Fournie and Coachman Insurance – CATASTROPHIC ASSESSMENT – insured sustained injuries to left heel and ankle – required two crutches and leg brace – found to be Catastrophically Impaired under physical impairment and also under psychological – one Marked impairment sufficient – physical and psychological can be combined
April 06, 2010, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator:Lloyd (J.R.) Richards
Decision Date: February 12, 2010
Dean Fournie was injured in a motor vehicle accident on August 11, 2004. He applied to Coachman Insurance Company ("Coachman") for a Determination of Catastrophic Impairment. Coachman concluded that Mr. Fournie did not suffer a catastrophic impairment as a result of the motor vehicle accident on August 11, 2004. The issue in the hearing was to determine if Mr. Fournie suffered a catastrophic impairment as defined by paragraph 2(1.2) (f) and paragraph 2(1.2) (g) of the Schedule.
Dean Fourine, a 45 year old man, sustained injuries to his left heel and ankle as a result of a motor vehicle accident. On August 11, 2004 Mr. Fournie rode his bicycle to Petrolia from his home in Sarnia, approximately 30 kilometres away. While riding his bicycle back to Sarnia from Petrolia, Mr. Fournie was struck from behind by a pickup truck. He broke his left heel as well as his left ankle and left thumb and lost some teeth. He also suffered extensive bruising.
EVIDENCE AND ANALYSIS:
Mr. Fournie's position was that he required two crutches and a short leg brace for pain relief, balance, stability and safety. According to Mr. Fournie, the Guides dictates that the WPI for an individual who routinely requires the use of two crutches and a short leg brace is 50%. In addition, Mr. Fournie contended that additional WPI amounts of 5% for skin disorder and 2% for adjustment disorder should have been afforded to him, thereby placing him within the range to be declared catastrophically impaired. Mr. Fournie also argued that he was catastrophically impaired by virtue of his psychological impairments. Furthermore, if his physical impairment rating was combined with his psychological impairment rating, his whole person impairment rating easily exceeded the 55% threshold.
Coachman's position was that Mr. Fournie suffered from impairments to one lower extremity and that the Guides assign a 40% maximum WPI to such impairments. Coachman posited that in order for Mr. Fournie to surpass the 40% maximum WPI, he must have sustained bilateral impairments to his lower extremities. Further, the use of a brace and bilateral arm crutches was not sufficient for Mr. Fournie to surpass the 40% maximum. In addition, Coachman argued that Mr. Fournie was not catastrophically impaired by virtue of his psychological impairments and that even if his psychological impairments were to be combined with his physical impairments, his WPI would not meet the 55% threshold.
Dr. D.S., S.T. and Dr. P.P. presented evidence on behalf of Mr. Fournie. Dr. A.A., the clinical coordinator of the Multidisciplinary Assessment Centre ("MDAC"), and D.K. gave evidence on behalf of Coachman.
Dr. D.S. treated Mr. Fournie at Victoria Hospital after the August 11, 2004 motor vehicle accident and stated that Mr. Fournie's lower leg injuries ranked among the three worst injuries he had witnessed in 10 years of practice. Dr. D.S. reconstructed Mr. Fournie's ankle and testified that his reconstruction was not successful as few of the bones in the joint were recognizable and the left ankle was "hopelessly fragmented." Dr. D.S. stated that Mr. Fournie's entire weight bearing on the left side of his body was on a small spike of bone. This spike was not found in the normal course but grew during the healing process.
Dr. D.S. further testified that Mr. Fournie's gait caused him to walk on the outside of his foot. Mr. Fournie had atrophying, peroneal muscles that were out of position, almost no side to side motion in his ankle and a limited ability to move his left foot up and down. In Dr. D.S.'s opinion, it was obvious that Mr. Fournie should take the weight off his left ankle by using a cane and brace. It was Dr. D.S.'s opinion that Mr. Fournie needed two crutches. On cross-examination, however, Dr. D.S. stated that he did not normally prescribe canes, nor did he recall ever prescribing canes. In his opinion, it was within the purview of an occupational therapist to prescribe canes.
S.T. was the assessing occupational therapist (OT) who had been working as an OT since 1971. He assessed Mr. Fournie by means of a three and a half hour functional abilities assessment on September 4, 2007. This was more than three years after the accident. S.T. stated that Mr. Fournie required two crutches for standing balance. He explained that when an individual has a foot that can only accomplish partial weight bearing, then that individual's stability requires a three point crutch pattern. In his opinion, walking was defined as losing and regaining balance and Mr. Fournie was at a disadvantage because he could not rely on his left ankle. In addition, he opined that two crutches produce symmetry between the right and left sides of the body.
