March 31, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
IS INSURED CATASTROPHICALLY IMPAIRED - insured fails to establish class 4 or 5 impairments; insured fails to establish 55% WPI
Fallahi and Aviva
Date of Decision: February 14, 2017
Heard Before: Adjudicator Edward Lee
Mohammad Fallahi was hurt in a car accident on August 1, 2008. He applied for and received statutory accident benefits from Aviva payable under the Schedule. Mr. Fallahi also sought a determination that he was catastrophically impaired. When the parties were unable to resolve this dispute through mediation Mr. Fallahi applied for arbitration at the FSCO.
- Is Mr. Fallahi catastrophically impaired in that he suffers a class 4 or 5 impairments due to mental or behavioural disorder?
- Is Mr. Fallahi catastrophically impaired in that he suffers an impairment or combination of impairments that, in accordance with AMA Guides, results in 55 percent or more impairment of the whole person?
- Mr. Fallahi is not catastrophically impaired in that he does not suffer an impairment that, in accordance with the AMA Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
- Mr. Fallahi is not catastrophically impaired in that he does not suffer an impairment or combination of impairments that, in accordance with AMA Guides, results in 55 percent or more impairment of the whole person.
EVIDENCE AND ANALYSIS:
Arbitral case law has determined that to be catastrophically impaired under this criterion, the applicant needs to have suffered a marked or extreme impairment in at least one of the four areas of functioning listed in the AMA’s Guides to the Evaluation of Permanent Impairment. These four areas or aspects of functioning are as follows: Activities of daily living, Social functioning, Concentration persistence and pace, and Adaptation.
The Arbitrator reviewed the medical evidence provided by the applicant and Aviva and determined that both assessors arrived at similar diagnoses for Mr. Fallahi. Dr. BD diagnosed him with Major Depressive Disorder, Single Episode, Moderate to Severe, Anxiety Disorder Not Otherwise Specified, and Pain Disorder Associated with Both Psychological Factors and a General Medical Condition at the present time. Dr. G diagnosed Mr. Fallahi with Depressive Disorder Not Otherwise Specified (Differential diagnosis: Major Depressive Disorder, single episode chronic), Pain Disorder Associated with both Psychological factors and a General Medical condition, Anxiety Disorder Not Otherwise Specified (features of PTSD) and Specific Phobia.
The experts’ assessments of Mr. Fallahi’s impairments under the four areas of functioning described in the AMA Guides were also similar, but with one significant difference – the severity of impairment. According to Dr. G, Mr. Fallahi had not suffered a marked or extreme impairment in any of the four aspects, and accordingly, he was not catastrophically impaired in this category. Dr. BD’s opinion was more equivocal. The significant departure was in her conclusion in regard to Adaptation, where Dr. BD determined Mr. Fallahi’s impairment was “at times as low as class 3 and at other times as high as class 4.” Dr. BD never expressly opined that Mr. Fallahi was catastrophically impaired under this category. In her Addendum Report, she stated that it was up to the trier of fact to determine if her assessment under the Adaptation category was “sufficient to meet the threshold for Catastrophic Impairment.”
The Arbitrator examined the testimony of the physicians and determined that overall, Dr. G’s opinion was more convincing and probative than the opinion of Dr. BD. I make this determination for the following reasons:
- Dr. BD’s ambiguous and equivocal determination in Adaptation - the probative value of her report was generally weaker because much of it was predicated on an erroneous factual base. Mr. Fallahi had not been working at the time of the accident, nor had he returned to work as he stated. Mr. Fallahi had also given poor testimony regarding his personal relationships to Dr. BD. Dr. BD also lacked the functional evaluation report at the time of her assessment.
The Arbitrator found that these problems in the factual base applied by Dr. BD, and the lack of any objective verifiable evidence regarding Mr. Fallahi’s actual functional capabilities detracted from the probative value of her reports and evidence.
In contrast, Dr. G did have the benefit of an occupational therapist’s report that assessed Mr. Fallahi’s functional abilities for approximately nine hours over the course of two days. During that period, Mr. Fallahi was observed and evaluated by a trained occupational therapist on community outings, interacting with third parties, and while performing tasks required by the assessor. Dr. G applied those findings in making his conclusions in the Adaptation and other categories. The Arbitrator found the report and evidence of Dr. G reasonable and well-founded.
On the basis of the evidence the Arbitrator found that Mr. Fallahi is not catastrophically impaired in regard to his mental and behavioural disorders.
The Arbitrator then addressed the second question, do his impairments combine to meet the threshold for catastrophic impairment. For Mr. Fallahi to succeed under this section, he must prove he has suffered an impairment or impairments due to the accident which provide a combined or final Whole Person Impairment rating (WPI) greater than 55% or more impairment of the whole person.
The parties agreed that Mr. Fallahi had suffered some impairments due to his accident. The Arbitrator reviewed the medical evidence and determined that when all of the values of impairment were combined they were 31% WPI which falls far short of the 55% required. On that basis, Mr. Fallahi is not catastrophically impaired.