Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 96

FSCO A08-000007

BETWEEN:

A.B.

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Charles Matheson

Heard: Transcripts of September 28, 29, 30, 2014 and September 28, 30, 2015, with written submissions completed by November 30, 2015

Appearances: Mr. J. Raphael, Lawyer, for Ms. A.B.

Mr. T. McCarthy, Lawyer, for State Farm Mutual Automobile Insurance

Company

Issues:

The Applicant, Ms. A. B. (the “Applicant”), was injured in a motor vehicle accident on July 18, 2005. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (the “Insurer”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. A.B., 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. Is the Applicant entitled to receive income replacement benefits of $81.63 commencing November 13, 2008 and on-going?

2. Did the Applicant sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?

3. Is either party entitled to its expenses in respect to the hearing?

Result:

1. The Applicant is entitled to income replacement benefits commencing November 13, 2008 as a result of the July 18, 2005 motor vehicle accident.

2. The Applicant has suffered a catastrophic impairment in accordance of the Schedule, in that she has been found to have a marked impairment in one or more spheres in accordance with the Guides.

3. Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

The Applicant’s Testimony

In regards to her pre-accident health, the Applicant testified that she had two previous accidents, one in 1988 and the second in 1989. These accidents resulted in back surgery on two discs, in 1991, which in turn lead to a diagnosis of chronic pain which lasted up to the 2005 accident. She also affirmed that she had endometriosis (stage 4) which resulted in her having a complete hysterectomy in 2003, which contributed to her pelvic pain, which continues beyond the 2005 accident.

In regards to her pre-accident mental health, the Applicant testified that she had been abused by her step-father from about the age of 11 to her teens. The Applicant also testified that she had depression prior to the 2005 accident, and was taking medications for both the depression and the chronic pain. Wellbutrin was one of the medications for depression, and Amovane was to help her sleep, Percocet for the pain, and Estrderm because of the hysterectomy.

In regards to doctors, the Applicant was under the care of Dr. Blake, a gynaecologist, Dr. Meschino, a psychiatrist, and a mental therapist Ms. Weigeld after the hysterectomy when she joined the Women’s College Hospital‘s pelvic clinic. The Applicant confirmed that Dr. Blake’s records² confirmed that she was taking Wellbutrin and continued to exercise with yoga, swimming, and the use of a treadmill, while she continued working at Enbridge.

The Applicant testified that prior to the 2005 accident, she did her own shopping, house cleaning, cooking, and attended her place of worship on a regular basis.

In regards to her social life prior to the 2005 accident, the Applicant testified that she would go out to the movies, to shopping Malls, for lunch and bars after hours with friends and co-workers on a regular basis.

In regards to her younger brother Sunil, the Applicant testified that she visited him in Boston on two occasions. On one occasion the Applicant, a sister and a friend all drove to Boston where her brother drove them up to New York. They visited in New York until they drove Sunil back to Boston. On the second occasion, the Applicant, her sister and their step-father all drove down for Thanksgiving in Boston.

In regards to her typical day prior to the 2005 accident, the Applicant testified she would wake –up, shower and change into her workout clothes , work out, change and shower again, make and eat her breakfast, pack her lunch and then drive to work. Her shifts would vary from 20 to 40 hours a week commencing on Tuesday and ending on Sunday.

In regards to her typical non-work day, the Applicant testified she would do her own grocery shopping, cook food for the up coming week, do her own house keeping, including vacuuming, cleaning the bathrooms, laundry and dishes. On occasion she would drive her mother to temple, shopping at the farmers market, or to visit family and friends.

Through her employment records³, the Applicant verified that she was employed at Enbridge until the 2005 accident where she began receiving short term benefits and then long term benefits as of November 26, 2006.

In regards to her owning two condominiums, the Applicant testified that she rented one and lived in the second. She later, just prior to the 2005 accident, rented both condos when she moved into a house with her sister. The Applicant testified that she took care of the showings of the rental units, advertising of the units, credit checks on the renters, as well as hiring contractors who had to fix items. After the 2005 accident the Applicant’s family decided to sell the two condo’s as they became too much for them to manage on her behalf.

In regards to the July 18th, 2005 motor vehicle accident, the Applicant testified that she was driving her step-father’s vehicle, as he had borrowed her van to move some items. The accident occurred in a parking lot. She could not remember if she called 911 first or her step-father. All first responders including the police, ambulance and fire trucks showed up to the accident scene. The Applicant explained that her hands were swollen, her chest was bruised by the seat belt and her back hurt upon arrival at the hospital.

In regards to your relationship with her step-father, the Applicant described it as cordial. She explained that they were able to perform the burial rituals of her mother without incident.

In regards to the medications that the Applicant takes after the 2005 accident, she listed the following medications; mirtazapine for anxiety and sleep, Lyrica for depression, Zoloft for anti-depressant, Imovane, Nexium for acid reflux and clonazepam also for anxiety and two thyroid medications Eltroxin and Levothyroxine Sodium, plus Flovent and Ventolin inhalers.

