Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 298

FSCO A16-001928

BETWEEN:

M.L.

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE

MANAGEMENT INC.

Insurer

REASONS FOR DECISION

Before:

Marcel D. Mongeon, Arbitrator

Heard:

At Ottawa on September 5, 6 and 7, 2017

Appearances:

The Applicant participated

Ms. Jaimie Noel for the Applicant

Ms. Megan Murphy for the Insurer

Issues:

The Applicant, M.L., was injured in a motor vehicle accident on October 6, 2010 and sought accident benefits from Security National Insurance Co./Monnex Insurance Management Inc. (“Security National”), 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 Hearing are:

1. Did the Applicant sustain a catastrophic impairment within the meaning of the

Schedule as a result of the accident?

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

Result:

1. The Applicant did not sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident.

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:

Facts

I have the facts from the testimony and cross-examination of the Applicant, and the joint document brief filed as exhibits.²

The Applicant was the driver of a vehicle travelling westbound in the middle lane of County Road 17 in Clarence-Rockland at the stop-light controlled intersection with Edwards Street. An oncoming automobile turned left (northbound) in the path of the Applicant’s vehicle.³ The Applicant was unable to stop before a collision with the other vehicle. Prior to the collision, the Applicant was travelling at approximately 60 kmh.

The Applicant was wearing her seat belt. She recalls the chest portion of the belt was over her right breast. The air bags deployed during the accident.

The Applicant was transported by ambulance to Montfort Hospital, treated and discharged the same night. Medical imaging reports taken at the hospital show no abnormalities.⁴ On discharge, the Applicant was provided with pain medications and advised to see her family physician.

The Applicant’s testimony was to the effect that she recalls pain to her chest and to her right ankle. She described that her chest pain was from the bottom of her ear to her hips. She recalls seeing the outline of the seat belt in the bruise that was created on her right breast. In addition, the nipple of the breast had become inverted.

The Applicant had a prior history of a serious motor vehicle accident in 1981 when, as a pedestrian, she was hit by a vehicle in Alberta. She has had about 20 different surgeries on her legs as a result of that accident. She also has asthma as a pre-existing condition, some drug allergies and was diagnosed and operated on for cancer about 20 years ago from which she has had no subsequent problems.

Following the accident, the Applicant saw her family physician on October 14, 2010. The notes show that she was complaining of pain to her right breast and foot. Other notes show the Applicant had pain to the right ankle, left clavicle, abdomen and chest⁵ as a result of the subject accident. The objective findings of the physician include that there was a hematoma to the right breast and no discharge from the nipple. Additional pain medications were provided and the advice was to “come back if [the] pain gets worst (sic).”

The next visit of the Applicant to her family physician was November 12, 2010. It indicates that the Applicant was “unable to go teaching much.” With respect to the right breast the Applicant continued to complain of tenderness and feeling lumps. The objective report of the physician was that there was a large elongated mass, non-mobile and tender.⁶ The prognosis was listed as “hematoma rt breast? – US”. I take US to mean ultrasound.

On December 6, 2010,⁷ the Applicant was first assessed by a physiotherapist at Physio Plantagenet. The notes of that assessment show that the physiotherapy plan would work on the right ankle situation and other matters relating to back pain. The Applicant testified that initially she was looking to fund the physiotherapy from benefits available through her husband’s employment. A report to the family physician was made on December 17, 2010.⁸

On December 22, 2010, the Applicant visited her family physician. The following notes are relevant to the breast injury and other relevant concerns were made:⁹ “Would like to change mammogram to Hawkes. Hematoma right breast still present but much smaller. Still tender. Getting anxiety when passenger in a car with the weather since MVA, getting flash back, nightmares, not as bad when driving herself. Referrals for an ultrasound of the right breast and to a psychologist for Post-Traumatic Stress Disorder (“PTSD”) post MVA are made.”

The ultrasound report of the right breast is reported on February 9, 2011.¹⁰ The Impression on that report is: “There are suspected dilated ducts with internal debris with the largest in the 7 to 8 o’clock position. Follow-up as clinically indicated. The patient presently denies any symptoms of infection.” The report also notes that “The patient was in significant pain during the examination.”

An appointment with a breast specialist took place on March 22, 2011.¹¹ Although I have difficulty making out the handwritten “Impression and Plan” of that report, it includes an acknowledgment of the subject accident and that it may take up to 12 months for the breast pain to resolve. It also suggests a mastectomy may be considered after that 12 month period but only as a last resort. The note indicates the Applicant can continue her activities of daily living.

