August 30, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Robert Bujold
Date of Decision: June 6, 2014
REASONS FOR DECISION
Beth Ann Burgess, 27, was injured in a high speed car accident on July 30, 2007. She was driving 80 km/h along a regional road when a car pulled out and collision occurred. Her car was irreparable, and she sustained a concussion from an article in her car hitting her in the head. She was discharged with an Outpatient Head Injury form noting signs that arise from concussion.
Since the accident she has experienced frequent migraine and non-migraine headaches, continual neck and shoulder pain aggravated by movements of the neck and upper back; intermittent numbness involving her left arm; and disturbed sleep. She also has difficulty maintaining focus and concentration; mental fatigue; some difficulty with word finding and mental math; nightmares; labile mood; and clumsiness. After the accident Ms. Burgess tried drugs and physical therapies for treatment and alleviation of her injuries.
Disputes arose regarding Ms. Burgess’ entitlement to certain accident benefits and Ms. Burgess applied for arbitration at FSCO.
The issues in this hearing are:
Is Ms. Burgess entitled to a weekly IRBs from August 6, 2007 to September 30, 2012?
What is the amount of any weekly IRBs that Ms. Burgess is entitled to receive?
Is Ms. Burgess entitled to a medical benefit for transportation expenses to and from medical appointments?
Is Ms. Burgess entitled to payment for the cost of a diagnostic cervical facet evaluation?
Is Pembridge liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Burgess?
Is Pembridge liable to pay Ms. Burgess’ expenses in respect of the arbitration?
Is Ms. Burgess entitled to interest for the overdue payment of benefits pursuant to the Schedule?
Ms. Burgess is entitled to a weekly income replacement IRBs from August 6, 2007 to September 30, 2012.
Pembridge shall pay Ms. Burgess a weekly IRBs from August 6, 2007 to September 30, 2012.
Pembridge shall pay Ms. Burgess for transportation expenses to and from medical appointments.
Pembridge shall pay Ms. Burgess for the cost of a diagnostic cervical facet evaluation.
Pembridge shall pay Ms. Burgess a special award in the amount of $10,000.00 on account of weekly income replacement benefits unreasonably withheld for the period August 6, 2007 to December 11, 2008.
Pembridge shall pay Ms. Burgess interest at 2 per cent, compounded monthly, on all overdue benefits.
Ms. Burgess and her parents co-owned a speciality food/catering business and was responsible for the management and operation of it. She would also help her father with his tax and accounting practice having taken a tax preparation course. Following the accident Ms. Burgess took a few weeks off work then returned only part time to her positions relying heavily on her parents to keep the business open temporarily. After it closed Ms. Burgess stopped working altogether. Ms. Burgess then concentrated her efforts on academic upgrading, retraining to be an accountant in a certificate program at York University which she commenced in September 2010. She testified that, before the accident, it was not her desire to become an accountant, but she enrolled in the program because she hoped it was something she would be able to do even with her limitations. She noted that it would lead to a career that was sedentary, at least compared to the demands of an entrepreneur in the retail sector. She also had some relevant training and experience (from working for her father) and credits from a Bachelor of Commerce degree from McMaster University in 2002 that she could apply toward the program.
Ms. Burgess testified that the York program should have taken two full-time and one part-time semesters to complete, but she immediately felt overwhelmed by an 80% course load and as result, the program took five semesters to complete instead of three. She finished the top of her class.
Ms. Burgess takes the position that, for first 104 weeks post-accident, she was substantially impaired in her ability to perform the essential tasks of her pre-accident employment, and that she continued to suffer from a complete inability to engage in any employment for which she was reasonably suited by education, training and experience, at least up until her start date as an accountant. Ms. Burgess maintains that the post-accident work she did for her business and her father was of such diminished value that the payments she received should not be deducted from her IRB entitlement as “income from employment,” but should be more fairly characterized as gratuitous payments from generous parents.
Pembridge initially took the position that, based on her pre-accident income, Ms. Burgess was eligible for an IRB of $400 per week, but that the benefit was reduced to NIL as a result of net post-accident income. In making this determination, Pembridge relied on a report by BDO Dunwoody LLP dated April 10, 2008. Pembridge did not take the position that Ms. Burgess did not qualify for an IRB on the basis of disability until it issued an OCF-9 dated December 11, 2008, relying on an updated neurological IE report dated December 4, 2008.
Pembridge’s position has evolved over time; indeed, over the course of the hearing.
Pembridge no longer relies on BDO Dunwoody’s report for the calculation of any IRB that may be payable to Ms. Burgess. It was conceded that there were serious flaws in the report and it should not be relied upon. As a result, Pembridge now accepts that any IRB should be calculated at $245.84 per week. Still, at the commencement of the hearing, quantum continued to be identified as an issue, seemingly around the application of post-accident income. Pembridge failed to have BDO Dunworthy review relevant income information that they requested and received from Ms. Burgess.
