May 30, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Grewal and State Farm FSCO A15-002540
Date of Decision: May 8, 2017
Heard Before: Adjudicator Louise Barrington
IRBs- do injuries fall within the MIG; did the insurer act in good faith; errors in adjusting the file; applicant found credible; applicant found to have significant injuries falling outside the MIG; insurer withheld payments unreasonably; IE with erroneous conclusions relied upon;
Mrs. Balwinder Grewal was hurt in a car accident on June 22, 2013, when a vehicle a red light and collided with the front driver’s side of Mrs. Grewal’s vehicle. The airbags deployed. Damage to Mrs. Grewal’s vehicle was between $10,000.00 and $12,000.00. Immediately after the MVA, Mrs. Grewal did not go to hospital but was driven home by her brother. However, shortly before midnight, her husband took her to hospital, where she also complained of a severe headache, neck, chest and back pain.
She sought accident benefits from State Farm payable under the Schedule. When the parties were unable to resolve their disputes through mediation, Mrs. Grewal applied for arbitration at the FSCO.
- Is Mrs. Grewal entitled to IRBs from November 20, 2013 to date, and ongoing?
- Is Mrs. Grewal entitled to:
- $2,919.48 for physiotherapy according to a Treatment Plan, dated June 27, 2013
- $1,287.50 for physiotherapy according to a Treatment Plan, dated September 19, 2013,
- Is Mrs. Grewal entitled to payment for the Cost of Examinations
- $1,359.32 for an in-home attendant care assessment?
- $2,486.00 for an orthopedic assessment?
- $2,404.24 for a psychological assessment?
- Do Mrs. Grewal’s injuries fall within the MIG?
- Is State Farm liable to pay a Special Award because it unreasonably withheld or delayed payments to Mrs. Grewal?
- Is Mrs. Grewal entitled to interest for the overdue payment of benefits?
- Is either party entitled to have its expenses in respect of this arbitration paid by the other?
- Payment for a Chronic Pain Treatment Programme mediated unsuccessfully on January 5, 2016.
- Mrs. Grewal is entitled to an IRB of $301.56 weekly from November 20, 2013 to date and ongoing, less any amounts already paid and less 70% of her post-accident employment income in accordance with the Schedule.
- Mrs. Grewal is entitled to the following Medical Benefits:
- $2,919.48 for physiotherapy treatment and
- $1,287.50 for physiotherapy treatment.
- (a) Mrs. Grewal is entitled to a payment of $1,359.32 for an attendant care assessment
- Mrs. Grewal is entitled to a payment of $2,486.00 for an orthopedic assessment by Dr. Langer, dated April 17, 2014; and
- Mrs. Grewal is entitled to a payment of $2,404.24 for a psychological assessment report by Dr. Pilowsky, dated August 26, 2014.
State Farm having conceded prior to the hearing of this matter that Mrs. Grewal’s injuries do not fall within the MIG, the parties jointly announced that this issue was withdrawn from the Arbitration.
- The application for a Chronic Pain Treatment Programme is granted.
- State Farm is liable to pay a Special Award of $25,000.00 to Mrs. Grewal.
- Interest on the outstanding IRB is to be calculated as prescribed by statute beginning on June 29, 2013. Interest on Medical Benefits and the Cost of Examinations to which Mrs. Grewal is entitled shall be calculated from the time each became due, either 30 days after the date when the relevant claim was submitted, or the date on which it was denied, whichever is earlier.
- Mrs. Grewal is entitled to her expenses of the Arbitration.
EVIDENCE AND ANALYSIS:
Mrs. Grewal was born in 1976 in Punjab, India, where she completed high school, and came to Canada in 2003 to follow her first husband with whom she had a daughter, she took some English lessons for five or six months, became a Canadian citizen, and in 2006, began working as a machine operator. She and her first husband divorced, and then remarried in 2009 and now lives with her second husband, Mr. Grewal, and her daughter, who was about 14 years of age at the time of the Hearing. Mrs. Grewal and her husband have a son together, aged six at the time of the Hearing, currently living in India with his paternal grandmother.
Mrs. Grewal testified that from May 21, 2013 until the MVA, she was working at Dundas Jaffine Inc., paid at the rate of $10.77 per hour for a 40-hour week.
