December 22, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Mitchell and Commonwell
Decision Date: October 31, 2017
Heard Before: Adjudicator Charles Matheson
CAT IMPAIRMENT: Applicant proves this catastrophic impairment; insurer fails to provide evidence for their theories; applicant awarded IRBs and ACBs.
Mr. Mitchell was injured in a car accident on May 17, 2013. He applied SABs from Commonwell but when mediation failed he applied to FSCO for arbitration.
- Did Mr. Mitchell sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?
- Is Mr. Mitchell entitled to receive a weekly income replacement benefit in the amount of $400.00 from October 2, 2015 to date and on-going?
- Is Mr. Mitchell entitled to attendant care benefits commencing May 17, 2015, to date and on-going?
- Is Commonwell liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Mitchell?
- Is Mr. Mitchell entitled to interest for the overdue payment of benefits?
- Mr. Mitchell sustained a catastrophic impairment as a result of the May 17, 2013 accident.
- Mr. Mitchell is entitled to income replacement benefits in the amount of $400.00 per week as a result of the May 17, 2013 accident, commencing from October 2, 2015 to date and on-going.
- Mr. Mitchell is able to receive attendant care benefits commencing from the release of this award, and a new Form 1 shall be submitted by Mr. Mitchell to Commonwell no later than 30 days from this award’s release, or as soon as it can be reasonably arranged.
- Commonwell is not liable to pay a special award.
- Mr. Mitchell is entitled to interest for any overdue amounts, in accordance with the Schedule with respect to income replacement benefits only.
Mr. Mitchell raised a preliminary issue regarding the fact that Commonwell was going to submit video surveillance which was taken within the last 30 days prior to this arbitration and served it upon Mr. Mitchell’s lawyer less than 24 hours prior to the commencement of this arbitration. The Arbitrator noted that Rule 40 is a stand-alone rule as it is specific to surveillance evidence and “reports, notes and summaries of surveillance observations or investigations”. As such, an extraordinary circumstances exception does not apply in this case. The Arbitrator was not persuaded to exercise discretion in this matter and did not allow the surveillance and the accompanying report to be entered as evidence at this arbitration.
Mr. Mitchell was a 30 year old single father, who had sole custody of his oldest daughter at the time of the accident and was employed as a drywall installer. Mr. Mitchell enjoyed an active life prior to the accident with an active social and recreational calendar. Mr. Mitchell has a Grade 11 education.
Mr. Mitchell has worked his entire career in the construction industry, all of which required extensive manual labour. Mr. Mitchell has had chronic back pain issues over the years, and has sought out many different forms of pain relief. Mr. Mitchell candidly admits to making a series of poor life choices in the past as he was abusing one substance or another at various times, over the decade prior to the accident, including narcotics. Mr. Mitchell self-identified as a functioning addict. Mr. Mitchell has no memory of the accident. Mr. Mitchell has been participating in a methadone program since shortly after the accident.
Commonwell’s theory of the accident is that Mr. Mitchell had a low GCS score prior to the accident but that the low GCS score was caused by a combination of Mr. Mitchell’s drug overdose and high blood sugar count of 32 millimoles per litre, and not because of any brain injury that may have been incurred as a result of the accident. This argument would nullify the fact that Mr. Mitchell had a GCS score of 9 or less at the scene of the accident.