Pembridge now takes the position that the financial information provided by Ms. Burgess establishes that she continued to work post-accident to a sufficient extent that she did not suffer a substantial inability to engage in her pre-accident employment for any period. This “primary submission” was not articulated until closing written submissions, and is contrary to the parties’ agreement at the commencement of the hearing that the question of Ms. Burgess’ entitlement to IRBs on the basis of disability only ran from December 2008. Pembridge’s closing written submissions now challenge both entitlement and quantum back to this date. While Pembridge’s re-framing of the issue in closing submissions was found improper, for the sake of clarity and completeness, and since it does not affect the result, the Arbitrator’s decision covers both entitlement and quantum from August 6, 2007 (one week post-accident) to September 30, 2012 (when Ms. Burgess commenced employment in accounting).
In its alternative arguments, Pembridge maintains that the period of disability should not extend beyond its OCF-9 of December 11, 2008. Pembridge also maintains that it is clear from Ms. Burgess’ post-accident work history, her successful academic upgrading, and her ability to secure a position at Soberman, that she did not suffer a complete inability to engage in any occupation for which she was reasonably suited for any period beyond 104 weeks post-accident.
Ms. Burgess is entitled to an income replacement benefit for the first 104 weeks post-accident (other than the first week for which no benefit is payable) if, for this period and as a result of the accident, she suffered a substantial inability to perform the essential tasks of her pre-accident employment. The Arbitrator was satisfied that Ms. Burgess has met this test.
The Arbitrator found a significant problem with Pembridge’s position (that certain financial records establish that Ms. Burgess was not substantially unable to perform the essential tasks of her employment) is that it relies heavily on counsel’s own analysis and interpretation of selected financial records (as set out in closing submissions) rather than being supported by an expert opinion contained in an updated accounting report.
The Arbitrator found it equally troubling that Pembridge made misleadingly statements in its closing submissions, and that it challenged the family’s credibility on matters not directly related to the calculations of income.
Medical evidence presented by Ms. Burgess indicated that she pursued care and treatment of her post-concussion symptoms. All of the medical reports concurred upon her injury. Shortly beyond the post-104 week mark Ms. Burgess was again assessed at her counsel’s request by a neurologist, who agreed with the diagnosis of concussion with post concussive syndrome. He noted that Ms. Burgess continued to suffer from ongoing neurocognitive complaints and objective deficits. He concluded that her ongoing headaches, organizational difficulties, emotional lability, and pain symptoms prevented her from resuming her usual work activities. In short, she was substantially unable to engage in her pre-accident employment.
Pembridge terminated IRBs on the basis of a single doctor’s follow-up assessment in December 2008, which was an assessment fraught with problems, including a misapprehension of Ms. Burgess’ pre-accident employment and the test of disability, as well as what seemed to be a bias toward the conclusion that Ms. Burgess’ recovery from post-concussive syndrome should have followed the rule, rather than the exception.
For the above reasons, the Arbitrator preferred Ms. Burgess’ medical evidence.
Ms. Burgess is not entitled to IRBs for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience. Although Ms. Burgess continued to have good days, the Arbitrator accepted the evidence of Ms. Burgess and her parents that she remained unable to work in a sustained and reliable way, and Ms. Burgess began to turn her sights on a return to school for academic upgrading and retraining, so she could move on with her life.
The Arbitrator also noted that, notwithstanding some improvements, Ms. Burgess continued to receive considerable treatment post-104 weeks, and underwent a second rhizotomy. She also continued to take several over-the-counter and prescription medications.
Pembridge did not conduct any further IRB-related assessments after Dr. Best’s error filled follow-up assessment in December 2008.
In conclusion, and for all of the above reasons, the Arbitrator was satisfied, on a balance of probabilities, that Ms. Burgess was completely unable to engage in any employment for which she was reasonably suited by education, training and experience from 104 weeks post-accident to September 30, 2012.
With respect to the transportation expenses and the cost of the assessment Pembridge’s denials were wrong and its conduct problematic, but not serious enough to warrant a special award. However, a special award is warranted with respect to a portion of the IRBs payable. Specifically, the withholding of IRBs for the period from August 6, 2007 to December 11, 2008 became unreasonable no later than 30 days after Pembridge’s receipt of the additional financial information provided by Ms. Burgess. The Arbitrator therefore found that Ms. Burgess is entitled to a special award in respect of IRBs withheld for the period from August 6, 2007 (one week post-accident) to December 11, 2008 (when Pembridge determined that Ms. Burgess was no longer entitled to IRBs on a medical basis).