February 10, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Before: Rosemary Muzzi
Decision Date: January 9, 2012
Ms. Alper was seriously injured in a motor vehicle accident on February 20, 2003. She suffered numerous injuries and was in hospital recovering for several weeks. Prior to the accident she led a regular life, working and taking care of her family. While she initially showed signs of improvement, she now does not work and does not do any of her usual daily tasks. The overriding question is whether she has a catastrophic impairment as a result of the accident on account of a mental or behavioural disorder
State Farm argues that though she presents as at least markedly impaired, there is no accident-related mental or behavioural disorder at the root of her impairment.
For the reasons that follow the Arbitrator disagreed.
Though there are some questions of credibility and diagnostic accuracy to be addressed, the preponderance of the evidence indicates that the accident caused Ms. Alper's marked, and therefore, catastrophic, impairment, there being no history of pre-existing conditions or tendencies to malinger.
Ms. Alper has a catastrophic impairment as a result of the accident of February 20, 2003 on account of a mental or behavioural disorder.
This case is not about Ms. Alper's level of impairment. All the assessors agree that she is at least markedly impaired in all areas of function. The disagreement between the parties is about what accounts for Ms. Alper's marked level of impairment.
State Farm argues that while the accident caused Ms. Alper significant physical injury and anxiety and depression, her current presentation is not explained by the effects of the accident. State Farm focuses its evidentiary case on the period of time directly following the accident when Ms. Alper showed improvement, and on her inconsistent reporting of symptoms. State Farm asserts that her marked level of impairment is a manifestation of exaggeration or malingering or of another disorder called factitious disorder.
Ms. Alper argues that she is a completely different person after the accident, severely limited physically and psychologically. In particular, she asserts that (1) it is not uncommon in cases
such as hers to see an initial improvement and subsequent deterioration; and, (2) the improvement was temporary and not a sign that there is some cause for her current presentation other than the accident.
The question before the Arbitrator in deciding this case is: what explains Ms. Alper's presentation? Is her presentation primarily one of a real mental or behavioural disorder or is it malingering as State Farm asserts? If the answer is that she suffers from a mental or behavioural disorder is that disorder on account of the accident?
(i) Ms. Alper's current presentation
As a result of the accident, Ms. Alper required a lengthy hospital stay to recover from significant physical injuries, the nature, severity, and duration of which are not disputed. Ms. Alper's physical injuries have mostly resolved though Ms. Alper continues to suffer from pain.
In addition to suffering from pain, currently Ms. Alper appears to be both physically and psychologically impaired. The preponderance of the evidence is that soon after the accident, following some minor improvement, there has been significant deterioration in both her physical and psychological condition, from which she has yet to recover.
According to the lay witnesses who testified at the hearing, Ms. Alper is no longer the person she used to be.
Ms. Alper's husband and son describe her as impaired in every way. Physically, Ms. Alper does little around the house, for others or for herself. Psychologically, the witnesses describe her as reclusive, unhappy, depressed and overly sensitive. Both her husband and son describe her as a completely different person now than she was before the accident. This drastic change was corroborated by a family friend who testified that Ms. Alper used to be a woman who worked and socialized a great deal, and who got a lot of enjoyment out of life. From their perspective, Ms. Alper has never returned to her pre-accident level of functioning. Ms. Alper testified at the hearing and described her life in much the same way as the other witnesses.
In addition, the voluminous documentary and medical evidence before the Arbitrator corroborates Ms. Alper's current numerous physical and mental impairments.
Therefore, the preponderance of the evidence is that, currently, Ms. Alper is
· depressed, anxious, sleep disturbed and pain-focused
· not working at any job
· unable to adequately take care of herself most of the time
· not meeting most of her responsibilities within the home
· not socializing with friends except occasionally and for very short periods of time
· finding socializing with family difficult
· not tolerating noise and talking
· not walking outside of her apartment without the assistance of a cane or walker
(ii) Ms. Alper's mental or behavioural disorder
In order to qualify for catastrophic impairment designation, Ms. Alper must have a marked impairment on account of a mental or behavioural disorder as a result of the accident.
As indicated earlier, there is very little contention about Ms. Alper's level of impairment: she is recognized as markedly impaired. The Arbitrator found there is also sufficient evidence that Ms. Alper has a mental or behavioural disorder.
Drs. V, R, K and H all agree that Ms. Alper suffers from serious depression and anxiety.
Dr. V, Ms. Alper's family physician since 1991, found Ms. Alper to be suffering from severe depression. Dr. V also noted that she experienced fear and anger - emotional problems that were not evident before the accident. Drs. R, psychiatrist, and K, clinical psychologist, also found a pain disorder and cognitive impairment due to the mild to moderate closed head injury she suffered as a result of the accident.
