May 02, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Eban Bayefsky
Date of Decision: December 12, 2014
Joyce Tracey was injured in a car accident on February 28, 2008 when the van she was driving was rear ended at a stop light. She experienced dizziness, and neck and back pain at the time of the accident. She applied for and received statutory accident benefits from York which then terminated weekly income replacement benefits on June 26, 2008. The parties were unable to resolve their disputes through mediation, and Ms. Tracey applied for arbitration at the Financial Services Commission of Ontario.
The issues in this hearing are:
Is Ms. Tracey entitled to income replacement benefits, from June 26, 2008, at a rate of $182.34 per week?
Is Ms. Tracey entitled to housekeeping benefits, from July 15, 2008 to February 28, 2010, at a rate of $100 per week?
Is Ms. Tracey entitled to payment for the cost of a multi-disciplinary assessment, in the amount of $1,512.09, recommended by the Canadian Back Institute on March 27, 2009?
Is Ms. Tracey entitled to interest for the overdue payment of benefits?
York Fire & Casualty Insurance Company shall pay to Ms. Tracey income replacement benefits, from June 26, 2008, at a rate of $182.34 per week.
Ms. Tracey is not entitled to housekeeping benefits.
York Fire & Casualty Insurance Company shall pay to Ms. Tracey the cost of the multi-disciplinary assessment recommended by the Canadian Back Institute on March 27, 2009, in the amount of $1,512.09.
York Fire & Casualty Insurance Company shall pay to Ms. Tracey interest on the benefits ordered to be paid, in accordance with section 46(2) of the Schedule.
EVIDENCE AND ANALYSIS:
Ms. Tracey testified the collision was a “big blow”, and that she felt like the “wind had been knocked out of her”. She was taken by ambulance to Royal Victoria Hospital in Barrie, where she underwent x-rays (which were normal), she was diagnosed as having suffered neck and back strain, and was discharged home with pain medication and instructions to see her family doctor. Ms. Tracey went to her family physician on March 3, 2008 and was referred to physiotherapy which she attended for approximately 22 weeks. Ms. Tracey also attended at Maple View clinic until January 2009. A disability certificate, dated March 20, 2008, reported that Ms. Tracey had suffered a WAD-II injury, with low back strain and left side pain in the accident, and reported that Ms. Tracey was unable to do her pre-accident employment and housekeeping duties.
Ms. Tracey’s pre-accident medical history included depression and anxiety her entire life and that it sometimes interfered with her ability to work. She also suffered from migraine headaches since she was 18 years old. She took medications to control these problems and was sometimes unable to work as a result of the pain. Ms. Tracey also stated that she had experienced back problems beginning with a motor vehicle accident in approximately 1986, but that she did not suffer significantly, did exercises to help her back, and was able to “move on with life.”
On January 8, 2009 an orthopaedic surgeon who assessed Ms. Tracey at the request of the Insurer, reported that Ms. Tracey suffered “soft tissue strain without evidence of underlying pathology, and persistent pain in the absence of pathology is usually soft tissue and muscular in origin either due to tension, muscle stiffness or over protective use of the musculature of the back to protect motion.” A rheumatologist confirmed the diagnosis of fibromyalgia syndrome on January 15, 2014.
On January 25, 2012 reported that as a result of the accident, Ms. Tracey suffered moderate myofascial injury of the thoracic spine, with referred pain to the neck and shoulders; mild myofascial injury to the cervical spine paraspinal muscles; cervicogenic headaches, moderate myofascial injury to the lumbar spine paraspinal muscles and the upper sacral spine gluteal muscles; insomnia; and an increase in her depression. On December 24, 2012 a vocational rehabilitation consultant who conducted a Transferable Skills Analysis of Ms. Tracey at the request of her counsel, reported that Ms. Tracey suffered from headaches, right and left shoulder pain, low back pain, general stiffness, right knee pain, vision problems, and difficulties with concentration and memory.
Ms. Tracey claims income replacement benefits (“IRBs”) from June 26, 2008, at a rate of $182.34 per week. The Insurer does not dispute the quantum of any IRBs owing. Ms. Tracey submitted that she suffered significant injuries as a result of the February 28, 2008 motor vehicle accident, had a reasonable employment history in the year immediately preceding the accident, and, as a result of the accident, was incapable of returning to either her pre-accident job or a reasonably suitable alternative. The Insurer submitted that the accident did not materially worsen Ms. Tracey’s pre-accident condition and did not contribute to any inability to perform her pre-accident employment or a reasonable alternative.
At the time of the accident she was employed as a product demonstrator at Costco and other retailers. Ms. Tracey had intermittently held jobs as a cleaner, secretary and personal support worker. She had also had casual employment as a landscaper, and as a babysitter for friends. Ms. Tracey had a grade 10 level of education. Ms. Tracey testified that she has not been able to return to work due to the injuries she suffered in the accident.
The Arbitrator found that Ms. Tracey presented in a credible manner and that her evidence is reliable. He found that Ms. Tracey is entitled to IRBs as the motor vehicle accident materially contributed to Ms. Tracey’s inability to return to her pre-accident work or a suitable alternative, and that, had it not been for the accident, she would likely have continued in her previous job as a product demonstrator.
He found she is not entitled to housekeeping benefits as there is no evidence as to the actual amount of housekeeping assistance Ms. Tracey received, either in the form of Ms. Tracey providing a written account of the hours the service providers spent on housekeeping or in the service providers testifying as to the time they spent assisting Ms. Tracey. The service providers also did not indicate the months and years they assisted Ms. Tracey with her housekeeping duties.
Ms. Tracey claims the cost of a multidisciplinary assessment. Pursuant to the Schedule, an insurer must pay, in part, for “reasonable fees…charged by a member of a health profession…for conducting an assessment or examination and preparing a report if the assessment or examination is reasonably required in connection with a benefit that is claimed…,and…the insured person applied for approval of the assessment or examination either in a treatment plan…or by way of a separate application submitted under section 38.2.” The Arbitrator found that Ms. Tracey is entitled to the requested assessment