April 09, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: January 29, 2016
Heard Before: Adjudicator Stuart Mutch
Segrid Cumberbatch was a busy 34 year old pregnant woman. She was employed full time, heavily involved in her church attending twice weekly, an active volunteer, and socially active as well. She had just completed to semesters of night school and also did clerical work for her husband’s company. She was happy and fulfilled.
On May 22, 2008, she was a passenger in the front seat of a car that was in an accident. After the the car accident Mrs. Cumberbatch was in shock and felt disoriented. She was concerned about her unborn child. She was taken to hospital where she was told the fetus was unharmed. She was given a prescription and referred to physiotherapy. In her testimony, she stated that she returned to the hospital after trying to work for one day because she was in “excruciating” pain. She testified she has daily pain in the head, neck, and shoulder which sometimes radiates into her hand and elbow. She also mentioned pain in her stomach, arms and knees. She is depressed, lacks motivation and avoids social situations. She has trouble concentrating and remembering things.
As a result of her injuries from the car accident she applied for benefits from the Guarantee, but when disputes arose as to her claims, and the parties were unable to resolve their disputes through mediation, she applied for arbitration at the FSCO. She has not had paid work since the accident, she quit her volunteer activities, stopped going to church for 4 years and is irregular since then. She is unable to help with her husband’s business. She now stays home and takes care of her son. She claims she struggles to initiate and complete household tasks and she is inconsistent in her self-care with regard to such things as bathing, washing her hair and brushing her teeth. Mrs. Cumberbatch testified that she cannot function “day to day” without the support of a psychologist, a marriage counselor, physiotherapist, chiropractor and a speech pathologist.
The sole issue in this hearing is whether Mrs. Cumberbatch sustained a catastrophic impairment due to a mental or behavioural disorder, as a result of the accident. The issue boils down to the degree of impairment Mrs. Cumberbatch suffers in the adaptability domain. Mrs. Cumberbatch’s expert says it is a marked impairment, Guarantee’s expert says it is a moderate impairment.
Mrs. Cumberbatch is catastrophically impaired, as defined in the Schedule.
The Arbitrator reviewed the definition of Catastrophic Impairment as set out in the Schedule, and the evidence provided. It has been well-established that an insured person need only demonstrate a marked impairment in one of four categories of function set out in the AMA Guides in order to be found to be catastrophically impaired.
The Arbitrator concluded that on the basis of the extensive medical evidence there is no question that Mrs. Cumberbatch suffers from a mental disorder, as required by the CAT definition. The question is the degree to which she is impaired. The Arbitrator considered the before and after of Mrs. Cumberbatch’s situation. She gave evidence that prior to the accident, it was her plan to be a “working mom” and to have her own bookkeeping and accounting business. She had a solid work history up until the accident and the Arbitrator found it more likely than not that she would have resumed some kind of paid work at some point after the birth of her son. It was also apparent throughout her evidence that Mrs. Cumberbatch’s religious faith is very important to her. While she might have had to reduce or eliminate her volunteer activity for a period, the Arbitrator found that, on the balance of probabilities in the absence of the accident, Mrs. Cumberbatch would have resumed regular attendance at church services shortly after the birth of her child.
The Arbitrator also noted that there is a great deal of overlap in the categories of impairment set out in the Guides, and that it can be difficult to precisely distinguish between “moderate” and “marked” impairment as they are part of a continuum. After considering all evidence and testimony the Arbitrator found that Mrs. Cumberbatch is significantly impeded in carrying out her self-care tasks in a routine and regular way.
He agreed that Mrs. Cumberbatch is not managing her household duties in a competent manner. He also concluded, based on the evidence that her marital difficulties appear to be caused by the car accident. She stopped attending church and volunteering. The Arbitrator found that she is significantly impeded in maintaining continuing social relationships. The Arbitrator found that Mrs. Cumberbatch is significantly impeded in adapting to the stressful circumstances of caring for her son.
The Arbitrator noted it was significant that Mrs. Cumberbatch, who had a very solid employment history, and who testified she enjoyed her work, has been unable to return even in a limited capacity. With regard to paid employment and in assisting her husband in his business, the Arbitrator found Mrs. Cumberbatch was a motivated individual who was diligent in her work and who was making an effort to upgrade her skills. He found she is now significantly impeded in those activities.
The Arbitrator concluded by noting the fact that the bulk of the evidence shows that Mrs. Cumberbatch, despite having the support of her husband and a variety of treatment providers, is impeded in her day to day activities and in what ought to be regular, routine activities. On this basis he ruled that Mrs. Cumberbatch has suffered a marked impairment and is, therefore, catastrophically impaired within the meaning of the Schedule.