Where multiple causes for insured's impairment, then material contribution test applies.

May 07, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: March 22, 2016

Heard Before: Adjudicator Richard Feldman

Ms. K was involved in a car accident on November 19, 2009.  Within a few days of the accident (on November 23, 2009) Ms. K reported the accident to her family physician and complained to him of an exacerbation of her symptoms. She applied for and received statutory accident benefits from State Farm Mutual, but when disputes arose concerning Ms. K’s entitlement to certain accident benefits, and mediation failed, Ms. K applied for arbitration at the FSCO.

The issues in this hearing are:

1. Is Ms. K entitled to receive weekly IRBs in the amount of $400.00 per week from November 24, 2010?

2. Is Ms. K entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from August 25, 2010 through November 19, 2011?

3. Is Ms. K entitled to receive a medical/rehabilitation benefit for the following:

   1. $1,417.32 for treatment recommended by Dr. B?

   2. $1,563.72 for treatment recommended by Dr. B?

   3. $1,532.22 for treatment recommended by Dr. B?

   4. $1,698.60 for the cost of psychotherapy pursuant to a treatment plan from Dr. LS?

   5. $149.90 for the cost of an assistive device recommended by ME (OT)?

   6. $61.67 for the cost of prescription medication?

4. Is Ms. K entitled to the cost of the following examinations:

1. $2,000.00 towards the cost of a psycho-vocational dated January 6, 2012?

2. $2,000.00 towards the cost ($4,294.00) of an orthopaedic assessment November 16, 2011?

3. Is Ms. K entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

1. Ms. K is entitled to receive weekly IRBs in the amount of $400.00 per week from November 24, 2010.

2. Ms. K’s claim for housekeeping and home maintenance services is denied.

3. Ms. K is entitled to receive $1,698.60 for the cost of psychotherapy pursuant to a treatment plan from Dr. LS.Ms. K’s other claims for medical/rehabilitation benefits are denied.

4. Ms. K is entitled to the cost of the following examinations:

   1. $2,000.00 towards the cost ($6,215.00) of a psycho-vocational assessment;

   2. $2,000.00 towards the cost ($4,294.00) of an orthopaedic assessment.

5. Ms. K is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

The central issue in this case is one of causation. Ms. K was a seat-belted driver of a vehicle that was "rear-ended" by another vehicle at relatively low speed.  The impact resulted in almost no visible damage to either vehicle.  No police or other emergency services were called to the scene.  Ms. K handled the situation calmly and efficiently and, after exchanging information with the other driver, proceeded to drive home. The Arbitrator noted that this accident should be considered within the context of what else was happening in Ms. K's life in the summer and fall of 2009. Ms. K was having both financial and marital difficulties.  Her marriage was unhappy, her husband was verbally and emotionally abusive.  Ms. K also apparently reported that her husband disliked her mother, who Ms. K supported financially.  In June 2009, Ms. K and her husband had an argument concerning Ms. K's debts and the fact that she removed money from her husband’s bank account without his knowledge or consent.  Ms. K told her husband that she wanted a divorce.  Immediately following that argument, her husband left their home, drove to another city and unsuccessfully attempted to commit suicide.  After a short period of observation in a hospital, he was permitted to return home but the marriage continued to be strained.  The notes of Ms. K's family physician from September 2009 indicate that Ms. K was "very depressed" over this stressful family situation.

Ms. K was also having issues with pain immediately before this accident.  She had been off work since September 22, 2009 on a medical leave of absence due to a repetitive strain injury to her right elbow. While off work, she had been receiving treatment for this condition about three times per week, and her symptoms had diminished. After the accident she went to her family doctor whose records indicate that Ms. K advised him that she first noticed a change in her condition (i.e., a worsening of her pain) the day after the accident (on November 20, 2009) and she reported to him that, since the accident, the pain was focused primarily in her right shoulder and neck (and not her elbow).

In August 2010, at the insistence of her employer, Ms. K did return to work.  Her employer terminated her employment about three months later (she believes as a result of her inability to perform her duties adequately and her request for workplace accommodations).  She has not returned to any employment since being terminated on November 23, 2010.

