February 19, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Arbitrator Irvin H. Sherman, Q.C.
Date of Decision: February 1, 2016
Ms. Michaela Vandergaag was hurt in a car accident on January 4. 2007. She was the 8 year old passenger in a car driven by her mother that crashed in a serious one car collision at 80km/h. It is undisputed that Ms. Vandergaag suffered significant and severe injuries in the car accident. Ms. Vandergaag was using a lap belt at the time of the accident during which time she hit her head on the console. She suffered from a fracture of her lower spine, a fracture of her left elbow, bruising to her lower pelvis and a large laceration on her forehead extending along her eyebrows that required 45 stitches to repair. She has a facial scar and paralysis.
She sought accident benefits from Aviva. When mediation failed Ms. Vandergaag applied for arbitration of her claims at the FSCO.
The issues in this Hearing are:
Did Ms. Vandergaag sustain a catastrophic impairment as a result of the accident within the meaning of the Schedule'?
Is Ms. Vandergaag entitled to receive a rehabilitation (medical) benefit in the amount of $7,770.68 for a Treatment and Assessment Plan?
Is Ms. Vandergaag entitled to interest for the overdue payment of benefits?
Ms. Vandergaag sustained a catastrophic impairment.
Ms. Vandergaag is entitled to receive a rehabilitation (medical) benefit in the amount of $7,770.68 for a Treatment and Assessment Plan.
Ms. Vandergaag is entitled to interest for the overdue payment of benefits.
EVIDENCE AND ANALYSIS:
Immediately following the accident Ms. Vandergaag was taken to Stratford Hospital with a GSC reading of 15/15. She was airlifted shortly afterward to London. She claims to remember the transit. She had two surgeries to repair her elbow and remained in a body cast for four months. She was transferred to the Acquired Brain Injury Team (ABI) while at the hospital. She spent one week in the hospital and returned to grade three after four months.
Before the accident Ms. Vandergaag had a happy and bubbly personality. She played with her friends, enjoyed ballet, and was confident and self-assured. She enjoyed going to school. She had been assessed by a school board educational psychologist who in a report written about three months before the car accident, stated that Ms. Vandergaag's working memory was assessed as being at the high end of the borderline range. Her working memory was adequate for problem solving with one or two-step problems, however more complex problem solving overwhelmed her. Ms. Vandergaag's processing speed was assessed as being at the low range of average. She had been assessed for speech and language issues in Junior Kindergarten and was noted to have difficulty with change, and lacking in independence as a learner. She was placed in the Strong Start Program in JK and had an educational support worker. In Grade One she required teacher support and special Education withdrawal support. By the end of Grad One she had an IEP in Math and had was assessed to have mild language impairment.
In Grade Two, Ms. Vandergaag was given an IEP as well as a host of accommodations that involved the use of several teaching strategies. She received speech and language instructions. Her Grade Three assessment noted that she had made slow progress as a learner despite of the special education support, and demonstrated the intellectual potential for future academic success in the low average range compared to others her age. The Grade Three assessment recommended that Ms. Vandergaag's strength with social skills should continue to be encouraged through opportunities for leadership within the school. She clearly can be a model for others for friendliness and enthusiasm.
MS. VANDERGAAG- AFTER THE ACCIDENT
Ms. Vanderwaag described her life as “It went downhill for me” after the accident. Ms. Vandergaag experienced bullying and teasing from her peers (especially the female students) over her scar and her subsequent weight gain. She was sometimes looked upon by her peers as being the victim in a prank. As a result of one school prank, Ms. Vandergaag became lost, which raised concerns for her safety. She would sometimes phone home faking illness. She no longer enjoyed school as she had.
Ms. Vandergaag's parents gave credible evidence at this Hearing. They corroborated the evidence relating to the bullying and teasing. They stated that Ms. Vandergaag had difficulty following more than one step commands. She required daily reminders about basic activities like taking a shower or brushing her teeth. She was poorly organized, had difficulty setting a table or in putting her clothes away when she returned home from school. Ms. Vandergaag did not pursue ballet after her accident because of her back surgery and because of her inability to remember the ballet steps. Her mother said Ms. Vandergaag was often depressed and lacked self-confidence. Ms. Vandergaag considered herself ugly and had few friends. She was fearful of seeing her doctor and of needles. Her pre-existing learning difficulties deteriorated and her reading skills diminished. She has difficulty turning door locks which concerns her parents in case of emergency.
This testimony was corroborated by an educational counsellor who also testified about Ms. Vandergaag's fear of driving, her having nightmares and her desire to get rid of scary thoughts. She felt sad, and disappointed, and became concerned about losing her friends.
At the time of the hearing she was in the Fast Forward Special Ed program that consisted of Ms. Vandergaag attending a smaller sized classes supported by one teacher and three teaching assistants. Ms. Vandergaag takes academic courses and courses in life study. She functions at a Grade 3 level for reading where she could complete 75% of the curriculum. She is at a Grade 4 - 5 level for math where she can complete 50% of the curriculum. She is at a Grade 7 level for science and geography where she could complete 50% of the curriculum.
She is participating in a Co-Op Work Program at a location near her high school so she doesn’t have to take a bus risking getting lost. She has a support worker once a week. She still requires reminders and cueing regarding certain aspects of daily living such as applying makeup and brushing her hair. She has memory troubles. Ms. Vandergaag is no longer on medication. She no longer is bullied, but likes to be alone to play guitar and spend time on her computer.
Ms. Vandergaag submitted that she meets the definition of catastrophic impairment under the Statutory Accident Benefits Schedule (SABs). She submitted psychological assessments and subsequent reports supporting her impairment.
Aviva disputes that Ms. Vandergaag is catastrophically impaired as a result of the car accident and submitted its own reports. Aviva acknowledged her severe injuries in the accident, but submits that the mental and behavioural issues identified in her psychological reports arise from her learning disability which predated the accident. They argue that Ms. Vandergaag is in the trajectory that she could expect for a person her age who suffers from this learning disability.
The Arbitrator noted that Ms. Vandergaag has significant support structures in place in school where she is functioning well below grade level. She also has the assistance weekly of a rehabilitation specialist. More supporting structures remain in place eight years following the date of the car accident than there were pre-accident.
The Arbitrator found that Ms. Vandergaag suffered a behavioural disorder as a result of injuries sustained in the car accident.
The Arbitrator reviewed the law, the testimony of witnesses, and the medical evidence, and concluded that Ms. Vandergaag suffered marked deterioration in working memory and processing speed in the years following the accident. This is consistent with a traumatic brain injury (particularly in a child) as the latter is most susceptible, of the intellectual indices, to traumatic brain injury. Working memory is also at risk following traumatic brain injury (particularly where there is frontal lobe involvement). Ms. Vandergaag’s performance on the memory battery indicated problems isolated to the attention/concentration index (although the learning index was low average).
In his summary the Arbitrator noted that predicting clinical outcomes in children after TBI is highly variable and needs to combine different complex aspects of each case such as the child's pre-injury global psychological state and support after the injury. Behavior, family support, and the economic status of the family is of concern.
The Arbitrator found on the balance of probabilities that the car accident materially contributed to Ms. Vandergaag's brain impairment that results in a severe disability. She meets the definition of catastrophic impairment under ss. 2(1.2)(e) of the Schedule.