March 29, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
INJURED 10 YEAR OLD FAILS TO MEET THRESHOLD FOR CATASTROPHIC IMPAIRMENT - inconsistent testimony; partial recovery in several aspects of impairment; full recovery in others; threshold for mild and medium impairments met
W.A. and Unica
Date of Decision: February 13, 2017
Heard Before: Adjudicator Janette Mills
REASONS FOR DECISION
W.A. was injured in a car accident on September 1, 2011. W.A. was ten years old at the time of the accident, and submits that he suffered a catastrophic impairment within the meaning of the Schedule. Specifically, he suffers from social anxiety disorder, learning disorder and post-traumatic stress disorder (“PTSD”) (in partial remission), and has marked impairments, due to a mental or behavioural disorder, in the areas of social functioning and/or adaptation. As a result, he now has a fear of everyday life; is unable to cross the road unaided; has recurrent nightmares; stays home to avoid fearful situations; and needs to have his mother close by at night-time.
W.A. sought accident benefits from Unica payable under the Schedule, but when the parties were unable to resolve their dispute through mediation W.A. applied for arbitration at the FSCO.
The issues in this Hearing are:
- Did W.A. sustain a catastrophic impairment pursuant of the Schedule?
- Is W.A. entitled to receive a medical benefit for a treatment plan submitted by LI, dated December 13, 2011?
- Is W.A. entitled to receive a medical benefit for a treatment plan submitted by LI and HS, dated February 26, 2013
- Is W.A. entitled to attendant care benefits as provided by W.A.’s mother in the amount of $7,536.52 per month, from September 1, 2011 to the present?
- Is Unica liable to pay a special award because it unreasonably withheld or delayed payments to W.A.?
- Is W.A. entitled to interest for the overdue payment of benefits?
- W.A. did not sustain a catastrophic impairment.
- W.A. is not entitled to receive the medical benefit for the treatment plan submitted by LI, dated December 13, 2011.
- W.A. is entitled to receive the medical benefit for the treatment plan submitted by LI and HS, dated February 26, 2013.
- W.A. is entitled to attendant care benefits provided by W.A.’s mother in the amount of $2,018.67 per month, for the period from September 1, 2011 to March 31, 2012.
- Unica is not liable to pay a special award because it did not unreasonably withhold or delay payments to W.A..
- W.A. is entitled to interest for the overdue payment of benefits at a rate of 1% per month, compounded monthly from the date the amount became due for the treatment plan dated February 26, 2013, in the amount of $3,476.58 and attendant care benefits claimed.
EVIDENCE AND ANALYSIS:
Prior to the accident, W.A. was described as having strong relationships with his three siblings. He attended mosque independently of his parents, played cricket and soccer, and had neighbourhood friends. The family lives in a two-bedroom apartment, and W.A. would often sleep on a cot in his parents’ bedroom. At the time of the accident, he had just finished Grade 4. From Grade 1 to the beginning of Grade 4, he. was receiving ESL training, in-school support, and accommodations. He was below the provincial standard in English from Grade 1 to 3, and in English and math in Grade 4. Throughout this period, W.A.’s school records consistently describe him as quiet and lacking in confidence. There is no evidence to suggest that W.A. suffered any mental or behavioural impairment prior to the accident.
On the evening of the accident, W.A. was walking home from the mosque when he was hit by a car and knocked to the ground. The driver of the vehicle fled the scene. W.A., who was bleeding from the head, was assisted home by a friend. He was taken to hospital by ambulance, where he was diagnosed as suffering from a mild traumatic brain injury (concussion). He was discharged from hospital after a few hours.
After the accident, W.A. developed symptoms of post-concussion syndrome including fatigue, dizziness and sensitivity to light and noise. On November 2, 2011, his family doctor diagnosed W.A. as suffering from both physical and psychological injuries as a result of the accident, including lower back pain, traumatic brain injury, headaches, dizziness and PTSD with concurrent problems with schooling and education. Because of his nightmares, W.A. slept in his parents’ bed with his mother. W.A. returned to full-time study (Grade 5) on January 9, 2012, approximately four months after the accident.
Starting in April 2012, W.A. underwent a number of psychological and neurological assessments, and was diagnosed with post-traumatic headaches (which he noted appeared to be resolving and improving) and perhaps post-traumatic anxiety. Reports concluded that W.A. had psychological sequela, the severity and veracity of which were questionable, and that W.A. had a mild traumatic brain injury. W.A. showed signs of separation anxiety, but that there was no evidence of PTSD.
In 2012, W.A. began treatment with a rehabilitation support worker and W.A.’s mother found that his mood was improving over the summer and he was starting to participate in family discussions.
W.A. also reported having made friends in the first two weeks of Grade 6 and that he walked to and from school with friends. Based on the family’s report of W.A.’s Dr. K diagnosed W.A. with a mild traumatic brain injury, and PTSD. W.A. finished grade 6 poorly. On September 27, 2012, W.A. was admitted into Trillium’s Hospital School Aged Anxiety Group, but there is no evidence that he attended.
