Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 307 FSCO A14-005478

BETWEEN: MARIA GRAZIA (GRACE) PETRONE Applicant and WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: David Snider Heard: May 25, 29, 30, 31 and June 1 & 2, 2017, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: A. Fabio Longo for Ms. Petrone Michael Kennedy for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Maria Grazia (Grace) Petrone, was injured in a motor vehicle accident on January 1, 2012. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Wawanesa denied Non-Earner Benefits and two treatment plans in 2012 and 2013 respectively. The parties were unable to resolve their disputes through mediation, and Ms. Petrone 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. Is Ms. Petrone entitled to receive a weekly non-earner benefit from July 1, 2012 to present and ongoing?
2. Is Ms. Petrone entitled to receive weekly non-earner benefits at the enhanced level of $320.00 per week applicable to students from December 30, 2013 to present and ongoing?
3. Is Ms. Petrone entitled to receive a medical benefit for treatment plans provided by Synergy Rehab dated April 22 and November 15, 2013 in the amounts of $2,652.62 and $2,407.28 respectively?
4. Is Wawanesa liable to pay Ms. Petrone’s expenses in respect of the arbitration?
5. Is Ms. Petrone liable to pay Wawanesa’s expenses in respect of the arbitration?
6. Is Ms. Petrone entitled to interest for the overdue payment of benefits?

Result:

1. Ms. Petrone is entitled to receive a weekly non-earner benefit between July 1, 2012 and December 29, 2013.
2. Ms. Petrone is entitled to receive weekly non-earner benefits at the enhanced level of $320.00 per week from December 30, 2013 to present and ongoing.
3. Ms. Petrone is entitled to receive a medical benefit for treatment plans provided by Synergy Rehab dated April 22 and November 15, 2013 in the amounts of $2,652.62 and $2,407.28 respectively.
4. Wawanesa is liable to pay Ms. Petrone’s expenses in respect of the arbitration.
5. Ms. Petrone is not liable to pay Wawanesa’s expenses in respect of the arbitration.
6. Ms. Petrone is entitled to interest for the overdue payment of benefits.

EVIDENCE AND ANALYSIS:

At the commencement of the hearing on May 25, 2017 I asked the parties to confirm what issues were before me to determine. The issues list set out above resulted from that discussion. I note that a $200.00 fee for an OCF-3 dated May 29, 2013 was removed from the issues in dispute, as was the request for a special award. I note further, however, that the issue of whether Ms. Petrone was entitled to “student level” Non-Earner Benefits (NEBs), meaning $320.00 per week at the appropriate stage as set out in the version of the Schedule applicable on January 1, 2012, was added to the issues in dispute.

I will deal with the simplest issue first. Pursuant to section 12(1)3.i of the Schedule, as it read on January 1, 2012 (the date of this accident), was Ms. Petrone “enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident”? The text of the entire Non-Earner Benefit category from that version of the Schedule is set out below and I have made bold and italicized the subsections which are relevant for my purposes here:

Insurance Act

ONTARIO REGULATION 403/96

STATUTORY ACCIDENT BENEFITS SCHEDULE — ACCIDENTS ON OR AFTER NOVEMBER 1, 1996

Historical version for the period September 1, 2010 to March 3, 2016.

Last amendment: O. Reg. 35/10.

PART III NON-EARNER BENEFIT

12.(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

2. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, received a caregiver benefit as a result of the accident and there is no longer a person in need of care.

3. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or

ii. completed his or her education less than one year before the accident and was not employed, after completing his or her education and before the accident, in an employment that reflected his or her education and training. O. Reg. 403/96, s. 12 (1).

12(2) Subject to subsection (3), the amount of the non-earner benefit shall be $185 for each week that the insured person is eligible to receive the benefit. O. Reg. 403/96, s. 12 (2).

12(3) If a person qualifies for a non-earner benefit under paragraph 3 of subsection (1) and more than 104 weeks have elapsed since the onset of the disability, the amount of the non-earner benefit shall be $320 for each week that the insured person continues to be eligible to receive the benefit. O. Reg. 403/96, s. 12 (3).

12(4) The insurer may deduct the following amounts from the amount payable to an insured person as a non-earner benefit:

1. Net weekly payments for loss of income that are being received by the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation benefit plan.

2. Net weekly payments for loss of income that are not being received by the insured person but are available to the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation benefit plan, unless the insured person has applied to receive the payments for loss of income. O. Reg. 403/96, s. 12 (4); O. Reg. 462/96, s. 6.

12(5) For the purpose of subsection (4), subsections 7 (2) and (3) apply with necessary modifications. O. Reg. 403/96, s. 12 (5).

