January 16, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Patel and Unifund
Decision Date: November 17, 2017
Heard Before: Adjudicator Marshall Schnapp
CATASTROPHIC IMPAIRMENT: Applicant provides clear evidence of CAT injuries; insurer fails to provide rebuttal testimony by expert; applicant's calims successful
The issues in this Arbitration are:
- Did Ms. Patel sustain a catastrophic impairment as the result of the motor vehicle accident of February 17, 2014?
- Is Unifund liable to pay a special award because it unreasonably withheld or delayed the payment of the income replacement benefits, as well as medical and attendant care benefits to Ms. Patel?
- Is Ms. Patel entitled to interest for the overdue payments of benefits?
- Ms. Patel sustained a catastrophic impairment as the result of the motor vehicle accident of February 17, 2014.
- Unifund is liable to pay a special award in the amount of $9,629.70 because it unreasonably withheld or delayed the payment of income replacement benefits to Ms. Patel, plus applicable interest.
- Unifund is not liable to pay a special award with respect to medical and attendant care benefits.
Ms. Bindu Patel was injured in a car accident on February 17, 2014 when she was driving to work. She was stopped and hit from behind causing her to crash into the car in front of her. She was taken to the hospital and diagnosed with soft tissue injuries, however shortly afterward her mental condition started to be affected and it deteriorated significantly to the point where she did not like to be alone, started hearing voices, and has been unable to return to work. Ms. Patel sought SABs from Unifund, however when they were unable to resolve their disputes she applied to the FSCO for arbitration.
Ms. Patel takes the position that as a result of the accident she has a class 4 impairment (marked impairment) due to mental or behavioural disorder.
Unifund disagrees, and submits that Ms. Patel has not met the onus of proving that she suffered a CAT impairment because of this accident. As well, Unifund submits there has been a breach of procedural fairness where Ms. Patel has frustrated Unifund’s efforts at obtaining reports from qualified medical assessors to address CAT entitlement in a reliable and meaningful way.
When Ms. Patel testified, she spoke very slowly, had her eyes closed at times, and fell asleep on occasion. She was born in India, studied accounting there, and came to Canada in 2003 when she was approximately 45 years old. At the time of the accident Ms. Patel was working at a call centre and she enjoyed her job. She worked full-time hours and often worked overtime hours. She also cooked for herself and her husband and did all their housework. She had no problems prior to the car accident. Since the MVA Ms. Patel has been unable to return to work. She testified that since the MVA she wants her family members to be around her all the time as she thinks something will happen if she is alone and she is afraid. She is taking lots of medication, which helps on occasion. She recalls her family doctor sent her to a lot of different doctors, including Dr. Dhaliwal. She used to enjoy socializing with friends but since the accident she does not like to do so. She no longer volunteers at her temple and she is no longer intimate with her husband. She testified that she can’t do most things anymore. She can’t even make herself coffee in the morning as she gets confused. She is unable to go to the store alone and is scared to even go into her backyard alone. She has trouble sleeping as she hears voices. Ms. Patel testified that she also has had physical issues since the MVA including issues with her neck, right shoulder, elbow, right knee, hip and back. Since the MVA she uses a cane for support and balance.
During her cross-examination, Ms. Patel testified that she does not recall whether she hit her head during the MVA. She confirmed that in 2009 (prior to the 2014 MVA) she was diagnosed with depression and took medication for it. Ms. Patel believed her depression at that time was due to stress as she was being treated for cancer and had recently been laid off from her job. Ms. Patel went on to testify that her psychological condition at present is much worse as now she is hearing voices, is no longer socializing with friends and is scared. She explained that she can no longer do any housekeeping tasks due to her physical issues and because the voices are always on her mind.
Ms. Patel’s husband testified that prior to the MVA, Ms. Patel did not suffer delusional behaviour or hear voices, nor was she afraid to be alone. Since the MVA, Ms. Patel must be reminded to shower and brush her teeth, she is unable to communicate with a retail clerk or with a bus driver, she is afraid to travel without someone, she cannot drive, she is unable to follow directions to take a bus, she is no longer sexually intimate, she continues to have flashbacks and nightmares, her social activities are limited to family only, she is unable to work in any capacity, and she no longer volunteers at temple.