The Applicant saw her family physician on May 2, 2011.¹² The note of her examination on that day shows: “Right breast hurts during the day, unable to sleep at night because of the pain. Has not been able to resume multiple activities because of the pain. Ex: no horseback riding, no swimming. The prognosis is listed as traumatic breast pain.”

On June 8, 2011, the Applicant indicated a desire to see another breast specialist. The reason for the change was not provided. It was also noted that the Applicant’s right nipple was inverted for 6 months. She had significant pain (three plus signs are used), “pain with driving, cannot ride horses, cannot swim secondary to pain with tramadol, states Pruritis [itchy skin].”

On July 12, 2011, the Applicant was seen by Dr. J. Davies at the Women’s Breast Health Centre. The report¹³ included that the Applicant had a lot of pain bruising and swelling in the right breast as well as an inversion of the right nipple. It took six months for the swelling to come down and for the nipple to return to normal. The Applicant then experienced a little bit of bloody nipple discharge.

At the time of the examination, the Applicant was still experiencing a significant amount of pain which was described as a burning sensation with a level of eight (out of 10) that is relatively constant. The Applicant changed her bra to a soft cup as she was no longer able to wear an underwire bra.

As a result of this examination, a new medication was proposed and a bilateral mammogram and right breast ultrasound were ordered. A follow-up appointment was made.

The follow-up appointment took place on August 9, 2011. The report¹⁴ of that appointment shows that the recent imaging showed development of oil cysts from fat necrosis. The report also included an opinion that “mastectomy or breast reduction surgery is not an option.” The Applicant had testified that she believed that a breast removal or reduction might solve her constant pain. Instead, the breast specialist suggested additional changes to medication to treat the pain with a possible long term prognosis of referral to a chronic pain program.

Another appointment with the breast specialist took place on September 13, 2011. The report¹⁵ following that appointment noted there had been some improvement in the Applicant’s pain. It showed that there has been more tolerance by the Applicant for her pain symptoms and she had been able to resume her horseback riding and her spirits had improved. The Applicant avoided handling of the right breast and had changed her bra. A follow-up mammogram was noted for July 2012.

A note of the family physician on October 20, 2011¹⁶ showed that the Applicant had a “breast pain breakthrough pain (sic) in the afternoon.” I take this to mean that she had very intense pain that was not controlled by her medication.

The next significant medical interaction of the Applicant took place on May 10, 2012.¹⁷ After the Applicant saw a Physiatrist, she was advised that the breast pain may be coming from the chest. It was also possible that there was a condition called Costochondritis which required a bone scan to identify. The report¹⁸ of the bone scan conducted on May 29, 2012 showed normal distribution of activity through bones and soft tissues and especially that there was no abnormality in the chest.

During the next period of time, the medical records provided at least 40 entries relating to breast pain. I have included these entries as an appendix to this decision which will be distributed to the parties to confirm the information I had. The appendix does not form part of this formal decision.

Of particular importance to the claim under the Schedule, the following information from the medical and other records is relevant:

• February 2, 2015:¹⁹ OCF-19, Application for Determination of Catastrophic Impairment was completed by the Applicant’s family physician showing criterion 8 in Part 4 as the applicable grounds for the claim. An earlier OCF-19 of March 27, 2013²⁰ was denied by the Insurer on July 22, 2013²¹ after the conduct of Insurer’s medical examinations.

• March 13, 2015:²² Denial letter from Insurer to Applicant. Based on assessments of July 3, 2013, the Insurer denied the determination of catastrophic impairment on the basis that none of the four spheres of function would meet the Class 4 threshold. The letter invited the Applicant to submit additional medical evidence if warranted.

• June 16, 2017:²³ Additional denial letter of Insurer. Various addenda were reported on. Of these, the psychological report was the most relevant stating that “there is no new documentation provided from the prior … With no new information relevant to the timeframe prior to when I previously assessed [the Applicant], there is no indication for me to retroactively adjust the conclusions…”

The following information from the Insurer’s and Applicant’s assessments is relevant. The assessments that were provided to me can be considered in three groups. The first group relate to the Insurer’s assessments conducted immediately after the first OCF-19 was submitted to it in mid-2013. The second group are assessments conducted by the Applicant in the fall of 2015 to support the second and current OCF-19. Finally, a third group of addenda were created by the Insurer in March 2017 to refute the Applicant’s assessments.

