February 15, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: December 18, 2013
Heard Before: Adjudicator Susan Sapin
REASONS FOR DECISION
Nadira Bissessar was 31 years old and a mother of 2 when she was injured in a car accident on April 29, 2007. She suffered significant soft tissue strains to her neck, upper and lower back and left knee as a result of the accident, and a serious injury to her right hand in the form of a permanent residual impairment of her right thumb joint which has not healed.
She applied for and received caregiver and other statutory accident benefits from State Farm, which then terminated weekly caregiver benefits on July 15, 2009. Mrs. Bissessar claims she is entitled to ongoing caregiver benefits because the accident injuries caused her to suffer a complete inability to carry on a normal life. Mediation of this dispute failed, and Mrs. Bissessar applied for arbitration at FSCO.
The issues in this hearing are:
Is Mrs. Bissessar entitled to a caregiver benefit of $250 per week from July 15, 2009 and ongoing?
Mrs. Bissessar entitled to a special award under s. 282 of the Insurance Act, on the basis that State Farm’s termination of caregiver benefits was unreasonable?
Mrs. Bissessar is entitled to a caregiving benefit of $250 per week from July 15, 2009 and ongoing.
Mrs. Bissessar is not entitled to a special award.
At issue is do Mrs. Bissessar’s car accident impairments cause her a complete inability to carry on a normal life as defined pursuant to the Insurance Act. To establish this a comparison must be made between her pre and post-accident life to determine if the impairment that continuously prevents a person from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Mrs. Bissessar’s mother moved in after the accident to help out temporarily with the children however five years later, Ms. Nabbie is still there, having taken over virtually all of her daughter’s pre-accident childrearing and housekeeping duties.
Mrs. Bissessar maintains that she has had no useful function in her right hand since the accident despite therapy. Her position is that chronic pain in the hand and wrist, and in her neck, back, left knee and foot, as well as recurring headaches and debilitating anxiety and depression since the accident continuously prevent her from engaging in substantially all of the activities of her pre-accident life.
State Farm argues that Mrs. Bissessar, her husband Donald and her mother Amina Nabbie are not reliable witnesses and that Mrs. Bissessar is exaggerating her injuries and her disability in order to continue to claim caregiving assistance she may still need but for which she does not qualify under the stricter post-104 week entitlement test. State Farm submits that inconsistencies in Mrs. Bissessar’s presentation and complaints of symptoms to various medical assessors, and deliberately poor performance on psychological tests suggest that her subjective complaints and testimony ought not to be accepted at face value.
The Arbitrator found that despite some inconsistencies Mrs. Bissessar continued to meet the eligibility test for ongoing caregiver benefits. The Arbitrator also found the medical evidence supported her case. Arbitrator Sapin determined that Dr. AC, the neuropsychologist who diagnosed her with a Somatoform Pain Disorder, which State Farm did not dispute, provided the most plausible explanation for her persistent physical and psychological symptoms and perceived impairment.
At the time of the accident Mrs. Bissessar was at the end of a year-long maternity leave. Being a working mother, homemaker and caregiver were essential components of Mrs. Bissessar’s normal life before the accident. The Arbitrator considered the 20 months previous to the accident to establish her pre-accident activities and life circumstances for the purpose of the eligibility.
Prior to the accident Mr. and Mrs. Bissessar attested to a busy life with Mrs. Bissessar full time weekdays at a shipping company in Mississauga. She would got up daily, made lunches and then travelled about 2 hours on transit from Scarborough to her fulltime job as a receptionist. In total she was away from home for 12 hours per day, 5 days a week. After work either she or her husband would pick up their son from care and then Mrs. Bissessar would make dinner, clean up, vacuum, do laundry, help her son with homework and put him to bed.
On weekends they she would shop, socialize and go out to gatherings. Even after the birth of their daughter the routine was similar Mrs. Bissessar continued to do all of the housework, cooking and other domestic chores, looked after the children bathed them and put them to bed. Mr. Bissessar testified that his wife was very physically active, used workout videos, and played with the children outdoors. Their social, leisure and intimate life, apparently, continued as before. She intended to return to work at the end of her maternity as the money was required.
Mrs. Bissessar had several health problems prior to the car accident which included a seizure disorder, and intermittent anxiety of varying severity, and generalized anxiety disorder and chronic hives. Her doctor’s notes also indicated complaints of headaches, back pain and other physical ailments pre-accident. None of her ailments kept her from working or taking care of her children.
State Farm suggested Mrs. Bissessar did not intend to go to return to work and questioned whether she had even been working at all before the accident. They also maintained that she was disingenuous in her claims and exaggerating her symptoms. Arbitrator Sapin dismissed State Farm’s submission that Mrs. Bissessar was not credible and found the medical evidence provides a plausible explanation for her self-perception and behaviour after the accident. The Arbitrator pointed to the Employment Insurance benefits that she was receiving. State Farm had ample time to raise such concerns before the hearing, or to investigate them before the hearing. The Arbitrator dismissed those concerns and concluded that Mrs. Bissessar’s description of her pre-accident life was complete.
Mrs. Bissessar’s post-accident life was indeed very different from her pre-accident one. Her thumb required surgeries and remains unbendable and she now suffers from arthritis and painful spasms that prevent her from holding anything. The surgeon advised her that her hand would not heal further. She continues to have pain in her knee, calf and back. The Insurer’s Examination concluded the same fact and that her injury was not going to improve. The orthopaedic surgeon also agreed that she was substantially unable to engage in her caregiving and housekeeping activities, largely because of continuing impairments related to her hand injury and ongoing impairments secondary to it. Despite some contradictory medical evidence the Arbitrator concluded that her injury is a genuine, permanent, painful and significant physical impairment. Not one single medical assessor has ever suggested that Mrs. Bissessar is malingering.
Mrs. Bissessar’s physical condition was aggravated by significant emotional difficulties that worsened as time went on and were not adequately treated. Her anxiety is continuous she requires regular prescriptions for Lorazepam at higher doses. She takes Tylenol 3 regularly for pain, and has suffered from depression since 2008, for which she takes Cymbalta. She testified that she cries frequently for no reason, cannot concentrate for long, feels she doesn’t know what is going on, spends most of her days alone in her room sleeping or watching television, does not want to socialize, see or be seen, especially by her husband’s family, and feels people are looking at her or talking about her.
The Arbitrator accepted that Mrs. Bissessar does little to nothing around the house. She finds it difficult to get up in the mornings. She has little energy, initiative or motivation. Her mother now does all the housework and childcare.
Mrs. Bissessar’s family doctor gave evidence about complicating and perpetuating factors in Mrs. Bissessar’s situation, such anxiety, depression, chronic pain, her dependent personality, the fact that she is deconditioned and housebound, isolated and withdrawn, and surrounded only by enabling family members who no longer expect her to do much of anything that the Arbitrator found insightful.
To be eligible for caregiver benefits 104 weeks after the accident, Mrs. Bissessar must establish, on a balance of probabilities, that she sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. This disability test is the same as for non-earner benefits. It is not restricted to a complete inability to perform only caregiving activities. The Arbitrator found that Mrs. Bissessar has indeed established, on a balance of probabilities, that her accident-related impairments continuously prevent her from genuinely engaging in substantially all pre-accident activities of normal life.
The Arbitrator did not agree that a special award is merited in this case. State Farm was entitled to dispute her claim, even if it was later proven wrong. That does not make the denial unreasonable or deserving of a special award.