Following the accident, the doctor at the hospital gave her pain medication, she missed the next day of work and visited her family doctor four days later. She was diagnosed whiplash, referred for physiotherapy, and given a sick note to be off work for four weeks. Her pain continued, and she was unable to do any heavy physical labour. Mrs. Grewal received physiotherapy for about five months. She testified it helped to relieve pain on a temporary basis. When State Farm stopped paying for it she could no longer attend. In 2016, she attended at the same clinic for nine or 10 weeks for physiotherapy treatments, covered by her husband’s health insurance, exhausting the $500.00 limit of those benefits in 2016.
Mrs. Grewal testified that since the MVA she has continued to suffer pain daily in her neck, shoulders, back and right leg, as well as in her right arm. She suffers from headaches two or three times per week and the pain is worse if she tries lifting or bending. Her sleep is disturbed frequently by pain. She usually feels very tired, and feels tension because of her inability to work. She and her husband had intended to buy a home but without her income this is impossible and they continue to live in a basement apartment. Their financial situation is stressful without her income. She is nervous about driving, and although able to drive short distances, such as to her daughter’s school or swimming lessons or to temple, she cannot drive longer distances. Mrs. Grewal testified that she is depressed about not being able to have her son return to Canada to live with the family. She said that she and her husband had originally planned to leave their infant son in India with his paternal grandmother for a few months in 2013, but her injuries in the MVA made it impossible to bring him back to Canada, as she could not physically care for him. Mrs. Grewal stated that she and her husband visit frequently with their son via Skype, but neither has been able to travel to India to get him. She also feels very worried about bringing him back to Canada to a home atmosphere of pain, tension and anxiety. She frequently feels irritable and worries that her relationship with her daughter has suffered. Mrs. Grewal continues to take pain medication, to use a back brace recommended by one of her health care practitioners, and recently has started taking daily prescription medication for depression.
State Farm paid Mrs. Grewal an IRB of $293.00 per week until November 20, 2013. Until sometime in May of 2016, about six months before the Hearing of this matter, State Farm maintained that Mrs. Grewal’s injuries fell within the MIG. The MIG issue is no longer before the tribunal.
Mrs. Grewal has the burden of proving that she is entitled to the benefits claimed. State Farm points out several factual discrepancies in the evidence and argues that these diminish the credibility of Mrs. Grewal’s testimony and that of some witnesses. State Farm asks that Mrs. Grewal’s entire claim be dismissed with an Order that State Farm be entitled to its expenses.
The Arbitrator considered Mrs. Grewal’s claim for IRBs in two periods. The first runs from June 29, 2013 until June 21, 2015, when 104 weeks had elapsed post-MVA. The second period begins on June 22, 2015, running until the date of the Hearing and, if successful, is ongoing.
With regard to the first period, the Schedule provides a two-pronged test, and the burden of meeting the test lays with the insured.
In cross-examining Mrs. Grewal at the Hearing, State Farm’s Counsel questioned her extensively about the circumstances in which her job at Dundas Jaffine Inc. ended, and suggested that she was not entitled to benefits because her employment had ended when she was laid off – two days prior to the MVA. State Farm did nevertheless pay IRBs for five months, stopping benefits on November 20, 2013, on the basis that Mrs. Grewal was then able to return to work.
State Farm paid Mrs. Grewal an IRB from the date of the MVA until November 20, 2013. On November 8, 2013, State Farm explained, “Based on the findings of the Section 44 Functional Abilities Evaluation dated October 25, 2013, the Section 44 Psychiatry Report dated October 28, 2013, you do not suffer a substantial inability to perform the essential tasks of your employment.” For the period between November 21, 2013 and June 21, 2014, the second question to be decided is whether, as a result of the accident, Mrs. Grewal suffered a “substantial inability to perform the essential tasks of that employment”.
Mrs. Grewal in her testimony described the machine operator’s job which was the only job she had held in Canada prior to the MVA. The job was physically demanding, fast-paced and she was on her feet all day, producing approximately 1,300 eight-foot lengths of pipe daily. She spoke Punjabi on the job, as her supervisor was also from Punjab. It was a hard job, but she testified that she was happy working at Dundas Jaffine Inc.; she considered it a good job and felt that her supervisor appreciated her performance.
Mrs. Grewal underwent a number of examinations following the MVA. She was diagnosed whiplash a few days after the MVA, and was given a 4-week sick note. Over three years later, on September 9, 2016, her doctor completed an OCF-3, noting lumbar-sacral, cervical and thoracic spine sprains, and stating that Mrs. Grewal could not return to work on modified hours or duties.
