March 29, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Before: Rosemary Muzzi
Decision Date: March 6, 2012
Mulu Andemeskel was injured on a bus she had boarded to take her home from work on August 11, 2006. She fell backwards when the bus came to an abrupt stop. She has not worked since the day of the accident and has been diagnosed with depression and suffering from chronic pain syndrome.
The overarching issue in this arbitration is whether Mrs. Andemeskel continues to be entitled to the benefits she received for only a short period of time from TTC Insurance and payable under the Schedule.
TTC Insurance terminated attendant care and housekeeping benefits in November 2006 and weekly income replacement benefits in December 2006, and did not pay for some treatment and examination costs.
TTC Insurance asserts that Mrs. Andemeskel was not employed at the time of the accident, lacks credibility, and had pre-existing conditions that account for her limitations, sufficient to negate her claims to benefits beyond those that have been paid.
For the reasons that follow the Arbitrator disagreed. While there are some minor questions of credibility and the presence of some pre-existing medical conditions, the preponderance of the evidence is that the accident on the bus caused injuries to Mrs. Andemeskel that prevented her from doing many of her household tasks and has made a return to work impossible to date.
Mrs. Andemeskel is entitled to income replacement benefits from December 22, 2006 and ongoing.
Mrs. Andemeskel is entitled to further housekeeping benefits.
Mrs. Andemeskel is entitled to additional attendant care benefits.
Mrs. Andemeskel is entitled to medical benefits in the amount of $3,912.44 for the total cost of two treatment plans dated October 11, 2006 and March 16, 2007 from Active Therapy Works.
Mrs. Andemeskel is entitled to interest as per the Schedule on all of these outstanding amounts.
Mrs. Andemeskel is not entitled to the remaining balance of the cost of a psychiatric assessment report dated October 17, 2008.
Mrs. Andemeskel is not entitled to a special award.
Income replacement benefits
Mrs. Andemeskel claims weekly income replacement benefits of $75.76. Mrs. Andemeskel's application for arbitration indicates that her benefits were terminated from December 22, 2006.
TTC Insurance asserts that Mrs. Andemeskel is not entitled to any further income replacement benefits for the following reasons:
She was not employed at the time of the accident; she had been terminated from her employment on the day of the accident.
She is not credible in her claims of disability.
She suffered from pre-accident conditions which are similar to those complained of after the accident.
She is not substantially disabled from performing the duties of her pre-accident employment.
Was Mrs. Andemeskel employed at the time of the accident?
TTC Insurance asserts that Mrs. Andemeskel is not entitled to income replacement benefits because she was not employed at the time of the accident as required by section 4(1)1 of the Schedule. The Arbitrator was satisfied on the evidence that Mrs. Andemeskel was employed at the time of the accident, though there is evidence to suggest that she was terminated soon after the accident.
Mrs. Andemeskel testified credibly about what occurred at her workplace on the day of the accident and the few days subsequent. The documentary evidence on the file does not significantly detract from the credibility of her account.
Mrs. Andemeskel testified that she was not informed that she had been terminated until sometime following the accident. She testified that no one told her that her employment had been terminated on August 11 and she was not provided with any paperwork to that effect. She had been working for a collection agency for approximately one month before the accident. In her testimony Mrs. Andemeskel recalled that her supervisor told her she need not come to work on Saturday, which happened to be the day following the accident, but she also testified that she had not worked every Saturday. She also stated that she called her employer on the Monday following the accident to report that she could not work that day. In fact, Mrs. Andemeskel never returned to work. She testified that she was subsequently fired and received a record of employment indicating that she had been dismissed. However, Mrs. Andemeskel's employment file contains a copy of an internal email dated August 11, 2006, apparently not sent to her, indicating that her employment has been terminated effective August 11, 2006.
TTC Insurance relied on the documentary evidence to substantiate its case. No witness from the employer testified at the hearing.
The Arbitrator found that the documentary evidence considered in its entirety, and in light of Mrs. Andemeskel's credible evidence, is not sufficient to prove on balance that Mrs. Andemeskel was terminated on the day of the accident. Mrs. Andemeskel's record of employment is dated September 1, 2006 and does not indicate that she was terminated on August 11, 2006. The employer's confirmation form which is dated November 8, 2006 and was sent to TTC Insurance after the accident, does not clearly indicate that her employment was terminated on August 11, 2006 though that day is indicated as her last day worked. The employee status report in her employment file indicates that she was fired but no clear date is indicated there either. This document was signed by a human resources person on August 14, 2006.