In regards to her sleep patterns after the 2005 accident, the Applicant testified that she sleeps for no more than 4 hours in a night and has gone as long as two nights and two days without sleep. She stated that when she does awaken it is very difficult to get out of bed, she states she uses a cane to assist her. Nightmares of the accident keeps her awake. She is terrified of being in car being hit. She has not driven or sat in behind the driver in a car since the accident.

In regards to her personal hygiene after the 2005 accident, the Applicant testified that she was able to use the refitted and raised toilet and sink, and shower was refitted for a seat as I cannot use the tub anymore. My sister helps her with her personal grooming, washing/fixing her hair, cutting nails, and dressing. Otherwise the Applicant stated she will just stay in her pyjamas all day.

In regards to food preparation and laundry after the 2005 accident, the Applicant testified that she relied on her mother to prepare fresh and cooked food and cut it up into containers so she would be able to heat it up in the microwave. Her mother and father would pick up her laundry in garbage bags wash them and fold them and then return them to her. She reiterated that she does not leave the house, but to attend her appointments. She does not leave the house without someone to drive her, or she takes a cab.

In regards to her banking since the 2005 accident, the Applicant has given power of attorney over all of her finances to her sister. Her sister does all the banking and pays all her bills. Her sister would also collect the rent from her tenants. Prior to the accident she performed all these tasks.

In regards to working and socializing after the 2005 accident, the Applicant testified that she is unable to concentrate sufficiently enough to read or write any reports, and that her hands hurt so she is unable to use a computer efficiently, and she would not be able to drive to work in any event. The Applicant also testified that she no longer has contact with her co-workers. She has problems following conversations and asking people to repeat themselves is stressful to her. The Applicant suggests she has trouble dealing with stressful situations.

In regards to her income, the Applicant testified that she is currently receiving a long term benefit from her employer which is adjusted for her CPP benefits which adds up to $472.17 per month. Her CPP benefits currently are $625.74 per month, giving a total of $1, 097.91 dollars per month of income.

In regards to her November 2011 inpatient stay at Homewood⁴, the Applicant testified that she was admitted into Homewood, but was somehow enrolled into the wrong treatment program, not the treatment plan program `that was approved by the Insurer and Dr. Zakzanis. She has not returned to this facility.

In regards to her March 2012 admittance to the Credit Valley hospital⁵, which showed an attempted suicide, the Applicant testified that she was discouraged and took too many pills. Her sister found her and had called the family doctor who came to the house and then took her to the hospital. The Applicant also testified that her second suicide attempt occurred after she had returned from her stay at CAMH⁶, where she overdosed with pills again. The other attempts to commit suicide have been choking events, with extra pills. Her stay at CAMH extended to 7 weeks in duration. She was subjected to Electroconvulsive Shock Therapy (“ECT”) as she was having nightmares and was screaming a lot. The Applicant testified that the therapy was very painful and that she has suffered from memory loss as a side effect of the therapy.

The Applicant testified that she had not been admitted into any institution for her psychological problems or CAMH prior to the 2005 accident.

In regards to the abuse issue with the step-father, the Applicant explained that when the family was moving from Montreal to Toronto in 1987, she was already working and living in Toronto in her own condo. Her parents wanted her to move back into their house when they completed the move. This is when the Applicant first raised the abuse issue to her family, and refused to move back home with the rest of the family. The Applicant testified that she raised the issue once more in 2002 after her hysterectomy and again after the 2005 accident. Her family urged her to recuperate from her injuries get better and continue to live her life.

In cross-examination the Applicant agreed that mentioning the abuse issue again in 2006 was really about her perceived threat to her niece.

The Applicant testified that she had been on short term benefits once before when she had her hysterectomy.

The Applicant testified that she continues to see her therapist privately, and continues to discuss issues that are bothering her. She explained that the current issues are how long the court processes are, the unfairness of the accident and how it has brought her to a place where she cannot take care of herself, she cannot do her own shopping, and she cannot drive or work. She testified that she does not continue to speak to her therapist about the abuse with her step-father.

Diana (Applicant’s Sister’s) Testimony

Diana testified on behalf of the Applicant and that she was currently employed as Customer Connections Supervisor at Enbridge Gas. She started her employment at Enbridge Gas in 1998. Both the Applicant and Diana eventually worked within the same building for the same employer as she verified AB’s start date from the AB’s employment file⁷ to be October 11, 2000 as a part-time on-call District Administration Clerk. It was verified that the Applicant changed job position on or about July 25, 2003, where she became a permanent part-time Workload Planning Clerk, who had variable work hours which ranged from 24 to 40 hours per week with a higher rate of pay and benefits. It was also verified that in the year prior to the accident, the Applicant had four absents from work in the year preceding the accident.

The sisters would speak to each other several times per week while at work as their respective shifts had off set starting times.

Diana testified that she witnessed the Applicant drive to work and carried on a social relationship with her co-workers prior to the subject motor vehicle accident. Further she opined that she believed her sister would have continued to work, but for the accident, and that she has not observed the Applicant driving a vehicle since the accident.

Diana testified that there was abuse allegations from the Applicant against her step-father. The allegations arose from events that occurred when she was 8 years old, and that this was first brought up years prior to the accident. The witness acknowledged that the family had moved on with this issue, but the Applicant had struggled with their decision to move on with their lives. She has observed that the Applicant has been civil and respectful with the family, including her step-father, during the recent death of their mother.