12(6) Subject to subsection (7), the non-earner benefit is payable during the period that the insured person suffers a complete inability to carry on a normal life. O. Reg. 403/96, s. 12 (6).

12(7) The insurer,

(a) is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life; and

(b) is not required to pay a non-earner benefit for any period before the insured person attains 16 years of age. O. Reg. 403/96, s. 12 (7).

12(8) Sections 9 and 10 apply, with necessary modifications, to a non-earner benefit and, for that purpose, the reference in subsection 10 (1) to “the amount determined under section 7” shall be deemed to be a reference to the amount referred to in subsection (2) of this section. O. Reg. 403/96, s. 12 (8).

It is not disputed that Ms. Petrone had been accepted into a full-time animal care program at Sheridan College and was scheduled to start this program some nine days after the accident date. To be specific, she had been offered a position as a student in the program on November 14, 2011, had formally accepted the offer on November 17, 2011 and had paid her “OSAP Deferral” deposit on November 29, 2011 with the remaining balance to be determined after her application for OSAP was processed. She was unable, as a result of the accident, to attend Sheridan College and although she was invoiced approximately another $1,900.00 by the college she went no further with the program.

Accordingly, I find that she meets the criteria set out in section 12(1)3.i of the Schedule, and that therefore she will be entitled to an increase in the Non-Earner Benefit amount from $185.00 to $320.00 weekly as of December 30, 2013, which is the day after the end of the 104 week mark “since the onset of the disability”.

Turning now to the second least complicated issues, I must determine whether the two treatment plans in dispute are reasonable and necessary. Firstly, however, I must note that the Insurer submitted that the first of these plans, dated April 22, 2013, was provided by an assessor who had not seen Ms. Petrone and hence sought to raise the argument that there was a procedural flaw concerning its validity. However, the Insurer did not produce or elicit evidence of a convincing nature during the hearing with regard to this submission and in the absence of an evidentiary foundation for the submission I have chosen to disregard this point. From the testimony and submissions I heard at the hearing I have concluded that it is relatively uncontroversial that Ms. Petrone suffers from chronic pain which may arguably be at the chronic pain syndrome level of seriousness. I note further that she underwent surgery on her right knee to correct pain, swelling and a “clicking sound” in the knee which she reported quite consistently to various doctors. I neither heard nor found any medical or other evidence which indicated that the knee pain existed prior to the accident. I did hear a significant amount of evidence which confirmed for me that Ms. Petrone started some maladaptive coping behaviours post-accident which included taking unauthorized Tylenol 3 medication and greatly increasing her alcohol intake. This has convinced me that she does indeed feel significant pain on a regular, day-to-day basis, and that various modalities, both active and passive, of physical treatment may assist her to simply cope with everyday life in a less painful way.

As has been found in a large number of FSCO arbitral decisions including Violi and General Accident Assurance Co. of Canada (FSCO P99-00047, September 27, 2000) and Pedisic and State Farm Mutual Automobile Insurance Company (FSCO A04-002338, A04-002339, January 23, 2009), the simple goals of reducing pain and/or allowing the person to function in everyday life are sufficient to justify both active and passive medical treatments. Accordingly, I must conclude that the two treatment plans in question, namely $2,652.62 set out in an OCF 18 dated April 22, 2013 and $2,407.28 set out in an OCF 18 dated November 15, 2013, both provided by Synergy Rehab, are reasonable and necessary for Ms. Petrone. I do note that both of these treatment plans are for physiotherapy, chiropractic and massage therapy rather than for chronic pain but I do not consider that to be the issue here. I consider both of these plans to be useful to Ms. Petrone from the point of view of everyday coping and not because I expect that they can in some way treat her chronic pain. That would require a much more sophisticated chronic pain program which would have to be set out in a new and separate treatment plan. As there is no such plan before me, I consider it appropriate to approve these two plans simply to assist Ms. Petrone in coping with the chronic pain she experiences. Accordingly, I find that Ms. Petrone is entitled to full approval of these two treatment plans and the interest for late payment applicable thereto.

I turn now to the question of Ms. Petrone’s eligibility for Non-Earner Benefits. There is no doubt that the threshold set out in the Schedule appears to be almost unassailable for a person who has not been found to be catastrophically impaired. The words “the insured person suffers a complete inability to carry on a normal life” appear, on their face, to require a complete shut-down of the Applicant’s life relative to all activities they engaged in prior to the accident. However, this extreme interpretation of the threshold has been significantly modified, both as to what amounts to a “complete inability” and, equally significantly, the degree of material contribution of the accident which must be determined, in a number of important precedent cases which are binding upon this Commission, most notably Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, Heath v. Economical Mutual Insurance Co., 2009 ONCA 391 and Monks v. ING Insurance Company of Canada, 2008 ONCA 269.

