March 18, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Sadat and TD General
Date of Decision: January 5, 2018
Heard Before: Adjudicator Jessica Kowalski
CAT IMPAIRMENTS and NEBs: applicant is determined to be CAT impaired; basis of impairment is the hearing loss sufferred but not immediately reported; insurer disputes accident caused hearing loss as no concussion was reported or head injury; onset of hearing loss and reporting delayed by weeks from the accident;
Froghollah Sadat, was injured in a motor vehicle accident on October 20, 2007. He applied for and received statutory accident benefits from TD who paid medical benefits to non-catastrophic limits. Mr. Sadat made an application to TD for a determination of CAT impairment. He has also applied for weekly benefits. TD arranged for Mr. Sadat to be assessed by a team of insurer examiners who concluded that Mr. Sadat was not catastrophically impaired. Mr. Sadat’s assessors reached the opposite conclusion. When the parties were unable to resolve their disputes through mediation, Mr. Sadat applied for arbitration at the FSCO.
- Is Mr. Sadat entitled to a weekly non-earner benefit of $185.00 per week from July 17, 2009 to date and ongoing?
- Did Mr. Sadat sustain a catastrophic impairment as a result of this accident as defined in the Schedule?
- Is Mr. Sadat entitled to housekeeping and home maintenance benefits from October 20, 2007 to date and ongoing?
- Is Mr. Sadat entitled to interest on any outstanding benefits?
- Is TD General liable to pay interest on the AssessNet account from October 2, 2015 to date?
- Is either party required to pay the other’s expenses of this arbitration?
- Mr. Sadat is entitled to a weekly non-earner benefit of $185.00 per week from July 17, 2009 to date and ongoing.
- Mr. Sadat sustained a catastrophic impairment within the meaning of ss.2(1.2)(g) as a result of a class 4 marked impairment due to mental or behavioural disorder.
- Mr. Sadat is not entitled to housekeeping and home maintenance benefits from October 20, 2007 to date and ongoing.
- Mr. Sadat is entitled to interest on outstanding benefits.
- Mr. Sadat is not entitled to interest on the AssessNet account.
- TD shall pay to Mr. Sadat his expenses of this arbitration fixed in the amount of $67,497.07, inclusive of HST, plus disbursements totalling $10,624.47, inclusive of any applicable taxes.
On October 20, 2007, Mr. Sadat’s car was rear-ended by another vehicle while stopped at a red light. He claims that he sustained a labyrinthine concussion in his inner ear that has led to complete hearing loss in his left ear and partial hearing loss in the right. Following the accident, TD funded various treatments including paying for his hearing aids and replacement hearing aids, psychological treatment, as well as treatment with a speech language pathologist, to help Mr. Sadat cope with and adapt to the loss of his hearing. TD ceased funding treatment once Mr. Sadat’s non-catastrophic policy limits for medical and rehabilitation benefits were exhausted. Hearing loss is the primary issue that gives rise to this arbitration and is the primary factor in the emotional and mental health issues that Mr. Sadat has complained of or developed in the ten years since the accident.
TD now raises the issue of whether the accident even caused the hearing loss. Although TD states that there is good reason to question whether the accident caused the hearing loss, it did not call evidence to challenge causation.
Mr. Sadat himself initially did not associate his hearing loss with the accident. He did not report it right away, because the hearing loss was not acute and he was focused on his immediate pain. The ER record noted no head injury and that Mr. Sadat’s presenting complaints were of back, neck and shoulder pain. He was discharged from the hospital with a diagnosis of soft tissue injury and referred to his family doctor for follow-up. His initial complaints to his family doctor were also related to his physical pain.
Mr. Sadat testified that his hearing began to diminish very soon after the accident. He first noticed a problem shortly after the accident when he found some dried blood on a Q-tip. As his hearing decreased in the following weeks, he testified that he thought it was temporary: he thought his ears were just plugging up and gave the example of rapid altitude changes, like sometimes going up or down the Hamilton mountain. He testified that he never thought it would be permanent. He began to report his hearing loss to doctors and assessors in the weeks and months after the accident. About one month after the accident, on November 22, 2007, chiropractor Dr. V conducted an in-home assessment of Mr. Sadat writing that, “Most recently Mr. Sadat has noticed a little bit of hearing loss on his right side and is seeking medical attention for it.”
February 13, 2008, Mr. Sadat had a psychological assessment with a during which he reported a severe headache, decreased hearing in his left ear and feeling like he was going to fall over, but that his family doctor told him to wait a while to see if his symptoms would go away. During a neurological assessment on April 7, 2008 again reported post-accident hearing loss. The report included hearing loss under Mr. Sadat’s post-accident symptoms, noting that Mr. Sadat “continues to complain of decreased hearing in the left ear since the accident.” On May 22, 2008, the family doctor noted that Mr. Sadat reported reduced hearing in his left ear since the accident. There is no note of what, if anything, was done to address Mr. Sadat’s concerns at that time. On October 4, 2010, he was referred to an otolaryngologist.