The Insurer’s assessments of mid-2013 were consistent and concluded that the Applicant did not fulfill the criteria for a determination of catastrophic impairment.²⁴ Both criteria 7 and 8 were considered. A multi-disciplinary medical team was used involving a pre-screening, an Occupational Therapist, a Kinesiologist, a Plastic Surgeon, an Orthopaedic Surgeon, a Psychiatrist, a Neurologist²⁵ and concluding with a summary report.²⁶

During the course of the assessment, the Applicant was very concerned about how the assessment with the Psychiatrist was conducted. She provided a letter outlining her concerns which were responded to.²⁷

Of the three Applicant’s assessments provided to me,²⁸ the most relevant information came from a report of Psychiatrist Zohar Waisman dated October 28, 2015.²⁹ Dr. Waisman gave an opinion that the Applicant meets the diagnostic criteria for a somatic symptom disorder. He also opined that she suffers from a major depressive disorder.

Dr. Waisman then turned to providing opinions relating to the Applicant’s functioning in relation to the determination of catastrophic impairment. He found that in the area of social functioning, the Applicant can be considered to suffer a marked impairment (Class 4) in this domain. He also believed that in deterioration or decompensation in work or work-like settings – which is also referred to as adaptation – the Applicant can also be considered to suffer a marked impairment (Class 4).

In support of his finding relating to social functioning, Dr. Waisman provided the following: “[The Applicant] used to be a rather extroverted and creative individual prior to the subject collision. Since the subject collision, she has been socially isolating. As such, in my opinion, she suffers a marked (Class 4) impairment in this domain.” With respect to adaptation he stated: “In my opinion, [the Applicant’s] impairments in depression, affect regulation and cognition would prevent her from sustaining attendance, making decisions, scheduling or completing tasks on a day-to-day basis.” He further stated: “She has not returned to pre-collision employment. She has difficulties in sustaining concentration and persistence. She has significant difficulties with social interaction and, clearly, she has difficulties in adaptation, set realistic goals and to make plans and as such her rating is marked. (sic.)”

In reply, the third group of assessments on behalf of the Insurer provided no new information. Psychiatrist Ken Suddaby’s report of March 23, 2017³⁰ merely pointed out that as Waisman’s report did not refer to any documentation that Suddaby did not have for his initial report, there was no need to update his opinion. Suddaby’s initial report³¹ contained his opinion that the Applicant did not suffer from anything other than vehicle-related anxiety. He specifically denied PTSD or a Major Depressive Disorder.

The Applicant was the only witness to testify. Generally, I found her to be credible and forthright with her answers. I have the following additional information from her testimony in no particular order.

Testimony of Applicant

The Applicant now lives with her husband on a rural property. They keep horses and the Applicant will ride them cautiously. She no longer gallops as much as she did before the accident due to her breast pain.

The Applicant enjoys a social life with many friends including those at her church. She no longer gets involved at church as much as she did in the past. She has travelled regularly and testified about participating in a family wedding although she pointed out that she had forgotten to take pictures of the set-up as her husband had wished.

The Applicant believes that her housekeeping skills have declined since the accident. She will take much longer periods of time doing chores such as washing the dishes and laundering the clothes.

Although the Applicant had worked as a teacher at various levels in different settings, she no longer does so. She finds full-time employment difficult to manage with her pain management. She did have some anecdotes of situations while a teacher that suggested that she was having some difficulty in coping. One of these was a story about the distribution of exams in an arbitrary manner contrary to instructions. Ultimately, the Applicant found that her physical pain was causing her to lose emotional focus and she no longer sought employment.

The Applicant has also taken up different aspects of being an artist since the accident. She acknowledged having won some awards. The Applicant was clearly embarrassed at the lack of organization of the room devoted to her art. The Applicant also testified that, at times, she would be unaware of what she was creating. Her family referred to this as her ‘zombie’ art.

The Applicant stated that her life revolved around her IV infusions and nerve blocks. She would plan activities around her expected treatments. Although she acknowledged that the breast reduction surgery had reduced her pain, it had not eliminated it. According to her understanding of her medical situation, in order to eliminate the breast pain the doctors would have had to have gone “into the chest wall” which they would not do.

The Applicant testified to having and relying on a network of friends. Some of these would allow her to drop in as early as 7:00 a.m. in the morning and provide her a place to rest if she required it.

Rather than providing detail in this decision of entries from the relevant clinical notes and records, I have included Appendix A. This references details of the clinical notes from the Applicant’s family physician, and Seekers Centre relating to the Applicant’s pain complaints.

Analysis

Did the Applicant sustain a catastrophic impairment under Section 3(2)(f) (Criteria 8) of the Schedule as a result of the accident?

The relevant subsections of the Schedule read as follows:

(2) For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

(f) subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

(5) Clauses (2) (e) and (f) do not apply in respect of an insured person who sustains an impairment as a result of an accident unless,

(b) two years have elapsed since the accident.

Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 further allow us to understand the terms of Class 3, 4 or 5 impairment. Specifically, a Class 3 impairment is known as a ‘moderate impairment’ and is further explained by ‘Impairment levels are compatible with some, but not all, useful functioning.’ Class 4 is a ‘marked impairment’ and is explained: ‘Impairment levels significantly impede useful functioning.’ Class 5 is an ‘extreme impairment’ and is explained as: ‘Impairment levels preclude useful functioning.’

The case of Aviva Canada v. Pastore³² makes it clear that to prevail, an Applicant need only demonstrate impairment in one of the four domains of function set out in the AMA Guidelines. The four domains of functioning are: a) activities of daily living; b) social functioning; c) concentration, persistence and pace; and d) deterioration or decompensation in work or work like settings. Domain d) is sometimes also referred to as adaptability.

Pastore further summarizes the three-stage process (at paragraph 6):

The first stage is diagnosis of any mental disorders, followed by the second stage, where the impact on daily life is identified. The third stage is assessing the severity of limitations by assigning them into the four categories and determining their levels of impairment.

In considering the language of the five classes of impairments, the arbitral award of Keck and Sovereign³³ helps understand that the Applicant must prove on a balance of probabilities that “her impairment levels significantly impede her level of functioning”. “Significantly” does not mean “totally”; it means something more than being insignificant or more than minimal. It must be an impairment level that is large enough to be noticed.

Does the Applicant suffer from any mental disorders?

The simple answer is yes. The Insurer’s assessor believes that the Applicant suffers from motor-vehicle anxiety. Her own psychologist, Dr. Payne, three years ago believed she suffered from PTSD, major depressive disorder and chronic pain disorder. Her own assessor, Dr. Waisman, also believed that she suffers from a major depressive episode and a somatic symptom disorder.

How have the Applicant’s mental disorders affected her life in the four domains defined?

Two of the domains are easily dealt with. These are activities of daily living, and concentration, persistence and pace. Even the Applicant’s own assessors believe that, at worst, the Applicant suffers only a moderate impairment (Class 3) in these two domains.

We then must examine the Applicant’s ‘social functioning’ and ‘adaptation.’ How have the mental disorders affected the Applicant’s life in these two areas?

In social functioning, the AMA Guides note that this refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others.

The Insurer’s representative has suggested that I should consider the following facts in determining whether or not the Applicant is impaired in this domain:

Documentary Evidence:

Source

Page Ref.

She attends church

Occupational Therapy Report of Sherry Mosher-Taillefer

106

She continues to attend church

Psychiatry Report of Dr. Ken Suddaby

170

She teaches Sunday school

Occupational Therapy Report of Sherry Mosher-Taillefer

106

She spends time checking e-mail or going on Facebook

Psychiatry Report of Dr. Ken Suddaby

170

She has a lot of friends and she sees them a couple of times per week. She also chats with them on the phone regularly

Psychiatry Report of Dr. Ken Suddaby

170

She will go for 30 to 60 minute walks with friends. She likes going with her friends and their children to the park, although she has to be careful as to how she picks up babies

Psychiatry Report of Dr. Ken Suddaby

170

For fun, she might go for dinner and a movie with her husband

Psychiatry Report of Dr. Ken Suddaby

170

She has a good social network that keeps her busy and mentally active. She is resuming her regular activities

Clinical notes and records of Dr. Forgues – report of Dr. Rancourt

399

To this I add my own appreciation of the Applicant’s evidence. With respect to the Applicant’s social situation, I heard of her being able to attend family weddings, having a wide circle of friends and continuing to be active with friends and family although with some reductions being required from pain limitations.

I also have the following notations provided by the Insurer’s representative on the assessments.

Conclusions of Security National’s Catastrophic Impairment Assessors:

Source

Page Ref.

There is a reported lack of desire and caring about some leisure tasks and an inability to perform many of her pre-morbid leisure tasks. It is unclear if pain causes the lack of desire or if there is pain and a lack of desire but she is limited in what she reports she does as compared to her pre-morbid tasks

Occupational Therapy Report of Sherry Mosher-Taillefer

113

The only rateable condition, from a psychiatric perspective, is a specific phobia, driving

Psychiatric report of Dr. Ken Suddaby

175

Referring to the Applicant’s principal assessor, Dr. Waisman, I note that the only justification given for a marked impairment in this domain is that “[the Applicant] used to be a rather extroverted and creative individual prior to the subject collision. Since the subject collision, she has been socially isolating.”

