December 13, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Pantoja and Wawanesa
Decision Date: October 31, 2017
Heard Before: Adjudicator Anne Morris
CATASTROPHIC IMPAIRMENT: applicant had minor psychiatric issues prior to car accident; car accident has left her in full psychiatric crisis; applicant is catastrophically impaired on the basis of the worsening of the diagnosed pre-existing condition
Ms. Pantoja was injured in a car accident on March 19, 2008. While she was stopped a car swerved and turned head on into her lane and hit the front of her car on the driver’s side, pushing her into a third car which was stopped behind her. The airbags deployed, and she was taken by ambulance to the hospital. She complained of nausea, headache, neck, upper chest and pain to her left arm, left shoulder pain and left hip pain. She was diagnosed with a whiplash injury. She applied for SABs from Wawanesa but applied for arbitration at FSCO after mediation failed.
- Did Ms. Pantoja sustain a catastrophic impairment as the result of the motor vehicle accident of March 19, 2008?
- Ms. Pantoja sustained a catastrophic impairment as the result of the motor vehicle accident of March 19, 2008.
Mrs. Pantoja maintains that, as a result of the car accident she sustained a class 4 impairment (marked impairment) due to mental or behavioural disorder, and is catastrophically impaired.
Wawanesa submits that Mrs. Pantoja is not a credible witness; that the applicable test for causation has not been met in this case; and that Mrs. Pantoja’s mental disorder has in any event resulted in only mild to moderate impairment. The threshold for catastrophic impairment has not been met.
Wawanesa submitted that Mrs. Pantoja is “a poor historian; her ability to recall critical events, including those relating to other motor vehicle accidents, pre-existing medical issues (physical and mental), as well as past treatment and visits to various physicians, is both limited and non-specific
The Arbitrator agreed that Mrs. Pantoja demonstrated memory lapses at the Hearing, however, there was no persuasive evidence of an intention to deceive. The Arbitrator noted that there is significant evidence that, regardless of cause, Mrs. Pantoja went on at a later date to suffer significant psychiatric problems and that she reportedly continues to have serious psychiatric problems with a history of involuntary hospital admissions for mental health care.
It is clear from the testimony Mrs. Pantoja gave to various assessors that she is confused about events, sequences of events and that her recall is poor. This is in part likely due to her mental illness and medications. On this basis, the Arbitrator remained conscious of the record and of the fact that Mrs. Pantoja is not entirely reliable in her memory.
Mrs. Pantoja came to Canada from Mexico in 2000. She worked as an unskilled labourer, but in 2004, she had been able to purchase a home with her children. She stopped work at the time of the accident of March 19, 2008. Wawanesa paid her for a period of disability commencing March 19, 2008. She is in receipt of Canada Pension Plan disability benefits, which tends to confirm that she worked long enough since she came to Canada to meet the contributory requirements for those benefits. The receipt of these benefits also tends to support Mrs. Pantoja’s inability to work.
Mrs. Pantoja saw her family doctor on March 24, 2008, following the accident and indicated that she had difficulty breathing at the time of the accident. The doctor noted pain in the neck, shoulder and low back. She noted a complaint of headache the day before. She noted anxiety and that Mrs. Pantoja was weepy.
A month prior to the accident, the doctor had indicated in a note of February 20, 2008 that Mrs. Pantoja had complained of feeling depressed the week before. March 3, 2008 she had complained of neck and shoulder pain, Mrs. Pantoja’s sister-in-law was staying with her, and Mrs. Pantoja’s husband had called reconcile their abusive marriage. Mrs. Pantoja told the doctor at a subsequent visit on April 23, 2008, which otherwise dealt mostly with pain complaints from the subject accident, that Mrs. Pantoja had decided not to reconcile with her husband. She knew that this affected her son and wanted counselling for them both. May 7, 2008, Mrs. Pantoja complained to her doctor of headache, dizziness and low back pain. June 25, 2008 Mrs. Pantoja had been seen in emergency because of dizziness and headaches. She was prescribed prednisone.
Mrs. Pantoja went to emergency June 26, 2008. She had been seen the day before for suicidal ideation and depression, with a diagnosis of adjustment disorder and posttraumatic stress disorder with exacerbation of mood symptoms likely due to prednisone. She was held overnight for reassessment and released when she reported improvement. She had had paranoid ideation in relation to her sister and brother-in-law living with her, fearing they would report to her husband about her life in Canada. She was having auditory hallucinations at the time. She was diagnosed with PTSD by her family doctor and had a psychotherapist follow up confirming PTSD, adding pain disorder, and major depressive disorder. A clinical note recorded that on August 8, 2008, Mrs. Pantoja was involved in a minor motor vehicle accident. She continued to see the psychiatrist from 20018 to late 2016. He has reportd that she had distressing, intrusive recollections, and recurring nightmares of the accident, was very worried about the future and would not be able to overcome her present situation. She sometimes heard voices of people fighting but when she looks she sees nobody there.
Her most significant problems, however, are clearly psychiatric in nature.
Wawanesa submitted that Mrs. Pantoja had significant pre-existing mental health issues with a history of long standing marital abuse. The Arbitrator noted that the circumstances of Mrs. Pantoja’s marriage appear to be a factor in her mental state and there are references to abuse in the family doctor records as discussed earlier.
I could not elicit a formal history of psychiatric care that predates the accident of March 19, 2008. Ms. Pantoja did allude to some assistance she might have received in relation to the stress of immigration as a refugee and the separation from her husband. In addition, from my review of the extensive documentation, there is mention of Ms. Pantoja’s request to see a psychotherapist. This predates the accident of March 19, 2008 and suggests there was an element of emotional distress predating the accident. This in turn would have left Ms. Pantoja with a heightened vulnerability to develop psychopathology following the March 19, 2008 accident. That said, whatever pre-accident psychiatric problems were present were clearly mild and had not prevented Ms. Pantoja from working or pursuing an active lifestyle. As such, they alone cannot account for Ms. Pantoja’s current presentation.
The Arbitrator determined that Mrs. Pantoja was emotionally vulnerable at the time of the accident. Prior to the accident of March 19, 2008, Mrs. Pantoja had periods of sadness and depression from time to time which were not disabling. Following the accident, she had a diagnosis, not only of depression but post traumatic stress disorder with recurring nightmares of the accident. She was also diagnosed with a pain disorder which interfered with her functioning. Her life changed after the accident. She began to have auditory hallucinations after the accident which prompted her to attend hospital in June 2008 and again in 2010. There is no indication that this was a feature of any previous periods of “sadness” or depression. Mrs. Pantoja may, without the accident, have continued to experience feelings of sadness as she appears to have done prior to the accident. It is more likely than not, however, that without the accident of March 19, 2008, Mrs. Pantoja would not have gone on to experience the full blown major depressive disorder with suicidal ideation and psychotic features which led to her hospitalization in 2010. She would not have experienced post traumatic stress syndrome or a pain disorder without the subject accident.
The Arbitrator found that Mrs. Pantoja is catastrophically impaired as a result of the accident of March 19, 2008.