Subsequent to the accident in November 2009, Ms. K was referred to a number of specialists and has been diagnosed with chronic pain disorder/fibromyalgia, adjustment disorder, depression and anxiety.  Her predominant impairment has been the severe pain she has experienced in the area of her right shoulder (rotator cuff) and the extent to which this pain has limited her functional ability.  She has been prescribed medication for pain, for depression and to assist her with sleep disturbance.  Eventually, she underwent surgery on her right shoulder (in June 2011) and then, later, on her left shoulder (in October 2012).[2]  The surgeries only provided her with partial relief from the pain (with little overall reduction in pain in the right rotator cuff) and only modest improvement in her range of motion.  She has received extensive (OHIP-funded) physiotherapy and some psychiatric treatment.  She applied for and has been receiving CPP Disability payments.  At the time of the hearing, Ms. K was continuing to take anti-inflammatory medication, pain killers, anti-depressants and sleeping pills and was continuing to see a psychiatrist for treatment every two weeks.

State Farm does not deny that Ms. K suffers from chronic pain and other physical and psychological impairments.  It takes the position, however, that Ms. K has failed to prove that the incident of November 19, 2009 directly caused any of these impairments, and it argues that Ms. K cannot rely on medical opinions she has obtained that causally link her impairment(s) to this car accident as she has failed to provide her medical experts with a complete and accurate history.  On certain key points, State Farm also questions Ms. K's credibility.  For these reasons, State Farm has denied many of Ms. K's claims.

Ultimately the Arbitrator concluded that Ms. K did sustain lasting, significant impairments as a result of the accident.  While the collision itself left little damage to the vehicles, this incident was enough to: (1) exacerbate Ms. K’s pre-existing pain issues; (2) cause a new, significant impairment to her right shoulder (rotator cuff); and, (3) result in diagnosable psychological impairments. These impairments have resulted in an inability on the part of Ms. K to perform the essential tasks of her pre-accident employment or engage in any occupation for which she is reasonably suited.  The Arbitrator also found that Ms. K is entitled to some (but not all) of the expenses she has claimed related to the cost of assessments and treatment.  Her claim for housekeeping and home maintenance benefits is denied due to a lack of adequate, consistent and credible evidence as to Ms. K’s pre-accident housekeeping responsibilities, the amount of assistance she reasonably required after the accident, details of the services provided to her and the expenses she incurred related to such services.

The Arbitrator noted the credibility of Ms. K is a key element of this case.  The perception of pain and the ability to cope with that pain are entirely subjective and it is critical that the person accurately report his or her current symptoms as well as provide a complete and honest medical and social history to treating and assessing medical practitioners. The Arbitrator noted Ms. K has not always been entirely forthcoming or consistent with relevant information she gave treating and assessing medical practitioners. Some claims she submitted were excessive and/or inaccurate. Ms. K’s testimony did not leave the most favourable impression.  The Arbitrator found Ms. K to be extremely guarded, hostile at times and less than forthcoming with the "whole truth".  Some reticence and frustration on her part, however, may be understandable due to her home situation and lack of work. It was apparent to that she feels angry about all of this and is mistrustful of the system.

In general, Ms. K’s testimony was believable and consistent with most of what she is reported to have told various medical professionals.  She did not exaggerate the nature of the accident.   State Farm tried to demonstrate that she provided false information to medical assessors but the Arbitrator was not convinced of this. 

State Farm, however, was able to prove that false and/or erroneous information related to Ms. K’s claim for housekeeping and home maintenance benefits was submitted to State Farm on Ms. K’s behalf.  There were also significant inconsistencies, during the hearing, between the testimony of Ms. K and her other witnesses concerning details as to Ms. K’s pre-accident housekeeping responsibilities, the amount of assistance she reasonably required after the accident, the details of services provided to her and the expenses she incurred related to such services.  Due to a lack of sufficient credible evidence, Ms. K’s claim for housekeeping and home maintenance benefits is denied.

State Farm takes the position that Ms. K has failed to prove that the incident of November 19, 2009 directly caused any of her impairments.  However the Arbitrator noted that this case largely turns on whether Ms. K, on a balance of probabilities, has established that her ongoing chronic pain problems, her depression and her inability to cope with her pain are directly caused by the accident of November 19, 2009.

The primary test for causation in an accident benefits case remains the "but for" test.  Where there are multiple causes then sufficient to show that the car accident materially contributed to the impairments. On the issue of causation, the Arbitrator found that the evidence presented on behalf of Ms. K is persuasive and is sufficient, on a balance of probabilities, to prove that the accident of November 19, 2009 materially contributed to her developing many of the impairments described and which continue to the present.  Thus, the accident is a direct cause of those impairments.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.