January 23, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Keck and Sovereign -Threshold for Catastrophic Impairment; IRBs payable; Plaintiff establishes their impairment; insured suffered a variety of injuries and continues to experience residual deficitis
Keck and Sovereign
Date of Decision: December 19, 2016
Heard Before: Adjudicator Irvin Sherman
Ms. Tammy Keck was injured in a car accident on April 5, 2011, when she blacked out while driving, crossed into the opposite lane of traffic where she collided with another motor vehicle. Her car was demolished. She was taken to the hospital by ambulance. Thirty minutes after she awoke in the hospital, she was advised by the attending physician that she would be restricted from driving for six months. She became angry at learning of this forthcoming suspension and left the hospital.
Ms. Keck had a mild concussion, and suffered the injuries to her face, forehead, neck, arm, leg and hip during the accident. She also claims that since the accident her mood has changed. She became mean and upset. She often cries but does not know why. She became fearful following the accident, and initially did not want to go out of her home. For the last two years she has been able to attend family social functions outside of her home. She last drove a motor vehicle prior to her right side thoracic outlet surgery in 2015.
Ms. Keck sought accident benefits from payable under the Schedule, but when parties were unable to resolve their disputes through mediation, Ms. Keck applied for Arbitration of her claims at the FSCO.
The issues in this Hearing are:
- Did Ms. Keck sustain a catastrophic impairment because of the accident within the meaning of the Schedule?
- Is Ms. Keck entitled to receive income replacement benefits (IRBs) in the amount of $400.00 a week for the period May 22, 2012 to date and ongoing?
- Is Ms. Keck entitled to receive various medical benefits for the 18 treatment plans submitted?
- Is Sovereign liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Keck?
- Is Ms. Keck entitled to interest for the overdue payments of benefits?
- Ms. Keck has sustained a catastrophic impairment as defined in the Schedule.
- Ms. Keck is entitled to receive income replacement benefits in the amount of $400.00 per week from May 22, 2012 to date and ongoing.
- Ms. Keck is not entitled to receive medical benefits as claimed herein.
- Sovereign is not liable to pay a special award.
- Ms. Keck is entitled to interest on the overdue payment of income replacement benefits.
Ms. Keck worked as a dump truck driver for her husband’s company for approximately four years prior to the date of her accident. Her work included lifting, shovelling and record keeping. She worked upwards of 12 or 13 hours per day, usually five days per week. Prior to this she worked as a delivery truck driver and a car jockey. She has a grade 11 education and a learning disability. She completed a one year lab tech course. Prior to her accident, Ms. Keck was primarily responsible for housekeeping chores, cooking and laundry. She enjoyed gardening.
Ms. Keck’s injuries are extensive. She had the left side of her jaw dislocated, with jaw pain that becomes worse when she is eating, meaning she does not eat regularly – only about four times per week. She experiences left side neck pain which she estimated was at a level of 9 out of 10. The severity of her left side neck pain has lessened since she had thoracic outlet surgery in 2015. She has numbness in her left arm and shoulder which became more prevalent six months following the accident. Ms. Keck began to experience pain in her left hip about one year following the accident. It becomes prevalent when she bends down or does a lot of walking. She classified this pain as being 7 or 8 out of 10. She did not experience pain in her left hip before the accident. She has experienced back and low back pain as well as pain in the left leg and foot. She rated her left leg pain as 8 out of 10. She claims to have problems with memory, concentration, and sleeping. She says her head feels ‘cloudy’ sometimes.
Ms. Keck has been treated by her family doctor before and after the accident. She has undergone physiotherapy, massage therapy, swimming, hydrotherapy and has seen a psychologist on her doctor’s recommendation. Ms. Keck enjoyed the psychological counselling which she stopped attending when the Insurer refused to pay for it. She stated that she felt better and was in a better mood following the psychological counselling. Ms. Keck has been treated for pain for several years both before and after the accident. Ms. Keck takes prescribed medications to combat her pain, anxiety, depression, panic attacks and irregular sleep. These medications make her tired and forgetful. She would like to reduce the amount of prescribed medications she takes, and to attend a pain clinic.
