B.P. v. The Wawanesa Mutual Insurance Company

[Indexed as: P. (B.) v. Wawanesa Mutual Insurance Co.]

Ontario Reports

Ontario Superior Court of Justice

Pierce J.

March 15, 2019

145 O.R. (3d) 378 | 2019 ONSC 1706

Case Summary

Insurance — Automobile insurance — Statutory accident benefits — Catastrophic impairment — Causation — Insured struggling with depression and drug addiction before motor vehicle accident but nevertheless functioning as independent and resourceful adult — Insured experiencing rapid mental and behavioural decline after accident due to conversion disorder that was triggered by accident — Insured establishing that she would not have suffered conversion disorder but for accident — Insured granted declaration that she suffered catastrophic impairment for purposes of statutory accident benefits.

Insurance — Automobile insurance — Statutory accident benefits — Entitlement — Insurer terminating attendant care benefits — Insured granted declaration that she was catastrophically impaired — Insured not required to have actually received and paid for attendant care services in order to be entitled to attendant care benefits from date of termination to date of judgment and thereafter.

The plaintiff was involved in a motor vehicle accident in 2013. Before the accident, she struggled with depression, PTSD and drug addiction. After the accident, she experienced a rapid mental and behavioural decline that was ultimately diagnosed as a conversion disorder. She brought an action for declarations that she had suffered a catastrophic impairment for the purposes of statutory accident benefits and that she was entitled to income replacement benefits, attendant care benefits and housekeeping and home maintenance benefits. The defendant insurer took the position that the plaintiff's impairment was not caused by the motor vehicle accident.

Held, the action should be allowed.

The applicable test for causation in the statutory accident benefits context is the "but for" test. Despite her mental health issues and her drug addiction (which she was handling with methadone at the time of the accident), the plaintiff functioned as an independent and resourceful adult before the accident, attending school, working, socializing and taking care of herself. After the accident, her ability to function as an adult in the activities of daily living was lost. The evidence established on a balance of probabilities that the plaintiff suffered from a conversion disorder triggered by the motor vehicle accident. But for the accident, she would [page379] not have suffered the conversion disorder, which catastrophically impaired her ability to function from a mental or behavioural perspective. She was entitled to a declaration that she had suffered from a catastrophic impairment.

To accept the defendant's argument that it was not obliged to pay for attendant care benefits that were not actually "incurred" by the plaintiff, in the sense that she did not receive and pay for attendant care services after the defendant terminated her attendant care benefits, would penalize an insured person who could not afford to pay for services for which she was insured, and would encourage insurers to delay payments to insureds in order to make the argument that expenses covered by a policy had not actually been incurred. The plaintiff was entitled to attendant care benefits from the date of termination to the date of judgment and thereafter as incurred.

McMichael v. Belair Insurance Co. (2007), 2007 17630 (ON SCDC), 86 O.R. (3d) 68, [2007] O.J. No. 1972, 224 O.A.C. 304, 50 C.C.L.I. (4th) 52, 50 M.V.R. (5th) 191, 157 A.C.W.S. (3d) 634 (Div. Ct.); Smith (Committee of) v. Wawanesa Mutual Insurance Co. (1998), 1998 18861 (ON SC), 42 O.R. (3d) 441, [1998] O.J. No. 5058, 168 D.L.R. (4th) 750, 116 O.A.C. 62, 10 C.C.L.I. (3d) 155, [1999] I.L.R. I-3634, 43 M.V.R. (3d) 272, 84 A.C.W.S. (3d) 556 (Div. Ct.), consd

Other cases referred to

16-003306 v. Coachman Insurance Co., 2018 81882 (Ont. LAT); Blake v. Dominion of Canada General Insurance Co., [2015] O.J. No. 1218, 2015 ONCA 165, 331 O.A.C. 48, 76 M.V.R. (6th) 183, 46 C.C.L.I. (5th) 173, 250 A.C.W.S. (3d) 491; Clements v. Clements, [2012] 2 S.C.R. 181, [2012] S.C.J. No. 32, 2012 SCC 32, 346 D.L.R. (4th) 577, 431 N.R. 198, [2012] 7 W.W.R. 217, J.E. 2012-1292, 331 B.C.A.C. 1, 31 B.C.L.R. (5th) 1, 93 C.C.L.T. (3d) 1, [2012] I.L.R. para. M-2610, 29 M.V.R. (6th) 1, 215 A.C.W.S. (3d) 1035, 2012EXP-2458; MacLeod v. Coachman Insurance Co. (Re), [2018] O.F.S.C.D. No. 24 (F.S.C.O.); Sabadash v. State Farm Mutual Insurance Co., [2019] O.J. No. 788, 2019 ONSC 1121 (Div. Ct.)

