January 01, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Barry Arbus
Date of Decision: September 30, 2014
REASONS FOR DECISION
Marilyn Maude was injured in a car accident on December 26, 2009 when the car she was in hit a patch of ice, rolled into a ditch and hit a tree. Ms. Maude suffered physical injuries and impairments to her psychological well-being which, following the accident, appears to have significantly impeded her day-to-day functioning. She also appears to have steadily declined in her ability to function both physically and cognitively since the accident. Prior to the accident she was married with two grown children. She was trained as a hairdresser but had spent the last 18 years running a successful business with her husband. She was active in the company on a full time basis doing shipping, handling, invoices and book keeping. She was also very physically active.
Following the accident she applied for and received statutory accident benefits from State Farm Automobile. Ms. Maude received some medical benefits in addition to Income Replacement Benefits (“IRBs”). The parties were unable to resolve a number of issues in dispute through mediation and Ms. Maude applied for arbitration at the Financial Services Commission of Ontario.
Did Ms. Maude sustain a Catastrophic Impairment as a result of the accident?
Is Ms. Maude entitled to claim IRBs from November 4, 2010 to date and ongoing, less amounts paid and post-accident income?
Is Ms. Maude entitled to Housekeeping and Home Maintenance benefits in the amount of $100 per week from December 26, 2009 to date and ongoing, less the amounts paid?
Is Ms. Maude entitled to claim for Attendant Care Benefits as detailed for the period from December 26, 2009 to date and ongoing?
Is Ms. Maude entitled to Medical and Rehabilitation benefits for the period from December 26, 2009 to date and ongoing?
Is Ms. Maude entitled to the Treatment and Assessment Plan dated October 7, 2011 by ProMed Evaluations for Chronic Pain Assessment in the amount of $3,460?
Ms. Maude did sustain a Catastrophic Impairment as a result of the.
Ms. Maude is entitled to Income Replacement Benefits in the amount of $400.00 per week from November 4, 2010 to date and ongoing, less the amounts paid, in the amount as agreed to between the parties.
Ms. Maude is entitled to the Housekeeping and Home Maintenance Benefits from December 26, 2009 to date and ongoing being the amount of $100 per week, less the amounts paid.
Ms. Maude is entitled to the Attendant Care Benefits from December 26, 2009 to date and ongoing.
Ms. Maude is entitled to the Medical and Rehabilitation Benefits from December 26, 2009 to date and ongoing.
Ms. Maude is entitled to the payment for the Treatment and Assessment Plan dated October 7, 2011 by ProMed Evaluations for the chronic pain assessment.
Catastrophic Impairment Determination
Ms. Maude submitted an application for Catastrophic Impairment (OCF-19) on December 12, 2012 on the basis of sustaining a Class 4 Impairment due to a mental or behavioural disorder. The evidence provided by Ms. Maude’s friends and coworkers contrasted the formerly engaged, active, and social woman with the person before them now. Coworkers attested that she could no longer communicate effectively, could not complete routine tasks or adapt to change in the workplace. She lost her ability to concentrate and multi-task. All witnesses attested she had become introverted and avoided social situations.
Ms. Maude’s medical witness testified that she has difficulties with concentration, persistence, and pace significantly impede her useful functioning. He noted that this was exacerbated by her being overwhelmed, fatigued, and derailed from activities due to pain. She is unable to interact with her co-workers as well as having significant issues with anxiety and traumatic memories. Her physicians concluded that Ms. Maude suffered Class 3 impairments in terms of activities of daily living and social function and Class 4 (Marked Impairment) in the areas of concentration, persistence and pace and deterioration or decompensation in work or work-like settings.
