impairment suffered by the applicant. On September 3, 2013 the applicant was in the garage of her family home when a ten-pound Jacuzzi motor dropped from a shelf and hit her on the top of her head as she passed by. Her mother witnessed the event. The applicant sought medical attention and the report was submitted in evidence. In the hospital report of that date, which was submitted in evidence, the injury was characterized as “Minor Head Injury” and “2 lacerations to scalp.”² The applicant’s lacerations were closed with staples, she was given Tylenol for the pain, and she was sent home.

The applicant was definite in her testimony that, after this Jacuzzi motor injury, no correlation occurred to her as to headache, memory or concentration.

Insurer’s counsel pointed to the Insurer’s Examination report of Dr. Robert J. Carbin, an orthopaedic surgeon, dated August 23, 2013, on the basis of an examination of the applicant conducted on August 21, 2013.³ It was argued that I should place some weight upon this report because it was prepared after the accident but prior to the subsequent injury suffered by the applicant on September 3, 2013.

I disagree with that submission. The examination of Dr. Corbin was, on its face, a functional inquiry related to the applicant’s muscular complaints. The doctor noted the following:

“She describes headaches and dizziness, the headaches being in the posterior and she cannot relate them to any particular activity. She reports also that she has difficulty concentrating even when she is watching television.”

Dr. Corbin’s report, in that regard, completely corroborates the applicant’s testimony with respect to the conditions which are at the root of this application. The applicant’s psychological impairments, including PTSD and post-concussion symptomology, were not within the expertise of Dr. Corbin nor were they within the scope of his inquiries. I do not find that report supportive of the insurer’s position.

I am not persuaded on the basis of the available evidence that the injury experienced by the applicant on September 3, 2013 contributed to the loss of function or to the more general symptoms experienced by the applicant. I find that the accident of March 18, 2013 was the sole cause of the applicant’s impairments.

Dr. Robert Kaplan gave testimony, as an expert witness, on behalf of the applicant. Dr. Kaplan’s reports dated August 10, 2016⁴ and April 18, 2017⁵ were submitted in evidence at the hearing. Dr. Kaplan testified that modern imaging techniques are not sufficiently refined to show a concussion, unless there is some additional manifestation of injury, such as internal bleeding.

Therefore, it is clinical analysis that leads to such a diagnosis. Psychological testing will allow a diagnostician, using his or her clinical judgment, to conclude whether or not the patient has suffered a concussion or concussive injury.

Dr. Kaplan, in his report dated August 10, 2016, stated as follows:

“At present, clinical findings, psychometric testing, collateral interview and medical documentation indicate that Ms. Lafortune is experiencing post-traumatic stress disorder, cognitive impairment, pain, concussion, depression and anxiety subsequent to her MVA.”⁶

The Neuropsychological Assessment report of Dr. Mark Watson, dated January 16, 2017, was submitted in evidence by the insurer.⁷ This report followed his Insurer’s Examination of the applicant on December 6, 2016.

Dr. Watson found as follows:

“Erring on the side of caution, it is my view that Ms. Lafortune’s reported symptom severity is not felt to be consistent of what would be expected based on the mechanism of the accident (noting validity issues as well) at this juncture in time with any true cognitive deficits likely to be psychiatrically (if present, noting mild validity concerns with respect to the psychological testing administered) and or physically based.

“A concussion has been diagnosed…any residual impairments would be more likely to be the result of pain, fatigue, dizziness, headache, and any psychological issues…”⁸

In my view Dr. Watson’s report presents two difficulties. The first is that it does not address the issue of post-traumatic stress disorder which is of central importance to the applicant’s case. The second is that, in essence, he is simply stating axiomatically that if the applicant had suffered a concussion she ought to have recovered by the time that he examined her. This is unhelpful.

I am satisfied on the basis of Dr. Kaplan’s expert testimony that the applicant suffers from post-traumatic stress disorder and that this was a direct result of the motor vehicle accident. I am satisfied on the basis of the testimony and demeanour of the applicant, corroborated by the testimony of her husband, that the applicant’s post-accident function is entirely consistent with Dr. Kaplan’s diagnosis. I am persuaded by and accept Dr. Kaplan’s expert testimony that on the basis of PTSD alone, her impairment is proven. I am further of the view that the evidence is more consistent than not with the conclusion that the applicant suffered physical injury arising from concussive force as a direct result of the motor vehicle accident. Although insurer’s counsel argued that there was no evidence that the applicant’s head struck any part of the motor vehicle in the course of the accident, neither was there any evidence that such impact would have been necessary to give rise to physical harm to the brain.

I do not accept the urging of the insurer that there was feigning or dissimulation on the part of the applicant or the implication that there might be malingering. The evidence and, importantly, the behaviour of the applicant in giving testimony was consistent with a person who is unable to focus, whose “executive function” is deficient, and who has memory lapses. The testimony of the applicant’s husband was consistent, forthright and compelling with respect to the differences he observed between her pre-accident and post-accident function. I agree with the submission of applicant’s counsel that it is absurd to imply that the applicant and her husband would or could maintain, over a period of several years, and at great personal and financial cost, some elaborate story in order to succeed at the hearing.

The Law

Subparagraph 5(1) of the Schedule provides, in part, as follows:

5(1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

The insured person,

(1) was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment….

Paragraph 6 of the Schedule provides, in part, as follows:

6(1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of

6(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability; or

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

The abundant evidence of the applicant’s reduced function subsequent to and as a direct result of the accident satisfies me that she is, on a balance of probabilities, completely unable to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

SPECIAL AWARD:

Subsection 282. (10) of the Insurance Act (as it read at the date of issuance of the Application for Arbitration in this matter) provided as follows:

282(10) 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…”

In my view no Special Award ought to be made in this case. I find that the insurer has not unreasonably withheld or delayed payments to the applicant. There was a genuine issue to be tried. There were genuine issues of causation and the medical evidence was complex, and the insurer was entitled to require that the applicant prove her case.

EXPENSES:

If the parties are unable to reach an agreement on expenses, they may request an appointment before the Commission in accordance with Rule 79 of the Dispute Resolution Practice Code.

September 15, 2017

James Robinson Arbitrator

Date