G.P. v Wawanesa Mutual Insurance Company

Facts of the Case 

Ms. Glenda Primo (the “Applicant”) was involved in an automobile accident on September 4, 2015. As a result of her injuries, she sought benefits pursuant to the Statutory Accident Benefits Schedule (“Schedule”) and was denied certain benefits by Wawanesa Insurance Company (the “Respondent”). She subsequently applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”). The matter was presided over by Tribunal Vice-Chair, Ms. Chloe Lester.

Issues in the Case

At issue in the case was the severity of Ms. Primo’s impairments and whether they were deemed “catastrophic” under the Schedule, as she claimed. Also at issue were her rightful entitlements regarding Income Replacement Benefits (“IRB”s), which had been terminated in January of 2017 by Wawanesa following a reassessment. Ms. Primo was also seeking financial assessments related to the unreasonable withholding of IRBs and for various treatment expenses and plans, plus interest. 

Decision

Arbitrator Lester ultimately found in favour of Ms. Primo and agreed that her impairments met the threshold of catastrophic, stating: “I find Ms. Primo has shown repeated examples of a marked impairment concerning adaptation, and concentration, persistence, and pace. Ms. Primo is catastrophically impaired.” [31] 

Ms. Primo was awarded IRBs at $400 per week, retroactive to January 2017, and ongoing. Wawanesa was also ordered to pay an award of $26,971.50 for unreasonably withholding IRBs, along with costs for various treatment plans, plus interest, for a total of $44,606.31. Ms. Primo was denied $9,549.87 for treatment plans that Ms. Lester did not consider reasonable or necessary. 

Reasons

Catastrophic Impairment 

Ms. Primo argued that medical reports confirmed that she met the threshold of catastrophic impairment, and that as a result of the accident she suffered from a somatic symptom disorder, characterized by chronic pain, major depressive disorder, and problems functioning. She also claimed to suffer from 1-2 panic attacks per week, and that she was unable to adapt to stressful circumstances and, in the face of such circumstances, would withdraw or show signs of a mental disorder. This made it difficult for her to manage daily activities, complete work tasks, and maintain social relationships.

Wawanesa argued that Ms. Primo’s impairments did not reach the level of catastrophic and suggested that her symptoms were exaggerated and that her testimony was inconsistent, therefore lacking credibility. Additionally, they argued that she had pre-existing conditions that were not disclosed to the assessors, that her panic attacks were not witnessed and were therefore unproven, and that her ability to continue driving contradicted her claims of PTSD.  While they found her clinical presentation during assessment “unusual”, they believed her behaviour was demonstrative of “her normal characteristics” and that her symptoms did not coincide with a typical simple motor vehicle accident.

Upon consideration, Arbitrator Lester found Ms. Primo’s medical and psychiatric reports more convincing and thorough than those of Wawanesa, and found that the conclusions of the Applicant’s assessor, Dr. Patel, aligned with Ms. Primo’s psychiatrist, psychologist, and with the testimony of Ms. Primo and her son. 

Ms. Primo testified that when she attempted to return to work as a Personal Support Worker in 2018, her thoughts became preoccupied by whether she had completed routine tasks. She became overwhelmed to the point that she yelled at one of her clients who was suffering from dementia.

Ms. Primo’s son testified to her confusion during routine tasks. When going to the grocery store, she would look for an item, but then pass it by multiple times. He also recalled a time when they went to the store and Ms. Primo couldn’t figure out how to enter her email address on the cashier’s screen, and became so frustrated that she attempted to leave the store, not realizing she hadn’t yet paid.

Ironically, Arbitrator Lester found that Wawanesa’s reports also served to support Dr. Patel’s conclusions, as it appeared clear that during their assessments, Ms. Primo failed to adapt to the stress of the assessment process: it was reported that in one assessment she “looked uncomfortable, was breathing heavily, had feelings of being overwhelmed, and hyperventilating” [26]. There was concern that she may pass out. Two separate assessments had to be rescheduled due to Ms. Primo’s heightened emotional state and inability to complete the process, demonstrating her failure to adapt and to then to subsequently withdraw.

Arbitrator Lester questioned Wawanesa’s assertion that Ms. Primo’s unusual presentation during the assessment was part of her normal characteristics. Lester argued that if Wawanesa’s assessor, Dr. Kirsch, had conducted additional interviews with Ms. Primo’s son and family doctor, as he had discussed but failed to do, it would have been determined that her behaviour changed after the accident, and was not characteristic of her pre-accident personality.

Further, Dr. Kirsch failed to explain why he believed a “simple accident” [29] could not cause Ms. Primo’s symptoms, when the medical records indicated that her physical injuries from the accident led to chronic pain which caused her psychiatric injuries to appear, worsening over time, culminating in extreme distress when her income compensation was terminated.

Ultimately, Arbitrator Lester did not find Dr. Kirsch’s assessment of moderate impairment convincing, and deemed Ms. Primo as catastrophically impaired, finding a marked impairment.

Income Replacement Benefit

Wawanesa initially provided Ms. Primo income replacement benefits after the accident, which were reassessed and subsequently terminated in January of 2017.

At the time of reassessment, Ms. Primo argued that her physical and psychological impairments prevented her from returning to work, a claim supported by her family doctor.

Wawanesa argued that based on their reassessments, Ms. Primo had no physical or psychological limitations or restrictions that might prevent her from returning to work, and that she could perform the essential tasks of her employment.

Upon review of the evidence, Ms. Lester found that Ms. Primo had a substantial inability to perform the essential tasks of her employment, which required her to take care of the physical needs of her clients including feeding, personal grooming and hygiene, household tasks, providing medications, and the use of a Hoyer Lift. Ms. Primo would often see up to 8 clients per day, in different locations, and her job was classified in the medium strength category.

Ms. Lester was confused by Wawanesa’s assertion that Ms. Primo’s symptoms impaired her ability to perform activities of normal living, but found that she could perform activities of normal living for disabled or sickly individuals. She also questioned why Wawanesa failed to hold additional interviews to substantiate their claims, despite having said they would. She also found that Wawanesa’s claims against Ms. Primo’s personal credibility were unfounded in the face of the evidence presented.

In conclusion, Arbitrator Lester found it “abundantly clear Ms. Primo cannot work in any capacity, at any job, considering she was still receiving ongoing pain injections, she had a referral to a new pain clinic, was diagnosed with major depressive disorder, and suffering from physical and psychological symptoms that required pharmacological interventions.” [48]

Treatment Plans & Awards

As Ms. Primo was deemed catastrophically impaired, Wawanesa was ordered to pay for treatment plans totalling $6,993.75.

Wawanesa was ordered to pay $26,971.50 for catastrophic assessments that did not comply with s. 38(8) of the Schedule. They were also ordered to pay $13,566.81 for a chronic pain treatment program, $2,260.00 for a chronic pain assessment and $1,808.00 for a Functional Abilities Evaluation.

Ms. Primo was denied $9,549.87 for a number of treatments and assessments, as she failed to prove they were necessary or reasonable.

In addition to the IRBs, Ms. Primo was awarded a total of $44,606.31.

Source Consulted:

https://www.canlii.org/en/on/onlat/doc/2022/2022canlii45306/2022canlii45306.html