November 20, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arruda and Western
Date of Decision: July 7, 2015
Heard Before: Adjudicator Jeffrey Shapiro
Ms. Jessica Silva Arruda was injured in a car accident on May 5, 2012 when she was a backseat passenger in her boyfriend’s vehicle. As it passed through an intersection and was “t-boned” with the impact on the driver’s side. Ms. Arruda described at the Hearing and to medical providers that her body slammed into the door and that she struck her head on the window. She was transported to the hospital where she was examined and released. To date, no x-rays, ultrasounds, or MRIs have been administered. No loss of consciousness was reported. She sought accident benefits from Western but was unable to resolve their disputes through mediation, and Ms. Arruda applied for arbitration at the FSCO.
The issues in this Hearing are:
Do Ms. Arruda’s injuries fall outside the Minor Injury Guideline (“MIG”)?
Is Ms. Arruda entitled to an Income Replacement Benefit (IRBs).
If Ms. Arruda is entitled to an IRB up to the 104-week mark, how much?
Is Ms. Arruda entitled to receive Medical/Cost of Examination Benefit?
Is Ms. Arruda owed any interest on any outstanding benefits?
Is Western liable to pay Ms. Arruda a Special Award?
Is Western required to pay Ms. Arruda’s expenses of the Arbitration Hearing?
Ms. Arruda’s injuries did fall within the MIG. Ms. Arruda’s injuries are no longer in the MIG.
Ms. Arruda is entitled to an IRB up to the 104-week mark. She is not entitled to an IRB thereafter.
Ms. Arruda’s pre-104 week IRB is $103.86 per week.
Ms. Arruda is entitled to reimbursement for the ambulance fee, but is not the other four medical benefits claimed.
Ms. Arruda is entitled to interest on overdue benefits.
Western is liable to pay Ms. Arruda a Special Award.
Western is required to pay Ms. Arruda’s expenses of the Arbitration Hearing.
Two weeks before the car accident Ms. Arruda gave birth at which time she was given an epidural that left her with back pain. Prior to the accident, Ms. Arruda had maintained two part-time jobs but by the time of the birth, Ms. Arruda was on maternity leave.
Following her release from the hospital Ms. Arruda immediately followed up with her long-standing family physician, Dr. M, complaining of hitting her head and back and left shoulder pain, and was referred to, and received physiotherapy under the MIG over the next several months until the MIG limit was exhausted.
Ms. Arruda sought to receive the Costs of Examination Benefit for an In-Home Assessment Report, dated September 25, 201 by way of an OCF-18, dated September 14, 2012. The physio therapists filed two OCF-18 for treatment beyond benefits on October 3 and N0vember 29, 2012.
Ms. Arruda sought a psychological assessment by Dr. JP by way of an OCF-18, dated October 29, 2012. The assessment was never conducted, but the OCF-18 contains “additional comments” by Dr. JP stating that she conducted a telephone interview with Ms. Arruda whose symptoms “does not fit the criteria…[for a] Minor Injury according to the SABS…”. Thus, she was requesting funding for a full assessment.
Western denied all of the above treatment plans beyond the MIG limits and sought Independent Examinations (“IEs”) as follows:
Two (2) Psychology Evaluation Reports of Dr. Jonathan Siegel (psychologist), respectively dated December 3, 2012, regarding IRB and medical rehabilitation;
Physical Demands Description – Light Duty Cleaner Hallmark Housekeeping Services Inc. by VT (OT), dated December 12, 2012;
Functional Abilities Evaluation Report of AB (OT), dated December 17, 2012;
Two (2) Physiatry Evaluation Reports of Dr. AC regarding IRB and medical rehabilitation;
Medical/Rehabilitation – Minor Injury Guideline (MIG) Executive Summary of Dr. SD, dated January 8, 2013.
The IEs found Ms. Arruda to have sustained soft tissue injuries and minor psychological ‘difficulties’, which (1) did not require further treatment or (2) cause her to “suffer a substantial inability to perform the essential tasks of her pre-accident employment.”
Western repeatedly requested information necessary to calculate and IRB which was not forthcoming. On that basis, and the basis of the IEs Western terminated the IRB.
Ms. Arruda next saw her family doctor in April of 2013 and then saw Dr. MW who diagnosed Chronic Pain Syndrome and “Post-Traumatic Anxiety and Distress Disorder with Depressive Episodes”. He noted that further comment on the latter diagnosis is beyond the scope of his specialty. Western gave no evidence of responding to the report, no pre-approval was sought by Ms. Arruda for the examination, nor is she seeking reimbursement for it.
While there remains disagreement as to the cause of the delay in payment and the quantum (approximately $6.00 per week); in October 2014, shortly before the Hearing, Western paid the IRB for the period from May 12, 2012 to January 13, 2013.
Ms. Arruda contends that she was involved in a serious accident, causing her largely soft-tissue injuries which are outside of the MIG due to:
Pre-existing back pain related to the epidural procedure two weeks pre-accident, and
The subsequent onset of chronic pain and psychological injuries.