An in-home attendant care assessment report dated August 28, 2013, stated that Mrs. Grewal required attendant care assistance of $1,015.47 monthly as well as assistive devices to help with her housekeeping. Attendant care is not an issue in this Arbitration, but the report as an indication that Mrs. Grewal was suffering from a disability at that time.
The Functional Abilities Evaluation found Mrs. Grewal to be able to function presently at “light physical demands level at a full-time basis.”
An Insurer’s Examination report to State Farm stated that there was no impression Mrs. Grewal was exaggerating her pain. She had tenderness in the neck, trapezius, upper back and lumbar regions, but did not note muscle wasting or any of the spasms which often accompany back pain, noting “…Ms. Grewal has not sustained a substantial inability to perform the essential tasks of her employment as a machine operator.… Based on today’s evaluation and available documents, she can return to light physical demands activities…”. During cross-examination, the doctor acknowledged that, according to the chart in his own report, Mrs. Grewal’s pre-MVA machine operator job as she had described it to him would be classed as Medium to Very Heavy and could not be considered a “light” physical activity. He agreed that in October 2013, Mrs. Grewal would not have the capacity to do a job involving Medium to Very Heavy physical effort. He agreed that light physical activity does not include frequent lifting of 25 to 30 pounds.
On the basis of the medical evidence the Arbitrator found that due to the MVA, Mrs. Grewal did sustain a substantial inability to perform the essential tasks of her employment as a machine operator, and that the ability persisted and indeed increased over time. Mrs. Grewal was thus entitled to an IRB from the date of the MVA until 104 weeks post-MVA, that is until June 22, 2015.
The Arbitrator then addressed IRBs post-104 weeks. According to the statute, the test for eligibility changes at this point. To succeed in her claim for post-104 week benefits, Mrs. Grewal has the burden of proving on a preponderance of evidence that as a result of the MVA, [she] is suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Mrs. Grewal has admittedly made no efforts to obtain alternative employment since 2014, and there is no evidence of her participating in any rehabilitation activities prior to the Hearing date.
Does this bar her from eligibility under the analysis of Justice Juriansz in Burtch?
At the Hearing, we heard testimony from Mrs. Grewal, her husband, and medical practitioners that more than three years post-MVA, she suffers from chronic pain, and in addition, has developed nervous and psychological symptoms. She is also hindered by important educational lacunae which will seriously impair her search for employment.
Having considered carefully the positions of both parties and the evidence for each, the Arbitrator concluded that the preponderance of evidence – from Mrs. Grewal, her husband, Dr. Mills, Dr. Pilowsky and Drs. Wong and Langer – favours the position of Mrs. Grewal. Despite her willingness to work, the medical and psychological information available indicates that she is at this time, not fit for any job for which she is qualified by her education, training and experience.
Mrs. Grewal claims Medical Benefits which were denied by State Farm. The reason for the denial of the expenses was that the Treatment Plan was “partially reasonable and appropriate, however it indicates that [her] injuries are minor in nature and services should be submitted under an OCF-23. The proposed treatment is therefore not payable. An OCF-23 has already been approved per our correspondence dated September 25, 2013.” There is no evidence as to how much, if any, of the expenses included in this claim were actually paid pursuant to that OCF-23. The Arbitrator found that the total amount is still outstanding, having been refused on the basis that Mrs. Grewal was not entitled to it because her disability was deemed under the MIG.
The second claim for physiotherapy was denied in a letter from State Farm, dated October 10, 2013, which explained that based on the section 44 General Practitioner report, dated September 20 2013, the injuries were treatable within the MIG.
In May 2016, State Farm agreed that Mrs. Grewal’s injuries were not within the MIG. There is no evidence that any payment was made with respect to this claim, so that the amount is still outstanding. State Farm had not exhausted the MIG limits when it denied these benefits. Even after agreeing in May 2016 that Mrs. Grewal was not limited by the MIG. The Arbitrator found that Mrs. Grewal is entitled to payment for both claims.
Mrs. Grewal claims the cost of three examinations. On the basis of the evidence the Arbitrator found that both the medical and psychological assessments were reasonable and necessary in Mrs. Grewal’s circumstances.
Mrs. Grewal’s added claim was for a Treatment and Assessment Plan in the amount of $15,273.54 for chronic pain treatment. Two treating doctors anticipated that Mrs. Grewal would require ongoing treatment, counselling, massage, chiropractic care, physiotherapy and the intervention of a social worker. State Farm’s Counsel did not call any witness to refute this claim. After careful consideration of the oral evidence of Mrs. Grewal, her husband, her family physician, and of the written reports from the other specialists who reported on both sides of this case, The Arbitrator found that Mrs. Grewal has proven on a balance of probabilities that she has been suffering from chronic pain up to and including the date of the Hearing.