I do not share the same appreciation of the facts. Rather, I find that, if anything, the Applicant relies even more on friends in dealing with her pain. One anecdote the Applicant referred to during her testimony was that she has friends on whom she can drop in even as early as 7 a.m. They are also ready to provide her a place to lie down. This does not suggest someone who has impaired social functioning.

Based on the foregoing, although the Applicant has had some impairment of functioning in the domain of social functioning, I find that the Applicant has a Class 3 ‘moderate impairment’. It is clear to me that she does not have any significant limitations in her social interactions.

I now turn to the adaptation domain. In this case, there is no question in my mind that the Applicant’s pain affects her ability to deal with work and work-like situations.

The Insurer’s representative has suggested that I should consider the following facts in determining whether or not the Applicant is impaired in this domain:

Documentary Evidence:

Source

Pg. Ref.

Patient is now back at work

OCF-3 of Dr. Forgues

3

She is an art teacher and has physical limitations such as overhead reaching with her right upper extremity.

Occupational Therapy Report of Sherry Mosher-Taillefer

114

Throughout the discussion it was noted that she really wants to go back to work and feels she could work but only for about 75 minutes, which would allow her to also engage in tasks at home

Occupational Therapy Report of Sherry Mosher-Taillefer

114

She reported that it is difficult to work with elementary school age children because if she has to physically separate them or they touch her, this could cause severe pain

Occupational Therapy Report of Sherry Mosher-Taillefer

114

She no longer teaches in the primary grades because an autistic student accidentally hit his head on her right breast and this caused significant pain

Psychiatric report of Dr. Ken Suddaby

169

We find that the claimant is not working; although at the time of my evaluation, she was working part-time, teaching in high school; therefore, she has not returned to elementary teaching full-time. I also note that at the time of our functional abilities evaluation, she was found to be able to lift weights which were classified as heavy weights up to the waist level

Catastrophic Functional Evaluation Addendum Report of Mr. Luigi Grimaldi

210

I return to the explanation in the AMA Guidelines.³⁴ The domain of ‘deterioration or decompensation in work or work-like settings’ refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with stresses and peers.

The Applicant’s psychological assessor, Dr. Payne, had established a Class 4 impairment stating: “in my opinion, [the Applicant’s] impairments in depression, affect regulation and cognition would prevent her from sustaining attendance, making decisions, scheduling or completing tasks on a day-to-day basis. She has not returned to pre-collision employment. She has difficulties in sustaining concentration and persistence. She has significant difficulties with social interaction and, clearly, she has difficulties in adaptation, set realistic goals and to make plans and as such her rating is marked. (sic.)”

My understanding of the testimony was that the Applicant’s difficulties with work did not stem from her depression but rather from her breast pain. Her pain did not allow her to complete full days at work although she had demonstrated on a number of occasions an ability to work a reduced load. For example, I refer to Dr. Payne’s August 21, 2013 report which stated: “she is no longer able to deal with elementary school children as she is often jostled or bumped which causes significant pain.”

There are a few references to the Applicant having had pain problems at work when she was unable to prevent interactions between herself and students that could cause such pain. This suggests to me that the Applicant’s inabilities and impairments at work are not as a result of her mental disorder but rather primarily from physical pain. Although the Applicant did relate one anecdote at work of having handed out exams contrary to her instructions, on a preponderance of the evidence, I am not convinced that the Applicant’s work challenges are as a result of a mental disorder. To my understanding they are more specifically attributable to the physical pain she has from her right breast. Her own testimony was that her physical pain caused her an inability to focus.

In addition to the Applicant’s employment as a teacher, I also must factor in her possible work as an artist. Her occupational therapist was very positive about the Applicant’s abilities and future in the art world. Although there are some concerns which have been referred to as ‘zombie art’, I must determine between the different classes of impairment within this domain as to how severely impaired I believe the Applicant to be.

I noted the Applicant’s testimony that she was able to keep her medical appointments and schedule them as appropriate. She is able to drive herself taking appropriate breaks and although she has difficulty coping with change, she can do so. To my reading of the different classes of impairment in adaptation, this suggests to me at worst a Class 3 impairment: “Impairment levels are compatible with some, but not all, useful functioning.” She cannot work full-time. However, this does not automatically mean she is significantly impeded from useful functioning which is what would be required for Class 4.

To summarize, I find that the Applicant has Class 3 impairments at worst in the domains required by section 3(2)(f) of the Schedule.

Accordingly, in my opinion, the Applicant is not catastrophically impaired as a result of the October 6, 2010 motor vehicle accident.