The undisputed facts of the case as argued and relied upon by both parties include that:
- For approximately six months prior to the accident Mr. Mitchell had been prescribed 60 milligrams (mg) of OxyNEO per day by his family doctor, taking two 30 mg pills daily – one in the morning and another during the afternoon, in order to relieve his back pain while working,
- Mr. Mitchell began self-medicating sometime in 2013 with an additional 40 mg of OxyNEO taken at night to help him sleep,
- On the day of the accident, Mr. Mitchell had dropped off his daughter at his parents’ house for the weekend, and had been speaking to his father only minutes prior to the accident,
- Mr. Mitchell was on his way to a cottage to meet with friends so they could “party”,
- Mr. Mitchell had in his possession a bottle of an unidentified number of different narcotics,
- Mr. Mitchell’s father testified that Mr. Mitchell did not appear to be under the influence of any substance during their discussion in the driveway,
- The accident occurred approximately 7 kilometres from Mr. Mitchell’s parents’ driveway,
- Witnesses to the accident saw the vehicle’s front right tire hit the gravel shoulder of the road and then swerve in front of them and into the opposite ditch, where the vehicle rolled over and hit a tree,
- Mr. Mitchell was found lying across the front dashboard of the vehicle, unconscious,
- Ambulance Call Report #1 indicated GCS score of 9 out of 15 at 20:44,
- Mr. Mitchell was administered a Narcan drip, where some 13 minutes later he began to respond with higher GCS scores as high as 14 out of 15,
- Mr. Mitchell was transported to the Belleville Hospital, where among other things, his neck was found to be broken,
- Mr. Mitchell was then transported to the Kingston hospital,
- Ambulance Call Report #2 indicated GCS scores of 3 out of 15 at 22:47, 23:00, 23:15, 23:23,
- Scan (CT): subarachnoid hemorrhage posterior left temporal lobe and small focal anterior right parafalcine subdural hematoma,
- MRI taken on May 21, 2013 (four days after the accident) confirmed the findings of the The drug tests done by the hospitals showed that Mr. Mitchell had no drugs in his system, other than the cannabis shown on the results of a drug test administered at Kingston General Hospital
- Mr. Mitchell was found to have hyperglycemia and/or his blood sugar levels were 32 millimoles per litre,
- Mr. Mitchell required sedation and restraints in order to prevent further physical injury, for an extended period of time after the accident as he was showing the classic signs of a closed brain injury when he would awaken confused and angry,
- By May 22, 2013, Mr. Mitchell had been placed in a hard collar and was extubated.
Mr. Mitchell testified that he had no memory of the accident nor the interaction between himself, the different first responders and hospital doctors until several days after the accident when he was brought out of his induced coma. Mr. Mitchell admitted that he had abused substances throughout his life. Mr. Mitchell admitted to self-medicating with an additional 40 mg tablet of OxyNEO daily after his family doctor refused to further increase his dosage of OxyNEO. The additional dosage was to help him sleep throughout the night and was taken at night before he went to bed.
Mr. Mitchell testified that since the accident, he is forgetful and misplaces things. He forgets to eat and in turn forgets to take his insulin three times per day. He forgets complete conversations with people, which he finds quite annoying. He forgets that he has made appointments and sometimes does not complete all the needed housekeeping tasks (washing dishes, cleaning the bathroom, cleaning and taking out the garbage) as he finds them over whelming and on some days too physically demanding. Mr. Mitchell complains of headaches several times a week. Mr. Mitchell testified that he reported to his assessors that he continues to have neck and shoulder pain with intermittent tingling in his arms, but does not suffer from pain or numbness in his legs. Mr. Mitchell testified that he still suffers from depression. The depression is so severe that he does not leave his bedroom for any length of time for days. He has admitted to staying in the same clothes for days, when depressed. He also said that when he is depressed he does not feel hungry.
Extensive medical testimony was reviewed from the accident and post accident time underlining that Mr. Mitchell’s score should have been 8, not 9 at the scene, and the physician at the hospital opined that Mr. Mitchell would have needed to be at a GCS score of 11 or less in order to pass out and lose control of the vehicle, and that this would need to have happened within the time it took to drive 7 km. The doctor was unable to explain the rapid descent in score, if it actually happened. On cross-examination the physician was also unable to explain the rapid ascent to a GCS score of 15 out of 15 upon arrival at the Kingston hospital, while Mr. Mitchell had previously exhibited consecutive GCS scores of 3 over a two-hour trip, while Narcan continued to be administered.
Commonwell’s Neurologist evidenced his report dated January 29, 2015. He reiterated his findings in his paper review that Mr. Mitchell originally lost consciousness as a result of other factors and not as a result of a brain impairment sustained in the accident. He stated that Mr. Mitchell’s original loss of consciousness was related to his drug overdose. Mr. Mitchell was also found to be hyperglycemic which may also account for his decreased level of consciousness. In the doctor’s opinion, the minor closed head injury that Mr. Mitchell suffered would not account for his significant decreased level of consciousness and his immediate improvement once he was given Narcan. The doctor also opined that the GCS score of 9 out of 15 was, in part, related to drugs and hyperglycemia and he did not find that this was related to the minor closed head injury. In essence it concluded that the GCS score of 9 out of 15taken at the scene of the accident was based upon metabolic issues and opiates and not a structural brain issue.