Dr.P.P., a physiatrist, examined Mr. Fournie on January 24, 2007. Dr. P.P. spoke extensively about the effects of Mr. Fournie's walking pattern on the rest of his body. Dr. P.P. stated that crutch use leads to forearm pain and shoulder pain because of support issues. With the use of crutches, back and neck pain are also common. Given Mr. Fournie's injuries, Dr. P.P. recommended that Mr. Fournie put his injured foot into an orthotic (Dr. P.P. recommended a Patellar Tendon Brace or "PTB", also called an Ankle Foot Orthosis or "AFO") to de-load his injured foot and allow him to stand and walk for short distances without crutches. Dr. P.P. recommended that Mr. Fournie attempt the brace to promote a small amount of independence. According to Dr.P.P., two other options for Mr. Fournie would have been amputation or a wheelchair. Dr. P.P. was of the opinion that nothing further could have been done to change Mr. Fournie's impairment and the obvious recourse was to accommodate the impairment.
In the opinion section of his report, Dr. P.P. accepted that Mr. Fournie needed to walk with two crutches. He stated that it was probable that Mr. Fournie had experienced a permanent and severe impairment of the left foot and ankle function. In accordance with the Guides, Dr. P.P. put Mr. Fournie's impairment at 40% because of his need to ambulate using two crutches. At the hearing, Dr. P.P. noted that since his assessment, Mr. Fournie had been prescribed a brace, and therefore according to the Guides a WPI for the use of two crutches and a brace is 50%. Dr. P.P. went further and noted that from Mr. Fournie's medical records that he reviewed in his initial assessment, he would have assigned a further 4% WPI for Mr. Fournie's skin irritation and 2% WPI for pain. This would have led to a total WPI of 53%. The Guides allow that a final WPI may be rounded to the nearest values ending in 0 or 5. In this case, Mr. Fournie's WPI of 53% rounded up was 55%.
Mr. Fournie was assessed by assessors at MDAC as part of the determination of whether he was catastrophically impaired. The executive summary stated that "the assessors formed the final consensus opinion that the Applicant's traumatic impairment was not a Catastrophic Impairment."
Dr. J.M. completed a report on Mr. Fournie, dated August 10, 2006, as part of MDAC's assessment. His report noted that at the time of assessment Mr. Fournie had significant atrophy of the muscles of the left leg. Dr. J.M. also reported that Mr. Fournie's complaints included "limited ambulation requiring bilateral axillary crutches" and "multiple anatomically distant musculoskeletal complaints, likely related to altered mechanics as a result of the utilization of crutches." He further reported that Mr. Fournie was "below the sedentary level for strength." Dr. J.M. did not assign a WPI percentage to Mr. Fournie, but rather left the determination of Mr. Fournie's possible catastrophic impairments to what he termed "the consensus development process that would integrate all of the clinical findings, leading to a summary, catastrophic impairment report."
Dr. A.A. was the clinical coordinator for MDAC and he gave evidence at the hearing. He maintained that the opinions in the executive summary were not solely his own. He stated that he had a discussion with Dr. J.M. about Mr. Fournie's gait derangement. The Guides describe gait derangement as a component of many different types of lower extremity impairments and refers to full-time derangements of persons who are dependent on assistive devices.
Dr. A.A. spent some time explaining the difference between using the Diagnosis Based Estimate portion of the Guides at section 3.2i and using the Gait Derangement section at 3.2b when assessing impairments. The Gait Derangement table differs from the Diagnosis Based Estimate section in that the Gait Derangement table relies on an assessor engaging in an examination or assessment of an individual to determine impairment. Dr. A.A. suggested that the Diagnosis Based Estimate section of the Guides assigns a maximum WPI of 40%. The Gait Derangement table does not appear to have a 40% maximum. Under cross-examination, Dr. A.A. stated that he did not disagree that the pathological process was severe, requiring the use of Table 36, which is the Gait Derangement table. Dr. A.A. went on to state he believed as a general rule that the ceiling on single, lower limb impairments is 40%. It was his opinion that a maximum of 40% WPI was to be assigned for the amputation of one leg. If a WPI of 40% or greater was to be assigned, then an individual would need to have impairments in both lower limbs. The MDAC executive summary noted that using the Gait Derangement table Mr. Fournie's WPI was 20% because, even though Mr. Fournie used two crutches, the orthopaedic disorder in question did not require two crutches. In addition, MDAC assigned 5% WPI for skin scarring and 2% WPI for unaccounted for pain, leading to a final WPI of 26%.