Statutes referred to

Insurance Act, R.S.O. 1990, c. I.8, s. 282(10)

Rules and regulations referred to

Statutory Accident Benefits Schedule -- Effective September 1, 2010, O. Reg. 34/10, ss. 3(8) [as am.], 20(3), 44, 45(1), (4) [as am.]

Authorities referred to

American Medical Association, Guides to the Evaluation of Permanent Impairment, 4th ed. (Chicago: American Medical Association, 2015)

ACTION for declaratory relief.

A. Potestio and T. Gindi, for plaintiff.

D. Scott and K. Commisso, for defendant.

PIERCE J.: —

Introduction

[1] The plaintiff, B.P., was injured in a car accident on June 16, 2013. She seeks a declaration that she has suffered a catastrophic impairment pursuant to s. 45(1) of the Statutory Accident Benefits [page380] Schedule -- Effective September 1, 2010, O. Reg. 34/10 under the Insurance Act, R.S.O. 1990, c. I.8. Statutory Accident Benefits are often referred to by the shorthand expression "SABS".

[2] The regulation provides that catastrophic impairment must be evaluated by specified medical practitioners in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th ed. (Chicago: American Medical Association, 2015). In this case, Ms. B.P. submits that she has suffered either a Class 4 impairment, which is defined as a "marked impairment", or a Class 5 impairment, which is defined as an "extreme impairment", due to mental or behavioural disorder.

[3] Ms. B.P. also seeks the following declarations:

(1) that she is entitled to income replacement benefits at the rate of $185 per week from February 28, 2016 to the date of judgment;

(2) that she is entitled to attendant care benefits at the rate of $6,000 per month from the date of termination on June 14, 2015 to the date of judgment and thereafter as incurred; and

(3) that she is entitled to housekeeping and home maintenance benefits at the rate of $100 per week from June 14, 2015 to the date of judgment and thereafter as incurred.

[4] The defendant terminated the foregoing benefits when the plaintiff reached the maximum benefit amount payable under the policy. An issue remains as to what it means to "incur" an attendant care expense in order to claim reimbursement.

[5] At trial, the plaintiff abandoned her claim that the defendant engaged in bad faith in the handling of her claim.

Causation

[6] In this case, the parties' expert witnesses agree that the plaintiff is catastrophically impaired due to a mental or behavioural disorder. The central issue is whether the impairment was caused by the motor vehicle accident.

[7] The plaintiff's counsel did not seriously dispute that the test for causation is set out in Clements v. Clements, [2012] 2 S.C.R. 181, [2012] S.C.J. No. 32, 2012 SCC 32. In Clements, a tort case, the Supreme Court clarified that the application of the "material contribution" test is limited to exceptional cases where there are multiple tortfeasors and it is not possible to establish which defendant caused the injury. The court held that there will be liability in such circumstances if it is proven that a defendant made a material contribution to the plaintiff's injuries. However, the [page381] basic test of causation remains the "but for" test. The Supreme Court held, at para. 46:

As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss "but for" the negligent act or acts of the defendant.

[8] In Blake v. Dominion of Canada General Insurance Co., [2015] O.J. No. 1218, 2015 ONCA 165, 250 A.C.W.S. (3d) 491, at para. 72, the Ontario Court of Appeal also applied the "but for" test in the context of the SABS.

[9] Following the close of submissions, counsel drew to my attention the case of Sabadash v. State Farm Mutual Insurance Co., [2019] O.J. No. 788, 2019 ONSC 1121 (Div. Ct.). In Sabadash, the Divisional Court applied the "but for" test as the primary test to determine causation in an application for income replacement benefits pursuant to the SABS regime.

[10] I therefore conclude that the "but for" test is applicable to the question of causation in this case; that is, but for the motor vehicle accident, would the plaintiff have suffered a catastrophic impairment?

[11] The plaintiff must prove causation on a balance of probabilities.

The Plaintiff's Pre-Accident Functioning

[12] The defendant's position is that the foundation of the plaintiff's catastrophic impairment was laid before the motor vehicle accident. In order to weigh this argument, it is necessary to understand Ms. B.P.'s pre-accident life experiences in light of her post-accident functioning.

[13] At the time of trial, Ms. B.P. was 27 years old. She is the eldest of two daughters in the P. family, her sister being five years younger. She is single and has no children.

[14] She lives in Thunder Bay with her parents and her sister. Ms. B.P.'s parents are both college graduates who are employed on a full-time basis. In addition to his employment, Mr. P. and his brother are involved in developing and maintaining rental properties. Ms. B.P.'s sister is a university student.