Is State Farm liable to pay a Special Award because it unreasonably withheld or delayed payments to Mrs. Grewal? Mrs. Grewal cites State Farm’s conduct in cutting off IRB payments on November 20, 2013, and in failing to recognise that Mrs. Grewal’s impairment fell outside the MIG until shortly before the Hearing of this matter, as well as its denial of funding for physical and psychological treatments and examinations. Mrs. Grewal argues that this conduct constitutes an unreasonable delay, State Farm having failed in its duty to administer the file in a fair and even-handed manner, thus fulfilling the requirements for granting a Special Award.
State Farm’s position is simply that Mrs. Grewal’s claims should all be dismissed entirely as without merit, there is no money owing, thus no unreasonable delay in payment and so nothing on which to base a Special Award.
During the Hearing of this matter, the Arbitrator noted several remarkable factors. Firstly State Farm paid IRBs in error for months. Upon investigation of the error State Farm made no conclusion in the adjuster’s notes as to the reason for the anomaly, but State Farm continued paying IRBs for another six weeks until it cut off benefits on November 20, 2013 on the basis that Mrs. Grewal could return to work. It would not be unreasonable for Mrs. Grewal to assume that State Farm had accepted that she was indeed employed until the MVA, and that her injuries in that MVA were what prevented her from doing her job and eventually led to her dismissal. Yet Counsel for State Farm belaboured the point in his cross-examination, seeking to show even in the Post-Hearing Brief that Mrs. Grewal had not fulfilled the necessary work requirements for entitlement to accident benefits.
Secondly, given the glaring inconsistency on the face of the IE reports, it is difficult to see how any reasonable medical practitioner or Insurer would feel confident relying on them, especially when there was credible contrary medical evidence available to State Farm. This it apparently chose to ignore. State Farm had a duty to read the reports critically, not to simply accept a favourable opinion when it was patently flawed. But State Farm did rely on them. As a result, Mrs. Grewal was treated as a MIG case until May 2016, with treatment systematically denied right up to the eve of the Hearing.
Thirdly, the insistence that Mrs. Grewal’s impairments were limited by the MIG, in the face of credible reports indicating otherwise, including the September 2015 diagnosis of chronic pain, demonstrates an unreasonable refusal to give available evidence its proper weight. This led to a substantial delay in payments.
Fourthly, Counsel for State Farm, after the completion of Mrs. Grewal’s case, announced that he had decided to call no witnesses, apparently relying on the alleged lack of credibility of the evidence presented by Mrs. Grewal and her medical practitioners. It is true that there were several errors or inconsistences in the histories taken by various interviewers. These, however, were mainly concerned with the living arrangements for Mrs. Grewal’s son, the error in the date of her last work day, and impugning the methods by which tests were conducted. None of these factors weighed heavily enough to change the balance of the evidence, which weighed heavily in favour of Mrs. Grewal.
Fifthly and finally, the conduct of State Farm must be seen in light of the circumstances of the person claiming the benefits. Mrs. Grewal, because of the educational, intellectual, linguistic and economic limitations described by herself, her husband and her medical examiners, is in an extremely vulnerable situation. It is difficult to imagine anyone more in need of the “expectation of security” than Mrs. Grewal after the MVA. In her circumstances, State Farm’s duty of good faith is of paramount importance. Any breach of State Farm’s obligations as set out earlier risks causing substantial harm to a person in Mrs. Grewal’s position. She is in no position to mitigate the effects of delayed or denied payment for treatment; she has simply had to do without. Instead of recognising Mrs. Grewal’s vulnerability, State Farm continued, up until and including the Hearing, to impugn her credibility and ignore the evidence supporting her claims. In managing this file, State Farm failed in its duty to address Mrs. Grewal’s claims efficiently and fairly. On the contrary, State Farm unreasonably delayed or denied treatments which might have prevented Mrs. Grewal’s current chronic pain. As a result, without the treatment recommended by her medical advisors, her pain not only did not resolve as anticipated; it worsened to the point where she now suffers from chronic pain and psychological difficulties.
The Arbitrator found no indication that State Farm fulfilled its obligation to “prefer Mrs. Grewal’s interests at least as much as its own”. In view of State Farm’s unreasonable delay in making payments, even amounts within the MIG maximum, a Special Award is appropriate.