The arbitrator had two concerns with MDAC's assessment of Mr. Fournie. Firstly, there was no evidence presented at the hearing to indicate that the MDAC assessors had consulted on the final opinion, had seen the executive summary or, in fact, agreed with the final opinion. The executive summary and final report did not indicate that the individual assessors had signed off on it. Dr. A.A., who was the controlling mind behind MDAC, stated that before completing the executive summary he did not consult with the psychiatrist or occupational therapist who assessed Mr. Fournie for MDAC. He gave evidence that he had consulted with Dr.J.M., but could not remember where or when and could not provide proof of a consensus meeting with him. He gave evidence on cross-examination that he did not consult with the psychiatrist or occupational therapist when determining Mr. Fournie's final WPI percentage. D.K., the occupational therapist who gave evidence for Coachman, stated that he did not know if his assessment was provided to subsequent assessors. Furthermore, he was not provided with other assessors' reports, nor did he have any recollection of MDAC's executive summary being provided to him.
Secondly, Dr. A.A.'s evidence on assigning a WPI of 26% to Mr. Fournie also caused concern. Dr. J.M., in his report, clearly stated that he left the determination of the final WPI to the consensus process. Dr. J.M. did not give his opinion on Mr. Fournie's final WPI and Dr. A.A. provided no evidence that he ever got an opinion from Dr. J.M. on Mr. Fournie's final WPI. Dr. A.A. stated that he did consult with Dr.J.M., but could not remember when. For an issue as important as the determination of an individual's impairments and that individual's access to future benefits, one would think MDAC would have taken more care in keeping records of its assessments. The arbitrator found that Dr. J.M. did not give a final opinion on Mr. Fournie's WPI. Instead, the arbitrator found that that the final WPI percentage score was Dr. A.A.'s opinion.
The arbitrator found nothing in the Gait Derangement ratings at Table 36 in the Guides that would have convinced him that an individual requires impairments in both legs to be assigned a WPI over 40%. A plain reading of the table shows that a WPI of 50% is assigned to an individual who "(r)equires routine use of two canes or two crutches and a short leg brace (AFO)."
Under the circumstances, the arbitrator preferred Dr. D.S.'s, Dr. P.P.'s and S.T.’s evidence concerning Mr. Fournie's physical functioning. Dr. D.S. and S.T. both noted that Mr. Fournie required two crutches. Dr. P.P. gave evidence that Mr. Fournie required two crutches as well as a foot brace to promote his independence. In assessing the evidence, the arbitrator was not convinced that Mr. Fournie could safely ambulate without the use of two crutches, nor did he believe that Mr. Fournie's use of two crutches was a choice. Instead, the arbitrator found that he required the use of two crutches for his safety, to promote his independence and to improve his quality of life. The Gait Derangement table of the Guides assigns a 50% WPI to an individual requiring the routine use of two crutches and a short leg brace. Dr. P.P. also assigned a further 4% WPI for skin impairment and 2% for pain. When 50%, 4%, and 2% are combined using the combined values chart in the Guides, the WPI is 53% which, when rounded up, meets the 55% threshold. Therefore, the arbitrator found that Mr. Fournie's WPI based on his physical impairments was 55%.
Mental and Behavioural Disorder
Mr. Fournie maintained that he suffered from a mental and/or behavioural impairment at a Class 4 level, which is "marked" impairment. In the alternative, his position was that if his physical impairment was combined with any of the mental and behavioural ratings assigned to him by his assessors, then his WPI impairment rating would have significantly exceeded 55%.
It was Coachman's position that Mr. Fournie still suffered from the physical consequences of his accident but did not present any psychiatric problems. Further, that while Mr. Fournie presented a pain disorder, this disorder was not due to psychological factors and was directly related to his ankle and foot injuries. Coachman argued that Mr. Fournie had returned to a high level of activity and therefore did not qualify as catastrophically impaired under the criteria relating to mental and behavioural disorders.