During cross-examination the witness verified that the Applicant was under the care of a psychiatrist, a mental health therapist and had prescribed medications for pain in her abdomen, but also verified that the Applicant could work, drive and do her own shopping prior to the accident.

In regards to the Applicant’s niece, the witness was aware that the Applicant had concerns about her daughter being left alone with their step –father, in light of the abuse accusations, but the witness maintained that the issue was resolved prior to the accident, in her view.

The witness confirmed that both short term and long term disability benefits were part of their full-time benefits they received from their employment. The witness confirmed a letter from the Applicant’s employment file⁸, dated June 21, 2004, which stated that the employee had missed four days of work in the past 12 months and that any further absents would require the support of a functional abilities evaluation.

In re-examination the witness testified that the Applicant worked more than 20 hours per week on a regular basis and there were no other extended absences from work by the Applicant that she was aware of, other than the four days listed in the above mentioned letter.

Sunil’s (Applicant’s Brother) Testimony

Sunil testified on behalf of the Applicant and verified that he is the younger brother of the Applicant, and currently works as a University Engineering Professor. The witness also confirmed that he was living in Boston, while working for the Smithsonian Research Center at the time of the accident. Sunil was in touch with the Applicant weekly, either by phone or email and visited in –person with the Applicant once every three or four months as he would visit her or she would fly or drive down to Boston to see him. Sunil noted that when he did visit the Applicant, she did the cooking for the family gatherings.

In regards to the period of time of a year prior to the accident, the witness opined that the Applicant was living in her own place, working at Enbridge where she enjoyed her own mobility. Further the witness testified that his other sister, Carol, had moved into the Applicant’s condo, do to her marriage breakdown. The two sisters then moved into a house together, while the Applicant rented out her condo. The witness verified that the Applicant was capable of performing all aspects of renting the condo including hiring contractors for repairs.

In regards to the Applicant’s mobility after the accident the witness testified that the Applicant tried to take the transit system but found it too difficult as she would lose her balance walking up and down stairs and feared falling, thus she began using a cane as an aid when walking. As a result of the loss of her mobility the family has had to drive her to her medical appointments, shopping, and other errands.

In regards to going out of the house just after the accident, the witness testified that he has observed that the Applicant would sit outside on the deck, or on the porch, or walk on the treadmill. In 2014 however, he has observed that the Applicant almost never leaves her room let alone the house. The witness made the observation that the Applicant’s socializing with her circle of friends has become extremely limited to include only close family members and friends, which is the opposite of what he had observed prior to the accident.

In regards to the Applicant’s sleep patterns, the witness suggests that the Applicant is not sleeping regularly, as he is getting e-mails from her all night long starting at one or two in the morning. The witness recounted that during the preparation for the arbitration that the Applicant stayed at his house the prior night. He noticed that the Applicant did not eat all day and that she was awake as early as 6 a.m. after reporting that she slept for an hour and a half.

In regards to the Applicant’s abilities to tolerate standing, sitting or walking, the witness testified that he has witnessed the Applicant’s inability after the accident to do any of these tasks for any length of time, and testified to her fatigue should she attempt too much in a day.

In regards to the Applicant’s stay at CAMH and her treatment with ECT, the witness testified that the whole family was worried about the treatment and its side effects, but the Applicant felt the treatment necessary for her recovery. The witness testified that he has witnessed the memory loss side effects of the three ECT treatments the Applicant under went, and recounted the phone calls from the Applicant for him to come and get her out of CAMH.

On cross-examination the witness testified that he left the family home in 1997 and did not return to Ontario until 2006. The witness testified that he knew of the back operation that resulted from the two accidents in 1988 and 1989, and that the Applicant had been diagnosed with fibromyalgia and chronic pain as a result. Further the witness testified that there was no impediment to prevent the Applicant from using public transit prior to the accident, however, he did not think she use public transit because she would drive her car.

In regards to her alleged abuse by her step-father, the witness verified that this is the same man who remained married to their mother until her recent death, and that he had no recollection of the actual event as he was too young at the time, but he has known about the allegations his entire life. He also verified that the step-father is the same person in which she called Children Services (Children’s Aid Society), when she perceived that her niece was at risk of also being assaulted. In cross-examination the witness continued to deny that he told the Applicant to simply forget about the assault and move on with her life, as was stated within the Women’s College Hospital clinical notes and records⁹.

Dr. Henry Rosenblat’s Testimony

Dr. Rosenblat, a Psychiatrist, testified on behalf of the Applicant and to the veracity and accuracy of his two reports. The first report was authored in response to a multi-disciplinary catastrophic determination by the Insurer, which found the Applicant was not catastrophically impaired, as per the meaning of the Schedule. The rebuttal report was dated October 3, 2008¹⁰, and ultimately Dr. Rosenblat found that the Applicant’s level of impairment fell within the moderate range, which meant the Applicant was not catastrophically impaired as per the Schedule.

Dr. Rosenblat’s diagnoses of the Applicant using the DSM IV were as follows:

Axis I: 1. Major Depressive disorder, recurrent, severe, and partially treated.