[15] The plaintiff was a happy, healthy child until, in 2003, at the age of 12, she suffered a sexual assault. The perpetrator, a boy of about 16, was convicted following a trial at which Ms. B.P. testified. The boy was incarcerated. The plaintiff's parents sought counselling for her at the time, which continued for about two years.

[16] An unfortunate by-product of the assault was that the [page382] plaintiff experienced sustained bullying from grade seven until the end of high school. The perpetrator's friends instigated the bullying, but children she had thought of as friends joined in as well. Ms. B.P. suffered anxiety as a result of the bullying.

[17] Despite these events, the plaintiff persevered at school and excelled at basketball, becoming part of a winning school team and playing for the All-Ontario basketball team. Later, she took a role in coaching.

[18] In 2007, she began part-time work at McDonald's, a job she held until 2010.

[19] When the plaintiff was in grade 11, she became involved with a very controlling boyfriend. She moved in with him and his father and lived with them for about ten months. During that time, the boyfriend forced Ms. B.P. to give her earnings from McDonald's to him; he periodically locked her in her room; he took her cellphone; and she missed many days at school. She used marijuana with this boyfriend, and throughout this time, he prevented her from having contact with her family.

[20] In December 2008, her health declined to the point where she was hospitalized and diagnosed with Crohn's disease. During her illness, the boyfriend became so aggressive in his visits that he was ejected from the hospital by security personnel. The relationship ended, and Ms. B.P. returned to her family.

[21] Ms. B.P. graduated from high school in 2010 after taking a second year to obtain the necessary credits. She won a bursary for her efforts. In the summer of 2010, she began a hostess job at Applebee's where she worked until May 2012.

[22] Ms. B.P. enrolled at Lakehead University in the fall of 2010 where she studied a liberal arts program. She failed two credits and passed the remaining five in the balance of the academic year.

[23] In August of 2011, Ms. B.P. attempted suicide by overdosing on pain medication. The triggering event was a breakup with a new boyfriend, which was instigated by an acquaintance. Ms. B.P. was hospitalized for several days at the Thunder Bay Regional Health Science Centre. Her discharge diagnosis included depression, alcohol abuse and post-traumatic stress disorder ("PTSD") symptoms. She was prescribed medication to deal with the depression.

[24] Ms. B.P. complained to her family doctor, Dr. Scali, about difficulties she had concentrating at university. The stress of examinations triggered her Crohn's disease. She complained of anxiety and depression; she was missing school and work. Dr. Scali noted in early 2012 that she had been experimenting with street drugs and binge drinking. Her mother was shocked to hear that B.P. was using illicit drugs.

[25] With the support of her physician, Ms. B.P. applied to the university for a classification of permanent disability on account [page383] of her Crohn's disease. The university granted her disability status in her first year. This accommodation allowed Ms. B.P. to take a reduced course load as a full-time student and to have additional time to write exams and submit papers.

[26] In 2011-2012, Ms. B.P. returned to Lakehead with a developing interest in forensic psychology. She passed all her courses that year.

[27] In May of 2012, Ms. B.P. began part-time work with the Children's Aid Society, a job that she continued until March of 2013 when she sought a leave of absence. Her work involved transporting children, supervising their visits with parents, documenting her observations and other related tasks. There is no evidence of performance issues while she worked at this job.

[28] Until this time, despite difficulties she was having with anxiety, depression and concentration, Ms. B.P. was able to attend university and work part-time. She had a circle of friends and enjoyed a productive, active life. She attended the gym to maintain her fitness level. She was attentive to her hygiene and appearance, doing her hair and makeup and taking an interest in her clothing.

[29] Ms. B.P. also maintained contact with her extended family; transported herself to and from work, school and appointments; managed the activities of daily living; cooked, had a bank account, paid bills, shopped and functioned as an energetic and independent adult.

[30] In the fall of 2012, Ms. B.P. returned to university, but she did not attend classes and failed her semester. Dr. Scali made various referrals in an attempt to assist Ms. B.P. with her cognitive problems.

[31] In December of 2012, she began another part-time casual job working as a rehabilitation support worker for the Brain Injury Services of Northern Ontario ("BISNO"), work which she continued until February 2013.

[32] By Christmas of 2012, Ms. B.P. became involved with a new boyfriend who was a drug user. He introduced her to and encouraged her to try different illicit drugs. Increasingly, she absented herself from home and did not return to university for the 2013 winter semester.

