Financial Services Commission des

Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 286

FSCO A15-004562

BETWEEN:

ADELA PANTOJA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION

Before:

Anne Morris

Heard:

In person at ADR Chambers on June 19, 20, 21, 22, 2017 and by written submissions completed on August 10, 2017

Appearances:

Mr. Harry F. Steinmetz for Ms. Pantoja

Ms. Catherine A. Korte for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ms. Pantoja, was injured in a motor vehicle accident on March 19, 2008 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, 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 are:

1. Did Ms. Pantoja sustain a catastrophic impairment as the result of the motor vehicle accident of March 19, 2008?

2. Is either party entitled to its expenses of the Arbitration?

Result:

1. Ms. Pantoja sustained a catastrophic impairment as the result of the motor vehicle accident of March 19, 2008.

2. 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.

EVIDENCE AND ANALYSIS:

It is the position of the Applicant that, as a result of the motor vehicle accident of March 19, 2008, she sustained an impairment that in accordance with the American Medical Association’s ides to the Evaluation of Permanent Impairment (the “Guides”)² has resulted in a class 4 impairment (marked impairment) due to mental or behavioural disorder.

The Insurer disagrees. The Insurer submits that the Applicant is not a credible witness; that the applicable test for causation has not been met in this case; and that the Applicant’s mental disorder has in any event resulted in only mild to moderate impairment. The threshold for catastrophic impairment has not been met.

The Applicant is not a credible witness

The Insurer submitted that the Applicant is “a poor historian; her ability to recall critical events, including those relating to other motor vehicle accidents, pre-existing medical issues (physical and mental), as well as past treatment and visits to various physicians, is both limited and non-specific.”³ The Insurer provided some examples from the Hearing including the Applicant’s inability to recall the date of the subject accident.

I agree that the Applicant demonstrated memory lapses at the Hearing. In my view, however, there was no persuasive evidence of an intention to deceive. In the first place, I note that for the most part, this now 60-year-old woman was testifying as to events which occurred over a lengthy period of time. An inability, for example, to recall that she apparently saw a Dr. Bhalerao for psychotherapy in April and May 2002⁴ is perhaps not entirely surprising. I note that the information with respect to Dr. Bhalerao was apparently obtained from the decoded OHIP summary⁵ and a report from Dr. Bhalerao was not introduced into evidence by either side. There is no evidence that the Applicant continued to see this doctor after 2002 or that her reasons for seeing this doctor were other than transient in nature. While the OHIP code refers to “manic depressive psychosis melancholy”,⁶ this is of course a code and not a diagnosis.

I do note, however, that there is significant later evidence that, regardless of cause, the Applicant went on at a later date to suffer significant psychiatric problems and that she reportedly continues to have psychiatric problems. The Applicant was admitted involuntarily, for example, to St. Michael’s Hospital from June 17, 2010 to October 6, 2010.⁷ During this period of time, she underwent 15 electro convulsive therapy treatments. She was diagnosed with a Major Depressive Disorder with suicidal ideation and a secondary diagnosis of Posttraumatic Stress Disorder. The Applicant’s depression had psychotic features. She reported auditory hallucinations in the form of voices telling her to “do it”.⁸

The Applicant’s psychiatric condition may help explain her memory difficulties given that concentration and memory difficulties form part of her complaints. Regardless of opinions as to cause, these difficulties do appear to exist. I note that Dr. Eisen, the psychiatrist who provided the Insurer’s CAT⁹ psychiatric assessment, stated as follows in his report dated December 23, 2014:¹⁰

…Her concentration and memory difficulties are likely due to a combination of pre-existing limited intellectual functioning, emotional upset, pain, poor sleep and the individual and combined effects of her various psychotropic medications….

It is for these reasons that I do not believe that the Applicant has intended to deceive when she has demonstrated memory lapses, including when she did not disclose other motor vehicle accidents to various assessors.