2. Posttraumatic stress disorder (PTSD).

3. Pain disorder associated with both psychological factors and a general medical

condition.

4. (Does not meet proper criteria for panic disorder secondary to requiring the presence of

a trigger to induce panic symptoms).

Axis II: A personality diagnosis is deferred as it is difficult to make such a diagnosis in one

session, but there is evidence of mixed personality disorder based on previous

documentation.

Axis III: Sequelae of motor vehicle accident, back difficulties, hysterectomy, ongoing urological

problems and fibromyalgia (all of these diagnoses are based on information from other assessors. Their formal diagnoses as well as impairment-related issues are left to other assessors).

Axis IV: Psychological stressors including coping with pain, family, conflicts, social isolation

and financial difficulties.

Axis V: GAF 45

Dr. Rosenblat found the Applicant’s impairments in the four domains related to permanent impairment from a mental and behavioural point of view were as follows;

Activities of daily Living: Class 3, moderate

Social Functioning: Class 3-4, moderate

Concentration, persistence and pace: Class 3, moderate

Work Adaptation: Class3 – 4, moderate

Under examination-in- chief, Dr. Rosenblat made note and gave weight to the following observations as a result of his assessment: Since the 2005 accident-

• The Applicant is no longer exercising, driving, doing any house keeping chores, or looks after her own finances,

• The Applicant is experiencing more pain in more areas of the body with more consistent and persistent pain,

• The Applicant has problems with making simple task decisions and also with finishing tasks. When she is performing tasks she is slow in doing so,

• The Applicant is down to one friend.

• The Applicant has no specific routine in the day she simply eats, tries to sleep, watches TV and or sits outside the house.

• The Applicant has severe depression, where her sleep is not restorative. She is irritable and is hopeless that she will be independent again,

• The Applicant has panic disorders as noted by other assessors, and PTSD,

• The Applicant was no longer practicing her religion,

• The Applicant was uncomfortable, always moving during the assessment, used a cane to walk, looked depressed, and was repeatedly tearful and irritable.

Dr. Rosenblat also opined that the Applicant was not competitively employable at the time of the report.

In regards to his second report dated March 31, 2014¹¹, Dr. Rosenblat¹² noted a deterioration in the Applicant from the previous assessment some 6 years earlier. He noted the following:

• The Applicant had an increase in pain frequency and intensity, self reported to be 8 out of 10

• The Applicant had memory issues

• The Applicant had become more sad,

• The Applicant would not shower or bathe when sad or had a low mood,

• The Applicant had mobility issues with her hands,

• The Applicant had difficulty with following instructions or directions,

• The Applicant was completely dependant on others for arranging appointments,

• The Applicant had no social friends, and had stopped talking to neighbours,

• The Applicant had several suicide attempts

• The Applicant appeared to only have a single issue of wanting to die and did not care about the abuse issue any longer,

• The Applicant had not performed any volunteer activities or work since the last assessment.

Dr. Rosenblat testified that he had additional collateral information from the Applicant’s sister as well as her treating psychiatrist, Dr. Meschino who had opined that her prognosis went from fair before the accident to very poor after the accident. Dr. Meschino also opined that the Applicant was very fragile before the 2005 accident¹³.

In regards to his diagnoses¹⁴ in his second report the doctor reiterated his findings as follows;

[The Applicant] currently meets criteria for the diagnosis of Posttraumatic Stress Disorder, Major Depressive Disorder (recurrent and severe) as well as Somatic Disorder with predominant pain. I am unclear as to whether or not she currently meets criteria for a diagnosis of Personality Disorder. [The Applicant] also meets for a criteria for a diagnosis of Substance Abuse Disorder, although this disorder is in remission as she is not currently abusing alcohol or illicit substances. Secondary to the presence of a Somatic Symptom Disorder with predominant pain, her pain related impairments are rated as mental and behaviour impairments.

Dr. Rosenblat reiterated and explained his permanent impairment ratings¹⁵ in the four domains as follows:

Activities of Daily Living- Class4 – Marked impairment

Social Functioning- Class3-4- Moderate to Marked impairment

Concentration, persistence and pace- Class 4- Marked impairment

Work Adaptation- Class 4- Marked impairment

Dr. Rosenblat conclude that from a purely psychiatric perspective the Applicant was now catastrophically impaired in accordance with the Schedule.

In regards to causality Dr. Rosenblat reiterated his comments and or findings in both of his reports which read as follows, in chronological order:

The client and previous documentation indicated that prior to the accident, she had been suffering from depression as well as pain. The depression had apparently been well resolved at the time of the accident. After the accident, she had a relapse of depression and multiple pain issues. Therefore, in terms of causality, both pre-accident and post accident factors are important.

Previous documentation and history indicates that prior to the index accident [the Applicant] had been suffering from depression as well as pain. Her history of sexual abuse has predisposed her to psychiatric difficulties related to the index accident. She had also has a prior motor vehicle accident. However, since the index accident her condition has significantly worsened. Therefore both pre and post-accident factors play a material role in her current psychiatric condition.

In regards to ECT, Dr. Rosenblat opined that this very evasive procedure is commonly used as a last resort when all other modalities have failed, or when the client is suicidal, or unable to take care of herself because of depression. It has side effects of extreme memory loss.