November 13, 2017

Marcel D. Mongeon Arbitrator

Date

Appendix A – References to Clinical Notes

• August 2, 2012:³⁵ meds increase for breast pain. Applicant did some painting in the morning but she is having significant (2 plus signs) right breast pain since. Lying still for 4 hours and still not better;

• August 16, 2012:³⁶ increased meds helping with breast pain. Applicant seems to be more active

• November 13, 2012:³⁷ More right breast pain related to cold or activities. Has slowed down but only if does nothing. Applicant seeking med increase.

• March 6, 2013:³⁸ First full time Applicant teaching for two weeks since the accident. More pain in breast. Finishes in 2 days. Angry and disappointed that Applicant cannot teach full time in an Art class.

• March 27, 2013:³⁹ Chronic breast pain. Unable to resume full time work.

• April 30, 2013:⁴⁰ Applicant consults with Dr. J. Davies (breast specialist). Report includes: Chronic pain worsening in the last few months. Applicant is only able to work half days. She tried to work full days but this was unsuccessful. Have initiated a referral to a plastic surgeon to consider her for breast reduction surgery.

• May 24, 2013:⁴¹ Report on a mammogram and right breast ultrasound. Benign-appearing calcification in the right breast is stable, consistent with fat necrosis. There are no new suspicious findings.

• June 18, 2013:⁴² Applicant sees the breast specialist, Dr. J. Davies. Notes that reassessed due to worsening in the last few months or so. Assessed by plastic surgeon for option of breast reduction surgery. Also seen for a 2nd opinion in Toronto. This surgeon was not certain her pain would be improved with reduction surgery.

• August 21, 2013:⁴³ Date of a psychological report from Dr. Andrew Payne, C Psych relating to the Applicant.⁴⁴ This report includes a diagnosis of chronic posttraumatic stress disorder (PTSD), Major depressive disorder and a pain disorder associated with both psychological factors and a general medical condition.

Also included in the report are limitations in the Applicant’s employment. Specifically notes is she is no longer able to deal with elementary school children as she is often jostled or bumped which causes significant pain. She was able to teach a reduced load of classes in a day for a period of six weeks although this type of work with older students is not consistently available.

• August 22, 2013:⁴⁵ Date of Occupational Therapy Progress Report #3 of Jackie Swartz.⁴⁶ This report includes: Injuries are right breast necrosis due to trauma; right mastalgia; soft tissue injury to the lumbar spine; SI joints and right ankle; Anxiety and Depression. OT activities included: initiated a referral for psychology to support Applicant’s driving anxiety and pain management. The report gives information on functional goals which were being achieved according to the therapist’s notes. There is information about the Applicant’s involvement with creating artworks. No information relating to employment is given.

• October 24, 2013:⁴⁷ The Applicant underwent breast reduction surgery. The report includes the following. The surgeon had 3 preoperative visits with the Applicant to discuss mastalgia and hypermastia. I reiterated there is a 30-40% complication rate and, even with this, will not guarantee a resolution of her mastalgia pain. The Applicant was agreeable and would still like to undertake this procedure in order to have a chance at getting rid of some of the pain. The report further noted that, in the surgery, 985 grams of tissue were removed from the right breast. In addition, 300 ml of fat was aspirated from the right axilla.

An accompanying laboratory report⁴⁸ confirmed that the tissue removed was benign breast tissue with fat necrosis.

• November 20, 2013:⁴⁹ In a report with her family physician, the Applicant reports feeling really well and that she doesn’t remember the last time she felt this well.

• January 7, 2014:⁵⁰ In a report with her family physician, the Applicant reports that the breast reduction helped (two plus signs) with pain but the pain is still present. There is also a concern about an interaction with eating grapefruit and one of the pain meds. The prognosis also notes breast reduction has helped with chronic pain.

• February 3, 2014:⁵¹ This clinical note with the Applicant’s family physician notes that her pain is a little worse than after the surgery but it comes back when she tries to stop her meds. She also notes two episodes where she fell asleep while drawing and when she woke up there were drawings that apparently she made without being conscious of it. These were termed ‘zombie art.’ The note also notes that the Applicant is back to work on half days.

• February 12, 2014:⁵² The Applicant has a follow-up visit with the breast specialist, Dr. J. Davies. The report includes: the Applicant’s return to work has been difficult. She was working half days. She is on a wait list to see a pain counsellor. The Applicant’s pain is overall better than it was prior to surgery but she still requires medications to stay on top of things. She is most definitely not pain free.

• February 24, 2014:⁵³ Date of a psychological report from Dr. Andrew Payne, C Psych relating to the Applicant. The diagnostic impression continued to report chronic PTSD, Major Depressive Disorder and Pain Disorder.