On balance, the Arbitrator found that Mrs. Andemeskel's employment was not terminated on the day of the accident but may have been terminated very soon thereafter. As such, she was employed at the time of the accident and is eligible to make her claims for income replacement benefits.
Is Mrs. Andemeskel credible?
TTC Insurance asserted that Mrs. Andemeskel's claims to disability were not credible because she was not personally credible in respect of her account of the accident and its consequences; her pre-existing medical conditions accounted for her disability; and her disability more generally was not supported by the objective medical evidence.
The Arbitrator was satisfied that Mrs. Andemeskel is generally a credible historian and provided credible evidence about the lasting effects of the accident on her health. The Arbitrator found that her account of the accident itself is consistent and is supported by the other evidence before him.
TTC Insurance argued that Mrs. Andemeskel did not hit her head on the fare box when she fell and therefore did not seriously injure herself and was likely exaggerating her claims. The preponderance of the evidence shows that Mrs. Andemeskel did hit her head though she may not have hit the fare box. As a result, she suffered head injuries.
Mrs. Andemeskel testified that she hit her head on the metal fare box or bar holding the fare box after falling backward. The bus driver testified that she remembers the incident as accidents happen infrequently. While the driver she was sure that Mrs. Andemeskel did not hit her head on the fare box – she did not hear a thud or feel a vibration from that kind of impact – the driver testified that she saw that Mrs. Andemeskel landed straight on her back and she struck her head on the floor of the bus. The driver was very clear in her testimony: she maintained eye contact with Mrs. Andemeskel; she and another passenger escorted her to a seat; Mrs. Andemeskel reported that she was dizzy and agreed to the driver's offer of medical assistance; the driver sat with her until EMS arrived.
The bus driver's evidence lends credence to the claim that Mrs. Andemeskel hit her head. The medical evidence is also supportive.
Dr. W, Mrs. Andemeskel's family doctor, saw a contusion – evidence of an impact – when she examined her after the accident. Further, she diagnosed a mild concussion on August 17 because Mrs. Andemeskel continued to complain of headaches and dizziness. Dr. W found her complaints of persistent headaches significant [See note 4 below] even though no bleeding was evident in a CT scan and Mrs. Andemeskel did not lose consciousness.
The preponderance of evidence indicates that Mrs. Andemeskel did strike her head when she fell. As a result, in the Arbitrator’s view, it is not surprising that she has suffered lasting effects from the accident. Indeed, the evidence in its totality shows generally consistent and regular complaints and a level of disability following the accident that did not pre-date the accident.
Do Mrs. Andemeskel's pre-existing conditions account for her disability?
TTC Insurance raised the existence of pre-existing conditions, but the Arbitrator found that the evidence shows that Mrs. Andemeskel's pre-existing conditions do not fully explain her current disability. The Arbitrator found that, as a result of the accident, Mrs. Andemeskel displays new medical conditions and has suffered physical impacts well beyond those she might have had due to her pre-existing conditions. The evidence also shows that her complaints before the accident were somewhat isolated and not ongoing. In addition, there is little evidence that her activities were limited in any way before the accident.
The pre-accident complaints similar to those Mrs. Andemeskel made post-accident include
right leg numbness - November 2005
pelvic pain radiating down to her legs - December 2005
vague pain in lower limbs and back pain - March 2006
There is also a diagnosis of osteoarthritis in June 2006 with an x-ray of her lumbar spine showing bone spurs (osteophytes).
Subsequent to the accident and upon further medical examination, additional conditions were observed including
cervical spine changes - March 2007 (disc osteophytes were observed on an MRI)
minimal degenerative pattern in shoulders - March 2007 (seen in an ultrasound)
spinal stenosis - July 2007 (seen in an MRI of lumbar spine)
It is agreed that these conditions, especially the stenosis, are likely not accident-related and The Arbitrator accepted that back pain, numbness and walking difficulties are all symptoms of spinal stenosis and were likely present to some extent before the accident.
Dr. W admitted that spinal stenosis was likely congenital and degenerative and not related to the accident. However, she also noted that while Mrs. Andemeskel had back pain before the accident, she had recovered from it before the accident. Moreover, Mrs. Andemeskel reported new problems to Dr. W and Dr. W also made new findings including
pain in the left ear, left neck, and left shoulder (on August 14, 2006)
signs of perforated right ear (Dr. W clarified that this condition is usually caused by a significant blow to the head and Mrs. Andemeskel had no history of right ear perforation, her right ear being normal on examination in December 2005)
whiplash (in October 2006)
persistent neck pain complaints
depression (in November 2007 as sequelae to the accident and also related to pre-existing degenerative conditions and chronic pain. Mrs. Andemeskel had no previous psychiatric history.)
sleeplessness (in November 2009. A sleep study report in December 2009 found that Mrs. Andemeskel did not have other sleep disturbances and that chronic pain was awakening her.)