The Applicant, for example, told Dr. Feinstein, the psychiatrist who carried out the CAT psychiatric assessment on her behalf, that she had not been involved in a motor vehicle accident before.¹¹ Dr. Feinstein, however, in conducting his review of the medical brief, noted with respect to family doctor’s clinical notes that on “January 21, 2005 there is mention of a motor vehicle accident that had occurred on January 19, 2005.”¹² He further noted that “subsequent notes document that on Friday, August 8, 2008, Ms. Pantoja was involved in another car accident.”¹³

In reviewing a psychiatry report dated December 11, 2009 prepared by Dr. Brian Hines at the request of the Insurer, Dr. Feinstein also noted¹⁴ Dr. Hines’ reference to “a more recent traffic accident”. A review of Dr. Hines’ report¹⁵ shows that the Applicant told him at the time of that assessment that she had been involved in another motor vehicle accident “three or four months” before.

It appears therefore that while the Applicant may have failed to disclose to various assessors, other motor vehicle accidents which, as discussed further below, appear minor in nature relative to the subject motor vehicle accident, references to those other motor vehicle accidents are contained in the extensive medical record. The record also provides information as to the Applicant’s medical and work status both before and at the time of the accident. In arriving at a decision in this matter, I have been conscious of the record and of the fact that the Applicant is not entirely reliable in her memory.

Causation

The Applicant, according to her daughter, came to Canada from Mexico in 2000. She had come to Canada before that time with her husband but had to return as her refugee application was not accepted. She returned in 2000 with her children and without her husband.

She worked initially cleaning offices and, at the time of the accident, had worked six years at a company which supplied cafeteria services. Prior to the accident, in 2004, the she had been able to purchase a home with her children. This is confirmed in the surveillance reports commissioned by the Insurer.¹⁶ She stopped work at the time of the accident of March 19, 2008. The Insurer paid her for a period of disability commencing March 19, 2008.¹⁷ She is in receipt of Canada Pension Plan disability benefits,¹⁸ which tends to confirm that she worked long enough since she came to Canada to meet the contributory requirements for those benefits. The receipt of these benefits also tends to support the Applicant’s inability to work.

The accident of March 19, 2008 occurred when a car swerved and turned head on into the Applicant’s lane and hit the front of her car on the driver’s side. The Applicant had been stopped at the time. The impact was sufficient to push her into a third car which was stopped behind her.¹⁹ The airbags deployed.²⁰ She was taken by ambulance to Women’s College Hospital.²¹ She complained of nausea, headache, neck, upper chest and pain to her left arm, left shoulder pain and left hip pain. She was diagnosed with a whiplash injury.

Following the subject accident, the Applicant saw her family doctor on March 24, 2008.²² She indicated to her doctor that she had difficulty breathing at the time of the accident. The doctor noted pain in the neck, shoulder and low back. She noted a complaint of headache the day before. She noted anxiety and that the Applicant was weepy.

A month prior to the accident, the doctor had indicated in a note of February 20, 2008 that the Applicant had complained of feeling depressed the week before. At a visit of March 3, 2008, she had complained of neck and shoulder pain. The doctor noted at that time that the Applicant’s sister-in-law was staying with her. She noted that the Applicant’s husband had called the month before and wanted to reconcile. The Applicant spoke of abuse in the marriage. The Applicant told the doctor at a subsequent visit on April 23, 2008, which otherwise dealt mostly with pain complaints from the subject accident, that the Applicant had decided not to reconcile with her husband. She knew that this affected her son and wanted counselling for them both.

At a visit of May 7, 2008, the Applicant complained to her doctor of headache, dizziness and low back pain.

A clinical note of June 25, 2008 indicated that the Applicant had been seen in emergency in a hospital in Montreal where she had been visiting, because of dizziness and headaches. She was prescribed prednisone.