Other doctors have also noted Ms. Alper's mental disorder. Dr. G, psychologist, found her to have a psychologically disabling condition consisting of high levels of anxiety and psychological depression sufficient to preclude useful functioning in the home, community, and workplace. While he could not provide any DSM IV diagnosis, he found that there were physical bases for deriving and supporting diagnoses involving anxiety and psychological depression representing an AMA Class IV disability.
The reason for Ms. Alper's marked psychological impairment is disputed. State Farm asserts, based on the medical opinions of Drs. H, psychiatrist, and Z, psychologist, that Ms. Alper's psychological and physical presentation are not as a result of the accident but rather (i) a manifestation of malingering, a deliberate attempt to convey symptoms worse than reality for some conscious secondary gain, or (ii) a manifestation of factitious disorder, a condition where the subject consciously misrepresents so that unconscious dependency needs are met.
The Arbitrator found that Ms. Alper's current mental or behavioural disorder is a direct result of the accident, there being no evidence of a similar pre-existing condition, and there being insufficient evidence upon which to find that she is currently malingering, feigning or suffering from factitious disorder.
(iii) Ms. Alper's presentation pre-accident
Prior to the accident of February 2003, Ms. Alper functioned on a high level, working hard and participating in all aspects of her life. The evidence was also that Ms. Alper could generally be described as a healthy person for her age, with some signs of age-related change but nothing that had an impact on her activities of daily life.
Ms. Alper worked at a highly demanding physical job and cared for her family. She was employed on a full-time basis working in a meat packing plant in a job that required a lot of her physical and psychological resources: wakefulness at 6:00 a.m. when she started her shift, strength to lift, and focus and concentration to work with the heavy tools and machinery. At home, she did all of the housekeeping on her own, cared for the needs of her husband and one grown son still living at home, cooked, cleaned and did most of the grocery shopping.
Ms. Alper was an independent participant in her own activities as well. She was self-reliant with self-care. She had several hobbies: knitting, sewing, cooking, and baking (she was known for her cakes). She was a social person, visiting often with friends and attending parties. In general, she was regarded as a cheerful, motivated, and capable person. There is nothing in Ms. Alper's personal history hinting at tendencies to the kind of malingering asserted by State Farm.
Moreover, there is nothing in Ms. Alper's medical history showing a need for significant medical intervention for serious or disabling physical or psychological conditions.
(iv) Ms. Alper's initial improvement followed by a subsequent deterioration is not evidence that she is exaggerating her limitations
Dr. H opined that Ms. Alper's initial post-accident improvement followed by a significant deterioration is not explained by anxiety and depression and is rather an indication that Ms. Alper is a malingerer or is exaggerating her limitations.
The Arbitrator found that the fact that Ms. Alper showed some initial improvement after the accident does not mean she is exaggerating her current symptoms, nor does it negate the accident as a cause for her current disorder and impairments. Moreover, the Arbitrator found that though her improvement was worth noting, Ms. Alper's improvement was in fact not significant enough to indicate that she had recovered from the accident and is currently exaggerating or impaired by some other means. Further, her limited recovery had no momentum. While she initially showed improvement in some areas of function, there was less so in others. It is wholly inaccurate on the facts to say that Ms. Alper's progress was either steady or progressive.
Within six months of the accident, in August 2003 for example, Ms. Alper was described as having made significant progress but was still noted to have the following limitations
· she continued to experience anxiety, dizziness, fatigue and pain, the levels of which varied from week to week
· she still required assistance from her husband with certain personal tasks though she was described as independent with her activities of daily living
· she could only stand and exercise for 15 minutes at a time
· she could walk for only short distances around the apartment with the wheeled walker
Ms. Alper continued to have issues with pain and was herself frustrated by the slow pace of her improvement. The physical/rehabilitation and occupational therapy progress report of November 2003 notes a significant deterioration in Ms. Alper's progress beginning in October 2003 with consistent complaints of pain and a fixation on the neurological symptoms in various parts of her body. The occupational therapist suspected that Ms. Alper was depressed and developing higher levels of anxiety, unable to cope with the symptoms, and wanted to be left alone. The occupational therapist also noted that Ms. Alper frequently expressed the feeling of tiring easily and having no energy. It appeared to the occupational therapist that Ms. Alper's overall strength and endurance had not improved.
Ms. Alper's progress continued to fluctuate. In January 2004, Dr. Z reported that Ms. Alper presented with a notable degree of depressive symptomatology and had not reached pre-injury status. Nevertheless, he felt her prognosis was good and expected that her condition would reach pre-accident status with treatment. At the same time, a rehabilitation consultant who saw Ms. Alper in her home in January 2004 found her able to perform self-care functions but in need of assistance to do most but not all of the household tasks. The consultant also noted that Ms. Alper was very anxious, expressing a great deal of frustration and sadness, and focused on her pain.