[33] Over the course of the new relationship, Ms. B.P. became more heavily involved in illicit drug use. She used percocet, oxycodone and injected morphine. In order to draw her back home, her parents offered to shelter Ms. B.P. and her drug-dependent boyfriend. The family hoped that they could find help for both of them.

[34] In the spring of 2013, Ms. B.P. and her boyfriend enrolled in the methadone clinic, which required their daily attendance. Gradually, she weaned off street drugs in favour of methadone. [page384] She continued to function as an independent young adult during this time.

[35] Dr. Scali referred Ms. B.P. to Thunder Bay Mental Health Programs for a psychiatric assessment concerning the following mental health issues:

-- depression and fluctuating mood;

-- self-esteem;

-- anger and temper control;

-- family problems;

-- panic symptoms or attacks;

-- anxiety symptoms;

-- past physical, sexual, or emotional abuse;

-- recent alcohol, drug, or self-abuse;

-- memory impairment; and

-- problems at work and at school.

[36] Dr. Hampe, a psychiatrist, prescribed medication for mood stabilization.

[37] As she withdrew from street drugs, Ms. B.P. began to feel more like her old self. She felt guilty and embarrassed at attending the methadone program but was also proud that she was bouncing back.

[38] By June of 2017, she was weaned completely off methadone. As an adjunct to the methadone treatment, Ms. B.P. attended addiction counselling at the Sister Margaret Smith Clinic, therapy that she enjoyed. Ms. B.P.'s relationship with her boyfriend ended during this time.

The Motor Vehicle Accident

[39] On June 16, 2013, Ms. B.P. suffered a whiplash-type injury as a result of a motor vehicle collision. The airbags deployed. She was not responsible for the collision. By this time, Ms. B.P. was free of street drugs, but still receiving methadone.

[40] Both vehicles were written off as a result of the collision. Ms. B.P.'s immediate fear was that her dog, which was in the car, had been killed in the accident. Fortunately, the dog was recovered unhurt.

[41] Ms. B.P. immediately complained of headache, a sore neck and back, and an injury to her thumb for which she sought medical [page385] attention at the hospital emergency department. She was nauseated and slept a good deal. She was uncertain whether she hit her head in the collision but described feeling dazed and confused. She believed she lost consciousness briefly. Medical opinion at the time was that she had had a mild brain injury, perhaps a concussion. She was seen by her family doctor, Dr. Scali, two days after the accident.

[42] He ordered an urgent CT scan to rule out brain injury. No such injury was identified. He also referred her to physiotherapy. Dr. Scali found Ms. B.P. to be traumatized by the accident and suffering from PTSD. He prescribed pain medication and Ativan for her emotional distress.

[43] About a week after this collision, Ms. B.P.'s family began to notice changes in her behaviour. She was "zoning out", seemingly vague or inattentive to what was going on around her. She would spend long periods of time in the shower. Her ability to care for herself was slipping.

[44] Unfortunately, Ms. B.P. was involved in a second motor vehicle accident about two weeks after the first. This was a minor collision compared to the first. Ms. B.P. described it as a "fender-bender" in which the damage was so slight that the police declined to attend the scene. Nevertheless, she received a lawyer's letter threatening a lawsuit. The prospect of a lawsuit greatly upset her.

[45] Ms. B.P. presented at Dr. Scali's office on July 11, 2013, complaining of neck injuries, increased headache and back pain from the second accident. Dr. Scali noted her significant emotional distress, which included panic attacks, depression and PTSD.

[46] Hoping that a program of counselling would help Ms. B.P. overcome her trauma from the accident, she sought counselling from Sullivan and Associates in September of 2013. She was assessed by Dr. Charles Netley, a clinical psychologist. He concluded, based on Ms. B.P.'s self-report, that she was suffering from PTSD and a major depressive disorder.

[47] By September of 2013, Ms. B.P. was exhibiting child-like speech, sometimes with an accent. She had a speech impediment as though her bottom jaw was locked. She also described tingling in her hands, arms and legs.

[48] Dr. Scali referred Ms. B.P. to Dr. Steven Donaghy for a neuropsychology examination. Although Dr. Scali made the referral in 2012, Dr. Donaghy did not see her until September of 2013, about three months after the car accident.

[49] Dr. Donaghy commented that he had the sense that her symptoms were worse in September 2013, after the accident, than at the time of Dr. Scali's referral in 2012. [page386]

[50] Standardized testing showed that Ms. B.P. scored at an average level on verbal and non-verbal intelligence tests and the same on several non-verbal memory and executive functioning tests. Dr. Donaghy described these as her cognitive strengths.