The Applicant attended emergency at St. Joseph’s Hospital on June 26, 2008. The consultation note dated June 27, 2008²³ indicated that the Applicant had been seen the day before for suicidal ideation and depression, with a diagnosis of adjustment disorder and posttraumatic stress disorder with exacerbation of mood symptoms likely due to prednisone. She was held overnight for reassessment and released when she reported improvement. She had had paranoid ideation in relation to her sister and brother-in-law living with her, fearing they would report to her husband about her life in Canada. She found their presence awakening memories of abuse from her husband. The consultation report went on to say:

With regard to her auditory hallucinations, she says that since the accident she has heard both odd sounds in her left ear (“like a waterfall”) and from time to time voices arguing or fighting (she cannot make out what they’re saying, and they never talk to her).

The family doctor diagnosed posttraumatic stress disorder in a note of June 30, 2008 with follow-up with a psychotherapist. She noted that the sister-in-law and her husband had lived with the Applicant for one month but had now gone to Montreal. She noted that the Applicant was weepy and still complained of low back pain and pain across the neck and shoulders.

The doctor noted in a subsequent clinical note that on August 8, 2008, the Applicant was involved in another motor vehicle accident. Her car sustained minor damage which she would fix herself. There is otherwise little information with respect to the accident of August 8, 2008 or evidence that the Applicant sustained new or more serious injuries in this accident. I note that the auditory hallucinations reported on June 27, 2008, and referred to above, occurred prior to this accident.

The Applicant continued to follow up with this family doctor until October 15, 2008 when she switched doctors. The clinical notes and records of the Applicant’s various family doctors from September 2004 onwards appear complete and form part of the medical record.

The Applicant was referred to a psychiatrist, Dr. Sanchez. He provided a report dated December 30, 2008²⁴ in which he diagnosed Posttraumatic Distress Disorder, Pain Disorder associated with Both Psychological Factors and A General Medical Condition, and Major Depressive Disorder.

Dr. Sanchez provided a further report on February 3, 2014²⁵ with the same diagnoses. He advised that he had seen the Applicant from 2008 to 2012 and he recommended that she return for further evaluation and supportive psychotherapy until stable. From Dr. Sanchez’ clinical notes and records, it appears that the Applicant began seeing him again on a regular basis in February 2014, and was still seeing him as late as February 2, 2016, the date of the last clinical note contained in the medical record.

In his report of February 3, 2014, Dr. Sanchez indicated that the Applicant has distressing, intrusive recollections, and recurring nightmares of the accident. He noted that she was very worried about the future and would not be able to overcome her present situation. She sometimes heard voices of people fighting but when she looks she sees nobody there. “There are no delusions, she has no suicidal ideas, except when she is in severe pain…”²⁶

In addition to seeing a psychiatrist, the Applicant was referred to various specialists and health care practitioners for her ongoing pain complaints. She also underwent various insurer examinations. These various records and assessments are contained in the arbitration brief.

Her most significant problems, however, are clearly psychiatric in nature. This is demonstrated by her four month long involuntary admission at St. Michael’s Hospital beginning in June 2010. While this occurred more than two years after the accident, the Applicant continued treatment during this period of time, including with Dr. Sanchez. She had been referred to Dr. Sanchez by her then family doctor who reported in a clinical note dated November 12, 2008 that the Applicant had severe depression.²⁷ On June 1, 2010, this doctor reported that the Applicant had pain all over with severe insomnia, severe anxiety. She had thoughts to commit suicide but not to harm others.²⁸ In addition, the auditory hallucinations present upon the Applicant’s admission to St. Michael’s Hospital echo the auditory hallucinations reported by the Applicant when she attended St. Joseph’s Hospital on June 25, 2008 not long after the accident as discussed above. At that time, the Applicant reported that since the accident, she had heard both an odd sound in her left ear and from time to time voices fighting.

