March 12, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Czombos and Wawanesa
Decision Date: December 28, 2017
Heard Before: Adjudicator Marvin Huberman
CAT IMPAIRMENT: applicants pre-existing psychological and mental health worsened by the car accident; CAT designation appropriate; applications for benefits dismissed on the basis they are not medically proven, warranted, necessary, or incurred.
Ms. Leigh Czombos was injured in a car accident on June 29, 2009 and she applied for accident benefits from pursuant to the Schedule. When issues arose regarding her entitlement to certain SABs, she applied for arbitration at the FSCO.
- Did Ms. Czombos sustain a catastrophic impairment?
- Is Ms. Czombos entitled to payment for the following benefits totaling $83,417.90, pursuant to the Schedule, and described as follows:
- Mental Health Assessment Treatment Plan dated May 28, 2013;
- Chiropractic treatment plan for spinal decompression dated January 16, 2012;
- Chiropractic treatment plan for spinal decompression dated October 11, 2013;
- Chiropractic treatments provided by Norfolk Chiropractic Wellness Centre in the amount of $4,720.00;
- Therapeutic Injections in the amount of $1,875.00, submitted on April 3, 2012
- Chiropractic treatments submitted on July 7, 2015 and denied on July 15, 2015;
- Treatments provided by Monarch Laser & Wellness Centre in the total amount of $11,770.95
- Treatments provided by Immunotec Inc. in the total amount of $1,428.46,
- Chiropractic treatments provided by CDPC Canadian Decompression & Pain Centers in the amount of $350.00, submitted on July 7, 2015;
- Treatments provided by Naturopathic and Allergy Clinic for colon hydro therapy and Rectal Oz in the total amount of $881.40
- Treatments provided by Vmax Fitness Whole Body Vibration in the amount of $90.40
- Treatment provided by Winner’s Edge for Biofeed consultation in the total amount of $519.97
- Treatment provided by Anna Marie Lappani in the total amount of $335.00
- Treatment provided by Dr. Maura McKeown in the total amount of $229.38
- Treatment provided by O24 Zone for Pain Neutralizer/Respite care in the amount of $2,618.01
- Chiropractic treatments provided by Markham Chiropractic Centre in the amount of $335.00
- Cost of Heart to Heart for personal support services in the total amount of $1,555.00
- Dental treatment provided by Dr. Amita Bajwa in the total amount of $122.00,
- Cost of a sauna in the amount of $5,983.35
- Cost of a sports massager from Legge Fitness Store in the amount of $5,305.35
- Cost of PSW services from Roseanne Desmaris in the amount of $36,790.57
- Travel expenses?
- Is Ms. Czombos entitled to interest for the overdue payment of benefits awarded?
- Is either party required pay the other’s expenses of this Hearing, pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8, as amended?
- Ms. Czombos sustained a catastrophic impairment as a result of the accident, as defined in clauses 2(1.2) (f) and (g) of the Schedule.
- Ms. Czombos is entitled to payment for a Mental Health Treatment and Assessment Plan (OCF-18), dated May 18, 2013, and submitted by Dr. Gaskovski, in the amount of $1,925.00, pursuant to the Schedule.
- Ms. Czombos is not entitled to payment for any other benefits claimed, pursuant to the Schedule.
- Ms. Czombos is entitled to interest for the overdue payment of the benefit awarded, pursuant to the Schedule.
- If the parties are unable to resolve the issues of expenses, either party may make an appointment to determine the matter in accordance with Rules 75-79 of the Dispute Resolution Practice Code.
On June 29, 2009, Ms. Czombos was driving on the highway when a transport truck drove into her lane striking her vehicle along the driver’s side. Her car was pushed into the guardrail along the right passenger side of her vehicle. It then bounced off the guardrail and spun around into an oncoming transport truck. Her car’s front bumper was then ripped off, and her vehicle rear-ended the median guardrail, sustaining extensive damage. Her vehicle was later written-off.
Ms. Czombos struck her knees against the door, and hit her head on the driver side window, the back of the headrest, and the roof of her car during the collision. Her left leg jammed upon impact into her pelvis. She was able to exit the vehicle independently and had immediate headache, dizziness, neck pain, mid-back pain and low back pain. She was not rendered unconscious, cut or bleeding. Immediately following the collision, she had muscle spasms in both calves, pain in her head and mouth, and whole-body stiffness. The police and ambulance personnel attended the collision scene. Ms. Czombos was taken to the Hospital via ambulance. She was assessed in the emergency department and admitted overnight. X-rays were taken of her head, neck and low back, and a cervical collar was provided. X-rays showed no fractures. She was discharged from the hospital the next day and was told to return home and take it easy. She felt dizzy and had a constant headache.
Ms. Czombos followed up with Dr. David Saul, pain specialist, one week after the collision. She was assessed and directed to treatment. She visited a chronic pain clinic because of extensive pain, and received osteopathic and spinal decompression treatments. She then pursued natural remedies to address the pain and began taking orthomolecular medicine and followed the living foods diet plan, and attending rehabilitation.
Ms. Czombos has been fearful of driving since the accident. She reported having a lot of anxiety, being irritable, short-tempered and becoming easily overwhelmed. She has emotional outbursts. She complained of having difficulty with concentration, being forgetful, missing appointments, and the like. She has been unable to focus and organize, and she has been slow to respond. Her sleep pattern has also been disturbed. She continues to experience ongoing cognitive, physical, and emotional sequelae since the accident, and she finds each day a struggle to function.