Ms. Arruda points to her dramatic change in lifestyle from before the accident compared to that after the accident; her inability to perform numerous functional activities; and continuing complaints of pain, dizziness, and headaches. She contends that she is entitled to an IRB as she remains physically unable to complete the demands of her active pre-employment positions, and also meets the post-104 week test as she is virtually unemployable. Additionally, she claims her IRB was not calculated properly and she takes numerous issues with Western’s adjusting of the claim.
Western contends that soft-tissue injuries fall under the MIG, and minor psychological “difficulties” that do not constitute an “impairment” or remove her from the MIG. As for IRBs, Western contends that it properly terminated benefits on January 13, 2013, based on a series of IE Assessments which established that Ms. Arruda no longer met the pre-104 Week Test, or the more stringent post-104 Week Test. Western contends that Ms. Arruda is a ‘poor historian’ and thus it disputes her account of her medical history or her functional abilities, pointing, for example, to Ms. Arruda’s functional abilities displayed in caring for her baby and use of an elliptical machine, among other inconsistencies in her presentation.
Ms. Arruda testified that prior to the accident (beginning October 2005), she was employed part-time as a cleaner which was a physically active position requiring active physical labour, including bending, lifting, vacuuming, and scrubbing. She worked 5 hours per day, 5 days a week, earning approximately $15/hour. She was also employed part-time, on a contract basis, as a temporary receptionist and administrative assistant (October 2010-November 2011) earning approximately $10.00/hour (‘as best as I can recall’). She testifies that she regularly attended a gym, and lived an active life.
After the Accident Ms. Arruda was taken to the hospital and released with Tylenol for the pain. She had swelling on her leg and bruising on her hip and the next morning, headaches and migraines and aching pains in her back. She required assistance helping to care for her newborn and most household tasks, difficulties which she still experiences. She experiences pain with vacuuming, scrubbing, bending, etc., and so her family still helps her with those tasks.
She began therapy which she felt helped, until the insurance company stopped paying, and now feels her condition is getting worse. She felt she had depression, anxiety, and low self-esteem as a result of the accident. She drives when she has to, but has anxiety doing so. She claims memory loss and a decreased ability to concentrate. She felt she could not return to her pre-accident employment because of the pushing, pulling, bending and lifting. She mentioned she still has numbness and tingling in her fingers. On cross-examination of medical reports and previous testimony she denied some of them or explained apparent inconsistencies.
There was no testimony or evidence presented that she attempted to secure employment post-accident or had given much thought towards future career plans or possibilities.
The Arbitrator reviewed the medical evidence and testimony and concluded that he partially accepted Ms. Arruda’s testimony of ongoing pain, and found it generally consistent with medical findings, but given a number of inconsistencies, however, did not accept her testimony on all points or the full extent of her claimed disability
The arbitrator, in reviewing prior cases, noted that the onus is upon the insured to that the insured fits within the scope of the coverage. The arbitrator did not agree that Ms. Arruda’s pre accident back problems moved her out of the MIG. The arbitrator did not feel there was compelling evidence to support the pre accident claim. The arbitrator noted that her family doctor did not refer her for any treatment for Chronic pain. A subsequent report from Dr. W, a certified specialist in orthopedic surgery, diagnosed Ms. Arruda as suffering from Chronic Pain Syndrome. The arbitrator accepted that while Ms. A did not have Chronic Pain Syndrome at the time of prior assessments, she did have Chronic Pain Syndrome by the time of Dr. West later assessment. The arbitrator agreed that the diagnosis of Chronic Pain brings Ms. Arruda out of the MIG.
With respect to IRBs, in the year prior to the accident Ms. Arruda held two jobs: her main occupation was a cleaner with Hallmark, and her second job was doing temporary office work. Following the accident, Ms. Arruda applied for and received approval for an Income Replacement Benefit, with the quantum to be determined, however before the benefit was actually paid, Western terminated the eligibility for the benefit by letter and OCF-9, dated January 18, 2013.
Section 6 of the Schedule provides the test for entitlement to an Income Replacement Benefit during the first 104 weeks post-accident (excluding the first 7 days), as follows:
“6. (1) … an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment. “
It also provides a more stringent set for entitlement to an Income Replacement Benefit after the first 104 weeks post-accident, as follows:
“6. (2) (b) … after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”
Although Western’s Functional Abilities Evaluation and Physical Demands Report set forth Ms. Arruda’s job duties in greater detail, there is not much dispute that the cleaning position was a physically active position requiring frequent bending, squatting, pushing, pulling, and lifting between 10 and 20 kilograms. It is referred to as a “medium duty job.” The office position is a “light duty job” involving answering phones and using basic office machines such as computers. It is not strenuous.
The Arbitrator found that after the motor vehicle accident in question, Ms. Arruda was unable to do her pre-accident employment as a cleaner, due to accident-related injuries, and that Ms. Arruda met her burden of proof, and absent further medical advice through the two-year mark, she is entitled to IRBs for that period. Regarding IRB post-104 weeks Ms. Arruda has not met her burden of proof.