November 15, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: August 15, 2014
Heard Before: Adjudicator Marvin Huberman
REASONS FOR DECISION
D.M. was injured in a car accident on February 22, 2008. She had an extremely troubled and abusive childhood. At the time of the accident, D.M. had worked for McDonald’s for seven years and had been a manager with that company for five years. She applied for and received statutory accident benefits from Portage payable under the Schedule. Issues arose between the parties concerning DM’s entitlement to certain statutory accident benefits and DM applied for arbitration at the Financial Services Commission of Ontario.
The issues in this Hearing are:
Did DM sustain a catastrophic impairment as a result of the car accident?
Is DM entitled to a medical benefit in the amount of $2,164.02 for physiotherapy?
Is DM entitled to a special award under?
Is either party required to pay the other’s expenses of this hearing?
DM sustained a catastrophic impairment as a result of the car accident.
DM is not entitled to a medical benefit in the amount of $2,164.02 for physiotherapy.
DM is not entitled to a special award under the Insurance Act.
If the parties are unable to resolve the issue of expenses, either party may make an appointment with the Arbitrator to determine the matter.
EVIDENCE AND ANALYSIS
Before the accident, D.M. was diagnosed with ADHD at the age of 12. Depression had been a problem. She had been diagnosed with borderline personality disorder. Her past medical history is remarkable for alcohol abuse, heart murmur, head injury with concussion, migraines, bilateral pleural effusions, obesity, polyps, gastritis, GERD, asthma, pyloric sphincterotomy and cholecystectomy. During her childhood, she struggled with Attention Deficit Hyperactivity Disorder, Borderline Intellectual Functioning and Learning Disorders. She began drinking and using drugs. She received counselling on numerous occasions. There is a history of suicidal ideation, attempts to commit suicide in childhood, self-injurious behaviours and an apparent brief psychotic episode in 2006.
She stopped drinking and using drugs when she started going to church in 1996 or 1997. She underwent gallbladder surgery. Until the accident, D.M. did not require hospitalizations for psychiatric problems.
Despite her physical and emotional problems at that time of the accident, D.M. was working full time as a manager at McDonald’s.
Four months prior to the accident she had been admitted to the hospital with abdominal pain due to gallstones. A consulting physician noted that she did not manifest symptoms of major depression or anxiety, nor was there symptoms of fibromyalgia which was noted in her chart. DM claimed she works as a manager at McDonald’s, she loves her job, and loves life and is frustrated by lack of any progress in alleviation of her pain. The doctor continued to note that her mental status is “of an obese young woman who is pleasant, smiling, not depressed, not suicidal. No morbid ideations, no hallucinations, delusions, no obsessive compulsive traits, alert oriented, insight is adequate. This lady does not manifest any symptoms of major depressive illness or psychosis. She claims her sleep is disturbed by pain. Suggested fluvoxamine 50 mg h.s. There is no indication for further psychiatric intervention.”
On February 2, 2007, while snowboarding with her father, D.M. sustained a head injury. The next day, D.M. attended the Emergency Clinic and was seen in the Emergency Department, complaining of a head injury, headaches, nausea and vomiting. D.M. did not suffer a loss of consciousness but was diagnosed by the attending physician as having retrograde amnesia. D.M.’s snowboarding head injury went untreated, and she thereafter began to experience headaches which she interpreted as migraine in nature. By July 2007, D.M. was taking medication for what she interpreted as migraine headaches. At that time, she was experiencing abdominal pain.
On August 28, 2007, D.M. underwent gallstone surgery. She continued to experience problems with fever, vomiting and nausea, which ultimately led to a stomach endoscopy, which was normal. By September 2007, D.M. was continuing to complain of abdominal pain and “behaviour [that is] somewhat strange”. She also experienced dizzy spells in September 2007. A CT scan of the head was arranged by the Hospital. 5 months pre-accident D.M. underwent a CT scan of the head. According to Dr. Gordon Cheung, a Neuroradiologist, the CT scan revealed cerebral atrophy, which is unusual in an individual who is 23 years of age. The most common cause of cerebral atrophy at the age of D.M. is substance abuse. The most common substance abused is alcohol. Abuse of cocaine or heroin can also cause cerebral atrophy.
On September 21, 2007, the next day after the CT scan, D.M. complained of excruciating pain. A CT scan revealed nothing wrong with her bowel. By September 2007, the nurses at the Alliston Hospital noted that D.M. claims to be in pain but y raised the question whether malingering was possible. By the end of September 2007, D.M. continued to complain of headaches and dizziness. In a note dated October 31, 2007, D.M.’s family doctor, reported that D.M.’s pain was gone; she still looked very depressed; she was on multiple medications, including SSRI (antidepressant) and morphine; and that a follow up with specialists in Newmarket should be made; supportive care would be provided to D.M. pending the follow up in Newmarket.
In a Consultation Report, dated November 1, 2007, Dr. J noted that D.M. was just discharged home on October 29, 2007 following extensive GI workup for this abdominal pain. D.M. had several tests and procedures completed. Some findings were made regarding her GI health. D.M. presented to the Emergency Room on October 31, 2007 with concerns of recurrent abdominal pain and feeling like fainting. D.M. had been to see her family doctor earlier in the day and he recommended that she come to the Emergency Room. D.M. was reassured that there was a fair amount of deconditioning from her seven weeks in hospital and that it would take time before she returned to baseline. If D.M.’s symptoms spiraled out of control, she would return to the Emergency Room for reassessment.