Sovereign has paid income replacement benefits to Ms. Keck from April 12, 2011 to May 21, 2012 when such payments were stopped following its medical examinations. It was the Insurer’s chiropractor, Dr. Andrew Holland, who suggested to Ms. Keck that she consult her physician regarding thoracic outlet surgery. She has driven little since her accident, and not at all since thoracic surgery. She said that she has some good days, mediocre days and some bad days since the accident.
Ms. Keck testified to her condition and her existing drug regimens for pain. She has PTSD. She testified that she thinks she blacked out before her accident due to taking a second blood pressure pill accidentally. She testified that she was being treated for pain before the accident.
Ms. Keck attributed her blacking out at the time of the accident to her inadvertently taking a second high blood pressure pill. She testifies that she did not see her family doctor for three weeks following the accident because she needed to rest and because she was in a lot of pain. She did however attend at the Rothbart Centre for Pain Care during that three-week period where she received an increased number of needles in order to combat her pain. She also received caudal needles and epidurals to combat pain. She sometimes saw 11 health professionals weekly, beginning one week following the accident. Ms. Keck continues to see a wide variety of specialists for ongoing medical issues, and has attended over 400 medical appointments since the accident.
The Arbitrator heard the testimony of several experts on behalf of Ms. Keck, and on behalf of Sovereign.
Ms. Keck’s and the Insurer’s catastrophic assessment teams agreed that Ms. Keck’s present condition did not result in a whole body impairment rating of 55% such that Ms. Keck could not be considered catastrophically impaired under section 3(2)(e) of the Schedule (Criterion 7), however Ms. Keck claims that she is catastrophically impaired under section 3(2)(f) of the Schedule (Criteria 8).
The Arbitrator reviewed the evidence submitted, the law and previous cases, and determined that it has been established since Aviva Canada Inc. v. Pastore, that an applicant need only demonstrate impairment in one of the four domains of function set out in the AMA Guides. In this case the test to be applied in determining if an applicant suffers a mental or behavioural disorder that results in a marked impairment was stated in the case of Nita Mujku and State Farm Mutual Automobile Insurance Company, Arbitrator Rogers, as being:
- Did the accident cause Ms. Keck to suffer from a mental or behavioural disorder?
- If it did, what is the impact of mental or behavioural disorder on Ms. Keck’s daily life?
- What is the level of impairment?
The issue to be decided is whether Ms. Keck’s impairment made the adaptation domain as a moderate or marked impairment. For Ms. Keck to be found to be catastrophically impaired under the adaptation domain, she must prove on the balance of probabilities that her impairment levels significantly impede useful functioning. Ms. Keck’s evidence and testimony has demonstrated that her accident has significantly impeded her useful functioning in the fourth domain (deterioration or decomposition in a work-like setting).
The Arbitrator noted that since the accident, Ms. Keck has attended hundreds of appointments with the various health professionals who have been treating her post-accident. She has participated in physiotherapy, massage therapy, chiropractic and hydrotherapy treatment. She has seen a psychologist, neurologist, thoracic surgeon and other physicians. Ms. Keck has undergone thoracic outlet surgery on her left and right sides post-accident in an attempt to alleviate pain. She regularly attends a pain clinic.
After having carefully considered the Catastrophic Assessment reports the Arbitrator gave greater weight to that prepared by Ms. Keck’s catastrophic assessment team, which was found to be more comprehensive than the catastrophic assessment reports prepared on behalf of the Insurer.
The Arbitrator found on the facts that the Insurer did not unreasonably withhold payments of benefits to Ms. Keck. The Insurer paid income replacement benefits to Ms. Keck until it received medical information from its health professionals indicating that Ms. Keck did not meet the test for such benefits. The Arbitrator also noted that the Insurer continues to pay for some of the prescribed medication that Ms. Keck is taking.