When Dr. K assessed Ms. Alper in February 2004 during a neuropsychological examination, he found her extremely depressed and anxious with ongoing pain issues. While not disabled from a neuropsychological perspective, he found that her significant levels of psychological distress were affecting her ability to function in the home and return to any kind of work.
Yet, by September 2004, Ms. Alper appeared to improve again, at least according to ZS, psychologist, who reported in September 2004 that Ms. Alper had responded well to cognitive therapy and pharmaceutical intervention and had reduced depression and anxiety related symptoms by 60%.
By 2006, Dr. D, neurologist, and Dr. G remarked on the presence of a pain syndrome. Dr. G, in particular, found her quite disabled from both a physical and psychological perspective. In early 2007, both of the occupational therapists who examined her found that she exhibited pain focused behaviours and reported dizziness, headaches, pain, agitation, numbness and tingling.
The Arbitrator found that Ms. Alper's functionality following the accident was generally consistent, with initially some improvement but with a continuity of symptoms from day one and deterioration over time. The preponderance of the evidence is that a great number of her limitations persisted and that over time she has deteriorated to her current state.
There was also persuasive evidence before the Arbitrator indicating a reasonable explanation for the change in Ms. Alper's condition. The lay witnesses linked Ms. Alper's apparent significant deterioration, after some improvement, to the attempts to get her out of her home to do physiotherapy in late 2003. Both Ms. Alper's husband and son testified that it was too much effort for Ms. Alper to leave her home for the treatment and she experienced a panic attack. The result was that she was deflated by her failure and became afraid that it could happen again. One of the assessors corroborated this evidence, testifying that it is possible that Ms. Alper came to realize the extent of her post-accident limitations and spiralled down as a result.
Drs. R, K and H testified that such fluctuations are not necessarily significant and are often seen in cases such as these, although Dr. H testified that the extreme change in Ms. Alper's functionality could not be explained thusly.
The Arbitrator found that the evidence does not show an extreme change in Ms. Alper's condition and functionality. Ms. Alper fluctuated between some degrees of improvement followed by worsening of her psychological symptoms in particular.
Moreover, the Arbitrator found that the fluctuating nature of Ms. Alper's level of functionality likely explains the perceived inconsistencies in the reports of her abilities over time. For example, in 2006, Dr. D commented on the fact that her husband reported that she needed constant supervision at times and was relatively independent other times. Dr. K assessed her on three separate occasions, February 2004, January 2006 and June 2007, and found her generally consistent in reporting ongoing pain.
Overall, even though there were some inconsistences in Ms. Alper's and her family members' reports of her symptoms and abilities, in these circumstances, they are not sufficient or of the type to impugn the otherwise consistent and credible accounts.
(v) Ms. Alper's current presentation is not explained by malingering, feigning or factitious disorder
In the same way that the evidence does not support a finding that Ms. Alper's improvement, followed by deterioration, is an indication that she is malingering or exaggerating her presentation, there is not enough persuasive evidence that Ms. Alper's current presentation is explained more generally by malingering.
While both Drs. H and Z opined that Ms. Alper's presentation was not indicative of her true abilities, the Arbitrator found that there is insufficient evidence to support their conclusions that she has factitious disorder, is malingering or is feigning symptoms. Furthermore, the Arbitrator found that her case history and the preponderance of the other evidence support a finding that the accident and its consequences materially contributed to her current limitations and presentation.
Drs. H and Z questioned the accident as the reason for Ms. Alper's presentation, relying heavily on Ms. Alper's test results and her general performance in psychological testing. The Arbitrator found, however, that their own opinions recognize that there could be multiple explanations for Ms. Alper's presentation including the accident and its consequences.