Further, both Mrs. Andemeskel and her husband testified that her physical condition significantly deteriorated after the accident. She could not return to work or engage in her own activities or accomplish her household tasks and she became sad and withdrawn. Whereas she and her husband used to walk often for pleasure and exercise, she could no longer do so because of increased levels of pain and noticeable difficulty walking, ultimately resorting to the use of a cane. While she had been completely independent in her household tasks and self-care, she could no longer do all of the housekeeping and sometimes asked her husband for help getting around their home.
TTC Insurance submitted that Mrs. Andemeskel's pain complaints were exaggerated or inconsistent thereby casting some doubt on her complaints of chronic pain and depression.
While there is some evidence of Mrs. Andemeskel's focus on her pain and her reluctance to engage in some recommended therapies, the evidence is insufficient to cast doubt on her injuries, her pain and the consequences for her life.
For example, Dr. DE, internal and behavioural medicine specialist, reported that she had magnified illness behaviour in April 2010 and Dr. S, her treating psychiatrist, noted that she did not attend as often as recommended and did not take anti-depressants as instructed either. He also found her inconsistent with her reports of depression; she is up and down. Dr. T, neurologist, found that Mrs. Andemeskel magnified symptoms. He and the occupational therapist also found inconsistencies in her performance. Dr. L, orthopaedic specialist, also found her pain focused; facially she suggested severe pain.
However, none of these doctors suggested that Mrs. Andemeskel was fabricating her experience of pain. For example, Dr. T testified that symptom magnification is a term used to describe behaviour to exaggerate or make clear that symptoms are having an impact. Dr. L testified that the pain focused behaviour was explained, perhaps in part, by Mrs. Andemeskel's desire to emphasize that she was in a great deal of pain and it was a preoccupying concern for her. Furthermore, these assessors and others also found evidence of injury and medical conditions. While Dr. T found no clinical neurological deficit or impairment that could explain her symptoms, Dr. L, who conducted a physical examination in November 2006, found that she had limitations, albeit partial and reversible in his opinion, and that she had an inability to do certain activities in her normal life which was consistent with her reported injuries. Further, upon subsequent review, in May 2007, he agreed that a psychiatric assessment could be considered and might be helpful in assessing her case.
Dr. DE concluded that Mrs. Andemeskel suffered from a pain disorder with myofascial pain, a non-closed head injury, secondary to concussion, and moderately severe depression. These are significant diagnoses. Dr. E , chronic pain doctor, explained that usually people resolve pain within 3 to 6 months but 10 to 15% will develop a more chronic pain like Mrs. Andemeskel.
Dr. JC, psychiatrist, diagnosed her with chronic pain syndrome and major depressive disorder in October 2008. He concluded that she was unable to be gainfully employed in any competitive capacity and her prognosis for vocational rehabilitation appears poor.
Dr. S testified that despite her inconsistent reporting, he has seen very little improvement since December 2006 and as late as September 2010, he found her still irritable, depressed, sad, and not recovered to pre-accident functioning. He also opined that the primary link to her depression is pain.
The Arbitrator found that the preponderance of evidence indicates that Mrs. Andemeskel was injured as a result of the accident and currently suffers from medical conditions and physical limitations that did not exist pre-accident.
Is Mrs. Andemeskel substantially unable to perform the duties of her pre-accident employment?
In order for Mrs. Andemeskel to be entitled to income replacement benefits after December 2006 to the two years post accident, she must demonstrate that she has a substantial inability to do the work she was doing at the time of accident. The Arbitrator found Mrs. Andemeskel generally credible in her reports of disability and in particular her inability to work and also found that the medical evidence supports her inability to do her previous work. As such she is entitled to IRBs beyond the time that benefits were terminated.
An insurer is not required to pay an income replacement benefit 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. While the parties did not specifically focus on the period past the two years post-accident and this more onerous test, there are credible medical opinions before the Arbitrator indicating that Mrs. Andemeskel is likely unemployable for the foreseeable future. As such, he saw no reason at this time to cap her entitlement to IRBs at the two-year mark. Mrs. Andemeskel is entitled to IRBs from the period of termination and ongoing.