[51] However, Ms. B.P. scored relatively low when tested on working memory and processing speed. For example, she had several scores below the first percentile in auditory memory. She had difficulties switching tasks and sustaining her attention in tests of executive functioning. Dr. Donaghy described her most notable areas of weakness as in her auditory memory and complex attention.

[52] By November of 2013, Ms. B.P. complained to Dr. Scali of increasing cognitive difficulty. She complained of memory loss, difficulty functioning, even difficulty picking out her own clothing.

[53] The plaintiff's mother described the plaintiff as being like a child again. She needed calls to get up in the morning, help to select appropriate clothing, and constant cueing as to how to behave. Ms. B.P. did not know her age. She forgot how to brush her teeth. She would not put things away. She would forget to turn off the stove or to care for her dog unless reminded. The reminders were often ineffective with the result that she would miss appointments or arrive late. In fact, her physiotherapy clinic discharged her because of missed and late appointments.

[54] Ms. B.P. convalesced at home. She was increasingly dependent on her family and called her mother at work a lot. By June of 2014, Mrs. P. took a month away from work to care for her daughter.

[55] Her father testified that, by the spring of 2014, the plaintiff had lost her hearing in one ear, her vision in one eye, and when stressed, she would close her eyes when talking.

[56] In June of 2014, Dr. Margaret Sweet, a neurologist, saw Ms. B.P. to determine whether Ms. B.P.'s medication for Crohn's disease was affecting her concentration. Dr. Sweet ruled out the Crohn's medication as causing problems with her concentration. However, Dr. Sweet was so concerned about Ms. B.P.'s slow reaction time that she recommended the plaintiff give up driving, which Ms. B.P. did.

[57] Dr. Donaghy, the neuropsychologist, saw Ms. B.P. for the second time in September of 2014. This was about a year after the first round of testing.

[58] Dr. Donaghy testified that, by then, Ms. B.P. was not doing well. Family members explained to Dr. Donaghy that she would "space out" and dissociate. He found her to be a lot slower and vaguer during the interview than the year before. She appeared to be even more child-like; he felt that she had declined a lot. The results of standardized testing, compared to the previous year, [page387] demonstrated her decline. She appeared lethargic such that it took two days to complete the testing. She also demonstrated more mental confusion. One test that she completed in 2013, she could not complete in 2014. At the same time, the validity testing showed that Ms. B.P. was making an effort.

[59] Dr. Donaghy was of the view that Ms. B.P.'s rapid decline could not be explained by concussion symptoms. He explained that individuals with concussions usually improve to their pre-concussion functioning. He considered that there must be other explanations for her cognitive decline and felt that she needed attendant care. His observations anticipated the opinion of the plaintiff's expert, Dr. Feinstein.

[60] By the fall of 2014, the family engaged Ms. B.P.'s cousin, M.R.-P., who is a registered social worker, to help with the plaintiff's deteriorating cognitive functioning. The defendant paid for the attendant care between November 2014 and the spring of 2015.

[61] Ms. R.-P. found the plaintiff greatly changed since the car accident. She testified about Ms. B.P.'s limited functioning. For example, Ms. R.-P. would call the plaintiff several minutes before her arrival at the P. home so that she would get up and open the door to let her in. The plaintiff needed extensive cuing to shower, brush her teeth and dress. Whereas she had previously been concerned about her appearance, Ms. B.P. could no longer do her own hair.

[62] The plaintiff had difficulty finding words. Social functions, such as interacting with a cashier, took a long time. Even her physical movements were slow. She was forgetful, easily overwhelmed with emotion and described feeling as though she had lost her way. Ms. R.-P. described the plaintiff as having a lot of potential, yet after the car accident, she seemed "drained of ambition". She described the plaintiff as "significantly changed". From time to time, Ms. B.P. complained of physical pain.

[63] Ms. B.P.'s family described her as having child-like speech, having issues with word-finding and pronunciation. She saw a speech pathologist. From time to time, she would nod off. For the first time, her behaviour was socially inappropriate, leading to embarrassing scenes. Her social circle now consists of only her family.

[64] Ms. B.P. is now completely dependent on her family or caregivers for her day-to-day functioning. Her mother described the household as being chaotic before the caregivers began attending at the home. Her father testified that it is almost as though Ms. B.P. needs an "external brain" in order to function. She improves when she has support but regresses without it. [page388]

[65] The testimony of Tracey Buchanan, a personal support worker with BISNO, was to the same effect. Ms. Buchanan described the plaintiff as being isolated, fatigued, lacking in routine and unable to manage activities of daily living without being cued.

