December 14, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Gavin and Coachman
Decision Date: October 31, 2017
Heard Before: Adjudicator Louise Barrington
CATASTROPHIC IMPAIRMENT: The applicant met the criteria for WPI impairment of 55%; injuries are clearly related to the accident; arbitrator rules that applicant is catastrophically impaired.
Mr. Brian Gavin, an Ontario resident, was injured in an accident in the state of Georgia, U.S.A., on May 14, 2011. Mr. Gavin recalled that he was dozing in the passenger’s side when he awoke to the screaming of his friend who had lost control of the vehicle. The Jeep left the road, rolling over several times before landing on the passenger side. His friend was able to climb out of the vehicle leaving Mr. Gavin trapped in the car. Mr. Gavin testified that when the car came to rest, he found his arm bent over his head unnaturally, the seatbelt had tightened during the crash and was crushing his ribcage area, and the bones from his lower left leg were protruding from the skin. The driver was screaming, urging him to get out, as the car was about to explode. He sought accident benefits from Coachman but applied for arbitration at the FSCO when mediation failed.
- Did Mr. Gavin sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?
- As a result of the accident, Mr. Gavin has sustained a catastrophic impairment within the meaning of the Schedule.
Mr. Gavin was 48 years when he went to Georgia to visit a friend. On the way to the friend’s home from the airport, he was dozing in the front passenger seat, wearing his seatbelt, when he suffered serious injuries in a car accident. He underwent surgery in Atlanta, then was repatriated to Toronto for more surgeries, treatment, and recuperation. After a long convalescence, and continuing treatment, Mr. Gavin continues to suffer from multiple ailments, both physical and mental. He can no longer work and his life has changed appreciably.
There is no argument as to the fact that Mr. Gavin at the time of the accident was insured under a policy issued by Coachman. Both parties agree that Mr. Gavin’s injuries were serious and that he has not attempted to exaggerate the extent of his disability or his pain. Mr. Gavin claims that his impairments qualify as catastrophic. Coachman disagrees.
Mr. Gavin has the burden of proof to show on a balance of probabilities that the impairment he has suffered is catastrophic and that the impairment was caused by the motor vehicle accident. In the absence of paralysis, amputation, blindness or coma, Mr. Gavin must prove that his impairment meets the criteria of section 3(2)(e) or (f). Both parties agree that there is insufficient evidence to establish a Class 4 or 5 impairment under subsection (f) as none of the experts consulted rated Mr. Gavin’s psychological impairments in Class 4 or 5. Mr. Gavin bases his claim on subsection (e), “an impairment or combination of impairments that in accordance with the AMA Guides… results in 55 per cent or more impairment of the whole person”. In evaluating the level of impairment, the Schedule directs medical assessors to be guided by the AMA Guides. Experts for both sides relied on the AMA Guides but arrived at dissimilar conclusions.
If Mr. Gavin’s impairment is found to be 55% or more, Mr. Gavin must also establish on a balance of probabilities that his impairment was caused by the motor vehicle accident. Mr. Gavin has met that burden of proof.
Mr. Gavin produced evidence from a number of medical specialists, as did Coachman. In some areas the experts’ observations were quite close, in others they reached different conclusions in evaluating the data. The experts who testified on Mr. Gavin’s behalf concluded that his combined WPI was between 62% and 71%. On the other hand, the experts supporting Coachman’s position testified that Mr. Gavin’s WPI rating fell between 48% and 51%.
At the Hearing Mr. Gavin testified as to his life before and after the accident. In 1989 he immigrated to Canada with his family and found a full-time machinist job on the night shift within a few weeks. Within a year, he became lead machinist, and worked for the same company for over 21 years, until the date of the accident. He testified at the Hearing that he loved his job and it was very important to him; aside from the paycheque, he enjoyed the physically heavy work, the responsibility and the friendships with his fellow workers. Mr. Gavin stated that much of his social life revolved around work. He worked overtime frequently, but outside work he was a talented shuffleboard and snooker player, enjoying a game and “a pint” with coworkers at the end of the day. He also volunteered at the Stouffville Legion, attended church services regularly with his wife and participated in the annual Poppy campaign. Despite his weight, which he put at 340 to 350 pounds before the accident, he was very active and liked to fish, play golf, walk and swim.
Mr. Gavin’s medical condition before the accident was mostly unremarkable and not disputed. He testified that he had never previously found it necessary to seek help for any emotional difficulties.
Mr. Gavin underwent two separate major surgeries, to his right arm and to his left lower leg. Over the following months Mr. Gavin graduated from bed to wheelchair for three months, and then began to walk with the assistance of two canes for two months, and then a single cane.
Doctors at St. John’s discovered atrial fibrillation. He suffered from shortness of breath. At the time of the Hearing, approximately six years post-accident, he was still using a cane, and demonstrated some discomfort while remaining seated during the long days of the Hearing. Both Mr. Gavin and his wife testified that the cane is necessary except in their home where there are railings or furniture available for him to grab for support. He continues to suffer from his arm and leg injuries and will probably need replacement surgery to his right elbow, although he has been advised to delay this as long as possible. Medical records corroborate Mr. Gavin’s testimony that both his shoulder and leg surgeries were complicated by separate infections. His leg wounds took a couple of years to heal and the scars are still tender and fragile. He developed significant edema in his left leg as well as less serious swelling in the right leg. For this condition he wore full-leg compression stockings until they no longer fit him when he gained and then lost 100 lbs. He needs to keep his feet elevated as much as possible because of swelling. Since the accident he has developed plantar ulcers due to lack of sensation in his left leg and foot, and wears a special boot to prevent the ulcers from getting worse. He is still taking pain medication daily.
Mr. Gavin and his wife testified at the Hearing as to the deterioration in his physical condition, abilities and his enjoyment of life since the accident. Psychotherapy, interrupted by the retirement of his treating psychologist, is to continue once a replacement psychologist is appointed. Mr. Gavin described the emotional effects of the accident as “devastating”. Suddenly he was fearful, had no confidence, was frequently terrified as a passenger in a car, felt worthless and angry. He sleeps poorly.
Mrs. Gavin testified that she continues to help her husband with showering and personal hygiene, although he has learned to use his left hand for shaving and feeding himself. Before the accident Mr. Gavin worked a lot, but did some things around the house such as gardening, garbage and dishes. Now he cannot do any of these things except “polish a bit”. He wakes very early. He drives his daughter to work. He is generally confined to the ground floor of the house due to difficulty with stairs. He used to go out. He gets angry now; he’s different. Mr. and Mrs. Gavin’s relationship is strained. They used to attend church together on Sundays when Mr. Gavin wasn’t working, but seldom go now: “We’ve lost a bit of our faith.”
Coachman’s position is that Mr. Gavin has failed to show evidence to demonstrate on a balance of probabilities that he has sustained a catastrophic impairment within the meaning of the Schedule as a result of the accident. Coachman relies on the evidence that Mr. Gavin’s level of WPI was in a range of 48% to 51% and thus did not meet the required standard for a catastrophic impairment.
Mr. Gavin’s current status, includes pain, ulcers, poor wound healing, decreased range of motion, muscle atrophy in left leg, tremors, possible osteomyelitis and difficulty with ambulation. Mr. Gavin continued to have significant physical impairment and could require surgery in future.
The Arbitrator reviewed all of the evidence, medical records, and the legislation. He concluded that there is no dispute as to the physical injuries suffered by Mr. Gavin to his elbow and leg being directly caused by the accident. On that basis the Arbitrator found that on a balance of probabilities that the motor vehicle accident was the cause of a catastrophic impairment sustained by Mr. Gavin.