The Insurer submitted that the Applicant had significant pre-existing mental health issues with a history of long standing marital abuse. I acknowledge that the circumstances of the Applicant’s marriage appear to be a factor in her mental state and there are references to abuse in the family doctor records as discussed earlier. References also appear elsewhere including in the discharge report from St. Michael’s Hospital dated November 4, 2010, referred to above. The report discusses both the accident and marital abuse. The following appears under the heading “Course in Hospital”:²⁹

Adela repeatedly addressed how the car accident had changed her life. She described her life prior to the accident being very independent and busy. She enjoyed going to work, and also doing chores at home. This was corroborated by her family, who said that Adela was very active prior to the accident. Furthermore, she became easily fatigued, and was unable to sustain energy to do many of the things she enjoyed. On further examination, it was revealed that she had a history of physical and emotional abuse, when in Mexico. She pointed out that this was very difficult at the time, but that she had “moved on”. She did indicate, however, that all the wealth that she had accrued in Mexico was taken by her husband, who had not given any of it back despite finding another partner.

The Applicant, however, had been separated from her husband for at least 8 years at the time of the accident. During the intervening period, she worked and was able to purchase a house. While there is evidence of psychiatric intervention of some sort in 2002, there is no evidence that this intervention continued for any extended period of time or that it was disabling in any way.

Dr. Feinstein states as follows with respect to pre-existing injuries in his report of May 12, 2014:³⁰

I could not elicit a formal history of psychiatric care that predates the accident of March 19, 2008. Ms. Pantoja did allude to some assistance she might have received in relation to the stress of immigration as a refugee and the separation from her husband. In addition, from my review of the extensive documentation, there is mention of Ms. Pantoja’s request to see a psychotherapist. This predates the accident of March 19, 2008 and suggests there was an element of emotional distress predating the accident. This in turn would have left Ms. Pantoja with a heightened vulnerability to develop psychopathology following the March 19, 2008 accident. That said, whatever pre-accident psychiatric problems were present were clearly mild and had not prevented Ms. Pantoja from working or pursuing an active lifestyle. As such, they alone cannot account for Ms. Pantoja’s current presentation.

In my review of the evidence, I agree with Dr. Feinstein, that the Applicant was emotionally vulnerable at the time of the accident. Into that vulnerability was inserted a significant accident where another car headed towards the Applicant, pushing her vehicle into the vehicle behind with the airbags deploying. It appears from the evidence that prior to the accident of March 19, 2008, the Applicant had periods of sadness and depression from time to time which were not disabling and which focused at times, if not mostly, on her marriage. Following the accident, she had a diagnosis, not only of depression but post traumatic stress disorder with recurring nightmares of the accident. She was also diagnosed with a pain disorder which interfered with her functioning. Her life changed after the accident. She began to have auditory hallucinations after the accident which prompted her to attend hospital in June 2008 and again in 2010. There is no indication that this was a feature of any previous periods of “sadness” or depression.

In my view of the evidence, the Applicant may, without the accident, have continued to experience feelings of sadness as she appears to have done prior to the accident. It is more likely than not, however, that without the accident of March 19, 2008, the Applicant would not have gone on to experience the full blown major depressive disorder with suicidal ideation and psychotic features which led to her hospitalization in 2010. She would not have experienced post traumatic stress syndrome or a pain disorder without the subject accident.

Counsel have provided case law as to the appropriate test for causation in an accident benefits case. I find, however, that whether the test is material contribution or “but for”, the Applicant has met both tests.

The Insurer pointed to the other motor vehicle accidents. As regards the 2005 accident, there is insufficient evidence that this was other than a minor accident which led to any significant period of disability or to a deterioration in mental functioning. Similarly, there is insufficient evidence that the accidents of August 2008 or the summer of 2009 led to any significant new injuries which significantly altered the course of the Applicant’s recovery following the accident of March 19, 2008.