Mr. Fournie went to see Dr. G.K. in July 2005. Dr. G.K. reported that Mr. Fournie was positive for depression, likely at a clinical level. Further, that Mr. Fournie was in the average range for pain patients and was more depressed than the average patient. She reported that Mr. Fournie had difficulty with sleep, woke up feeling fatigued because of pain and was an excellent candidate for pain management. In a follow-up report to her initial assessment, dated January 16, 2006, Dr. G.K. noted that Mr. Fournie had been trying to socialize and that this was helpful as a means of pain and depression management. Dr. G.K. assigned no WPI or Class rating to Mr. Fournie.
Dr. A.S. was the clinical psychologist who completed a psychological assessment of Mr. Fournie on February 14, 2007. In his report, Dr. A.S. noted that Mr. Fournie underreported his symptoms. As with all other assessors, Dr. A.S. was of the opinion that Mr. Fournie answered questions honestly and passed the tests for feigning. Dr. A.S. was of the opinion that Mr. Fournie was having a difficult time mentally coping with life since the accident. In reporting on his activities, Mr. Fournie told Dr. A.S. that he worked on mathematics puzzles, tended to watch television, tried to take care of himself, talked on chat lines and took his dog for a walk every day while using his crutches. Dr. A.S. diagnosed Mr. Fournie with chronic pain and post-traumatic stress disorder. Dr. A.S. rated Mr. Fournie as a Class 4 in his activities of daily living, Class 4 in adaptation to work, and Class 4 in social functioning. Dr. A.S. did not rate Mr. Fournie in the area of concentration, persistence, and pace.
At Mr. Fournie's counsel's request, Dr. A.S. completed a supplemental report dated January 23, 2008. The arbitrator found that the request was for Dr. A.S. to review his findings in light of information that was not available when he first assessed Mr. Fournie, including the MDAC report. As such, there was no reason to question Dr. A.S.'s impartiality.
In his supplemental report, Dr. A.S. maintained that Mr. Fournie was catastrophically impaired from a mental and behavioural perspective. Dr. A.S. noted the activities in which Mr. Fournie engaged and reported to the MDAC assessors, and stated that “upon careful reflection, the original assignment of Class 4 concerning Activities of Daily Living needed to be upgraded to a Class 3 level.” By self report, Mr. Fournie could complete his Activities of Daily Living with some, but not all useful functioning. In the report, Dr. A.S. reiterated that Mr. Fournie was a Class 4 in social functioning and Class 4 in mental adaptation to work stress. Dr. A.S. also noted the issues concerning Mr. Fournie's concentration difficulties reported in the MDAC assessment report and concluded that Mr. Fournie suffered from a Class 4 impairment with regard to concentration, persistence and pace.
In giving evidence at the hearing, Dr. A.S. stated that Mr. Fournie had a reduction in activity level after the motor vehicle accident and a high self-perception of pain. Dr. A.S. was surprised to discover that Mr. Fournie had given evidence that since the motor vehicle accident he had resumed fishing and kayaking, had made new friends, and attended a chess club. On cross-examination, Dr. A.S. stated that given Mr. Fournie's evidence, his social life and functioning were "not impossible" and he did not require narcotics. As a result, Dr. A.S. reversed his position and stated that Mr. Fournie was not suffering from a Class 4 impairment given Mr. Fournie's improved level of social functioning.
On re-examination, Dr. A.S. noted that Mr. Fournie's depression, anxiety, concern about his future, and low level of activity due to pain management were consistently reported by a number of assessors. Dr. A.S. also noted that Mr. Fournie had only met one new person since the motor vehicle accident. When giving evidence on Mr. Fournie's mental and behavioural status during cross-examination, it appeared that Dr. A.S. grew confused as to the correct section of the Guides to be used in assessing mental and behavioural disorders. For example, Dr. A.S. noted that Mr. Fournie did not meet the definition of marked impairment as set out in chapter 15 of the Guides. It was clearly noted in the Guides that Chapter 15 refers to pain and Dr. A.S. had not comprehensively assessed Mr. Fournie for pain. On re-examination, Dr. A.S. noted that he had indeed assessed Mr. Fournie using Chapter 14 of the Guides, which is the chapter relating to mental and behavioural disorders. When directed to the assessment tool in Chapter 14, Dr. A.S. agreed that Mr. Fournie met the definition of Class 4 – "marked" impairment. Dr. A.S. did not assign a percentage WPI rating to Mr. Fournie.
Coachman submitted that Dr. A.S.'s confusion during cross-examination nullified his evidence regarding any mental and behavioural disorder affecting Mr. Fournie. The arbitrator disagreed. Dr. A.S.'s report was clear and addressed all the pertinent criteria in the Guides relating to mental and behavioural disorders. The arbitrator found that Dr. A.S.'s evidence was credible and he remained sufficiently clear throughout the totality of his testimony.