Ms. Czombos has a significant prior automobile and injury history. She sustained a work-related lower back injury in 1991 after being struck in the back by a tow motor. This injury apparently resolved after approximately 2 months of physiotherapy. She was involved in a car accident in September 1993 and suffered from cervical injury/whiplash and headaches following this accident. In 1995 she suffered a work-related repetitive strain injury, which resulted in an exacerbation of physical pain from the 1993 motor vehicle accident injury, particularly around the neck and arms/shoulders. In 2003 she was in another car accident when she was rear-ended at a stoplight in Toronto. She reported experiencing some “brain fog” in the aftermath of this accident.
Application for Determination of Catastrophic Impairment (OCF-19)
Ms. Czombos applied to Wawanesa on October 1, 2014, for CAT determination. Ms. Czombos’s family physicianv completed the OCF-19 and confirmed that Ms. Czombos suffered a catastrophic impairment as a result of the motor vehicle accident. Based on his assessment the following criteria were applicable to Ms. Czombos:
- 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 55 percent or more impairment of the whole person; or
- an impairment that, in accordance with the American Medical Association’s Guides to the Evaluations 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 family doctor described the impairments sustained by Ms. Czombos in the automobile accident as follows:
- Somatic symptom disorder – severe, persistent, predominant pain;
- Post-traumatic stress disorder;
- Adjustment disorder; and
- Post-traumatic anxiety, depression, anger.
On May 4, 2014 Wawanesa advised Ms. Czombos that she had not sustained a catastrophic impairment as a result of the accident because her current impairment does not meet criterion 8 for catastrophic impairment as defined by the Schedule. Wawanesa advised Ms. Czombos to treat this letter as appropriate notice of refusal of her application for catastrophic impairment pursuant to section 54 of the Schedule. Wawanesa takes the position that Ms. Czombos has not met the onus placed on her to prove that she is catastrophically impaired as a result of the accident.
Causation is not the deciding factor in this case because the totality of Ms. Czombos’s injuries are still insufficient to meet the CAT threshold pursuant to either clause 2(1.2) (f) or 2(1.2) (g) of the Schedule. This claim rests mostly on Ms. Czombos’s subjective complaints and her perceptions of her own pain and restrictions. Ms. Czombos downplayed her pre-accident health history and life and failed to present a consistent and logical picture of her health history before and after the accident. The Adjudicator focused on whether Ms. Czombos’s complaints, taken as a whole, are reliable. Lack of clarity is endemic and present in all aspects of Ms. Czombos’s evidence. Her recollection, beliefs and evidence are very much swayed and shifted by matters of convenience.
Ms. Czombos has not produced clear, unequivocal medical evidence in support of her impairments. Key pieces of expert medical evidence on which Ms. Czombos’s claim rests do not meet the tests of being a legitimate, scientifically accepted foundation for the opinions offered by her experts. The opinions of Dr. T, Dr. B, and, to a lesser degree, Dr. R, are grounded on questionable medical science and should be approached with caution.
The WPI ratings provided by Ms. Czombos’s expert, RH, must be approached with extreme caution. RH was a belligerent witness who appeared to be a partial advocate on behalf of Ms. Czombos, and who “cut corners” with his analysis and ratings, which calls into question his entire report. He also exceeded his expertise when he substituted his discretion and judgment for that of the underlying experts, Dr. T and Dr. R, who declined to provide any WPI ratings in accordance with the AMA Guides.
On whole the Adjudicator rejected RH’s ratings.
Wawanesa submits that the ratings of RH are wholly unreliable. It requests that the WPI rating of 27% be upheld. In the alternative, Wawanesa submits that this Arbitrator should exercise his discretion to find another WPI rating that is below the 55% threshold, and then dismiss Ms. Czombos’s claims with costs.
The Adjudicator did not find Wawanesa’s challenge to the credibility of Ms. Czombos, based on the contention that her evidence was muddled, inconsistent, illogical, or unclear, to be persuasive. Some of her evidence was unreliable because of her inability to accurately describe, recall and recount certain relevant facts and circumstances. This is understandable, however, given her medical condition, currently and at the time of the material events, the traumatic experiences and its aftermath and the limitations and frailties of recollection generally.
The Adjudicator noted that eleven individuals testified at the Hearing. The burden of proof rests with Ms. Czombos to prove on the balance of probabilities that, as a result of the accident, she sustained a catastrophic impairment as defined in clauses 2(1.2)(f) and (g) of the Schedule. She must prove on the balance of probabilities that the accident materially or significantly contributed to her mental or behavioural disorders. She is not required to prove that the accident was the only cause of her mental or behavioural disorder. The role of the Arbitrator Under the Schedule, the determination of catastrophic impairment is ultimately an adjudicative, not a medical determination. It is the role of the adjudicator to scrutinize the evidence and give to it such weight as he or she thinks it deserves.
Moreover, if pain due to purely physical injuries cannot be factored out, Ms. Czombos is not required to prove that her impairment is due solely to mental or behavioural disorders. In Pastore, the Court of Appeal approved the Director’s Delegate’s finding that, in determining whether impairment was “due to” mental or behavioural disorders, “there was no statutory requirement to dissect the mental disorder into constituent parts.
Based on the totality of the evidence the Adjudicator found that the accident caused Ms. Czombos a mental or behavioural disorder, and that the mental or behavioural disorders significantly impacted on her daily life. The overall weight of the evidence supports this finding.
To be entitled to payment for the benefits claimed, an applicant must prove on a balance of probabilities that the benefits claimed are reasonable, necessary, and incurred, pursuant to the Schedule.
Based on the analysis of the evidence the Adjudicator found that the Mental Health Treatment and Assessment Plan in the amount of $1,925.00 is reasonable, necessary, and incurred, pursuant to the Schedule. There is no or insufficient evidence that the rest of the benefits claimed are reasonable, necessary, and incurred.