[66] Ultimately, Ms. B.P.'s physical injuries were characterized a WAD II soft tissue injury. Her physical injuries continued to the time of trial. She attends the chronic pain program at St. Joseph's Hospital. However, it is her mental and behavioural functioning that is most disabling.

[67] In October of 2014, about 16 months after the car accident, Dr. Jay Stewart, a psychiatrist, also saw Ms. B.P. He was unable to determine whether she suffered from any major psychiatric condition but noted that she was struggling with physical and neurological symptoms from the car accident. He also noted that the issue of her sexual assault had not been fully dealt with through counselling. Dr. Stewart recommended that some basic medical investigations be conducted to rule out medical conditions that might be contributing to her psychiatric or cognitive symptoms.

[68] Dr. H. Elsherif, whose specialty is physical medicine, evaluated Ms. B.P. in November 2014. Dr. Elsherif saw Ms. B.P. at the request of her family doctor in order to ascertain whether she had a post-traumatic brain injury after the car accident. Dr. Elsherif believed that Ms. B.P. was showing refractory optic error and suggested that she see a neuro-ophthalmology consultant. There is no evidence that such a consultation ever took place. Dr. Elsherif also prescribed Ms. B.P. medication for sleep deprivation.

Expert Opinion

[69] There is no real disagreement that the plaintiff's symptoms are genuine. Expert medical testimony confirms that this is an unusual case; however, the plaintiff is not malingering. The parties' psychiatrists who testified as experts opined that the plaintiff was suffering from a conversion disorder. However, initially they disagreed on the cause of the disorder.

[70] Dr. Feinstein, a psychiatrist testifying for the plaintiff as an expert, defined a conversion disorder as one in which a person presents with neural symptoms without any evidence of neurological disorder. He described it as a diagnosis of exclusion. It is evident that Ms. B.P. has been investigated by a variety of medical professionals who have not been able to definitively diagnose the plaintiff's difficulties.

[71] Dr. Feinstein pointed to Ms. B.P.'s difficulties with balance, coordination, tingling, pseudo-seizures, spasms and other symptoms as neural symptoms that could not be accounted for by [page389] medical evaluation. He testified that these quasi-neurological symptoms were not attributable to a mild traumatic brain injury or any other organic cause.

[72] Dr. Feinstein also testified that the plaintiff was also suffering from a somatic symptom disorder which he described as physical symptoms that cannot be explained by medical evaluation.

[73] The expert psychiatrists who testified, one for each party, both agreed that the DSM-IV definition of conversion disorder requires a stressor to trigger the disorder whereas the DSM-V definition, currently in use, does not.

[74] Dr. Ozersky, a psychiatrist testifying for the defendant as an expert, was of the opinion that the plaintiff suffered from a major depressive disorder, a sleep disorder, conversion disorder and opiate addiction. He applied the DSM-IV definition which requires a stressor to trigger conversion disorder.

[75] He testified during examination-in-chief that there was no evidence that the motor vehicle accident exacerbated Ms. B.P.'s pre-existing conditions. However, in cross-examination, he admitted that, given the plaintiff's fragile emotional state at the time of the accident, "it wouldn't have taken much to put her over". He conceded that the motor vehicle accident could have been a stressor contemplated by the DSM-IV, which he applied, given her "exquisite vulnerabilities". He added that in view of her "delicate equilibrium, almost anything would blow her over". He stated, "It could have been the car accident; it could have been someone yelling at her."

Discussion

[76] While Ms. B.P. suffered from difficult life experiences before the collision, including a sexual assault, bullying at school, depression, abusive relationships with boyfriends and Crohn's disease, the evidence shows that she functioned as an independent and resourceful adult prior to the motor vehicle accident. She was able to study, work, socialize and take care of herself. She had friends.

[77] At least some of these difficulties did not interfere with her functioning. For example, her Crohn's disease was being controlled by effective treatment. She was no longer in abusive relationships.

[78] Although Ms. B.P. had struggled with her addiction to opiates before the accident, the evidence shows that, with the support of her family, she was overcoming her addiction. Before the accident, she was clear of street drugs. Indeed, even after the accident, she was able to wean herself off methadone, despite her other difficulties in functioning. [page390]

[79] Dr. Feinstein testified that the plaintiff suffered from a conversion disorder triggered by the motor vehicle collision. He also opined that she suffered from a somatic symptom disorder.

[80] Following the collision, Ms. B.P. not only suffered from soft tissue injuries, but her ability to function as an adult in activities of daily living was lost. Dr. Donaghy's psychometric testing from September 2013 compared to his testing in September 2014 documents a shocking cognitive decline for which he could not account. His observations support the diagnosis made by Dr. Feinstein and grudgingly admitted to by Dr. Ozersky.