In considering Mrs. Andemeskel's entitlement to IRBs after the two-year mark, the Arbitrator noted that numerous doctors have opined that Mrs. Andemeskel cannot work at all and does not have a positive prognosis in this regard because of a chronic pain syndrome and depression. Both Dr. S and Dr. Cooper, both of whom consulted with her after the two years post-accident, did not see her able to work at that point or in the foreseeable future. Dr. S specifically testified that after four years of treatment he was unsure what else could be done to improve her condition.
Two years after the accident, on August 28, 2008, at the request of Dr. W, Dr. E saw Mrs. Andemeskel for the first time. He consulted with her on three or four more occasions. She complained to him of neck pain, low back pain, and total body pain that she rated at 10 out of 10. She told him that she had pain all the time. She told him in January 2010 that she had daily headaches. He described her as "in a bad way" when he saw her last.
While Dr. E testified that he relies on what a patient reports about their symptoms and that he did not know of her previous complaints to her family doctor or of her diagnosis of osteoarthritis, he also testified that most of her symptoms are typical of those who have chronic pain. He testified that while people usually resolve pain in 3 to 6 months, 10 to 15% of injured persons will develop a more chronic pain. His opinion was that Mrs. Andemeskel had a normal kind of life and seemed normally healthy prior to the accident and that her quality of life has changed dramatically since the accident.
In the context of all the medical evidence, the opinions of Drs. T and L are not sufficient to negate the impact of the accident on Mrs. Andemeskel. Her injuries resulted in a loss of functioning and caused an inability to work, and the ensuing depression and chronic pain continues to prevent her from working today.
Given the findings about Mrs. Andemeskel's limitations in functioning as a result of the accident, the Arbitrator also found that she is entitled to benefits for housekeeping services beyond November 11, 2006 when those benefits were terminated by TTC Insurance.
The evidence before the Arbitrator is that Mrs. Andemeskel used to be responsible for all of the housework in the two-bedroom apartment she shares with her husband and daughter. This situation was confirmed by her husband's testimony and was reported to the functional capacity evaluator on April 17, 2007. Since the accident, however, she has required assistance from her husband and a niece who has spent time with her every day. At the hearing, Mrs. Andemeskel testified that she still found it hard to grip for many of her household activities including sweeping, washing dishes and mopping.
While both Drs. T and L examined her in November 2006 and found her not requiring housekeeping assistance, the preponderance of the evidence indicates that Mrs. Andemeskel was still limited in her household tasks at least as late as the spring 2007.
Dr. CR, chiropractor, conducted an in-home assessment on November 22, 2006 and found that she required assistance with most of her housekeeping tasks and only a few of her personal care tasks. Dr. CR opined that she required approximately eleven hours of assistance per week with her housekeeping tasks. When he examined her again on March 22, 2007 for a functional capacity evaluation, he found that she was still limited in her activities to the extent that she was still unable to do heavier or prolonged tasks, though she was independent with her personal care at that point.
Dr. S reported that Mrs. Andemeskel was still reporting a need for assistance from others and was not to her full capacity doing housework in April 2008 and that she continued to require some assistance with housekeeping as late as March 2009. Mrs. Andemeskel testified that she continues to be assisted to this day by her niece who spends two to three hours a day with her to help around the house and to provide company.
Mrs. Andemeskel is not entitled to any housekeeping benefits beyond August 11, 2008 as she does not meet the requirements for entitlement – there was no evidence that she sustained a catastrophic impairment as a result of the accident.
However, the Arbitrator was satisfied on the evidence that she sustained an impairment that resulted in a substantial inability to perform the housekeeping tasks she performed before the accident in that she required assistance with all of her tasks up to March 2007 and with the heavier tasks up to August 11, 2008.
Without having been directed to any detailed invoices for housekeeping, the Arbitrator referred to the in-home assessment of November 2006 for guidance in determining how much paid housekeeping assistance Mrs. Andemeskel should be awarded. The Arbitrator noted that no more than one third of the total 695 minutes per week of housekeeping would involve heavier tasks.
Therefore, the Arbitrator found that Mrs. Andemeskel is entitled to full benefits of $100 weekly from November 11, 2006 to March 22, 2007 and $30 weekly from March 23, 2007 to August 11, 2008.
Attendant Care benefits
Mrs. Andemeskel claims $515.70 per month for attendant care services provided from November 11, 2006 to January 11, 2007. However, the evidence indicates that her need for personal care was minimal compared to her other needs.
In November 2006, Dr. CR found that she required assistance with very few of her personal care tasks. When he examined her again in March 2007 for a functional capacity evaluation, he found that she was independent with her personal care at that point. Neither Dr. S nor Dr. W highlighted Mrs. Andemeskel's inability to care for herself. There was credible evidence from both Mrs. Andemeskel and her husband that her needs for personal care assistance were significant immediately following the accident. Indeed, TTC Insurance paid her these benefits for three months.
