June 27, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
M.M. and Optimum
Decision Date: April 20. 2018
Heard Before: Adjudicator Lynda Tanaka
CATASTROPHIC IMPAIRMENT: applicant deemed CAT impaired on basis of Marked Impairment not WPI; insurers reports not entirely accurate;
MM was injured in a car accident on April 25, 2014 and sought accident benefits from Optimum payable under the Schedule but when the parties were unable to resolve their disputes through mediation MM applied for arbitration at the FSCO.
- Did MM sustain a catastrophic impairment within the meaning of the Schedule?
- Is MM entitled to attendant care benefits in the amount of $1,259.39 per month from April 25, 2014 to date and ongoing?
- Is MM entitled to payments for housekeeping and home maintenance services for the amount of $100.00 per week from April 26, 2014 and ongoing?
- Is MM entitled to payment for the cost of travel for $1,440.00 for travel expenses to Oshawa Physiotherapy and Rehabilitation Centre?
- Is Optimum liable to pay a special award because it unreasonably withheld or delayed payments to MM?
- Is MM entitled to interest on overdue benefits?
- MM did sustain a catastrophic impairment within the meaning of the Schedule.
- MM is not entitled to attendant care benefits in the amount of $1,259.39 per month from April 25, 2014 to date and ongoing.
- MM is not entitled to housekeeping and home maintenance services in the amount of $100.00 per week from April 26, 2014 and ongoing.
- MM is entitled to payment for the cost of travel for $1,440.00 for travel expenses to Oshawa Physiotherapy and Rehabilitation Centre.
- Optimum is not liable to pay a special award because it unreasonably withheld or delayed payments to MM.
- MM is entitled to interest on any overdue benefits.
The Adjudicator reviewed the law with particular regard to the definition of Catastrophic Impairment and noted that the following passage is of importance in this case as it provides that an impairment that is sustained but not listed in the Guides is deemed to be “the impairment that is listed in the document that is most analogous to the impairment sustained by the insured person”.
(f) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
The Guides specified in the Schedule were published 21 years prior to the accident and there has been a more recent edition published but the legislation has not been changed. The evidence establishes that some health care professionals do not adhere strictly to the 4th edition specified by the Schedule. Similarly, with respect to the Diagnostic and Statistical Manual for Mental Disorders (“DSM-III-R”) which provides the diagnoses for mental illness the edition specified in the Guides is long out of date. For instance, the neuropsychologist called by Optimum, testified that he uses the more modern DSM edition which reflects more current research in significant respects.
MM is a 29 year old woman with a college education. She originally obtained a certificate in events management with a career goal of becoming an event planner. This career would have involved MM being well-organized, dealing with multiple tasks simultaneously, and dealing with the public. Her career goal changed due to personal losses, and she had started the one year program in medical office administration at Durham College at the time of the accident.She worked 10 to 12 hours every two weeks at a local Dairy Queen and full-time during the summer college breaks. She had started with Dairy Queen at age 14 and became a manager, supervising crew members who were predominantly high school students. Her summer jobs were more demanding as she managed two stores. She was responsible for the management of the stores and for the human resources issues and safety of her crew. She had to engage the help of the police on more than one occasion due to customer misbehaviour. She was involved in hiring and firing of staff as well as managing and scheduling them and being responsible for the physical assets and business operations at the locations. She became involved in hiring for other locations than her own and for training new crew members. She had a contract data entry position with the Municipal Property Assessment Corporation in Oshawa where she worked during the day and also did evening work at the Dairy Queen.
Prior to the accident, MM had an active social life. She enjoyed going to the gym three or four times a week and played organized sports. She has a boyfriend with whom she enjoyed camping trips, and trips as a couple and with friends. She had a very close relationship with her best friend from public school and, while keeping her part-time job and staying up on her school work, MM provided active support to a friend going through an ongoing difficult personal situation. At home, she helped with laundry, dishes, cooking, looking after her own room and bathroom. She lived with her parents and younger brother and appears to have had close family relationships. Prior to the accident she had lost a family member in a car accident and another committed suicide following on that accident. Since the accident, she has also lost a friend in a car accident fatality and expressed difficulty in accepting that she is alive and her friend is dead.
MM was driving her aunt’s car with three passengers. Her mother and younger brother were in the rear passenger seats. Her aunt was in the front passenger seat. She stopped at an intersection and, after determining it was safe to do so, she entered it. Her vehicle was T-boned from the left with the main point of impact being the rear half of the car. The car was spun around and left the road. She hit her head and awoke to find the seat belt interfering with her ability to breathe. Her left knee was jammed between the door and the steering wheel. She looked in the rear of the car and her brother and mother appeared to be dead. The impact of the collision was so severe that, among the three passengers, the injuries included fractures of large and small bones, loss of consciousness and internal injuries. Her brother’s injuries were so severe that he was transported to a regional trauma centre by air ambulance. MM suffers flashbacks of the accident triggered by the smell of gasoline, the sense of wind coming from behind (due to the rotors of the air ambulance) and sometimes a glance at a certain angle at her mother or brother.