For example, Dr. H agreed that there is depression and, to some extent, vehicular anxiety present with Ms. Alper in part due to the injuries sustained in the accident. Dr. Z also recognized a host of contributing factors in Ms. Alper's presentation:
In sum, Ms. Alper's symptoms and complaints may be influenced by many factors including the headache experience, pain, comorbid psychiatric disorder, medication side effects, iatrogenic factors, litigation stress, and symptom magnification or exaggeration of impairment. To this end, any exaggeration of impairment can occur in relation to multiple factors and serve a wide range of psychological needs, including efforts to legitimize latent dependency needs, resolve pre-existing life conflicts, ... Moreover, a diagnosis of malingering could also be entertained in keeping with the present test findings gathered within the present evaluation, given the context in which the results of any such evaluation, such as the one undertaken here, can result in increased compensation or avoidance of undesirable responsibilities. In sum, all of these factors are equally important when taking the present test findings into account
Further, Ms. Alper's test results were mixed and in some cases she performed within reasonable limits as could be expected by someone suffering from depression. For example, while he detected "near miss" and clearly false responses that are more consistent with factitious disorder and malingering, Dr. H also found that some of her test responses are in keeping with someone suffering from depression:
She expressed her unhappiness with having to have travelled all the way from Mississauga to Bayview and Eglinton for the appointment, and when given the option to re-schedule the appointment for a later date, indicated her desire to carry on only to respond with "I don't know[,]" "I can't remember", or with "near miss" responses, reflective of a lack of engagement in the interview, as can be seen with depressed individuals.
Dr. Z, who conducted a neuropsychological CAT examination over the course of two days in March 2007, found that her scores were below the cut off for malingering and suggested that she was deliberately choosing wrong answers. He found the second measure of dissimulation suspect because of poor performance. He found the easy subtest was valid whereas the total and difficult subtests were invalid. He finally concluded that psychological, including factitious disorder, and motivational issues, including malingering, would appear to be playing a significant role in her presentation. He did not find that these conditions explained the entire picture.
In addition, while both doctors saw a presentation that was consistent with her presentation before other assessors, neither of them assessed the significance of such consistent presentation. For example, Dr. Z noted that Ms. Alper presented as a quiet and uncomfortable individual as if in pain, her mood was notably flat, she spoke little and seldom made eye contact. She told him that she was tired and wanted noise kept to a minimum. He found that her attention, concentration and effort were inadequate to complete the various psychological tests in a single session necessitating two attendances, first for 5 hours and then for a further 3.5 hours. On the other hand, Dr. K testified that though he saw a lack of engagement on her part during interviews and testing, her consistent presentation was unlike that seen with malingering.
The occupational therapist who assessed Ms. Alper in March 2007 concluded that she displayed signs of consistent effort even though she did decline some exercises and movements.
Moreover, Dr. Z's assessment was particular in its scope: to assess whether Ms. Alper's presentation and cognitive limitations were related to the brain injury she suffered as a result of the car accident. He did not assess Ms. Alper's psychological well-being and, in fact, deferred this issue to the appropriate assessor. Because he found her cognitive difficulties were out of proportion with a brain injury of mild severity, he concluded that she was feigning. Dr. Z also found, however, that psychological symptomatology is very much felt to be present and contributory in terms of her overall presentation, although none as a result of brain injury.
Several other of the medical assessors found that Ms. Alper's psychological test scores were unreliable and her performance was problematic. However, none of the other assessors concluded that the main reason for Ms. Alper's presentation was feigning or malingering to any significant degree.
Dr. D, who examined Ms. Alper in March 2006, found no neurological basis for her symptoms of concentration loss, memory loss, etc. He noted that Ms. Alper refused some of the examinations. However, he reported that she had a complex pain syndrome and significant psychological issues in addition to dysesthetic pain syndrome involving both upper and lower limbs.
Dr. K diagnosed a conversion disorder, which is an unconscious attribution of symptoms to trauma.
Dr. G concluded that the exaggerated profile on one of the psychological tests was consistent with severe and persistent pain associated with physical and psychological conditions. Dr. G found her test-taking behaviour problematic and that her test results in 2006 had no clear meaning because she betrayed an over endorsement of symptoms. He reported that her emotional predisposition to over endorse symptoms or express unrealistic symptoms is self-defeating and obscures the physical basis for impairment or disability that can be verified as a basis for pain complaints and psychological difficulties. He concluded that her "over the top" presentation unfortunately obscures a persistent psychologically disabling condition consisting of high levels of anxiety and psychological depression that represents an AMA Class IV disability.
Dr. R testified that malingering could play a role in her presentation but he was not sure about the degree to which it was affecting her presentation. More generally, Dr. R testified that a history of illness is generally significant for factitious disorder and he could not find one with Ms. Alper. She had a stable life prior to the accident and her "psychological roots" were all right. Dr. K also found nothing in her history to which to attribute her impairments other than the accident.
When all of the medical evidence is considered within the context of Ms. Alper's personal and medical history, the Arbitrator found that the preponderance of the evidence supports the finding that Ms. Alper is suffering from a real mental or behavioural disorder as a result of the accident. While there was some evidence of inconsistent reporting and some degree of exaggeration or symptom magnification, Ms. Alper's current presentation and marked impairment is as a result of the accident in February 2003.
Ms. Alper has a catastrophic impairment on account of a mental or behavioural disorder as a result of the accident of February 20, 2003.