December 01, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
LaFortune and Pafco
Decision Date: October 10, 2017
Heard Before: Adjudicator James Robinson
INCOME REPLACEMENT BENEFITS: clear evidence that the car accident is the sole cause of impairments; applicant entitled to IRBs;
Tammie Lee Lafortune was injured in a car accident on March 18, 2013, when was driving her van on a county road when an oncoming vehicle suddenly swerved over the centreline and struck her vehicle. The other driver did not stop at the scene and it was subsequently determined that the vehicle responsible had been stolen. Ms. Lafortune’s car came to rest against a utility pole in a field adjacent to the road, substantially damaged on the driver’s side. She applied for and received for SABs, but when disputes arose with respect to certain accident benefits Ms. Lafortune applied for arbitration at the FSCO.
- Is Ms. Lafortune entitled to receive a weekly income replacement benefit of $261.63 from October 4, 2013?
- Is Pafco liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Lafortune?
- Is Pafco liable to pay Ms. Lafortune’s expenses in respect of the arbitration?
- Is Ms. Lafortune liable to pay Pafco’s expenses in respect of the arbitration?
- Is Ms. Lafortune entitled to interest for the overdue payment of benefits?
- Ms. Lafortune is entitled to receive a weekly income replacement benefit of $261.63 from October 4, 2013 to date and ongoing.
- Pafco is not liable to pay a special award to Ms. Lafortune.
- Pafco is liable to pay Ms. Lafortune’s expenses in respect of the arbitration.
- Ms. Lafortune is entitled to interest for the overdue payment of benefits.
Ms. Lafortune’s blacked out for after the moment of impact and subsequently recovered only a partial recollection of the aftermath of the accident. She was able to drive home in the damaged van where her husband called the police and ambulance services. Ms. Lafortune was transported to hospital on a stretcher wearing a neck brace.
The ambulance report confirms that Ms. Lafortune reported neck pain and shoulder pain radiating to her right shoulder, and “tingling” in her hands. The ambulance attendant noted that Ms. Lafortune’s neck “appeared red.” Ms. Lafortune complained of dizziness and headache, and oxygen was administered. At this point, the report noted that Ms. Lafortune reported the severity of her neck and shoulder pain a nine on a scale of ten and described her neck and shoulder as “tight.” In her testimony Ms. Lafortune confirmed that she felt dizziness, a “swirling around” feeling and headache in the aftermath of the accident. It was obvious from her testimony and her manner of giving it that her recall of the events was spotty at best.
Ms. Lafortune testified that following the accident she began to suffer “excruciating” headaches and that she could not “stand light or noise.” She was unable to concentrate. She began to watch old movies because she could not follow the storyline of new movies or of television. She no longer did crafts with her children because she felt frustration in dealing with simple things and would end up yelling at the children. Both she and her husband testified that there was much more conflict in the family after the car accident. Ms. Lafortune’s used to do all the cooking for the family before the but now, if her husband does not cook then Ms. Lafortune will prepare a simple meal, usually from processed food. Ms. Lafortune, her husband and her mother gave evidence that Ms. Lafortune’s mental functioning changed after the accident. The problems centre upon her inability to focus and her poor memory Ms. Lafortune is often unable to remember her original reason for going to the grocery store. A friend provided Ms. Lafortune an opportunity to assist her at work, in a junior administrative capacity. Ms. Lafortune has lost her organizational skills. She could not succeed at that work.
By way of contrast, prior to the accident Ms. Lafortune had qualified, through online training, to work at a travel agency. Her employment was detail-oriented quality-control work. When tickets were sold to clients of her employer, it was Ms. Lafortune’s task to review the selling agents’ files to ensure that there had been no errors in flight dates and times. There were other indications, after the accident, of impaired function. Ms. Lafortune would miss physiotherapy appointments, experienced driving anxiety and PTSD. Simple strategies for household scheduling such as notebooks or charts were unhelpful. She would lose them or forget to consult them. She has chronic headache for which she was ultimately given injections at the base of her skull. She suffers from sleeplessness for which she has been prescribed medications.
On the basis of her testimony, and her manner of giving it, the Arbitrator was satisfied on a balance of probabilities and on the basis of the available evidence that Ms. Lafortune has suffered an impairment of her mental function.
Pafco submits that the accident was not the cause of any impairment Ms. Lafortune may have suffered, for two reasons. First, Pafco argues that Ms. Lafortune suffered from a pre-existing condition, depression, which would itself account for any functional difficulties. The clinical notes from the family physician certainly disclose episodes of depression. Medication was certainly prescribed although Ms. Lafortune was disinclined to take it. But those episodes were clearly associated with post-partum periods, especially following the birth of her twins. On the basis of common sense and life experience, Ms. Lafortune’s emotional life – as the mother of three children, living in the country, with her husband often out-of-town because of his work – would not strike the ordinary observer as unusual.
The Arbitrator found tthe testimony of Ms. Lafortune, corroborated by that of her husband, completely credible when she explained that her feelings had resolved after the husband made adjustments to his work commitments and her mother made herself available to help. Moreover, the success of Ms. Lafortune in completing an online course and in finding and maintaining employment, and the consistent testimony of Ms. Lafortune, her mother and her husband that she had found happiness in her job, leads me to conclude that Ms. Lafortune was not in a depressed state at any material time prior to the accident.
Second, Pafco raises causation issues with respect to any impairment suffered by Ms. Lafortune. On September 3, 2013 Ms. Lafortune was in the garage of her family home when a ten-pound Jacuzzi motor dropped from a shelf and hit her on the top of her head as she passed by. Her mother witnessed the event. Ms. Lafortune sought medical attention and the report was submitted in evidence. In the hospital report of that date, which was submitted in evidence, the injury was characterized as “Minor Head Injury” and “2 lacerations to scalp.” Ms. Lafortune’s lacerations were closed with staples, she was given Tylenol for the pain, and she was sent home. Ms. Lafortune was definite in her testimony that there was no headache, memory or concentration problems after this accident.
After reviewing all of the evidence the Arbitrator was satisfied the accident of March 18, 2013 was the sole cause of Ms. Lafortune’s impairments.