Dr.H.M., a psychiatrist, examined Mr. Fournie. Dr. H.M. diagnosed Mr. Fournie with Major Depressive Disorder as well as symptoms of Post-Traumatic Stress Disorder.
At the hearing Dr. H.M. stated that he used the pain assessment guide, fibromyalgia impact questionnaire and hospital anxiety depression scale ("HADS") to assess Mr. Fournie. He also noted that Mr. Fournie reported pain levels that were consistent with chronic pain and that Mr. Fournie used pain avoidance behaviour. He also noted that pain affected Mr. Fournie's sleep which led to more problems and concentration issues by the end of each day resulting in "wretchedness."
Dr. H.M. was of the opinion that where an assessor cannot find an assessment tool that precisely addresses an impairment, the Guides mandate that trained observers should use all resources at their disposal to arrive at a conclusion. Dr. H.M. believed that Mr. Fournie was severely afflicted by pain, and because of this he assessed Mr. Fournie according to the Pain Intensity-frequency Grid in the Guides. Dr. H.M. noted that Mr. Fournie could participate in recreation and socialization, but that he was precluded from carrying them out adequately and in full. Dr. H.M. believed that, according to the Pain Intensity-frequency Grid, Mr. Fournie's pain should have been described as "marked." Dr. H.M. concluded that Mr. Fournie's pain and its consequences, being of a "marked" nature according to the Pain Intensity-frequency Grid, could be compared to the bottom end of Class 4, which is "marked" impairment, in the Mental and Behavioural Table in Chapter 14. As such, he believed that Mr. Fournie qualified as catastrophically impaired because of pain. Dr. H.M. did not specify which of the four aspects of functioning (Activities of Daily Living, Social Functioning, etc.) were affected by Mr. Fournie's pain.
Dr. H.M. went further to assign Mr. Fournie a WPI rating of 37.5%. He based this on percentage values that were historically attached to mental and behavioural disorders in past editions of the Guides. Dr. H.M. combined the 37.5% with the 40% WPI attributed to Mr. Fournie by Dr. P.P. for a combined WPI of 63% on rounding up.
Mr. Fournie gave evidence on his own behalf. He chronicled his pre-accident life which seemed to be exceptionally active. He routinely made a 60 kilometre bicycle round trip from Sarnia to Petrolia and back. He enjoyed canoeing, fishing, driving both on and off road, working on cars, hiking and camping. The list of his pre-accident activities was extensive. Following the accident, Mr. Fournie could not sit properly in a canoe. He had purchased a special kayak that allowed him to elevate his foot while sitting on top of it. He had to fish in areas where he could drive up to the water. He only hiked on tame trails because of his trouble walking. He no longer could bike and was only able to camp with his father, whom he claimed "did everything." Mr. Fournie stated that he suffered from pain. He claimed that his pain was humiliating and depressing and things that seemed minor caused him great difficulty. He was humiliated because he had trouble with simple tasks and had cried because of his inability to do the things he used to.
D.K. completed an Occupational Therapy assessment of Mr. Fournie on July 25, 2006 on behalf of MDAC. In his report, D.K. noted that Mr. Fournie was sociable with humourous affect and no emotional issues observed. He stated that Mr. Fournie did not present any difficulty in relation to concentration or problem solving and that he demonstrated intact cognitive/behavioural/social skills. D.K. reported that Mr. Fournie's independence with household management could be enhanced if he transitioned into subsidized housing. However, if Mr. Fournie did not, then further barriers would have developed. Mr. D.K. noted that Mr. Fournie reported depressive tendencies, but appeared emotionally and cognitively able to meet the demands of social situations. D.K. concluded that "in relation to the 4 spheres of function, from a behavioural, mental and cognitive perspective; no impairment was noted by this assessor."
Dr. J. Mo., a psychiatrist, assessed Mr. Fournie in August of 2006 as part of the MDAC assessment team. Dr. J. Mo. gave evidence that he did not rely on the objectivity of tests, but on his own subjective analysis. He noted that on assessment Mr. Fournie had bright affect and had a normal mood. In addition, that Mr. Fournie responded with a sense of humour and that humour is usually not a presentation with major depressive disorders. He noted that Mr. Fournie could go fishing and walked around the house without his crutches. He gave evidence that he believed Mr. Fournie was compromised by physical limitations, not by psychiatric ones. His diagnosis was that Mr. Fournie had no psychological disorder and no phobic disorder. However, Mr. Fournie had a pain disorder, but the disorder was associated with his foot injury and not with psychological factors. He assessed Mr. Fournie as a Class 1 in activities of daily living, Class 2 in social functioning, Class 2 in concentration, persistence, and pace and Class 1 in adaptation. Overall he rated Mr. Fournie as Class 1.