State Farm submits that it is the intention of the Legislature to reserve for only the most serious of impairments and Ms. Maude does not have an impairment it would deem to qualify as catastrophic. State Farm’s relied on the report of neuropsychologist who concluded that Ms. Maude suffered Class 3 (Moderate Impairment) in the activities of daily living and social functioning but felt that she only suffered a Class 2 (Mild Impairment) in the latter two areas of concentration, persistence and pace, and deterioration/adaptation. In the area of concentration, and deterioration/adaptation the neuropsychologist acknowledged that although the Ms. Maude’s results were substantially very low scores and below average, he attributes the results to a low effort from Ms. Maude.
The Arbitrator reviewed the law regarding Catastrophic Impairment, and the guidelines for its evaluation. He concluded that the assessors agreed Ms. Maude has a Class 3 Moderate Impairment with respect to both Activities of Daily Living and Social Functioning. The Arbitrator preferred Ms. Maude’s assessor’s results for the following reasons:
Their report and analysis more closely adhered to the appropriate framework as established in the Guides;
Their test results were more reliable and more accurately assessed Ms. Maude’s mental and behavioural impairments;
Their psychological assessment was more appropriate given Ms. Maude’s psychological injuries; and
Their assessment was more recent, and they did not discount their findings or test results in their analysis.
The Arbitrator then reviewed Deterioration/Adaptation and concluded that based on the assessments provided that Ms. Maude has an impairment that qualifies as a Catastrophic Impairment.
With regard to IRBs Ms. Maude testified that her pre-accident duties included managing the office, human resources, inside sales and numerous other duties including unloading heavy boxes and attending trade shows. Following the accident, her evidence was that she was limited to doing a maximum of 2 hours of work twice a week and, even with minimal tasks, she was experiencing great difficulty and making frequent mistakes. This evidence was corroborated by her husband and co-workers. Her family physician and her psychologist have testified that Ms. Maude is not employable other than in her own family owned business.
Income Replacement Benefits
State Farm claims Ms. Maude took one to two weeks off work after the accident and then returned to work on a reduced basis working up to 20 hours per week. They claim they were never advised that she had returned to work and continued to collect IRBs at the statutory maximum of $400 per week. State Farm claims there is an inconsistency between her reports and the various medical professionals, including her own medical legal assessor. There is also inconsistency between the evidence of the Richard Maude who claimed that the business lost $50,000 in the last two years and Ms. Maude’s evidence that her post-accident income had remained consistent.
The Arbitrator reviewed the SABs test regarding IRBs, and the individual facts of this case. He concluded that State Farm denied Ms. Maude’s Income Replacement Benefits, both during the first 104 week period and thereafter, was largely based on the opinion of their assessment, and the understanding that she had returned to work “in some fashion”. Upon closer examination of State Farm’s assessment the Arbitrator concluded that the assessor Dr. B, was an orthopaedic expert but not a pain or psychological expert. Dr. B did not have a clear idea of her pre accident employment. Accordingly the Arbitrator granted little weight to the reports. He determined she is eligible to IRBs.
Housekeeping and Home Maintenance
Ms. Maude testified that prior to the accident she was responsible for most of the housekeeping plus gardening and snow shovelling with no restriction on her ability to perform these activities. Her evidence was that following the accident she was unable to do any housekeeping but after a few months she was able to resume some light dusting and other light tasks, and laundry. Mr. Maude and a cleaning service now do the majority of housework. The chronic pain specialist, opined that because of the restrictions to her left shoulder, post-traumatic pain in her shoulder and back, she is not capable of any heavy cleaning or lifting loads of laundry or washing dishes.
State Farm’s Position had an independent examination performed by an occupational therapist, assessed the Ms. Maude at home. She reported that although there was some reduced range in motion, such limitations did not result in a substantial inability of Ms. Maude’s being able to perform housekeeping and home maintenance tasks. State Farm claims that Ms. Maude is able to do dishes, laundry with modifications, light dusting, make her bed and do gardening with the tools and assistive devices provided to her by State Farm.