In cross-examination Dr. Rosenblat confirmed that he and Dr. Zakzanis a psychologist for the Insurer, do not agree on the breadth and severity of the Applicant’s psychiatric or psychological impairments.

Further Dr. Rosenblat explained that it was not a surprise that the Applicant did not raise or discuss the sexual abuse allegations towards her step-father because of the shame and a risk associated with such a disclosure to a person the Applicant did not know well enough to trust with this information, particularly in a single assessment setting. However the doctor agreed that sexual assault can invoke a diagnosis of major depressive disorder or PTSD, which could also lead to suicidal ideations.

Dr. Rosenblat confirmed that PTSD could be caused by either a sexual assault or a car accident, and that he did not observe a Panic Disorder being present at the time of his second assessment, and that a diagnosis able level of depression in of itself is not necessarily debilitating.

Dr. Rosenblat did not agree with Dr. Zakzanis in that malingering should be investigated due to invalid or non-credible psychometric test results. Further Dr. Rosenblat opined that truthfulness to specific questions are not effected by alcohol or opioids. He suggested that test results needed to be reliable not just valid.

In re-examination Dr. Rosenblat acknowledged that he took into account all of the Applicant’s medical history and determined that she was not catastrophically impaired at that time. The doctor opined that the PTSD the Applicant is suffering from is from the accident not the sexual assault.

Under questioning, Dr. Rosenblat opined that there was a difference between being not ratable and not being catastrophically impaired. Using the phrase “precluded ratings” which in his mind was equal to unrateable and unrateable means he could not come to a conclusion in terms of the impairment rating of the Applicant. He opined that it is possible to have a client that you cannot rate, but whose level of functioning and impairments are still consistent with catastrophic impairment. Upon further explanation the doctor explained that if an assessor cannot rate at that time, the assessor simply could not rate the client. The assessor was unable to come to any conclusion either way.

Dr. K. Zakzanis’s Testimony

Dr. Zakzanis, a psychologist, testified on behalf of the Insurer, and testified as to the veracity and accuracy of his two assessments and the corresponding addendum reports.

The doctor’s first assessment report¹⁶ was generated in order for the doctor to comment on a proposed treatment plan where the Applicant would be an in-patient at Homewood. The doctor was unable to make a recommendation on the necessity and reasonableness of the treatment plan because he did not have the details of the plan. The doctor did provide the following diagnosis under the DSM IV:

• Major Depressive disorder, severe without Psychotic Features

• Posttraumatic Stress Disorder, chronic

• Pain disorder associated with both Psychological factors and a general medical condition, chronic.

The doctor’s first paper review addendum report¹⁷, was generated in response to the Insurer providing the details of the treatment plan to the doctor. The doctor found that the proposed treatment plan was reasonable and necessary.

The doctor’s second assessment report¹⁸ was generated in order for him to give an opinion as to whether or not the Applicant had suffered catastrophic impairments as a result of the July 18, 2005 accident. Dr. Zakzanis reported and concluded on page 16 of his report the following:

[The Applicant’s] responses on two of the three psychometric test measures employed were indicative of negative impression management and atypical responding.

On page 18 of the report, the doctor states under the heading Diagnosis, the following:

While it is certainly reasonable to conclude that this accident has been a source of considerable upset for [the Applicant], and thus, it is acknowledged that psychological symptomology is present (as I was able to objectively document this within the context of my previous examination), I am unable to conclude from the objective data before me on this occasion that there is any compelling evidence of psychological impairment to the degree that she would have us believe. Accordingly, I am unable to substantiate the breadth and severity of [the Applicant’s] subjective psychological complaints for the purpose of this catastrophic examination.

Further on page 19 of his report Dr. Zakzanis writes the following under the title of Final Opinion:

…. It is my opinion that, having reviewed and considered all sources of information at the time of this examination, [The Applicant] does not meet the threshold for catastrophic impairment under criterion “g” from a psychological perspective in light of the reasons I have already noted.

During cross examination Dr. Zakzanis agreed, in regards to his first report that the July 18, 2005 accident materially and substantially contributed to the reported psychological symptoms, because the accident proceeded the present constellation of symptoms. The doctor confirmed that he took into consideration the entire pre-existing and post-accident history when he came to this conclusion, including the sexual assault issue.

Dr. Zakzanis agreed that the prognosis some 5 years post-accident was in the poor range and it was possible that the Applicant could have declined since he first saw her.

In regards to the second assessment, Dr. Zakzanis agreed that he was unable to provide a rating in keeping with the Guides¹⁹, and that he was unable to obtain a valid representation of the Applicant’s mental status. Therefore he could not provide the Applicant with a catastrophic impairment rating, meaning if he could not say she’s catastrophic, the only conclusion then is that she’s not catastrophic, because he could not provide a Class rating within the four spheres of either mild, moderate or marked.

Dr. Zakzanis made it clear that he was not afforded the opportunity to re-exam the Applicant in order to find different test results.

Dr. Zakzanis agreed that he was not provided collateral information including the family doctors records, the treating psychiatrist’s records, the treating therapist’s records or information from family members at the time of his second catastrophic assessment.