He physician testified that he has practiced psychiatry for 31 years. Both counsel agreed the doctor was an expert in psychiatry and he was qualified as such for the purposes of this Hearing. Dr. Dhaliwal testified that Ms. Patel has been a patient of his since she was referred to him by her family doctor in March 2014. In 2015 he concluded that Ms. Patel suffers from a Marked Impairment of her functioning pursuant to the AMA Guidelines. He found Ms. Patel suffers from major psychiatric disorder which affects her functional capacity in all 4 domains. He also noted that prior to the MVA she had no clinical illness and was functional. He testified that Ms. Patel appears sad and helpless and asks him if she will get better. According to the doctor, Ms. Patel shows signs of PTSD; she still has flashbacks over 2 years since the accident in the absence of a diagnosis of schizophrenia or bipolar disorder. According to Dr. Dhaliwal, Ms. Patel’s pain is a constant reminder of the accident and it brings on sadness and flashbacks.
The insurer’s examiner prepared a triage report for the Insurer on Ms. Patel. The triage function involves making sure all the documentation required by the AMA Guidelines is obtained, asking for what is missing and deciding on the appropriate assessments to be completed. He testified that as part of his file review, he reviewed a Preliminary Report prepared for Ms. Patel based upon a paper review. He noted that according to this report Ms. Patel’s CAT Assessment only identified a Moderate Impairment under Criteria 8 and her condition was not stable at the time of the CAT assessment.
When being cross-examined, the IE testified that Dr. Dhaliwal’s report read like a consultation report instead of a medical-legal report. He confirmed that in the AMA Guidelines it says Marked Impairment after Class 4. The IE further testified that it may be possible it is a stylistic issue he is having with Ms. Patel’s report, and a standard report would have the words “Class 4” but he agreed Class 4 means Marked Impairment. He agreed with Applicant’s counsel that on page 5 of thes report, it says Ms. Patel’s functionality suffered a Marked Impairment. The IE confirmed he is not a psychiatrist and cannot prepare an opinion on the question of whether Ms. Patel suffered from a Marked Impairment.
The Arbitrator reviewed the medical evidence and the testimony and the law and determined that Ms. Patel has proven on a balance of probabilities that she was catastrophically impaired as a result of the MVA. The evidence provided by Ms. Patel herself and her husband established very clearly the impact of the MVA on her life. Specifically, post-accident she is unable to carry out her self-care and personal hygiene. Her ability to communicate, ambulate, travel, have sexual relations, sleep and participate in social and recreational activities have all been significantly impaired since the accident. Her social activities are limited to family only, she is unable to work in any capacity, and she no longer volunteers at temple.
The Arbitrator noted the following from her psychiatrist’s testimony: it was the doctor’s opinion that Ms. Patel suffers from a major psychiatric disorder which affects her functional capacity, which is 4 components. He found she was affected in all 4 domains. He also testified that he does not see that severe an impairment very often. He noted that when he saw her to prepare the report in 2015, her condition had lasted more than one year, and it may get worse. He also testified that the last time he saw her was on July 17, 2017, a few weeks prior to the start of this Hearing. He testified that his findings that Ms. Patel suffered a CAT impairment were not wrong and he noted since he authored his report all her symptoms have been consistent with his findings.
The Arbitrator noted that the Insurer did not have an expert opinion refuting that Ms. Patel suffered a CAT impairment. It also did not provide an expert’s paper review of Dr. Dhaliwal’s report dated July 7, 2015, which found Ms. Patel to be CAT impaired.
The Arbitrator noted from submissions from Ms. Patel that the Insurer, after withholding IRBs for 527 days, brought them up to date with interest and did not provide an explanation for the non-payment. It is the Insurer’s position that the delay in adjusting the IRB was due to Ms. Patel’s delay in providing the updated LTD file and it has already paid interest on the overdue payments, so no special award is warranted. No evidence was provided to the Arbitrator on why not having the LTD file but having a letter from the LTD insurer advising of a stoppage of benefits necessitated a suspension of IRB benefits. I find the Insurer’s handling of the IRB unreasonable and imprudent and order a special award of 50% of the total amount paid to Ms. Patel for the IRB, which works out to $9,629.70. The Arbitrator found 50% is warranted given the facts of this situation. Ms Patel has not shown that a Special Award is warranted.