[81] The personal support workers who assisted Ms. B.P. and the medical professionals who attended her following the accident corroborate Ms. B.P.'s testimony, and that of her family, as to her difficulty coping with the activities of daily living. Dr. Scali, her long-time family physician, was a discerning observer.

[82] I conclude that, on a balance of probabilities, the plaintiff suffers from a conversion disorder triggered by the motor vehicle accident of June 16, 2013. Dr. Ozersky conceded that her decline could have been triggered by the collision.

[83] In my view, the collision was the tipping point in the plaintiff's ability to function on a day-to-day basis. She functioned independently before the accident, but suffered rapid mental and behavioural decline shortly after it, which continues to this day. I accept that she needs significant guidance to function even at a minimal level.

[84] I conclude that, but for the collision, Ms. B.P. would not have suffered the conversion disorder described by her physicians. This disorder catastrophically impairs her ability to function from a mental or behavioural perspective.

[85] The evidence shows that the plaintiff has suffered a catastrophic impairment as claimed. A declaration shall issue that the plaintiff has suffered a catastrophic impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th ed., results in a Class 4 impairment (marked impairment) or a Class 5 impairment (extreme impairment) due to mental or behavioural disorder as a direct result of the motor vehicle accident of June 16, 2013.

[86] In view of the declaration of impairment, it is unnecessary to deal with the plaintiff's argument of waiver by estoppel.

Income Replacement Benefits

[87] The defendant terminated the plaintiff's income replacement benefits after the statutory limit of 104 weeks had been reached. When the plaintiff pointed out the defendant's error in [page391] establishing the rate, the defendant supplied a cheque to compensate for the underpayment.

[88] Given the finding that the plaintiff is catastrophically impaired, she is entitled to a continuation of income replacement benefits at the rate of $185 per week from February 28, 2016 to the date of judgment. A declaration shall issue accordingly.

Housekeeping and Home Maintenance Benefits

[89] The defendant does not contest that retroactive housekeeping and home maintenance benefits should be paid if there is a finding of catastrophic impairment. Judgment will issue requiring the defendant to pay housekeeping and home maintenance benefits to the plaintiff at the rate of $100 per week from June 14, 2015 to the date of judgment and thereafter as incurred.

Attendant Care Benefits

[90] At the applicable time, s. 20(3) of the SABS provided that no attendant care benefits were payable for expenses incurred more than 104 weeks after the collision. The defendant advised the plaintiff on or about July 10, 2015 that her attendant care benefits were being terminated effective June 14, 2015. She seeks a declaration that she is entitled to attendant care benefits at the rate of $6,000 per month from the date of termination on June 14, 2015 to the date of judgment and thereafter as incurred.

[91] Ms. B.P.'s attendant care needs were assessed on August 20, 2014, at $8,217.42 per month. At trial, the defendant did not challenge the amount of the attendant care benefit claimed, only the entitlement on the basis that the expenses had not been incurred.

[92] In total, the defendant paid the plaintiff $32,043.85 for attendant care expenses. It capped the plaintiff's entitlement to attendant care benefits at $36,000. In 2018, Ms. B.P. paid BISNO $29,463.44 for attendant care services.

[93] In preparation for mediation, the defendant advised the plaintiff that, pursuant to s. 45(4) of SABS, it should have continued to pay attendant care benefits between June 19, 2015 and February 5, 2016. The defendant asked the plaintiff to forward all incurred expenses for its consideration. It is not clear from the evidence whether the plaintiff submitted these costs. In any event, it is common ground that the defendant did not pay attendant care benefits after the sum of $32,043.85 had been paid out.

[94] At trial, the defendant disputed the payment of such costs, arguing that it was entitled to rely on Dr. Ozersky's opinion that the plaintiff's impairment was not caused by the motor vehicle accident. Alternatively, the defendant submits that only the [page392] expenses that were actually incurred, as described in exhibit 1, should be paid.

[95] Section 3(8) of the SABS, as it read in June of 2013, provides:

3(8) If in a dispute to which sections 279 to 283 of the Act apply, a Court or arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Court or arbitrator may, for the purpose of determining an insured person's entitlement to the benefit, deem the expense to have been incurred.

[96] The defendant also submits that it is not obliged to pay the plaintiff for attendant care benefits that were not actually incurred by the plaintiff. It submits that the test for whether a benefit has been unreasonably withheld is a high threshold. The defendant cites an Ontario Licence Appeal Tribunal decision where the adjudicator deemed the incurred expenses because the insurer intentionally misrepresented the findings of the s. 44 assessments: 16-003306 v. Coachman Insurance Co., 2018 81882 (Ont. LAT), at paras. 74 and 86.