In regards to CAMH and the use of the ECT therapy likely has a very severe mental disorder and it was very likely that this person would have very poor functioning. The doctor pointed out that this happen after his last assessment of the Applicant occurred.

Is the Applicant entitled to receive income replacement benefits of $81.63 commencing November 13, 2008 and on-going?

The parties argue that the correct test for the income replacement benefits (IRB) is the post-104 test. The relevant sections of the Schedule reads as follows:

5(2) The Insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability;

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the Insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience;

The Applicant argues and relies on the medical opinions in the following chronological order:

• Dr. Waisman, psychiatrist, authored an Insurer’s examination assessment report ²⁰and opined the following:

[The Applicant] developed a pain disorder associated with a general medical condition and psychological factors as a result of the subject accident.

In my opinion, she is unable to return to any type of strength job at this time. The prognosis is guarded. [The Applicant] has been experiencing severe depression, hopelessness and pain since the subject accident. Her mental state would form a barrier to s successful return to work at this time.

• September 26, 2007, Dr. Gnam, psychiatrist, authored a report²¹ generated for the long term disability Insurer, who stated the following:

I found no evidence of symptom magnification or fabrication. Specifically, [the Applicant] denied improbable symptoms provided a plausible and internally consistent history congruent with medical documentation and responded to the 15-figure Ray test in a manner that indicated good effort. In my opinion, [the Applicant] does suffer from depressive symptoms, anxiety symptoms, and intrusive pain that is severe enough to impair her from working in any capacity in her own or any other occupation. The most important impairments are impairments in motivation and in affect regulation. The latter impairment would almost certainly preclude appropriate and adaptive interactions with co-workers, customers, and supervisors. There was also evidence of cognitive impairment. Finally, given the current psychiatric disorder and her mental status, it is plausible and likely that her mental would deteriorate further with repeated exposures to a typical work-like stresses.

• November 2, 2007, Dr. Smith, a physiatrist, authored this Insurer’s examination assessment report²² and stated the following:

[The Applicant] was involved in a motor vehicle accident, [The Applicant] sustained soft tissue injuries to her cervical, thoracic and lumbar spine. This exacerbated her pre-existing medical conditions to the point where she has not been able to return to work or her usual activities about the home that she shared with her sister…..Realistically the current author does not see how she is likely to be employed when she is so fragile.

• January 5, 2008, Dr. Meschino, treating Psychiatrist, authored her CPP Disability assessment report²³ and stated :

I do not assess her as being able to function in any job currently.

• April 24, 2008, Dr. Luczak, psychiatrist, authored an Insurer’s catastrophic determination report and stated the following:

[The Applicant is unable to work….In summary [the Applicant] shows a number of impairments resulting from a combination of factors including pre-disposing factor, e.g., prior history of emotional trauma, depression, anxiety, chronic pain (related to previous MVA, endometriosis and “fibromyalgia”), and precipitating factor, the subject MVA, that have resulted in Class III (moderate) impairment…

The Applicant argues that the Insurer terminated the IRB on November 12, 2008, based on a paper review assessment report²⁴ by Dr. Rashid. This report was based on the doctor’s initial in-person assessment of the Applicant on September 18, 2007. The response by the doctor to the question, “Does the Insured suffer a complete inability to engage in any employment for which he or she reasonably suited by education, training, or experience? is as follows:

No. Please refer to my answers to the preceding questions. Even though it is not possible to establish a valid diagnosis due to the reasons explained above, there is no suggestion that [the Applicant] suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

The answer to the preceding question is as follows:

Based on her responses, [the Applicant] is substantially disabled to engage in any activities of her normal life, including her employment with direct Energy, but since her responses describing her condition are questionable because of the suggestion that she has not only been reticent and secretive in her responses but also she has endorsed the symptomatology’s in an exaggerated and indiscriminate manner, it is not possible to establish an accurate diagnosis in this respect…

The Applicant continues to argue that the Insurer has not adjusted the file in regards to the IRB since the termination of the benefit. The Applicant also relies on the following chronological order of assessments which demonstrate that the Applicant has not been able to do perform any work or work-like functions since the 2005 accident, which successfully demonstrates her complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience, these read as follows:

• November 16, 2009, Dr. B. Alpert, an orthopaedic surgeon, authored an Insurer’s pain and disability assessment report²⁵ and stated the following:

In my orthopaedic opinion, [the Applicant] is substantially disabled to preform her pre-accident essential employment duties as a full-time administrative assistant…

• March 21, 2010, Dr. Doxey, authored an Insurer’s psych-vocational assessment report²⁶ and stated the following;

Taking everything into consideration, we too believe that [the Applicant] is competitively unemployable as a result of the July 18, 2005 accident.

• March 31, 2014, Dr. Rosenblat, authors a catastrophic impairment assessment report²⁷ and stated the following:

Work Adaptation: Class 4 Marked Impairment. She has not worked since the index accident.

The Insurer argues that the Applicant was a victim of sexual abuse and that it is equally tragic that she suppressed memories of same, and that she was not affirmed by her family members when she reached out to them. Further adding to this situation, the Applicant was attempting to protect her niece from suffering the same fate that she suffered, however, these are not accident related issues.

