October 19, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard before: Judith Killoran
Decision date: October 2, 2013
DB was injured in a car accident in 2008 when an oncoming truck lost control and hit her vehicle head on. The airbag deployed and the brake exploded beneath her foot. She sustained injuries to her neck, back, ankles, knees, and shoulders. A pylon fracture to her tibia with a broken fibular crown required 5 surgeries, and it became infected. She took daily doses of opioids for the pain of her injuries and headaches. An old hernia recurred after the accident.
Currently amputation of the leg is recommended, but DB has declined to follow medical advice as she cannot afford prosthetic and physiotherapy costs. She fears she will be unable to walk post amputation.
DB has a previous accident in 2008 from which she testified she had fully recovered.
DB has applied for CABs (catastrophic accident benefits) which are defined by a combined impairment of the whole person (WPI) of greater than 55%. Economical takes the position that that under the Guides her injuries range below the 55% threshold. Economical argued that to be wheelchair dependant DB must be paraplegic or quadriplegic. No such requirement is found in the guides. Upon examination by the DB’s medical experts she has been found to have no mental/behavioural impairment under the DSM IV.
DB has argued that Economical’s position to assess her using the Gait Derangement Table as the equivalent to an amputee is incorrect. She claims she is wheelchair dependant which results in an 80% WPI. All of DB’s assessors found her credible and reliable. The Arbitrator did as well.
DB lives in a 2-storey townhouse with 15 stairs. She is in her mid-fifties and is morbidly obese, weighing in excess of 330 lbs. She uses various assistive devices to help her up the stairs, into bed, and in the bathroom. She uses a 4 point walker to navigate her home. She testified she is sad and depressed, and socially isolated. She feels useless and doesn’t get out of bed. She feels like a prisoner in her own house. She eats for comfort and does not get any exercise to get her weight down. She testified she spends 99% of her day in a wheelchair.
DB was assessed by Dr. B and a medical team, both in office and in her home. They concluded that when all impairments are combined she has a 41-55% WPI. Dr. B also made an interesting observation that if the WPI of 10% for Class I or II impairment were included and the Class II impairment for the hernia accepted her combined impairment range would exceed 55%. Were she found wheelchair dependant her WPI would be 80%. Dr. B suggested that amputation may not be ideal as DB would likely become entirely wheelchair dependant. Dr B also found the recurrence of the hernia as consistent with the lap belt forces during impact.
Dr. B pointed out that Chapter 2 of the Guides specifies that whether someone does or does not have surgery should not affect their rating. No doctor, insurer, arbitrator or judge can dictate to DB that she have an amputation as a remedial procedure. DB had 5 remedial surgeries as a result of the accident and has suffered from the non-union of a fracture. There is no assurance that DB will increase her mobility post-amputation.
DB was also examined by Dr. P. who suggested DB have the amputation as she would be more mobile, walk unaided, and could exercise. Alternately he suggests that she should be using a single point came and stabilization for the leg such as an air cast or brace. He would assess her with a 30% WPI requiring a short cast. He did not support her designation as wheelchair dependant, and speculated her WPI would be decreased with amputation. He did not conduct a thorough in home examination, nor a thorough examination in his office as DB could not mount the examination table. He dismissed the hernia as not being related to the accident.
Both experts noted knee damage consistent with the car accident.
In the end Arbitrator Killoran preferred the evidence of Dr. B and his medical team as being most thorough and balanced. Arbitrator Killoran ruled that DB satisfies the definition of ‘Catastrophic Impairment”.