• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

IME

16-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT)

http://canlii.ca/t/hr1dp

Dr. R. Fielden, Orthopaedic Surgeon

  1. 46.       Fielden conducted an orthopaedic assessment of the applicant on behalf of the respondent.  His report, dated May 24, 2016, concluded that the applicant did not suffer a complete inability to carry on a normal life as a result of the vehicle accident and has reached maximum medical recovery from an orthopedic standpoint. I have placed limited weight on the testimony and report of Dr. Fielden for the following reasons.

 

  1. 47.       Fielden testified that he understood the purpose of his assessment was to determine “whether she was capable of returning to her employment duties.” As the applicant was never employed either before or after the accident, and the issue before me was non-earner benefits and not income replacement benefits, I find this inconsistency considerably weakened his opinion.

 

  1. 48.      Similar to what was in his report, Dr. Fielden testified that the applicant’s physical injuries, primarily her collar bone and pelvis, had healed and the joints around those two bones were functionally normal and appeared to have normal strength and range of motion.  He  described a pelvic fracture as a painful and bad injury, and stated that “that pain subsides usually within a week or ten days to be tolerable discomfort…well you know, get by on a little Tylenol…”

 

  1. 49.       Fielden failed to do a full consideration of all of the elements of the complete inability test enunciated by the court in Heath. Dr. Fielden did not conduct any pain scales during his examination because he found it to be a totally useless type of scale.  Dr. Fielden further commented that “pain is a wonderful symptom to have.”  He agreed that his report did not address the applicant’s pain problems or pain limiting function at all.

 

  1. 50.       Fielden’s assessment lasted approximately 45 minutes and the physical examination was done in only 10 minutes. I fail to see how an adequate comparison of the applicant’s activities and life circumstances before the accident to her present activities and life circumstances could have ever been done in such a short amount of time. This, however, is exactly what is required by the Court of Appeal in Heath to be able to answer the very question that Dr. Fielden attempts to answer on page 11 of his report that the applicant does not suffer a complete inability to carry on a normal life and partly what the insurer relied on to stop the benefit.

 

  1. 51.       Fielden’s report was not very specific with respect to the applicant’s activities. There was generalizations made as to what the applicant did pre-accident and what she cannot do post-accident.  For example, at page 3, Dr. Fielden wrote that prior to the accident, the applicant was doing everything around the house but only mentions cooking and housekeeping.  Dr. Fielden does not mention caregiving in any detail which was clearly very important to the applicant. Dr. Fielden mentions that the applicant lives in a house with her partner, mother in law and their son but does not mention the applicant’s autistic daughter, A. All of the applicant’s pre-accident activities must be considered to do a full consideration of the complete inability test. Dr. Fielden also did not break down the individual tasks that the applicant did pre-accident that she is not able to do post-accident.

Heather Seiling, Occupational Therapist

  1. 52.      The other witness called by the respondent was Heather Seiling, who assessed the applicant on April 20, 2016 and prepared an Occupational Therapy Assessment dated May 4, 2016.  Ms. Seiling’s report and testimony opined that although the applicant did suffer pain and had reduced activity tolerance, she did not suffer a complete inability to carry on her normal activities.I place limited weight on Ms. Seiling’s opinion for the following reasons.

 

  1. 53.       Seiling conceded that she did not observe the applicant doing the activities multiple times and that it was merely a snapshot of a few activities and not an accurate representation of the entire activity. Ms. Seiling also agreed that the degree to which the activities were performed by the applicant was not considered in her report.

 

  1. 54.      Therefore, it appeared to me, contrary to the Heath test, that Ms. Seiling did not view each activity as a whole or the manner in which those activities were performed by the applicant. In conducting her assessment, she did not consider whether the applicant was merely going through the motions.

 

  1. 55.       Further, when asked by the applicant’s counsel what her understanding of the complete inability test was, Ms. Seiling explained that “it means that they’re unable to participate in the majority of their personal care, their housekeeping, their leisure activities, their caregiver, any of these tasks that they did prior to the accident.”  It appeared to me that she had a very simplistic and literal interpretation of the test and she did not consider that greater weight should be placed on activities that are more important to the applicant, or that a qualitative analysis is required with a focus on the quality of the performance.

Heather Seiling, Occupational Therapist

  1. 52.      The other witness called by the respondent was Heather Seiling, who assessed the applicant on April 20, 2016 and prepared an Occupational Therapy Assessment dated May 4, 2016.  Ms. Seiling’s report and testimony opined that although the applicant did suffer pain and had reduced activity tolerance, she did not suffer a complete inability to carry on her normal activities.I place limited weight on Ms. Seiling’s opinion for the following reasons.

 

  1. 53.       Seiling conceded that she did not observe the applicant doing the activities multiple times and that it was merely a snapshot of a few activities and not an accurate representation of the entire activity. Ms. Seiling also agreed that the degree to which the activities were performed by the applicant was not considered in her report.

 

  1. 54.      Therefore, it appeared to me, contrary to the Heath test, that Ms. Seiling did not view each activity as a whole or the manner in which those activities were performed by the applicant. In conducting her assessment, she did not consider whether the applicant was merely going through the motions.

 

  1. 55.       Further, when asked by the applicant’s counsel what her understanding of the complete inability test was, Ms. Seiling explained that “it means that they’re unable to participate in the majority of their personal care, their housekeeping, their leisure activities, their caregiver, any of these tasks that they did prior to the accident.”  It appeared to me that she had a very simplistic and literal interpretation of the test and she did not consider that greater weight should be placed on activities that are more important to the applicant, or that a qualitative analysis is required with a focus on the quality of the performance.

Comments are closed.