The Form 1 completed by Dr. CR in November 2006 indicates that Mrs. Andemeskel required a total of 600 minutes (10 hours) per week of personal care. Upon further examination however, the Arbitrator noted that a large portion of this time is allotted for tasks that overlap with the kinds of tasks her housekeeper would routinely perform. The Arbitrator already awarded Mrs. Andemeskel full housekeeping benefits for this period and the evidence is that Mrs. Andemeskel's niece assisted her with housekeeping as well as her personal care.
When the personal care needs are separated out from the housekeeping-related tasks, the Arbitrator found that Mrs. Andemeskel only required 16.6 hours per month of attendant care paid at the monthly rate of $167.81.
Therefore, Mrs. Andemeskel is entitled to $335.62 in attendant care benefits for the period from November 11, 2006 to January 11, 2007.
In order to be entitled to payment of the treatment plans dated October 11, 2006 and March 16, 2007, Mrs. Andemeskel must show that these expenses were reasonable and necessary and incurred as a result of the accident.
The Arbitrator already found that Mrs. Andemeskel was injured as a result of the accident and the evidence before him was that she suffered from persistent pain and continues to suffer from chronic pain and depression today. Moreover, TTC Insurance did approve payment of some of Mrs. Andemeskel's treatment plans. The treatment plans in issue at this arbitration were denied based on the opinions of Dr. L that Mrs. Andemeskel had achieved maximum medical recovery by November 2006 and was not disabled by April 2007.
The medical evidence before the Arbitrator, already canvassed in this decision, is not supportive of Dr. L's opinion that Mrs. Andemeskel had achieved maximum medical recovery by November 2006. For example, Dr. E testified that most people usually resolve pain in 3 to 6 months after a trauma. The first treatment plan at issue here was submitted only two months following the accident.
During this time, and subsequently, Mrs. Andemeskel did engage in regular therapy. Dr. W testified that Mrs. Andemeskel was compliant in attending for certain types of treatment and therapy for a significant period of time: physiotherapy until January 2009 and aqua-fit classes up to the time of hearing. Further, Dr. CR recommended in March 2007 that she continue in her rehabilitation program and continue with some passive therapy for tight musculature and pain management and to improve her range of motion and strength.
In addition, at the time the first treatment plan was submitted, TTC Insurance was still paying Mrs. Andemeskel IRBs, housekeeping and attendant care benefits, recognizing that she had continuing limitations. Between November 2006 and March 2007, Mrs. Andemeskel continued to suffer medical problems and continued to seek resolution. She consulted with Dr. W on a fairly regular basis still complaining of pain, headache, and poor sleep, as well as other issues, and had begun consulting with Dr. S.
Given all of these circumstances, the Arbitrator found that Mrs. Andemeskel is outside of the ordinary group of accident victims and requires lengthier treatment with a view to some lasting recovery. The Arbitrator found that there is sufficient evidence to indicate that these treatment plans were reasonable and necessary for Mrs. Andemeskel's recovery.
Therefore, Mrs. Andemeskel is entitled to payment of $3,912.44 for the total cost of two treatment plans dated October 11, 2006 and March 16, 2007 from Active Therapy Works.
Costs of examination
Mrs. Andemeskel seeks $1,350 for the remaining balance of the cost of the psychological assessment report completed by Dr. Cooper dated October 17, 2008. The full amount claimed for the report was $2,750.
TTC Insurance paid $1,400 toward the cost of the assessment report having determined that the full amount claimed was excessive and $1,400 was a reasonable fee for a comprehensive psychiatric assessment. Section 24(1)10 of the Schedule speaks of "reasonable fees and expenses" and requires that an insurer only pay those. Mrs. Andemeskel led no evidence in respect of the reasonableness of the full cost of the assessment report. The Arbitrator had no other evidence before him to show that $2,750 is a reasonable fee in the circumstances of this case. Consequently, there is no basis upon which he could award any further amounts toward payment of the assessment report.
The Arbitrator found that Mrs. Andemeskel is therefore not entitled to $1,350 for the remaining balance of the cost of this report.
An arbitrator may make a special award where an insurer unreasonably withholds or delays payments to an insured. Mrs. Andemeskel did not direct the Arbitrator to any specific evidence and made no particular argument in this regard. The Arbitrator found no evidence of entitlement to a special award. Therefore, Mrs. Andemeskel is not entitled to a special award.