In November 2012, W.A.’s interim report card stated that he was progressing well in all aspects of the Grade 6 curriculum. He was acting well with his siblings and peers and doing better cognitively and academically. W.A.’s mother also reported W.A.’s mood continued to improve and that he was interacting more with his siblings. His second interim report card for Grade 6 indicated that he was working well with others and that he met the provincial standard in all aspects of English for the first time, and in some aspects of math. He also participated in an oral French presentation. W.A. received no treatment in the second semester of Grade 6. Notwithstanding this, he met provincial standards in English, and in four out of five standards in math for the first time. He participated in gym and in a school play.
In 2013, W.A. transferred to a small private religious school for Grade 7, and his im report card showed that he fell below the provincial standard in English and math, but that he did exceptionally well in religious studies. During this time, W.A. was receiving counselling from Dr. Kl, who described W.A. reporting that school was going well; that he went on a school trip to Quebec; that he was feeling less anxious and was getting out to play. His mother described him as doing better.
W.A. transferred back to his previous public school for Grade 8. In his sessions with Dr. K, he reported that the transfer was easy; that he was having no problems completing his homework; he was playing sports and that his anxiety regarding crossing the road was decreasing. However, his English and math grades continued to be below the provincial standard.
W.A. saw Dr. K briefly in the fall of Grade 8. He received no further treatment from any other provider. On February 9, 2015, the Insurer approved a treatment plan submitted by LI recommending occupational therapy. Four sessions were held over the following 12 months, centred on tutoring.
On November 21, 2014, W.A. submitted an application for a designation of catastrophic impairment. As a result of the application, he underwent various assessments. In June 2015, he was assessed by Penny Briggs, an occupational therapist with experience working with children who have brain injuries, in the area of assessments, treatment and case management. During his session, W.A. reported that he was generally doing well in school, although he still experienced difficulty with math. Both he and his mother reported that he had friends, and that his behaviour and demeanour were similar to before the accident. W.A. also reported that whilst he continued to have some anxiety around traffic, he no longer required another person to help him cross the road. Ms. Briggs concluded that W.A. was not demonstrating any social functioning impairment related to the accident.
In September 2015, W.A. started high school. In October 2015, he attended one psychological treatment session with Dr. K. He reported school as being good and that he was enrolled in an academic course. He did not have any school accommodations in place at that time. During this year, his family physician described W.A. as an active and social child, who played cricket. W.A. had an IEP at the request of LI.
W.A. was assessed by Dr. K in April and May 2016 for purposes of the catastrophic impairment claim. During these assessments, W.A. reported experiencing symptoms of ongoing concussive and psychological symptoms that had previously been reported as resolved. These symptoms include: hypersensitivity to light and noise; sleep difficulties; difficulties with attention and concentration; excessive crying; and refusing to cross the street alone.
The Arbitrator reviewed the evidence, the guides and the law and determined that the following questions were relevant to the case.
- Did the accident cause W.A. to suffer a mental or behavioural disorder?
- If it did, what is the impact of mental or behavioural disorder on W.A.’s life?
- In view of the impact, what is the level of impairment?
Upon review of the evidence the Arbitrator concluded that both W.A. and the Insurer agree that W.A. suffered a mental or behavioural disorder as a result of the accident. The Arbitrator noted that Dr. K is most familiar with W.A., and is far more comprehensive than that of the IE assessors who each spent one hour with W.A.. On this basis the Arbitrator preferred the diagnosis of Dr. K and found that W.A. suffered a mental or behavioural disorder as a result of the accident, namely: social anxiety disorder, learning disorder and PTSD, in partial remission.
Having regard to the evidence—particularly the testimony of W.A. that he continues to experience feelings of being scared, overwhelmed and unsafe and has recurrent nightmares—and on considering the AMA Guides, the Arbitrator found that the weight of the evidence supports a finding that the accident resulted in a mental or behavioural disorder which impacted on W.A.’s social functioning and/or adaption.
The Arbitrator noted that there were many inconsistencies in the mother’s testimony and it is not reasonable to rely on it. The Arbitrator concluded that on a balance of probabilities the severity of W.A.’s limitations in relation to social functioning and/or adaptation as set out in the AMA Guides do not constitute a catastrophic impairment pursuant to section 3(2)(f) of the Schedule.
With regard to attendant care benefits the Arbitrator agreed with the Insurer that much of the care provided to W.A. by his mother was supervisory care that one would expect of a 10 year old. However, W.A.’s mother was required to leave her employment in order to be at home to care for W.A. up until W.A. returned to full-time school. Therefore, some additional supervisory care was required each school day. For this reason, the Arbitrator ruled that it is reasonable and necessary to award attendant care from the date of the accident (September 1, 2011) to March 31, 2012.