The Insurer argues that the Applicant must establish that “but for” the accident of July 18, 2005, she would have returned to her employment at direct Energy or be working some other similar occupation for which she is reasonably suited by education, training or experience. Even if the “but for” test of causation is not applied and the material or significant contribution of the accident is considered, it is respectfully submitted that the accident is nothing more than a deminimus contributor to her mental health problems that pre-date the accident and were only worsened after the accident, but were not materially affected by the accident.

The Insurer submits that the Applicant’s impairments are psychiatric / psychological in nature and would be what they are today even if the July 18, 2005 accident had not occurred. The Insurer also submits that the Applicant has never been motivated to work at anything else than on a part –time basis because she could not cope with anything more than that. The Applicant has simply regressed into a role of being dependant upon and compliant with her family members.

At most, the Insurer would concede is that the scales are equally balanced on the issue of causation, therefore the Applicant’s application for benefits should be dismissed.

In reply the Applicant argues that the Insurer’s position is based on speculation. The Applicant submits that there is no evidence that the Applicant was declining prior to the accident, in fact the opposite is true. It is submitted that there is no medical evidence, or medical opinion, before the arbitrator that supports the Insurer’s claim that the Applicant’s condition was expected to deteriorate. There is no evidence or medical opinion that the Applicant’s families behaviour in regards to the sexual abuse made her condition deteriorate.

In regards to the causation tests, the Applicant argues that the Applicant has been successful in establishing that either test, “material contribution” or the “but for” test has been established, because the Applicant was working at a full-time job, driving and functioning at a level where she was able to complete all of her daily living activities. But for the accident, she would have continued at that level.

Decision

On the preponderance of all the evidence, and on the balance of probabilities, the Applicant’s arguments are the most persuasive.

In my view, the Applicant is correct that there has not been any evidence that the Applicant was on a downward trajectory in regards to her physical or mental and behaviour health or functioning. As a result I find that but for the accident the Applicant would not be in the position she is in today.

The Insurer is relying in part, on Dr. Rashid’s paper review where some 13 months after seeing the Applicant, came to the conclusion that the Applicant did not have a complete inability to engage in any employment. This revelation was made only after the doctor over laid his subjective opinions on top of his test results. This made his results inconclusive. The error in my view, was the doctor then gave a negative inference to those inconclusive findings.

Dr. Rashid states on page 14 of his report the following:

Available medical documents indicate that she likely does not suffer from a pain disorder that has an organic basis, and since [the Applicant] has continued to express her inability to engage in the challenging activities of her normal life, including her employment, attributing her inability to physical pain, she seems to be a prime candidate for counselling to realistically appraise her situation and resume the challenges of her normal life.

In my review of this report I note that the doctor does not have any of the clinical notes and records of the Applicant’s therapist, her treating family doctor, or the treating psychologist, which in my view renders his report and its conclusions flawed. I am unable to give any weight to this report.

For these reasons I find that the Applicant is entitled to income replacement benefits commencing November 13, 2008 as a result of the July 18, 2005 motor vehicle accident.

Did the Applicant sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?

The Applicant is seeking a catastrophic determination based on the relevant sections of the Schedule, which reads as follows:

2(1.2) (g) subject to subsections (1.4), (2.1) and (3), 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.

The Applicant argues and relies upon Dr. Rosenblat’s second catastrophic determination assessment report²⁸, dated March, 31, 2014 where the doctor found the Applicant marked in three of the four spheres.

The Applicant argues that the Insurer relied, in part, on Dr. Zakzanis’s July 7, 2011 catastrophic impairment assessment report²⁹, which at best should have been inconclusive in its findings. However, it is submitted, Dr. Zakzanis has demonstrated that when he does not have enough information or has inconclusive results he answers the Insurer’s questions in the negative, instead of asking for more information or another opportunity to test the claimant.

The Applicant argues and relies on Dr. Rosenblat’s testimony and his report’s thought processes where he suggested that non-credible or atypical or invalid objective test results suggest that a definitive conclusion cannot be made based on the objective test results. Thus no conclusion in either the affirmative or the negative could be made. Therefore I should give little or no weight to Dr. Zakzanis’s conclusions and find in favour of the Applicant.

The Insurer argues that the Applicant suffered a series of physical and psychological issues in regards to her ability to work, cope at work with her supervisor, cope with her family in response to her sexual abuse allegations, and the threat of same to her niece, all of which are not related to this accident. Through a lengthy set of hypothetical scenarios the Insurer argues that Dr. Rosenblat agreed that one or all of the pre-existing psychiatric or psychological issues in themselves could have caused the decline of the Applicant, therefore the pre-existing issues must have been the cause of the catastrophic determination, if there is such a determination.

Further the Insurer is relying on the fact that both Dr. Zakzanis and Dr. Rosenblat acknowledge that both pre and post accident factors play a material role in her current psychiatric/ psychological condition.

In regards to causation, the Insurer continues to argue that the Applicant must establish that “but for” the accident of July 18, 2005, she would have found herself in the same condition today had the accident not happened. Even if the “but for” test of causation is not applied and the material or significant contribution of the accident is considered, it is respectfully submitted that the accident is nothing more than a deminimus contributor to her mental health problems that pre-date the accident and were only worsened after the accident, but were not materially affected by the accident. The accident was not a significant or material contributor to what the Applicant became by 2014.

