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Arbitrator found 55% whole person impairment and determined that insured was Catastrophically Impaired

February 06, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Knox Henry

Date of Decision: November 10, 2014

DECISION ON A PRELIMINARY ISSUE

Issues:

Thomas Warren Waldock was helping a motorist who was stuck in the snow when he was struck by a pickup truck which had lost control while coming down the hill on March 25, 2008.  As a result of the injuries he sustained, he applied for and received statutory accident benefits from State payable under the applicable Schedule. State Farm and Mr. Waldock were unable to resolve their disputes through mediation, and Mr. Waldock applied for arbitration at the Financial Services Commission of Ontario.

The Preliminary Issue Hearing:

The issues in this Preliminary Hearing are:

  1. Did Mr. Waldock’s injuries, as a result of the motor vehicle/pedestrian accident which occurred on March 25, 2008, constitute a “catastrophic impairment”?

  2. Is Mr. Waldock entitled to his expenses of this hearing?

  3. Is State Farm entitled to its expenses of this hearing?

Result:

  1. Mr. Waldock’s injuries do constitute a “catastrophic impairment”.

  2. The parties’ entitlement to their expenses is deferred for consideration by the Arbitrator at the Arbitration hearing in this matter.

Preliminary Motion

At the commencement of the Preliminary Issue Hearing, State Farm brought a motion seeking:

  1. An order that the section 44 catastrophic orthopedic assessment of Mr. Waldock is reasonably required;

  2. An order that the preliminary issue hearing be stayed by reason of Mr. Waldock’s failure to make himself recently available for a further section 44 catastrophic orthopedic assessment; or

  3. In the alternative, an adjournment of the preliminary issue hearing in order to allow State Farm time to conduct the section 44 catastrophic orthopedic assessment; and

  4. State Farm’s costs of this motion.

Result of the Preliminary Motion:

Upon hearing submissions from counsel for State Farm and counsel for Mr. Waldock, the Arbitrator ruled that:

  1. The section 44 catastrophic orthopedic assessment is not required at this time;

  2. The arbitration proceeding will not be stayed by reason of the Applicant’s failure to make himself recently available for a further section 44 catastrophic orthopedic assessment; and

  3. An adjournment of the arbitration hearing will not be granted in order to allow the insured time to conduct the section 44 catastrophic assessment; and the hearing will proceed forthwith.

The Arbitrator based his decision on the preliminary motion on the following:

  1. A section 44 catastrophic orthopedic assessment is not required at this time. State Farm has had ample opportunity to request such an assessment many months ago.Further, it has had the assessments from the Multidisciplinary Designated Assessment Centre (MDAC) for many months, which were tested in cross-examination during the preliminary issue hearing.To require it now will only unnecessarily delay the process;

  2. This preliminary issue hearing has been scheduled for some period of time; State Farm could have brought this motion several months ago after the failure of the mediation; witnesses have been arranged and have set aside their time to be available over the following three days; delay of this hearing will, as it is agreed and acknowledged by both parties, greatly increase the costs of the proceeding.

  3. It is unfair to Mr. Waldock to further delay the commencement of the hearing on this preliminary issue.

State Farm has submitted that a “new” intervening event – that is, an April 2013 slip-and-fall accident – has changed Mr. Waldock’s medical condition.  Thus, State Farm argues, it is entitled to an updated medical assessment pursuant to section 44 of the Schedule. The Arbitrator found that the slip-and-fall accident “new” medical evidence.  The assessors at MDAC predicted there would be further medical complications. The Arbitrator agreed.

The Arbitrator was then left to reconcile the differences in the mental/behavioural assessments of the medical team representing Mr. Waldock, who interpret these assessments to meet the catastrophic impairment threshold, and the medical team representing State Farm who opine otherwise.

Mr. Waldock has been left with a permanent impairment to his right leg and knee despite his hospital medical treatments and a further multiple surgeries to correct his multiple injuries including: an initial spanning fixator over his right leg and right knee; numerous debridements and efforts to remove infection, necrotic tissue and devitalized bone; repair to the damaged ligaments in his right knee; grafting of arteries and veins into his right leg; micro vascular anastomosis and revascularization; right rectus abdominis muscle flap procedure and split thickness skin grafting to the muscle flap and fasciotomy. This has affected his daily activities, including the duties of his employment, his household duties, social and recreational activities, as well as his relationship with his family and spouse.