Commonwell’s Catastrophic Neurocognitive-Behavioural Report dated March 23, was on the subject of Mr. Mitchell’s level of impairment within the four spheres, the doctor opined that Mr. Mitchell was moderately impaired in all the spheres, except for the fourth sphere, Adaptation, which was mildly impaired. The doctor under cross-examination, agreed that all the indicators of a severe brain injury were present. Finally, during cross-examination the doctor stated that “but for the accident, the circumstances of Mr. Mitchell would not be as they are today”.
The two neuropsychological assessment reports of November 15, 2014 and March 11, 2016, presented on behalf of Mitchell revolved around the post-104 weekly income replacement benefits, and the marked impairment issue, can be useful in the GCS issue context. In both reports, exhibits 20 and 21, the doctors opine that Mr. Mitchell sustained a Traumatic Brain Injury during the course of the accident of May 17, 2013, which they characterized as moderate in severity. Within the November 15, 2014 report on page 36 under the heading of “Conclusions and Opinion” they stated: Mr. Mitchell’s neurocognitive profile is primarily notable for difficulties with attention. He demonstrated difficulty adapting to changes in task demands with reduced performances seen as a function of increased task complexity, a susceptibility to interference, and reduced visual attention to detail.
The Arbitrator was provided with no direct evidence that Mr. Mitchell fell asleep, passed out or was unconscious prior to the accident. There is no direct evidence that Mr. Mitchell’s GCS score prior to the accident was as low as 9 or for that matter 11 or less. Commonwell simply suggested that Mr. Mitchell had a lower GCS score without providing any alternative numbers or logic for said alternatives. Dr. H. Becker testified that a GCS score of 11 or less would render Mr. Mitchell unable to drive, but no medical explanation for a sudden drop in Mr. Mitchell’s GCS scores has been given considering Mr. Mitchell was speaking to his father for several minutes just prior to the accident. These theories are speculation at best.
Commonwell relies upon Mr. Mitchell’s recovery or bounce back from the introduction of the Narcan to his system as proof of an overdose, that he must have been unconscious prior to the accident. I remain unconvinced that the Narcan would have acted differently with the prescribed amount of 60 mg of OxyNEO versus the 100 mg Commonwell suggests were in his body at the time of the accident.
None of the first responders or the emergency room hospital staff gave evidence at this Arbitration. The training of the first responders to administer the GCS test has not been raised, nor has the timing of said tests been challenged.
There is no direct evidence as to what effects high blood sugar levels had on Mr. Mitchell and how those effects dovetail or overlap with the opioid cocktail Commonwell theorizes on.
On this basis the Arbitrator remained unconvinced that Commonwell’s theory is correct, as Mr. Mitchell has admitted to taking 100 mg per day of OxyNEO for months prior to the accident and did not report at any time prior to the accident that was he was ever found to be unconscious, in distress, confused, or lost.
The inescapable evidence by all accounts of the expert doctors, treating physicians and health care practitioners and their respective reports, is that Mr. Mitchell suffered a closed head injury (Traumatic Brain Injury) as a direct result of the May 17, 2013 accident. The severity of the injury has been termed as mild to severe. The resulting brain impairments from the closed head injury are clear and apparent in his speech and word recall patterns, and the Arbitrator noted the same while Mr. Mitchell was testifying.
The Arbitrator found that Mr. Mitchell sustained a brain impairment as a result of the May 17, 2013 accident, and acquired one GCS score of 9 or less according to a test administered within a reasonable period of time after the accident by a person trained for that purpose.
The parties have agreed that it is Mr. Mitchell’s burden to show that because of the May 17, 2013 accident he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience in order to be successful in claiming the post-104-week income replacement benefit (“IRB”). The parties have not raised an issue as to quantum of the IRB.