In reply the Applicant submits again that the Insurer’s position is based on speculation. The Applicant submits that there is no evidence that the Applicant was declining prior to the accident, in fact the opposite is true. It is submitted that there is no medical evidence, or medical opinion, before the arbitrator that supports the Insurer’s claim that the Applicant’s condition was expected to deteriorate. There is no evidence or medical opinion that the Applicant’s families behaviour in regards to the sexual abuse made her condition deteriorate.

In regards to the causation tests the Applicant relies that the Applicant has been successful in establishing that either test, “material contribution” or the “but for” test has been established, because the Applicant was working at a full-time job, driving and functioning at a level where she was able to complete all of her daily living activities. But for the accident, she would have continued at that level.

Decision

On the preponderance of all the evidence, and on the balance of probabilities, the Applicant’s arguments are the most persuasive.

In my view, the Applicant is correct that there has not been any evidence that the Applicant was on a downward trajectory in regards to her physical or mental and behaviour health or functioning. The inescapable and undisputed facts are that she was functioning as a productive member of society, prior to the accident, on all levels, including her family, work, socially and within her faith. As a result I find that but for the accident, the Applicant would not be in the position she is in today.

I note that Dr. Rosenblat did not change his diagnosis or his conclusions after being questioned extensively on hypothetical circumstances and how those circumstances may effect a case such as this. I further note that Dr. Zakzanis and Dr. Rosenblat did not indicate the need to apportion the Applicant’s pre-accident condition from her current condition. My inference from this is that both doctors did not believe that the pre-existing issues raised to the point of being rateable impairments, although they were significant enough to be diagnosable conditions.

I note that Dr. Zakzanis testified he did not have access to the clinical notes and records of the family doctor, the treating psychiatrist, or the treating therapist. Dr. Zakzanis also confirms that he did not use collateral information from family members had he proceeded to provide final conclusion(s). This leads me to believe that the doctor’s base line would have been unreliable and outside the recommended procedures of the Guides in any event.

I am unable to be persuaded that a non-credible test result as found by Dr. Zakzanis in his July 7, 2011 report, is anything more than inconclusive in nature.

In my view, non-credible test results or un-ratable test results render the whole assessment inconclusive, which is a neutral finding. This is fatal to the Insurer’s position. For these reasons, I am unable to give a lot of weight to this doctor’s report or his opinions thereof, as he was not afforded the opportunity to re-test the Applicant to come to a comprehensive conclusion.

Therefore, I find that the Applicant has suffered a catastrophic impairment in accordance with the Schedule, in that she has been found to have a marked impairment in one or more spheres in accordance with the Guides.

Expenses:

Neither party made submissions on expenses. Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 3, 2018

Charles Matheson Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 96

FSCO A08-000007

BETWEEN:

A. B.

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. The Applicant is entitled to income replacement benefits commencing July 13, 2005 as a result of the July 18, 2005 motor vehicle accident.

2. The Applicant has suffered a catastrophic impairment in accordance of the Schedule, in that she has been found to have a marked impairment in one or more spheres in accordance with the Guides.

3. Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 3, 2018

Charles Matheson Arbitrator

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''New Regulation'') came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the ''Old Regulation'') shall be paid under the New Regulation, but in amounts determined under the Old Regulation. As a result, both the Old Regulation and the New Regulation are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and both should be considered.
2. 2Exhibit 1, Volume 1, Tab 1
3. 3Exhibit 1, Volume 1, Tab 14
4. 4Exhibit 1, Volume 2, Tab 21
5. 5Exhibit 1, Volume 2B, Tab 23
6. 6Exhibit 1, Volume 2A, Tab 22 (CAMH CNR’s)
7. 7Exhibit 3, Volume 2, Tab 15
8. 8Exhibit 3, Volume 3, Tab 15
9. 9Exhibit 3, Volume 3, Tab 46
10. 10Exibit 3, Volume 2, Tab 41
11. 11Exhibit 1, Volume 2B, Tab 24
12. 12Page 29 of 37 of the Report dated 31 March 2014
13. 13Page 27 of 37 of the Report dated March 31,2014
14. 14Page 29 of 37 of the Report dated March 31, 2014
15. 15Page 30 of 37 of the Report dated March 31, 2014
16. 16Exhibit 3, Volume 4, Tab 50, dated February 3, 2011
17. 17Exhibit 3, Volume 4 Tab 51, dated April 26, 2011
18. 18Exhibit 3, Volume 4 Tab 52, dated July 7, 2011 ```
19. 19American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993,
20. 20Exhibit 3, Volume 2, tab 24
21. 21Exhibit 1, Volume 2, Tab 16
22. 22Exhibit 3, volume 2, Tab 32
23. 23Exhibit 1, Volume 1, Tab5
24. 24Exhibit 3 Volume 2, Tab 40
25. 25Exhibit 1, Volume 1, Tab 12
26. 26Exhibit 1, Volume 1, Tab 13
27. 27Exhibit 1, Volume 2, Tab 24
28. 28Ibid
29. 29Ibid