February 02, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: December 12, 2013
Heard Before: Adjudicator Eban Bayefsky
Maria Macedo was injured in a very serious car accident November 20, 2007. Her car fell 30’-40’ off a bridge and she was removed from her car with the jaws of life. After assessment at the hospital she was released that day, and then readmitted the same day after fainting. She began to suffer from headaches, stiffness, memory loss, and continues to have no recollection of the accident. In January 2008 Dr. NF submitted a Disability Certificate (an OCF-3 form) indicating that Mrs. Macedo was substantially disabled from her pre-accident employment, caregiving and housekeeping tasks.
She applied for statutory accident benefits from Allstate Insurance.
Allstate denied some of Mrs. Macedo’s claims and as the parties couldn’t resolve their disputes through mediation, and Mrs. Macedo applied for arbitration at FSCO.
The issues in this hearing are:
Did Mrs. Macedo sustain a catastrophic impairment as a result of the car accident within the meaning Schedule?
Is Mrs. Macedo entitled to attendant care benefits, from November 20, 2007, onward, at a rate of $6,000 per month, less amounts already paid by Allstate?
Is Mrs. Macedo entitled to receive weekly caregiver benefits, from November 20, 2007 to September 3, 2008, at a rate of $350 per week, and from September 4, 2008, onward, at a rate of $300 per week?
Is Mrs. Macedo entitled to payments for housekeeping and home maintenance services, from November 20, 2007, onward, at a rate of $100 per week?
Is Mrs. Macedo entitled to payments for modifications to her home?
Is Mrs. Macedo entitled to payments for the cost of examinations, by Dr. FM, Dr. AH, and Dr. PK?
Is Allstate liable to pay a special award because it unreasonably withheld or delayed payments pursuant the Insurance Act?
Is Mrs. Macedo entitled to interest for the overdue payment of benefits?
Mrs. Macedo sustained a catastrophic impairment as a result of the accident.
Allstate shall pay to Mrs. Macedo attendant care benefits from November 20, 2007, onward less amounts already paid.
Allstate shall pay to Mrs. Macedo caregiver benefits, from November 20, 2007, onward less amounts already paid.
Allstate shall pay to Mrs. Macedo housekeeping and home maintenance benefits, from November 20, 2007, onward, less amounts already paid.
Mrs. Macedo is not entitled to payments for modifications to her home.
Allstate shall pay to Mrs. Macedo the cost of the assessment proposed by Dr. FM on October 29, 2008. Mrs. Macedo is not, at this time, entitled to the cost of the reports of Dr. AH and Dr. PK.
Allstate shall pay to Mrs. Macedo a special award.
Allstate shall pay to Mrs. Macedo interest on the benefits to be paid.
EVIDENCE AND ANALYSIS:
Mrs. Macedo maintains that she was very healthy, happy, and active before this very serious car accident and that she suffered a catastrophic impairment being now depressed and in pain all the time, largely housebound, and incapable of taking care of herself or her family. She used to work as a cleaning lady 25-30 hours a week, had 2 children and lived with her husband who was on worker’s compensation with some attendant care benefits. Mrs. Macedo did all the household chores, attended the children, and woke and reminded Mr. Macedo to eat and take medications.
There was considerable testimony that suggested the Macedos had lied in order to get attendant care benefits. In response to a question as to whether Mrs. Macedo would lie to get money, she simply said, “I don’t know, I don’t know.” What income she did have was not reported on tax returns. Evidence was presented that Mrs. Macedo had sought help a dozen times from 2001-2004 for emotional problems related to Mr. Macedo’s accident.
Allstate’s position is that Mrs. Macedo’s injuries were surprisingly minor and that she lacks credibility in her claim.
In her examinations the doctors for Allstate and for Mrs. Macedo diagnosed her with ailments ranging from traumatic brain injury to PTSD, to psychogenic amnesia, agoraphobia, chronic pain, adjustment disorder with depressed and anxious mood, to no injury at all. She was portrayed as being genuine and disingenuous.
Upon review of the submissions of the several medical professionals the Arbitrator noted that the case was very challenging, but that he found that Mrs. Macedo genuine in her testimony. He concluded she suffered significant psychological and emotional injuries as a result of the accident that have profoundly affected the quality of her life, and that her impairment is at least marked in each of the four categories of functioning.
Mrs. Macedo claimed attendant and care giver benefits as she was rendered incapable of taking care of her basic personal needs, and required the assistance of an attendant. The family and the hired attendant testimony was considered. There was some question of how much the hired attendant worked and was paid. The family testified that they do most of the household work and help in the personal care of Mrs. Macedo. It is clear that she has been confined to a significantly diminished life.
Allstate maintained that Mrs. Macedo was not legitimately disabled by the accident, did not require attendant care assistance, and in any event, submitted unreliable records of the amount of time and expenses incurred in respect of attendant care provided. An occupational therapist who conducted an in-home assessment on behalf of Allstate reported that Mrs. Macedo required attendant care assistance.
Upon consideration of all the evidence, the Arbitrator found that Mrs. Macedo is entitled to attendant care benefits from the date of the accident onward. The Arbitrator also found that she was substantially disabled from providing the care to Fabio that she did before the accident, and that she, in fact, suffered a complete inability to carry on a normal life and is entitled to caregiving benefits in respect of Fabio of 7.5 hours per week. He determined that housekeeping benefits were also warranted.
Pursuant to the Insurance Act where an insurer has unreasonably withheld or delayed payments, an Arbitrator can award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then. Mrs. Macedo sought a special award on the basis that the Insurer’s adjuster did not give sufficient consideration to the opinions provided to her that supported Mrs. Macedo’s claim for attendant care, caregiving and housekeeping assistance, and simply “rubber stamped” the reports requested by the Insurer without any assessment of their merits.
The Arbitrator was not prepared to conclude that the Insurer’s conduct was sufficiently egregious to warrant a substantial special award and found that Mrs. Macedo is entitled to a modest special award of 10% of the attendant care, caregiving and housekeeping benefits owing that Mrs. Macedo is entitled to interest on all of the benefits to which she was found her entitled.