Commonwell conducted post-104-week multidisciplinary assessments to determine whether Mr. Mitchell meets the test for entitlement to post-104 week IRBs.
Mr. Mitchell testified he has not worked since the accident. He complains of not being able to sleep at night, the loss of appetite, memory issues, along with continued pain in his neck, shoulders and back. Mr. Mitchell admitted to smoking marijuana to help ease his neck and back pain. Mr. Mitchell testified that he has tried to return to work on several occasions, just weeks prior to this Arbitration, which were not successful, in his view, as he had to take extended rest periods including naps in the afternoon. Mr. Mitchell testified that he did not have a driver’s licence since the accident, and required someone to pick him up from his house and then drive him back from the worksite at the end of the day. On both attempts Mr. Mitchell said that he was picked up by friends whom he was helping at the respective job sites. In regards to the different jobs that he was trying to perform Mr. Mitchell stated that he was doing light clean-up work at the sites along with washing, sorting and organizing hand tools. Mr. Mitchell testified that he tried to help his father split fire wood on several occasions. These attempts were failures, in his view, as he was unable to continue to help his father for a second day as his pain prohibited him from continuing.
Mr. Mitchell believes that he has a learning disability in regards to learning math and English, but was unable to expand on what his disabilities were. To further complicate these attempts at returning to work he testified that he experienced significant pain after his attempts, which in turn caused him to fall behind in his daily house maintenance chores which caused him to have another bout of depression.
The Neurological IE determined that Mr. Mitchell, from a neurological point of view, does not suffer a complete inability to engage in any employment for which he is suited by education, training or experience.
A Neuropsychologist testified on behalf of Mr. Mitchell. The doctor evidenced his Neuropsychological Evaluation report dated November 15, 2014, as well as a second report dated March, 11, 2016. The IRB issue is addressed fully in the second evaluation report. The doctor suggests in his first report that Mr. Mitchell suffered a diffuse traumatic brain injury and as a result his working memory (doing such tasks as mental math) was below average. The doctor noted that Mr. Mitchell’s performances increasingly got slower the harder or the more complex the task became. The doctor recorded that Mr. Mitchell complained of cognitive issues and high levels of anxiety and pain. The doctor opined that Mr. Mitchell sustained a traumatic brain injury because of the altered state of consciousness at the accident site, which in his opinion explains why Mr. Mitchell complains of both retrograde and post-traumatic amnesia. The doctor stressed in his testimony that pain (such as Mr. Mitchell experiences) does affect cognition and retention of information and memory. The doctor was hopeful that at some time in the future Mr. Mitchell would be able to return to employment, but it would be a protracted recovery time, if treatment with a psychologist and an occupational therapist was provided. It concluded with the recommendation that Mr. Mitchell would need training supports and more education to be re-employed.
Mr. Mitchell argues that his accident related impairments arising from his Traumatic Brain Injury include a neurocognitive disorder, attentional issues, problems with concentration, memory, depression, anxiety, low mood, and sleep issues. All of these issues were summarized and focused on when Dr. Kurzman (Mr. Mitchell’s Neuropsychologist) concluded that Mr. Mitchell had marked impairments in both spheres of (1) concentration, persistence and pace and (2) deterioration or decompensation in work or work-like settings.
In respect of the second part of the test, Mr. Mitchell argues that none of the jobs which Commonwell has identified several vocations he may be qualified for, but they do not meet the remuneration and prestige requirements. None of the vocations Commonwell identified are available within the Belleville area. Having to drive up to 3.5 hours when, at the time of reports, Mr. Mitchell did not possess a valid driver’s licence, could hardly be said to be proximate. Furthermore, many of the positions required working in a hospital environment which for a person with known addiction can hardly be considered suitable. Given that none of the other jobs were available, Mr. Mitchell submits that Commonwell has failed to discharge its burden in this context.
Mr. Mitchell argues that none of his treating doctors have ever cleared him to return to work. Rather, their respective notes and records have supported Mr. Mitchell in his efforts to qualify for the Ontario Disability Support Program.
On the basis of all of the evidence the Arbitrator determined Mr. Mitchell is catastrophically impaired, is entitled to IRBs and ACBs.