No assessor who assessed Mr. Fournie found him to be a malingerer. They all reported that Mr. Fournie was forthright and honest, and in some instances underreported his symptoms.
The arbitrator did not accept Dr. J.Mo.'s and D.K.’s evidence on Mr. Fournie's overall mental and behavioural status. Dr. J.Mo. found that Mr. Fournie suffered from no psychological disorder. Considering the physical toll of the motor vehicle accident and the fact that his depression was noted consistently throughout his assessments, the arbitrator found that Mr. Fournie suffered from a depressive disorder. Both Dr. J. Mo. and D.K. appeared fixated on the fact that Mr. Fournie remained sociable throughout his assessments and expressed humour at appropriate moments. In their opinion, this indicated that Mr. Fournie would have little or no difficulty in social functioning. On the contrary, the arbitrator found that Mr. Fournie's ability to remain upbeat in the face of his many difficulties coloured these assessors' opinions regarding his areas of functioning. In listening to the evidence in this case and observing Mr. Fournie at the hearing, the arbitrator simply could not accept that he would rank as a Class 1 or 2 in concentration, persistence, and pace, in adaptation, or in activities of daily living. It was clear that Mr. Fournie's life has been profoundly affected by his impairments.
The arbitrator found Mr. Fournie to be a very determined individual who was very active before the motor vehicle accident and who had attempted to return his life to normal. Mr. Fournie's attempts to improve his condition did not necessarily lead to the conclusion that he was free from mental or behavioural impairments.
The arbitrator had difficulty understanding why Dr. J.Mo. attributed pain to Mr. Fournie's foot, yet did no assessment of the impact of Mr. Fournie's pain on the rest of his functioning. In addition, Dr. J. Mo. and D.K. gave evidence that they did not consult with the rest of the assessors when MDAC determined Mr. Fournie's final WPI rating. Had Dr. J. Mo.or D.K. consulted with the physiatrist or others, it would have been possible for them to better determine Mr. Fournie's overall functioning.
The arbitrator accepted Dr. H.M.'s evidence in two ways. Firstly, in his very thorough report, he noted that Mr. Fournie was catastrophically impaired in focus and concentration, domestic care, recreation and mobility and work. In the arbitrator’s view, Dr. H.M.'s report concluded that Mr. Fournie was a Class 4 or higher in activities of daily living, social functioning, adaptation and persistence and pace. At the hearing, given Mr. Fournie's evidence, Dr. H.M. downgraded Mr. Fournie's impairment in social functioning to below the catastrophic level and the arbitrator accept that.
Secondly, Dr. H.M. very plainly articulated what the Guides suggest, which is for assessors to find the most appropriate assessment tool when assessing impairments. Pain profoundly affected Mr. Fournie and the arbitrator found it appropriate for Dr. H.M. to have compared the Pain Intensity-frequency Grid to the Mental and Behavioural Impairment Table in arriving at a determination of how pain affected Mr. Fournie's overall mental and behavioural functioning. The arbitrator also agreed with Dr. H.M. that even though Mr. Fournie was able to engage in social functioning, it was clear from the evidence that he was greatly affected and could not carry out his social functioning adequately and in full.
In this case, the arbitrator found that a Class 4 impairment was required in only one area of functioning to meet the definition of "catastrophic impairment." It was found that Mr. Fournie only required one marked impairment to be deemed catastrophically impaired.
Drs. A.S. and H.M. both determined that Mr. Fournie suffered from a Class 4 impairment in more than one area of functioning. In fact, Dr. H.M.'s assessment appeared to indicate that because of pain, Mr. Fournie was a Class 4 impairment in all four areas of functioning. Based on the opinions of Drs. A.S. and H.M., the arbitrator found that Mr. Fournie met the definition of catastrophic impairment.
While the arbitrator accepted that it is well settled law that combining physical and psychological impairment ratings is permissible, as he determined that Mr. Fournie was catastrophically impaired both physically and psychologically, he did not need to consider combining the two elements.