• March 25, 2014:⁵⁴ Initial screening of the Applicant at the Seekers Centre for Integrative Medicine (also referred to as Seekers pain clinic) for pain treatment. The report includes the note that the Applicant was administered local anaesthetic to specific points as a nerve block. It also notes that pain was lessened in the right breast.

• April 10, 2014:⁵⁵ Visit to Seekers pain clinic. Note includes: Applicant reports about a trip driving to Toronto, didn’t require as many stops. Less flare ups but intensity was the same.

• April 17, 2014:⁵⁶ Visit to Seekers pain clinic. Note includes: Applicant reports after last treatment had one good day of short term relief. Rode her horse for the first time in 8 months. Felt good to do something normal. Traveling to Toronto today for a pet show. Had a flood at the beginning of the week so is sore although husband did most of the work. Response to injections: Pain in breast about 3/10 but pain free everywhere else.

• April 24, 2014:⁵⁷ Visit to Seekers pain clinic. Note includes: Applicant reports one good day of short term relief on previous injection. Same day after treatment made it to Toronto and back for horse workshop. Only two stops. Rode her horse a few times.

• April 28, 2014:⁵⁸ Visit to Seekers pain clinic. Note includes: Lidocaine IV treatment began.

• May 8, 2014:⁵⁹ Visit to Seekers pain clinic. Note includes: Applicant reports after procaine infusion yesterday pain is only about 1-2 in right breast. Best relief since the accident. Able to do a lot on her property and rode her horse. Feels good to have sore muscles that are not due to accident and feels good to be doing normal things.

• May 9, 2014:⁶⁰ Date of Occupational Therapy Progress Report #5 of Jackie Swartz. Report includes progress the Applicant has had on 4 functional goals. No comments are made relating to the Applicant’s employment.

• May 29, 2014:⁶¹ Visit to Seekers pain clinic. Note includes: Applicant reports was unable to drive today. Friend brought her here.

• June 5, 2014:⁶² Visit to Seekers pain clinic. Note includes: Applicant reports went to Montreal. Drove alone.

• June 10, 2014:⁶³ Visit to Seekers pain clinic. Note includes: Applicant reports she is back to school to work as a teacher.

• June 27, 2014:⁶⁴ Date of a visit to the family physician. Report includes: Applicant complaining about left knee pain and going on vacation in next week. Applicant started lidocaine IV injection 2 months ago; feeling better, now riding horse again.

• July 7, 2014:⁶⁵ Status report letter from Seekers pain clinic to family physician. No specific comments relating to right breast pain.

• July 29, 2014:⁶⁶ Visit to Seekers pain clinic. Note includes: Applicant reports back from out west. Could not get lidocaine there. Is in significant pain.

• August 28, 2014:⁶⁷ Visit to Seekers pain clinic. Note includes: Applicant reports after previous injection was able to travel a 15 hour car ride which she could never have done before. Continues to be off all medications.

• September 16, 2014:⁶⁸ Visit to Seekers pain clinic. Note includes: Applicant reports feeling a little run down and stress. Working full work load and is quite overwhelmed by the switch. She will be resuming to part time work as she is covering for another teacher at this time. Applicant was desperate for some relief and asked if there was a Lidocaine opening. Had been back at work full time for two weeks.

• September 29, 2014:⁶⁹ Visit to Seekers pain clinic. Note includes: Applicant reports she is more tired because she is working full time teaching for special needs students.

• October 14, 2014:⁷⁰ Visit to Seekers pain clinic. Note includes: Applicant reports she is finished teaching.

• February 2, 2015:⁷¹ Visit to family physician. Note includes: swimming 3 times per week; Applicant went back to work in September [2014] but had a physical and mental breakdown. IV procaine every 2 weeks and it helps with breast pain. Very afraid to drive. Psychologist is forcing her to get out and drive but difficult for her.

• May 19, 2015:⁷² Visit to Seekers pain clinic. Note includes: Applicant reports she went back to work as supply teacher. That was very hard on her pain level. Current meds – Vimovo.

• May 28, 2015:⁷³ Visit to Seekers pain clinic. Note includes: Applicant reports doing well despite lots of driving; new baby and foal in the family. Reviewed coping and pacing – don’t overdo it.

• August 13, 2015:⁷⁴ Visit to Seekers pain clinic. Note includes: Applicant reports about previous injection that 75% relief for three days. Has been traveling to Alberta in June for 2 weeks and 3 weeks in July driving. Current meds include Vimovo.

• September 29, 2015:⁷⁵ Visit to Seekers pain clinic. Note includes: Applicant reports pain in her tailbone. She has been doing pottery 3 to 4 times per week for 2 to 4 hours per time sitting on a hard stool.

