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Arbitrator to make Catastrophic determination based on time of assessment.

December 21, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: November 30, 2015

Heard Before: Adjudicator Susan Sapin

 

Mansoor Amiri was injured in a car accident on January 4, 2010. Mr. Amiri claims he suffers from ongoing chronic pain, depression, anxiety, post-traumatic stress and other psychological symptoms as a result of the accident that are severe enough to qualify as a catastrophic psychological impairment under the Schedule. Mr. Amiri claims he suffered catastrophic impairments as a result of the accident, which entitle him to claim housekeeping/home maintenance and attendant care benefits beyond two years after the accident. He claims ongoing income replacement benefits on the basis that his impairments prevent him from returning to working as a petrochemical engineer, or to employment of any kind.

 

After the accident Wawanesa paid certain accident benefits under the Schedule, but later terminated those benefits on the grounds that there was insufficient objective medical evidence that Mr. Amiri continued to qualify for them. The parties were unable to resolve their disputes through mediation, and Mr. Amiri applied for arbitration at the FSCO.

 

Issues:

 

  1. Did Mr. Amiri suffer a catastrophic impairment as a result of the accident?

  2. Is Mr. Amiri entitled to an income replacement benefit (IRB)?

  3. Is Mr. Amiri entitled to attendant care benefits?

  4. Is Mr. Amiri entitled to housekeeping and home maintenance expenses?

  5. Is Mr. Amiri entitled to $1,950.63 for the cost of a Chronic Pain Assessment?

  6. Is Mr. Amiri entitled to interest for the overdue payment of benefits?

  7. Is either party entitled to its expenses of the arbitration proceeding?

 

Result:

 

  1. Mr. Amiri suffered a catastrophic impairment with a marked impairment in adaptation.

  2. Mr. Amiri is entitled to an income replacement benefit (IRB).

  3. Mr. Amiri is entitled to attendant care benefits.

  4. Mr. Amiri is entitled to housekeeping and home maintenance expenses

  5. Mr. Amiri is entitled to the cost of a Chronic Pain Assessment.

  6. Mr. Amiri is entitled to interest in the overdue amounts under the Schedule.

  7. Mr. Amiri is entitled to his reasonable expenses of this arbitration proceeding.

 

Wawanesa conducted a multidisciplinary assessment (“CAT assessment”) to determine whether Mr. Amiri’s impairments qualified as catastrophic in March and April 2012, just over two years after the accident, and concluded that they did not. Wawanesa’s conclusion rests largely on the report of its psychiatric assessor, Dr. BH, who found only Class 2 mild impairments in each of the four functional categories identified in the Guides, based on his DSM-IV diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. Wawanesa does not accept that Mr. Amiri’s psychological symptoms and subjective experience of pain equate to the levels of disability required to meet the tests under the Schedule. Wawanesa maintains Mr. Amiri has exaggerated his symptoms, and that this undermines his credibility.

 

 

Dr. AA, Mr. Amiri’s treating psychiatrist, rated Mr. Amiri as markedly impaired in three categories – ADLs; concentration, persistence and pace; and adaptation. Dr. AA found moderate impairment in social function. His diagnosis was a Major Depressive Disorder with psychotic features, and a Pain Disorder Associated with both Psychological Factors and a General Medical Condition, both due to the accident. Mr. Amiri claims his pain is worse now than after the accident, and although he acknowledged that his daily functioning is improved with medication, he feels it is still markedly limited due to chronic pain, dizziness and balance issues, depression, anxiety, irritability and difficulties with concentration and memory.

 

The Arbitrator reviewed Mr. Amiri’s demeanor, oral testimony, and evidence and determined that Mr. Amiri is a credible witness who appeared to have genuine difficulty processing questions. The Arbitrator rejected Wawanesa’s position that Mr. Amiri was evasive or disingenuous. Mr. Amiri has not returned to work.

 

The Arbitrator found that Mr. Amiri’s employment file and the notes of his family doctor indicate his previous absences from work were due to the types of garden-variety illnesses that affect most people. The Arbitrator rejected Wawanesa’s suggestion that Mr. Amiri’s presentation at the hearing should be taken as evidence that he is not as mentally impaired as he claims to be, and therefore does not meet the test for catastrophic impairment. Whether he meets the test must be decided on the medical and lay evidence available at the time he was assessed for catastrophic impairment, in early 2012. The Arbitrator also found that Wawanesa’s assessors did not adequately take into account Mr. Amiri’s complaints of chronic pain.

 

The Arbitrator was not persuaded that Mr. Amiri required the level of attendant care he claimed. The Arbitrator reviewed Dr. BH diagnosis (Wawanesa) and Dr. AA’s diagnosis and preferred that of Dr. AA as it more accurately captures the array of psychological and physical symptoms reported by Mr. Amiri and more accurately reflects the psychological impact of the accident, which the Arbitrator found was significant.

 

Mr. Amiri has complained consistently of, and sought treatment for, his symptoms since the accident. At the hearing, Mr. Amiri endorsed two written accounts of his symptoms and injuries dated January 12, 2010, eight days after the accident, and November 16, 2011, some 20 months later. Except for two insignificant phrases, the accounts are virtually identical, and Mr. Amiri testified his symptoms did not really improve despite almost two years of physiotherapy and psychiatric treatment with an array of medications and some counselling.

 

The Arbitrator found Mr. Amiri’s mental and physical condition is not compatible with useful or productive employment, either in his previous job as a Product Operator at Chemtura nor in any other job suitable to his age, experience, qualifications, skills or training.  

 

Expert opinion and the evidence suggest that Mr. Amiri, despite depression, chronic pain and the side effects of medication, can do more for himself in terms of self-care than he has been accustomed to doing, and that he should be encouraged to do so. On that basis Mr. Amiri is entitled to some personal care help. The Arbitrator also found that Mr. Amiri is entitled to the benefit from January 2012 and ongoing, at a rate of $100 per week, on the basis that he has suffered a catastrophic impairment as a result of the accident; his medical condition has not significantly improved; the assistance is reasonable and necessary; and that is the rate accepted by Wawanesa during the period it did pay the benefit.[35]

 

Wawanesa does not dispute that Mr. Amiri met the test for entitlement to IRBs up to 104 weeks after the accident; i.e., that he was substantially unable to perform the essential tasks of his employment, and it paid IRBs on that basis up to September 3, 2012. After 104 weeks, however, the test changes, and an insured person must establish that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

 

After reviewing all of the evidence and testimony, and noting that Mr. Amiri suffered a marked impairment in the functional area of adaptation, the Arbitrator determined that there is no employment for which Mr. Amiri is reasonably suited by education, training or experience.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Chronic Pain, Fractures, Pain and Suffering, Physical Therapy, Treatment

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

Practice Areas

  1. Car accidents
  2. Motorcycle accidents
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  4. Catastrophic injury
  5. Brain or Head injury
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  5. Fractures or broken bone injury
  6. Pedestrian accidents
  7. Chronic pain
  8. Truck accidents
  9. Amputation and disfigurement
  10. Fibromyalgia
  11. Nursing Home Fatality Claims

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