The Arbitrator found Mr. Waldock, a university professor, to be a very credible witness. Prior to the accident he commuted widely for work, and was an extremely active person, participating in sports and other outdoor activities. He and his wife have five children – four of their own and one adopted.  They have been foster parents for over 20 years and sometimes have had as many as four foster children at their home at any one time.  Mr. Waldock had been President of the Foster Care Association – a volunteer organization.  At the time of the accident, they had two foster children at their home.

Upon his return home from the hospital in May 2008, Mr. Waldock found marking papers, and driving very difficult. He eventually moved close  to his workplace to reduce commuting time. He found his ability to concentrate greatly diminished, which was very frustrating to him, and suspected that the ongoing nagging pain and constant use of painkillers was affecting his concentration and mental capability. He now suffers from severe bouts of depression caused by his inability to concentrate and is having to rely on his wife for assistance in trying to cope with the day to day struggle of his injuries.  He loathes having to rely on other people.  He is very anxious about his future.  He claims to be uncomfortable for the onus his injuries have put on his wife and feels their marriage has suffered a complete role reversal.  No longer can he be involved in inside and outside household activities and it bothers him to see her take on those roles that he previously performed.

Mr. Waldock constantly worries about when a surgical replacement of his right knee will be required and what consequences may arise from that operation.  Doctors have warned him that infection from surgery could be a very serious possibility and the worst-case scenario is that he may have to undergo an amputation of his leg above the right knee.  While the pain in his right knee and leg is almost intolerable, he is determined to delay any knee operation until that pain becomes absolutely intolerable. He lacks a lot of strength and stability in his right leg.  Since the accident, he has had five severe falls due to his right knee collapsing.  He has also stumbled on many occasions.  Thus, he must be very vigilant when walking. Predictably, he had a sip and fall accident which resulted his right leg being placed in a cast from the ankle to the groin and instructions not to put any weight on that leg for at least three months. Since this slip-and-fall incident on April 11, 2013, Mr. Waldock’s right knee muscle strength has weakened and he feels he has suffered a very severe setback in his recovery.  The cast was removed about six weeks after the slip-and-fall incident and he now uses a knee brace extending from his thigh to his lower leg, ending just above the ankle.

Mr. Waldock’s physicians have stated that, “the injuries sustained by Mr. Waldock are very significant and will have a long lasting impact on his life and function in the future, and it can be said with some certainty that he will have long-term problems with his right leg as well as with his left leg which is acting as a compensator re-mechanism in the future.” His doctors also opined that over the upcoming years, there is significant risk that his level of weight bearing activities and pain will affect his long-term work capabilities.  Certainly, there will be marked, permanent limitations with regards to leisure activities and general life activities due to persistent pain, stiffness and reduced weight-bearing capabilities.

A psychiatric assessment gave a diagnosis of:

  1. Major Depressive Disorder – Single Episode – Severe Mr. Waldock satisfied eight of the nine criteria for this diagnosis

  2. Pain Disorder associated with both psychological factors and a general medical condition (by satisfying, in his opinion, all of the five criteria for this diagnosis

  3. Global Assessment of Functioning (“GAF”) score of 55.

Mr. Waldock’s psychiatrist also testified that he had many criticisms of State Farm’s assessment in terms of the methodology used as well as the percentage WPI rating that their physician, Dr. C, applied. Primarily Dr. C:

  • Did not interview Mrs. Waldock as a part of the assessment, contrary to s. 14.2 of the AMA Guides

  • Dr. C did not appear to consider the four occupational therapy reports of the O.T.

  • Dr. C disregarded all of Mr. Waldock’s numerous concerns and complaints, by concluding that these were symptoms all related to pain and, as such, he could not assess the score for pain.

  • Dr. C failed to assign a category of impairment to Mr. Waldock with respect to each injury.

