July 22, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Elizabeth Nastasi
Decision date: July 13, 2007
Cathleen Zach was injured in a car accident that occured on January 20, 2003. She applied for and received accident benefits from State Farm Insurance. A dispute arose with respect to ongoing income replacement benefits (IRBs). State Farm discontinued ongoing IRBs in October 2003 after an Insurers Examination.
Ms. Zach was hit from behind in the car accident and pushed into the vehicle in front of her. The rear of her car sustained in excess of $6,600.00 in damage and some dents in the front fender. Her primary complaints were neck and back pain as well as headaches and pain behind her eyes. Her pain did not subside as she hoped and this led to depression directly related to the car accident. It was not until July 2004, 18 months post accident, that she was diagnosed with a temporomandibular joint disorder (TMD). Ms. Zach testified that her injuries as a result of the car accident have prevented her from returning to any full-time employment.
Three dentists who testified agreed that Ms. Zach was suffering from left side TMD. The difference amongst the experts related to the issue of causation. Whether the injury arose as a result of the car accident or that the car accident contributed to the injury.
The dentist testifying on behalf of Ms. Zach felt that her pre-existing mental health condition and the stressors in her life at the timeof and following the car accident, led to a condition called bruxism. Bruxism is a clenching and grinding of teeth. He concluded that bruxism is a common cause of TMD and the most likely cause of Ms. Zach´s condition. The medical expert concluded that an acute episode like a car accident could take Ms. Zach to the "next level" similar to the analogy of the "straw that broke the camel´s back"
The dentist retained by the insurer agreed with the diagnosis of bruxism but concluded that the car accident was not a cause because of, among other things, the time gap between the car accident and Ms. Zach´s report of jaw pain; stress and pre-existing mental condition; and the low impact nature of the accident without direct trauma to the head.
The insurer´s position was that Ms. Zach´s injuries arising from the car accident had resolved and that she did not clearly complain of jaw pain until 18 months post accident which was well after the injuries had resolved. Mrs. Zach gave evidence that after the car accident she hurt all over and in particular had neck and back pain. There was reference in her family doctor´s records to a complaint of jaw pain two days after the accident. The next reference to jaw pain is in July, 2004, which was 18 months after the car accident. Ms. Zach´s evidence was that in addition to neck and back pain she also complained of headaches and pain behind her eyes. Ms. Zach testified that her back pain had mostly abated six months after the accident. It was at this point that she was able to identify and describe more clearly the pain behind her eyes. She testified that her headaches and eye pain were synonymous with jaw pain. She described it as radiating pain from her left ear to behind her eyes. It was only after seeing a medical specialist 18 months after the accident that she had an adequate diagnosis and insight into what was causing her pain - the TMD.
The arbitrator accepted the evidence of Ms. Zach credible and persuasive. When that evidence was combined with the extensive medical records and the opinion of the medical experts, when considering the totality of the evidence, the arbitrator determined that it did not support the insurer´s position of delayed onset of TMD. The arbitrator found that it was likely Ms. Zach´s lack of clarity in describing her TMD symptoms which contributed to her condition being overlooked or mis-diagnosed.
Prior to the car accident Ms. Zach had coped with depression quite well. She was working and coping well at the time of the accident. Ms. Zach testified that the car accident was a major cause of both physical and financial stress for her. The arbitrator was unable to determine whether Ms. Zach´s suffered from bruxism prior to the accident. The arbitrator held that there was evidence of TMD and bruxism but no evidence to determine which came first. The arbitrator determined that it was equally likely that post accident stress and pain led to bruxism which in turn exacerbated the TMD. In considering the evidence of the experts, in conjunction with the evidence of Ms. Zach, the arbitrator found that although Ms. Zach did not hit her head in the car accident, it could have caused her TMD.
It is important to note that the arbitrator found the arguments from the experts on both sides of the issue to be compelling, but it was the evidence of Ms. Zach that was the most significant factor in deciding causation in the favour of Ms. Zach. Based on a balance of probability the car accident was either the direct cause of the TMD or materially contributed to the development of the symptoms and Ms. Zach´s impairment.
When considering her entitlement to IRBs, the arbitrator was satisfied that her head and eye pain resulted in her inability to concentrate and sit at a computer for more than a few hours at a time. Based on Ms. Zach´s clear and forthright testimony, the arbitrator was persuaded, based on a balance of probabilities, that she was not able to perform the essential tasks of her employment as a graphic artist (the test for IRBs during the first 104 weeks of disability).
With respect to the entitlement to IRBs for the period beyond 104 weeks and onwards, the test becomes not just whether the injured party can do the job she did at the time of the accident but whether she has suffered a complete inability to do any job based on her education, experience and training. Ms. Zach attempted other work but was unable to do so on a full time basis. She was only able to work at reduced and flexible hours. She did work as a bus driver but the arbitrator noted this employment was substantially different from her pre car accident employment as a graphic artist. Given the physical limitations and impairments, the evidence did not support that she would be able to engage in a full-time job in a commercially reasonable way without significant and unreasonable accommodation by an employer. As such, the arbitrator found that Ms. Zach´s disability prevented her from engaging in any competitive employment for which she is suited by education, training or experience.
It is clear that a key issue in this case was the evidence of Ms. Zach that tipped the balance in her favour. The arbitrator found the experts to be credible and their opinions to be valid. When forced to make a decision, Ms. Zach´s evidence tipped the scale on a balance of probabilities.