[97] The defendant also cites MacLeod v. Coachman Insurance Co. (Re), [2018] O.F.S.C.D. No. 24, 2018 CarswellOnt 1619 (F.S.C.O.), at para. 49, in which the arbitrator refused to grant a punitive award pursuant to s. 282(10) of the Insurance Act. The arbitrator found that the insurer had unreasonably delayed in making payments and withheld benefits for an impecunious and functionally illiterate applicant. In this case, Ms. B.P. is not seeking a punitive award and so the reasoning in MacLeod does not apply.

[98] The plaintiff submitted two applications for catastrophic impairment: the first application, completed by Dr. Scali, Ms. B.P.'s family physician, was sent to the defendant on March 5, 2015. The second application, completed by her treating psychiatrist, Dr. Bartolucci, was sent on May 12, 2015.

[99] Dr. Feinstein assessed Ms. B.P. on April 28, 2015. His report is dated April 28, 2015.

[100] On May 14, 2015, the defendant provided instructions to Dr. Ozersky for Ms. B.P.'s assessment. Dr. Ozersky assessed her on May 22, 2015. However, he did not submit his report to Wawanesa until February 5, 2016.

[101] The defendant's instructions to its assessors do not reference Dr. Feinstein's report. Although it is not clear when the plaintiff sent Dr. Feinstein's report to the defendant, Dr. Ozersky had received it from the defendant and had reviewed it before assessing Ms. B.P. Accordingly, I conclude that the defendant had the Feinstein report at least by May 14, 2015. Thus, the defendant was on notice before its assessments that at least two psychiatrists, Drs. Feinstein and Bartolucci, and Ms. B.P.'s family physician considered her catastrophically impaired.

[102] The parties agree that the SABS schedule is remedial in nature. The plaintiff cites McMichael v. Belair Insurance Co. (2007), 2007 17630 (ON SCDC), 86 O.R. (3d) 68, [2007] O.J. No. 1972 (Div. Ct.). In McMichael, the Divisional Court considered the meaning of the word "incurred" when an insured is entitled to accident benefits but the insurer does not pay for them. [page393]

[103] At the initial hearing, the arbitrator determined that the reasonable expense of such care was nevertheless payable to the insured who had incurred the expense: at para. 19.

[104] On appeal, the insurer argued that "payment of the cost of a service not rendered amounts to a windfall for the insured" and thus is patently unreasonable: at para. 20.

[105] The Divisional Court rejected the insurer's position, at para. 24, citing with approval the reasoning in Smith (Committee of) v. Wawanesa Mutual Insurance Co. (1998), 1998 18861 (ON SC), 42 O.R. (3d) 441, [1998] O.J. No. 5058 (Div. Ct.), at paras. 38-39:

A purposive and remedial interpretation requires that the legislation be read so as not to require an insured person to finance, or to pledge her credit, in order to receive the very benefits for which she is insured.

For these reasons, I conclude that an insured, in order to incur an expenditure within four years within the meaning of the standard policy, need not actually receive the items or services or spend the money or become legally obliged to do so. It is sufficient if the reasonable necessity of the service or item and the amount of the expenditure are determined with certainty before the end of four years.

[106] In my view, the reasoning in Smith and McMichael are on point with this case. The plaintiff was forced to pay for attendant care from her personal resources when the defendant did not.

[107] The plaintiff should not be obliged to draw on her own resources to fund care to which the court has found her entitled. Such an interpretation of "incurred" would penalize an insured person who could not afford to pay for services for which he or she was insured compared to a moneyed insured who could finance his own recovery when the insurer refused to do so.

[108] As well, such an interpretation would encourage insurers to delay payments to insured in order to make the argument that expenses covered by a policy had not actually been incurred. I have noted the delay in delivery of Dr. Ozersky's report. While an insurer is entitled to seek its own opinions to determine liability under a policy, a delay of nine months to produce the report is not reasonable.

[109] I have found the plaintiff to be catastrophically impaired. She needs and is entitled to attendant care benefits pursuant to the policy. Accordingly, a declaration will issue that Ms. B.P. is entitled to attendant care benefits at the rate of $6,000 per month [page394] from the date of termination on June 14, 2015 to the date of judgment and thereafter as incurred.

Costs

[110] If the parties cannot agree on costs, either may apply to the trial coordinator within 30 days for an appointment to argue costs, failing which, costs will be deemed settled.

Action allowed.

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