The Insurer also pointed to the testimony of the Applicant and her daughter that the Applicant had had frequent falls after the accident. Regardless of whether or not these falls were caused by the subject accident as the Applicant maintains, the falls have produced little in the way of a record of medical attention, which tends to suggest that the falls did not have serious consequences. The only record of a fall in the medical record that I was able to locate is a family doctor’s clinical note dated August 24, 2015,³¹ which references a superficial cut to the head resulting from a fall the day before. The lack of medical evidence suggests that the falls had little impact on the Applicant’s ongoing medical condition.

Catastrophic Impairment

Dr. Eisen performed the psychiatric CAT assessment on behalf of the Insurer and his report is dated January 14, 2015.³² I note that his review of the medical record, at least on the face of the report itself, is much less thorough than Dr. Feinstein’s review in his report of May 12, 2014. Dr. Eisen noted³³ that he had had an opportunity to review the file but would comment only on the most pertinent reports to his assessment. He reproduced without comment sections from several psychological and psychiatric reports in the medical record. His recording of the information provided to him by the Applicant at the assessment seems more extensive. He concluded as follows:³⁴

Ms. Pantoja has an Adjustment Disorder with Mixed Mood Features on a chronic basis that is partially attributable to the subject motor vehicle accident. It is difficult to determine with any certainty whether the psychotic episode was related to the subject accident as it occurred about two years later. As well, she has residual symptoms of Specific Phobia (driving/passenger anxiety) as a consequence of the subject motor vehicle accident.

I have already concluded that the psychotic episode was related to the subject motor vehicle accident for the reasons stated above. I therefore give less weight to Dr. Eisen’s diagnosis of adjustment disorder. While he testified, and I don’t doubt, that one can be admitted to hospital because of an adjustment disorder, I do not believe that to have occurred in this particular case where the Applicant was diagnosed at the time of admission to the hospital in question with a major depressive disorder as well as a post-traumatic stress disorder.

I prefer the diagnoses provided by Dr. Feinstein in his reports, after he had interviewed the Applicant and after he had completed what appears to be a detailed review of the medical record. Dr. Feinstein, in his report of May 12, 2014, indicated as follows:³⁵

The diagnoses that reflect Ms. Pantoja’s current psychopathology are therefore as follows:

1. Major Depressive Disorder with Mood Congruent Psychotic Features (in partial remission)

2. Somatic Symptom Disorder with Predominant Pain (formerly called…)

3. Specific Phobia (for driving a motor vehicle)

4. Subsyndromal symptoms of Posttraumatic Stress Disorder.

Dr. Feinstein indicated that the prognosis for the Applicant was poor based on the longevity of symptoms and the fact that she had done so poorly notwithstanding the provision of reasonable physical and psychiatric treatments.

Dr. Feinstein’s findings in my view are more consistent than Dr. Eisen’s with the findings and diagnoses of the Applicant’s treating psychiatrists. I note that Dr. Feinstein’s findings are consistent with the information contained in the recent report of Dr. Shane McInerney dated May 16, 2017.³⁶ Dr. McInerney had been treating the Applicant since February 2017.

I accept Dr. Feinstein’s findings that the Applicant’s mental disorder has resulted in a marked (Class 4) impairment in her functional abilities as they relate to the areas of concentration, persistence and pace; and deterioration or decompensation in work or work-like settings. I do not accept Dr. Eisen’s findings of an adjustment disorder and I do not accept his findings with respect to functional impairment.

I find that Dr. Feinstein’s assessment is consistent with the evidence as a whole. This includes my review of the surveillance evidence. While the Applicant was observed shovelling light snow on one occasion on February 16, 2016, I note that the activity lasted for less than four minutes.³⁷ She was observed shopping but there were also days when she appeared not to have exited her home at all.³⁸ She was observed once pulling weeds while talking on her cell phone.

The surveillance evidence was put to the occupational therapist who performed the CAT occupational therapy assessment on behalf of the Applicant and it was also put to Dr. McInerney, as evidenced by the addendum reports dated June 5, 2017 and June 11, 2017 respectively.³⁹ The surveillance did not alter their evidence with Dr. McInerney reiterating that despite the less severe disability shown on the surveillance, the Applicant’s psychological condition remained that of a lady with Major Depressive Disorder and posttraumatic stress disorder.