She spent three days in the critical care unit and another two days in the hospital. She started walking again with a walker in the hospital and she was given medication for her pain and nausea. With respect to her head injuries, she hit her head on the door frame hard enough to cause black eyes and swelling. She lost sensation of her left forehead and continuing back past her hairline and she remains conscious of a resulting discolouration of her facial skin and the slight indentation in her upper left forehead above the eyebrow. She suffered other injuries including strains and sprains to her neck and entire back, and to both shoulders, her jaw, left hip and knee. She testified that she remains in pain but gets temporary relief from physical treatment and canniboid treatment. Her right shoulder has limited range of motion.
On an ongoing basis, she has left eye pain for which she has not yet been successful in getting treatment. She suffers from chronic migraines and there is no break in her constant headaches. With the migraines and anxiety, she suffers from diarrhea as well as vomiting and nausea. She suffers from pain and audible clicking in her right jaw and she avoids eating food that is chewy and crunchy and prefers chewing on her left side. Her anxiety and its symptoms have become worse and the experience of testifying was clearly stressful. She cried frequently during the course of her testimony, even though she used breathing techniques to attempt to remain calm. The assessors’ reports consistently reference her crying in the course of the examinations whether she is being assessed for Optimum or on her own behalf. She has had and continues to have ongoing issues with sleep, falling asleep and remaining asleep.
She has expressed suicidal ideation to her psychotherapist, family doctor and to an assessor retained by Optimum. On one occasion she developed a plan and started to act on it. She does suffer from her relentless pain and a sense that there is no purpose to her continuing to live. Not surprisingly given her age, she would also like to get on with her life, live with her boyfriend, get back to work and start her own home, rather than living with her parents.
She has difficulty forming sentences and forgets the topic in mid-sentence. She has learned to use her phone to provide cues for her memory.
Her anxiety cripples her and controls her life. She is assisted in her sleeping problems by the use of canniboid. Her family does not leave her on her own.
The Adjudicator noted that in assessing this witness and her functioning, it is important to remember that her decision to enter the intersection resulted in almost killing her younger brother and seriously injuring her mother. Prior to this accident there was no reason to suspect that the usual course of life, of education followed by job/career, independence and setting up a household with a life mate would not reasonably quickly be part of her life. That expectation is no longer valid either at all or within a time limit that MM can see.
Issue 1 - Did MM sustain a catastrophic impairment within the meaning of the Schedule?
There is no issue as to the cause of MM’s impairments. The issue is whether or not the extent of the impairments and the impact on her functioning is such as to bring her within the definition of catastrophic impairment. The onus is on MM to prove on the balance of probabilities that her WPI totals 55% or more or that she meets the requirement of a Class 4 impairment.
On the basis of the voluminous medical evidence the Adjudicator determined that MM is catastrophically impaired and that she has a Class 4 Marked Impairment. MM has met her onus on the balance of probabilities to prove that she suffered catastrophic impairment as a result of the accident in accordance with the Schedule.
Issue 2 - Is MM entitled to attendant care benefits in the amount of $1,259.39 per month from April 25, 2014 to date and ongoing?
To recover attendant care benefits, MM must establish that she needed attendant care and that she incurred it within the definition under the Schedule. This definition was changed at the beginning of 2014 to require that to be incurred an attendant care expense must be proven by invoices from providers or, if family members or friends provide it, those persons must establish an economic loss as a result of providing the care.
The legislative amendments made to the Schedule clearly require that the attendant care costs be incurred as defined in the Schedule and in this case they have not and no OCF-6s have been submitted detailing the services provided, the time taken or the person who provided the services. Optimum is entitled to that level of detail. Therefore, the claim is dismissed.
Issue 3 - Is MM entitled to payments for housekeeping and home maintenance services for the amount of $100.00 per week from April 26, 2014 and ongoing?
MM submits that the housekeeping duties that MM could no longer do after the accident were done by family members. MM says she was never advised she could hire someone to assist with housekeeping and MM’s position is that under Section 3(a) of the Schedule, it can be deemed to be incurred. MM claims Optimum failed to advise her of this benefit. There is no evidence that Optimum fell short of its obligations to inform MM of the coverage and benefits available to her. The claim is dismissed as not proven.
Issue 4 - Is MM entitled to payment for the cost of travel for $1,440.00 for travel expenses to Oshawa Physiotherapy and Rehabilitation Centre?
The parties agreed that the determination of this issue turned on whether or not MM was catastrophically impaired as a result of the accident. MM is CAT impaired and therefore she is entitled to the cost of travel expenses.