Upon reviewing the law regarding Housekeeping and Home Maintenance the Arbitrator concluded that it is clear that applying the same test of “substantial inability” applies as in the case of income replacement. The evidence of Ms. Maude, her family, Melissa Knott, Wendy King and Dr. Solomon clearly demonstrate that, even with the assistive devices and tools supplied by State Farm, Ms. Maude’s impairment has resulted in a substantial inability for her to perform the housekeeping and home maintenance services that she normally performed before the accident. In addition, because the Arbitrator previously opined that this is a catastrophic impairment, Ms. Maude’s entitlement to receive the benefit up to $100 per week cannot be limited to the 104 week limit.
Attendant Care Benefits
Ms. Maude testified that she continues to suffer lower back pain, shoulder pain, hip pain and fatigue and continues to need help with attendant care tasks on a reduced basis since the accident, and she continues to need assistance with reminders to take medication, cooking meals, getting in and out of cars and similar activities. Her husband corroborated her evidence. She also claims State Farm did not properly explain benefits to her, nor give her instructions on Form 1 completion. She claims she did not get timely response to her enquiries and thus that a late submission of the Form 1 does not mean that an insured forfeits their right to claim attendant care benefits, nor is State Farm released from its obligation to comply with the provisions of section 38 of the SABS.
State Farm’s Position
A SABS adjuster with State Farm, testified that no Form 1 was received on this file until shortly after January 31, 2011, more than 13 months after the accident. State Farm immediately paid $236.35 per month up to the statutory maximum limit of the two-year mark, based on receipt of three retroactive Forms 1 submitted by Ms. Maude’s occupational therapist. State Farm argues that Ms. Maude is not an unsophisticated person and was represented by counsel and sophisticated advisors and could have submitted the requisite Forms 1 on a timely basis. State Farm also submits that Ms. Maude is quite independent and capable of self-care without the need for attendant care.
The Arbitrator reviewed the law regarding Attendant Care and concluded that the evidence of the various witnesses is clear that although Ms. Maude and her husband are both relatively sophisticated people, there does not appear to have been a Form 1 in the package initially forwarded to Ms. Maude. It appears that only after January 2011 was there an awareness of the ability to claim attendant care benefits. The Arbitrator was satisfied that the expenses submitted by Ms. Maude are all reasonable necessary expenses incurred for attendant care of Ms. Maude as a result of the accident for services provided by an aide or attendant. The Arbitrator did not feel that the delay in submitting the Form 1 should forfeit Ms. Maude’s right or her entitlement to the attendant care benefits, nor should State Farm be released of its obligation to pay these benefits prior to the Form 1 being submitted.
Medical and Rehabilitation Benefits and Costs of Examination
Ms. Maude’s position is that all of the treatment plans submitted which are in dispute and outlined in Schedule “A” of the summary issues are reasonable and necessary. Her witnesses and doctors support her claims, and her treatment plans.
State Farm submits that many of the treatment plans in dispute are excessive and not reasonable. State Farm particularly felt that Ms. Maude’s social worker was charging excessive amounts for travel time and mileage. State Farm felt that there are social workers much closer to Ms. Maude’s home. State Farm specifically states that many of these treatment plans were consistently “partially approved”, the exception being the travel and mileage costs component of each of the treatment plans.
The Arbitrator reviewed the Law regarding Rehabilitation Benefits and concluded he is satisfied that the treatment plans submitted by Ms. Maude were all reasonable and necessary given the circumstances. Unfortunately, the best resources available to Ms. Maude are not located in Brantford. Ms. Maude is entitled to the benefit her social worker, her occupational therapist, and the chronic pain plan. If comparable resources were available closer to home, it would be appropriate for State Farm to deny the travelling and time cost portion of the treatment plans submitted by Ms. Maude. Unfortunately, these resources are not available. With respect to the timeliness of the submission of some of these treatment plans, the SABS is very explicit in stating that, “a person’s failure to comply with a time limit does not disentitle the person to a benefit if the person has a reasonable explanation.” Ms. Maude has provided a reasonable explanation to her failure to meet time deadlines set out in the SABS.