The surveillance evidence does not alter my acceptance of Dr. Feinstein’s findings of a marked impairment in two spheres of functioning.

I find that the Applicant is catastrophically impaired as a result of the accident of March 19, 2008.

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 Dispute Resolution Practice Code.

October 31, 2017

Anne Morris Arbitrator

Date

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

Neutral Citation: 2017 ONFSCDRS 286

FSCO A15-004562

BETWEEN:

ADELA PANTOJA

Applicant

and

WAWANESA MUTUAL 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. Pantoja sustained a catastrophic impairment as the result of the motor vehicle accident of March 19, 2008.

2. 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.

October 31, 2017

Anne Morris Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Accidents on or after November1, 1996, Ontario Regulation 403/96, as amended.
2. 24th edition, 1993.
3. 3Closing Submissions of the Insurer, p. 6.
4. 4Referenced at p. 11 of the Closing Submissions of the Insurer.
5. 5See p. 11 of Closing Submissions of the Insurer.
6. 6Ibid.
7. 7Discharge report dated November 4, 2010, Arbitration Brief, Book 2 of 5, Tab D 2.
8. 8Ibid., 2nd page under “Impression”.
9. 9Catastrophic impairment determination.
10. 10Arbitration Brief, Book 5 of 5, Tab P 4, p. 15.
11. 11Neurpsychiatry report dated May 12, 2014, Arbitration Brief, Book 4 of 5, Tab H1, p.3.
12. 12Ibid. at p. 10.
13. 13Ibid. at p. 11.
14. 14Ibid. at p. 31.
15. 15Arbitration Brief, Book 5 of 5, Tab Q 8, p. 3.
16. 16See investigation report of Xpera dated February 25, 2016, Arbitration Brief, Book 5 of 5, Tab Y1, p. 2.
17. 17See letter from Insurer dated March 18, 2009, Arbitration Brief, Book 1 of 5, Tab 20.
18. 18See Statement of Canada Pension Plan Benefits, Arbitration Brief, Book 5 of 5, Tab U1.
19. 19See Police Report at Book 6 of Arbitration Brief, Tab B.
20. 20See Women’s College Hospital Emergency Report dated March19, 2008, Arbitration Brief, Book 2 of 5, Tab D1.
21. 21Ibid.
22. 22Clinical notes and records of Dr. Y. Helenese, Arbitration Brief, Book 3 of 5, Tab E1, p.2.
23. 23Ibid, p.36.
24. 24Clinical notes and records of Dr. Sanchez, Arbitration Brief, Book 3 of 5, Tab E 6, p. 4.
25. 25Ibid, p. 43.
26. 26Ibid, p. 44.
27. 27Clinical notes and records of Dr. Rogelia Adam, Arbitration Brief, Book 3 of 5, Tab E 14, p. 3.
28. 28Ibid, p. 12.
29. 29Discharge report dated November 4, 2010, Arbitration Brief, Book 2 of 5, Tab D 2.
30. 30Arbitration Brief, Book 4 of 5, Tab H1, p. 37.
31. 31Arbitration Brief, Book 3 of 5, Tab E5, p. 15.
32. 32Arbitration Brief, Book 5 of 5, Tab P4.
33. 33Ibid. at p. 8.
34. 34Ibid. at p. 7.
35. 35Arbitration Brief, Book 4 of 5, Tab H1, p. 34.
36. 36Arbitration Brief, Book 2 of 5, Tab D3.
37. 37Arbitration Brief, Book 5 of 5, Tab Y, pp. 8 and 9.
38. 38See, for example, the report of February 20, 2016 at p. 16.
39. 39Arbitration Brief, Book 6, Tab C 1 and 2.