Mr. Sadat was struggling at work and at home. He returned to work but encountered difficulties as he started getting orders wrong and had to ask people to repeat their orders, to the frustration of customers. The Otolaryngologist noted December 21, 2010 that Mr. Sadat reported that he thought he lost his hearing acutely during the accident and that, over the month following, his hearing declined further. This report is consistent with the earlier assessments closer to the accident
The Adjudicator found that Mr. Sadat’s explanation for why he did not report the hearing loss immediately was reasonable: he felt his ears were plugged and that it was only temporary. The Adjudicator also found that a one month delay in reporting the hearing loss of one month not to be significant, or that it is not unreasonable that Mr. Sadat did not expect that he would go deaf.
After an examination December 21, 2010 the otolaryngologist wrote that he suspected Mr. Sadat’s hearing loss to be secondary to head trauma with a cochlear concussion. He described the labyrinthe as the inner ear system that contains the cochlea, and that a cochlear concussion occurs in the inner ear where the cochlea, which contains the organs and fluids that enable a person to hear, shakes, causing hearing loss by breaking the hair cells responsible for picking up sound. He distinguished this type of concussion from a brain injury because it occurs in the inner ear and not the brain. Most notably, Dr. Archibald (who testified as an expert in otolaryngology) testified that this type of inner ear concussion can occur without significant trauma. He testified that he could find no reason for Mr. Sadat’s hearing loss besides the accident.
Based on the evidence the Arbitrator concluded that the accident caused a concussion in Mr. Sadat’s inner ear that led to his complete hearing loss on the left side and significant partial hearing loss on the right.
The Schedule provides for the payment of non-earner benefits (“NEBs”) where an insured claimant who sustains an impairment as a result of an accident suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
Mr. Sadat’s impairment is permanent and there currently exists no surgical or other intervention that can restore Mr. Sadat’s hearing. In 2011, Mr. Sadat was fitted with a bi-CROS hearing aid which reroutes sound from the left ear to the right ear, and also amplifies sound to the right ear.
Beause of the accident, Mr. Sadat has permanently lost one of the most fundamental components of daily living – the ability to listen and receive and share in everyday communication.
Mr. Sadat was a hardworking individual who was working two five to six days per week before the accident. Mr. Sadat returned to work three months after the accident but struggled with customer interaction because he misheard them. His hours decreased but he enjoyed good relations with the franchise owners, who tried to accommodate him. Later though new owners took over the company who were unwilling to accommodate his hearing impairment. He testified that the previous owners hired him to work at their gas station business, doing stocking and inventory – work that did not require customer interaction – but he was eventually terminated after about a year.
He continued to work at the used car lot, and in mid-2012, the owner bequeathed the business to Mr. Sadat. He changed the name to Sadat Auto Sales which he continues to own and operate. Income tax returns for the business show steady growth in inventory and sales year over year.
The Adjudicator found that Mr. Sadat’s ability to return to work and to operate his business is owed entirely to his reliance on hearing aids, and to the treatment he has received since the accident. Even with the hearing aids, Mr. Sadat struggles with outside noise on the car lot, has less interaction with customers and buys most of his used cars online without inspecting them because he can do it from the quiet of his office.
By all accounts, Mr. Sadat had an ordinary, busy work and home life with a wife and five children. The hearing loss has affected Mr. Sadat’s entire family. Mr. Sadat went from being active, engaged, happy and helpful to moody, withdrawn, irritable and quick to anger. He has become intolerant of the noise made by his children, is overwhelmed by too much noise and often isolates himself by retreating alone to his room. He began seeing a psychologist continuously funded by TD until recently, when TD advised Mr. Sadat that his policy limits had been exhausted. The psychologist continues to treat Mr. Sadat without charge out of concern that without treatment, Mr. Sadat’s symptoms will regress.
Based on all of the evidence the Adjudicator found that Mr. Sadat has proven entitlement to NEBs.
Mr. Sadat’s CAT assessors calculated his whole person impairment (WPI) rating to be 55%. TD’s assessors concluded it to be 31%. Both CAT teams agreed that Mr. Sadat had a Class 3 Moderate Impairment in the area of Concentration, Persistence and Pace.
On the totality of the evidence, the Adjudicator found that Mr. Sadat’s primary impairment is the hearing loss and the consequences that arise from it. The most significant of these are psychological and affect his ability to function in every aspect of his life.
The Adjudicator reviewed the totality of the medical assessments for the CAT impairment and preferred Mr. Sadat’s assessments. The Adjudicator disagreed with TD’s submission that, although Mr. Sadat’s hearing loss creates some difficulties for him in some situations, the fact that he has learned and employed a number of strategies to address these problems does not support a finding that these issues significantly impede Mr. Sadat’s ability to interact appropriately and effectively with other individuals.
On the basis of the evidence, the Adjudicator found that Mr. Sadat has a marked impairment in Social Functioning and that he is therefore catastrophically impaired as a result of this accident.