  • Dr. C failed to apply the AMA Guides by failing to consider the four domains of functioning as outlined in the Guides.

  • Dr. C provided a percentage WPI rating of impairment, without providing any explanation of how he arrived at that figure.

  • Dr. C found that Mr. Waldock was depressed, but he failed to offer a diagnosis of that condition or explain why he believed that a diagnosis of pain disorder would not be appropriate in the circumstances.

  • Dr. C saw Mr. Waldock’s condition as worsening, yet he failed to take that into account in his final report.

  • Dr. C failed to make a diagnosis of Mr. Waldock’s condition.Instead he attempted to dismiss the psychiatric diagnoses of other assessors as “labeling” Mr. Waldock. Dr. Waisman opined that he could not understand these comments because Dr. C’s role in the Assessment process was specifically to determine what diagnoses would apply to Mr. Waldock’s impairments, and thereafter apply an impairment rating to those impairments.

  • Dr. C’s report did not support his own conclusion. For example, Dr. C performed the Beck Depression inventory which revealed to him that Mr. Waldock scored in the “severe” range for depression.Using the AMA Guides, a severe depression rating would be between 31 to 40%. Instead, Dr. C applied a 10% WPI, without explanation of how he arrived at that figure. In addition, a 10% WPI would correspond to a “mild” level of depression, which is completely contrary to Dr. C’s own test results and findings.

  • It is unknown whether Dr. C was using Table 3 of Chapter 4 of the AMA Guides or Chapter 14 of the Guides to come to his WPI rating.Dr. Waisman could not tell which approach Dr. C used or if he used the AMA Guides at all, as Dr. C did not indicate whether he was using either of these chapters.

  • Dr. C’s assessment would correlate to a “mild” impairment.However, Dr. Waisman absolutely disagreed that Mr. Waldock’s impairments should be classified as mild, based on all of the medical evidence, his own assessment, and Dr. C’s own report, testing and description of symptoms.

Dr. C did not appear as a witness in this matter.  Consequently, the Arbitrator found his reports are untested and present less credible evidence than that of Mr. Waldock’s psychiatrist and his colleagues.

Mr. Waldock’s physiatrist, Dr. A, determined that the combination of psychiatric (35% WPI) and physical (21% WPI) impairment ratings results in a final 49% WPI, which would round to 50% WPI. The Arbitrator found that the report and testimony of Dr. A compelling, and that a minimum WPI rating of 55% would be appropriate.

Mr. Waldock then produced correspondence from State Farm which seems to have supported a WPI of 49% - 56% , however the agent who authored the letter was not called as a witness. The Arbitrator then focussed on State farms assessments and treatment plans and determined that State Farm initially appeared to be quite diligent in responding to Mr. Waldock’s accident benefit claims, but that their assessments were at best inconsistent.

The Arbitrator reviewed the law and definition of Catastrophic Impairment within the Schedule. He found that while it is the responsibility of an Applicant to prove his or her case in any proceeding, a Respondent cannot merely rely on untested statements to refute an Applicant’s case.

The Arbitrator found that the assessment for catastrophic impairment prepared on behalf of Mr. Waldock showed that Mr. Waldock has indeed suffered a catastrophic impairment as a result of the March 25, 2008 accident.  He also accepted that Mr. Waldock must accept that he will endure these present limitations, and even more limitations in the future. The Arbitrator found the slip-and-fall accident suffered by Mr. Waldock was a direct result of the injuries Mr. Waldock suffered on March 25, 2008, and the inability of Mr. Waldock’s body to completely heal.

The Arbitrator found that Mr. Waldock had at least a moderate impairment under all four domains of functioning, and that Mr. Waldock’s current WPI rating is, at minimum, 55%, which deems him to be considered as catastrophically impaired, within the meaning of the Schedule.  He also determined that based on the assessments that Mr. Waldock’s impairment will surely increase over time.

Posted under Accident Benefit News, Amputation and Disfigurement, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Chronic Pain, Drunk Driving Accidents, Pain and Suffering, Pedestrian Accidents, Slip and Fall Injury, Treatment, Truck Accidents

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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.

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