• October 15, 2015:⁷⁶ Visit to Seekers pain clinic. Note includes: Applicant reports since her previous injection doing pottery for two days after and for 3 ½ hours before the appointment.

• February 7, 2017:⁷⁷ Visit to Seekers pain clinic. Note includes: Applicant reports 10 days of relief since last infusion with flare ups (less severe, 2 per day.)

• Mar 10, 2017:⁷⁸ Visit to family physician. Note includes that Applicant gets IV lidocaine every 3 weeks with the Seeker centre – helps with pain in breast and knees. Will inject lidocaine in the breast on other times. Still needs Vimovo on other weeks. Feeling more alive. Psychologist Andrew Payne following her for PTSD. Chronic pain under control.

• May 2, 2017:⁷⁹ Report from the Ontario breast screening program showing a normal/benign mammogram.

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 298

FSCO A16-001928

BETWEEN:

M.L.

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE

MANAGEMENT INC.

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. The Applicant did not sustain a catastrophic impairment within the meaning of the

Schedule as a result of the accident.

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.

November 13, 2017

Marcel D. Mongeon Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Two binders are Exhibits 1 and 2 and Tab 44 of the third binder is Exhibit 3. Herein, except for Exhibit 3, only the tabs are referred to.
3. 3Tab 28, Motor Vehicle Accident report.
4. 4The hospital records are part of the family physicians’ clinical notes and records at Tab 34 at page 288 et seq.
5. 5Tab 34, page 294.
6. 6Tab 34, page 295.
7. 7Tab 35, page 459.
8. 8Tab 34, page 318.
9. 9Tab 34, page 298.
10. 10Tab 34, page 299.
11. 11Tab 34, page 312.
12. 12Tab 34, page 302.
13. 13Tab 34, page 304.
14. 14Tab 34, page 306.
15. 15Tab 34, page 309.
16. 16Tab 34, page 310.
17. 17Tab 34, page 332.
18. 18Tab 34, page 326.
19. 19Tab 34, page 418.
20. 20Tab 2.
21. 21Tab 25.
22. 22Tab 26.
23. 23Tab 27.
24. 24Tab 14.
25. 25Tabs 7 through 13.
26. 26Tab 14.
27. 27Tabs 15 and 16.
28. 28Tabs 4, 5 and 6.
29. 29Tab 6.
30. 30Tab 22.
31. 31Tab 12.
32. 322012 ONCA 642.
33. 33FSCO A13-005263 and A13-002265, December 16, 2016, Arbitrator Sherman.
34. 34Chapter 14, page 294.
35. 35Tab 34, page 333.
36. 36Tab 34, page 333.
37. 37Tab 34, page 340.
38. 38Tab 34, page 341.
39. 39Tab 34, page 342.
40. 40Tab 34, page 342.
41. 41Tab 34, page 345.
42. 42Tab 34, page 346.
43. 43Tab 36, page 531.
44. 44I note that I have not been provided the clinical notes and records of any sessions that were conducted from this psychologist. The only information is found in the periodic assessment reports.
45. 45Tab 30.
46. 46I note that I have not been provided reports number 1, 2, 4 or any report after number 5.
47. 47Tab 39, page 615.
48. 48Tab 39, page 619.
49. 49Tab 34, page 373.
50. 50Tab 34, page 374.
51. 51Tab 34, page 378.
52. 52Tab 34, page 381.
53. 53Tab 36, page 545.
54. 54Tab 37, page 553.
55. 55Tab 37, page 554.
56. 56Tab 37, page 556.
57. 57Tab 37, page 557.
58. 58Tab 37, page 559.
59. 59Tab 37, page 561.
60. 60Tab 33.
61. 61Tab 37, page 568.
62. 62Tab 37, page 570.
63. 63Tab 37, page 572.
64. 64Tab 34, page 393.
65. 65Tab 34, page 398.
66. 66Tab 37, page 576.
67. 67Tab 37, page 581.
68. 68Tab 37, page 584.
69. 69Tab 37, page 585.
70. 70Tab 37, page 587.
71. 71Tab 34, page 417.
72. 72Tab 37, page 602.
73. 73Tab 37, page 605.
74. 74Exhibit 3, page 162.
75. 75Exhibit 3, page 167.
76. 76Exhibit 3, page 170.
77. 77Exhibit 3, page 217.
78. 78Tab 34, page 437. I also note that there appears to be an almost one year gap in the clinical notes and records of the family physician. At Tab 34, page 433, I note that entries jump from December 9, 2015 to November 3, 2016.
79. 79Tab 34, page 442.