Briefly, the Galdamez decision defined the threshold to be measurable by a diminution in the Applicant’s overall quality of life. The Heath case requires me to compare the Applicant’s activities and life circumstances in the pre and post accident periods to determine what activities were meaningful for the Applicant prior to the accident and what was lost, from a qualitative standpoint, as a consequence of the accident. It also permits me to afford greater weight to the activities which the person considered to be most important. The Monks decision, which was a tort case, deals with the causation issue and how it may be defined. It confirms that the tort law establishes material contribution as the proper standard to resolve causation disputes and then compares this standard to Accident Benefits arbitration cases as follows (paragraph 91):

“… Moreover, the trial judge’s application of the material contribution test conforms with a long line of arbitral decisions in which this test has been utilized to resolve causation issues in accident benefits disputes, including in cases where the benefits claimant suffered from a pre-existing condition prior to the accident in question.”

It must certainly be noted that I am not, neither in the test set out in section 12(1) of the Schedule nor as a result of caselaw, required to find a specific impairment or the cause/source of any specific impairment as part of my determination of eligibility for NEBs. I am required to determine if there is a “complete inability to carry on a normal life”, as that has been modified by caselaw, and to then decide whether the accident in question materially contributed to that inability.

These, then, are the principles of law which I must apply to my assessment of Ms. Petrone’s eligibility for Non-Earner Benefits. The insurer, in its submissions and throughout the hearing, urged me to focus on Ms. Petrone’s pre-existing cycles of depression and their effects upon her working and academic life. There is no doubt in my mind that Ms. Petrone did suffer from the effects of various degrees of depression for many years prior to the accident. There is also no doubt in my mind that her pre-existing depression did materially contribute to her more recent academic failings and, to a lesser degree, her non-return to employment after the accident. However, the fact that her pre-existing depression was one material contributor does not remove the fact that the accident itself could also be a material contributor to her complete lack of ability to succeed in these two important functions in her life post accident. I see no reason why there cannot be more than one material contributor to be considered when resolving causation issues in an accident benefits case. I also cannot conceive of any logical or legal reason to conclude that I must struggle to determine which material contributor was the more significant one. All that is necessary, in my opinion, is to find that the accident was a material contributor, regardless of whether there were other major contributors.

The Insurer also asks me to find that the significant portion of Ms. Petrone’s psychological decline and her current level of psychological impairment, which both sides agree is major as of the time of this hearing, can be traced to academic failures which occurred after the 104-week period post accident. The Insurer relies upon various medical opinions and reports which were obtained in the period after the end of December 2013 to suggest that the first measured occurrence of major depression was outside of the 104 week eligibility period set out in the Schedule and that accordingly this would exclude her from being eligible for NEBs. I find this argument to be spurious at best, since it is impossible to determine the progress of her depression in such a blunt manner based upon the medical evidence I heard from the experts on both sides – and even from the point of view of simple logic. I find that her pre-existing depression made her more vulnerable to the psychological decline which occurred after the accident, but that the decline was clearly exacerbated by the accident and was a progressive event which continued throughout the 104-week period post-accident and into today. It is entirely possible that in her struggle to find some way out of her depression she set herself up for failure when she engaged in her more recent educational pursuit by putting herself way out of reach from her circle of family and friends and attempting to live on her own and do a full time academic program in Chatham, Ontario. The circular question becomes what was the cause (impairment) and what was the effect (symptom)? I need not answer this, not only because I couldn’t, but also because that determination is not part of the test for NEB eligibility. I need only to search for a complete inability (as defined by the caselaw) as a result of and within 104 weeks after the accident.

Moving on, it is also very clear to me that the academic and employment factors were by no means the only elements of Ms. Petrone’s pre-accident life which were materially affected by the accident. I find that prior to the date of loss Ms. Petrone was, although generally depressed and prone to cycles of greater and lesser depression, functioning as an active member of her family and church. She was, in fact, on her way home from a New Year’s mass when this accident occurred. She was a contributing part of a traditional Italian family, actively helped her mother with various household duties and the care of her father, had a good relationship with her sister and doted on her sister’s children. She was an avid reader and attended the movie theatre regularly. She was not overly social outside of her family, although she did have friends from her previous days of employment and she enjoyed going to hockey games and concerts. She was also interested in, although apparently not overly successful with, romantic relationships and was somewhat active in pursuing those interests. She had not at any time reported sleep problems to her family or any medical caregiver and she did not drink alcohol in excess or even on a regular basis.

Ms. Petrone’s work and academic pursuits were irregular and prone to disruption whenever she was faced with some adversity such as the death of a family member or when she was met with difficulties such as significant study or work loads. Nonetheless, she did keep endeavouring to work regularly, albeit with significantly long periods of unemployment over the years, and pursued various academic programs with rather limited success for almost two decades prior to the date of loss. Most significantly in relation to the time of this accident, she was enrolled in a full-time program of animal care studies at Sheridan College and was set up to start classes just 9 days after the date of loss. I have no doubt that Ms. Petrone was passionate about animals and that she was excited to be starting the program at Sheridan. I cannot comment on her potential for success in that program based upon her academic history prior to the accident, but there is no doubt that she was feeling very positive about that program immediately prior to this accident.

On balance of probabilities, from a qualitative standpoint, and setting aside the academic program I have spoken about above, I find that Ms. Petrone greatly valued and found most of her fulfillment in life from, firstly, her extended family, secondly, her church and then, to a lesser extent, her friends, hobbies and, finally, romantic pursuits. She also had no apparent sleep problems prior to the accident. I find that each and every one of these valued elements of her life were seriously and negatively affected by the accident and its physical and emotional impacts. I also find that this commenced immediately after the date of loss.

I have accepted the following as matters of fact: Within a very short time after the accident Ms. Petrone withdrew from her church activities. She became decidedly unsocial and preferred to be alone so that she did not have to interact with people or tell them about what she was going through. More importantly in terms of day to day functioning, she stopped helping her mother with the household duties and effectively no longer fulfilled her culturally-expected role as a dutiful daughter in her Italian family. This was triggered at first by the physical pain of her injuries, and in particular her right knee, but she has never been able to return to that role. She withdrew from her close relationships with her mother and sister and is prone to anger and emotional outbursts. She stopped engaging in activities with her niece(s) and nephew(s). She stopped pursuing her hobbies to a major extent and withdrew from romantic pursuits. Ms. Petrone experienced declines in other ways as well. Her personal care and modes of dress have declined sharply. She now has documented and unrelenting problems sleeping and is taking sleeping pills. She experiences chronic pain. She adopted maladaptive coping behaviours such as taking non-prescribed prescription medications (Tylenol 3’s) right after the accident. And, unfortunately, although she eventually stopped taking her mother’s prescription T3’s, she has now turned to what appears to be an excessive use of alcohol to numb both her pain and her emotions.

Aside from her well-documented uneven work and academic history, none of the above-noted problems and/or inabilities were evident in any form prior to the accident. I find, therefore, that the accident of January 1, 2012 contributed immediately and materially to Ms. Petrone’s inabilities and present limitations. It is sufficient, apparently, for me to find that even one or two of these activities and/or interests were qualitatively important to Ms. Petrone and that she now has a complete inability to carry on with them as part of her normal life. I find that there are multiple examples included in the above list which meet this standard and which therefore entitle her to Non-Earner Benefits. To choose the two most important, I will state that in my opinion her loss of desire to attend church, which was previously of great importance to her; and her ongoing inability to fulfill her role as a dutiful, contributing daughter within her family, which has resulted in a loss of most of her sense of self worth, are more than sufficient to meet the requirements of the complete inability test set out in section 12(1) of the Schedule.

Accordingly, Ms. Petrone is entitled to receive a non-earner benefit from July 1, 2012 to present and ongoing.

EXPENSES:

I find that Wawanesa is liable to pay Ms. Petrone’s full expenses in respect of the arbitration as well as full interest on the overdue payment(s). If the parties cannot reach an agreement as to the appropriate level of expenses to be paid, an expense hearing can be arranged with the Commission through the regular procedures set out in the DRPC.

November 17, 2017

David Snider Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 307 FSCO A14-005478

BETWEEN: MARIA GRAZIA (GRACE) PETRONE 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 Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. Ms. Petrone is entitled to receive a weekly non-earner benefit at the rate of $185.00 per week between July 1, 2012 and December 29, 2013.
2. Ms. Petrone is entitled to receive weekly non-earner benefits at the enhanced level of $320.00 per week from December 30, 2013 to present and ongoing.
3. Ms. Petrone is entitled to receive a medical benefit for treatment plans provided by Synergy Rehab dated April 22 and November 15, 2013 in the amounts of $2,652.62 and $2,407.28 respectively.
4. Wawanesa is liable to pay Ms. Petrone’s expenses in respect of the arbitration.
5. Ms. Petrone is not liable to pay Wawanesa’s expenses in respect of the arbitration.
6. Ms. Petrone is entitled to interest for the overdue payment of benefits.

November 17, 2017

David Snider Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.