In a Consultation Report, dated November 8, 2007, Dr. N noted that D.M. had been in and out of the Southlake Regional Health Centre for the past number of months, claiming that the pain was the same and has not disappeared and that she did not think it was in her head. He would ask one of the gastroenterologists to see D.M. and hopefully some answer would be found as to whether this was drug seeking behaviour or some sort of a depression or whether there was truly an organic problem going on. In the Discharge Summary, dated November 12, 2007, it was noted that D.M.’s urine was positive for benzoyl, opiates, marijuana, and TCA. Two of these positivities in the urine were explainable; the other two were not. D.M. had “denied totally initially, but then I mentioned about the urine drug screen. She got extremely upset and angry.” D.M. was discharged willingly from the hospital and Dr. N recommended her to follow up with Dr. T, a gastroenterologist, and her own doctor.
From approximately November 23 through to December 9, 2007, D.M. spent over two weeks vomiting, resulting again in an emergency attendance at the Alliston Hospital. In a letter dated January 2, 2008 (approximately 7 weeks pre-accident), Dr. F wrote to Dr. T of the Gastroent Clinic of Huronia, as follows:
Have to admit that [D.M.] prior to her Cholecystectomy was rarely seen and was always easy to deal with and a very pleasant girl. During her stay(s) in SMH there were certainly some bizarre behaviour observed by nurses and doctors alike. I wonder if there is an element of ‘Personality Disorder’, however, I am a little concerned that I might be missing something strange. I have arranged a Psychiatric consultation but I would appreciate if you would take a further look and make any suggestions that you might have. I appreciate your help to date with this patient.
Dr. F’s referral at that time was to Dr. S, psychiatrist, who did not assess D.M. until April 30, 2008 (two months post-accident).
The 2008 Accident
On February 22, 2008, D.M. was injured in a single vehicle automobile accident. D.M. was seat-belted and driving along an icy road when she lost control of her car, a Ford Escort. The front end of her car slid under the guard wires, striking and destroying four poles. As her car came to the end of the guard wire, the front end became trapped and the rear of her vehicle swung in a clockwise direction onto the roadway. The “Jaws of Life” were used to remove D.M. from her car and she was airlifted to Sunnybrook Hospital in Toronto, Ontario.
The Ambulance Call Report describes the heavy damage to D.M.’s car. The ambulance attendants had to wait at the scene until D.M. could be extricated from her car. That report notes that while D.M. was alert and oriented, she presented as being very anxious and complained of pain to her left leg, pelvic area and the back of her head. A further note in the report indicates that the ambulance attendants had difficulty assessing D.M. due to her anxiety.
Dr. C, the Emergency Room doctor reported that the circumstances surrounding the incident were unclear but D.M. did not have full recall of events of the incident. However, she was conscious when assessed by a paramedic crew. Upon arrival in the Trauma Room at Sunnybrook Hospital, D.M. was conscious with a GCS of 15 (normal) and had no neurological deficits. She was able to recall her name, birth date, address and the name of her doctor, who she saw within the last week; but D.M. could not remember the events of the incident. CT examination of D.M.’s abdomen was reported as normal, aside from a single left transverse process fracture of her thoracic spine. She complained of bilateral lower extremity pain but had full range of motion and had no fractures on radiologic imaging. CT examinations of D.M.’s head, D.M.’s chest and abdomen were normal, aside from the transverse process fracture that had been previously noted. CT examination of D.M.’s pelvis was normal. Her cervical, thoracic and lumbar spines were cleared clinically and radiologically. D.M. was discharged from the Emergency Department the same day into the care of her mother.
D.M.’s Medical Condition after the Accident
On February 26, 2008, D.M. saw her family doctor complaining of vomiting, abdominal pain, dizziness and sleep disruption. On February 29, 2008, D.M. returned to see her family doctor, complaining of tinnitus in both ears, headaches, back pain, neck pain, chest pain, bruising to the right side of her head (front and back) and left hand tingling. He noted that D.M. was crying and anxious as she recounted her injuries. The Doctor completed an OCF-3 (Disability Certificate) for D.M.’s insurer, dated February 29, 2008. D.M. saw him again on March 14, 2008, complaining of tingling in her left arm, pain in her shoulder, headache and stiffness in her neck.
D.M. next saw her family Doctor on April 9, 2008, with low, throbbing back pain, ongoing headaches and difficulty sleeping. On April 15, 2008, the family doctor saw D.M. and noted her minor concussion from her car accident of February 22, 2008 along with her complaints of low back pain, bilateral ankle sprain, whiplash, poor sleep and abdominal pain.
After the accident, D.M. attended physiotherapy at Alliston Physiotherapy Clinic and missed some time from work during which she was paid income replacement benefits. D.M. then advised the insurer, Portage, that she had returned to work. Portage confirmed with the treating facility that D.M. had completed her treatment and had been discharged.
D.M. and her parents agreed that D.M. would try to leave home and live on her own at the age of 25. D.M.’s birthday was April 28, 2008 (2 months post-accident). D.M. did not know where she was going to live. On April 30, 2008, D.M. was assessed by Dr. S, a psychiatrist, to whom D.M. was referred by her family doctor pre-accident. In his report, Dr. S noted that D.M. told him that:
She has had several medical issues;
Her mood tends to be up and down and she admits to crying easily and of being emotional;
She felt hopeless, useless and worthless at times but this lasted only for about a couple of days;
She denied any suicidal ideations or plans;
Her self-esteem was decreased and she said that her self-confidence was low;
She has a lot of problems with initial insomnia and stated that it took her anywhere from 4-6 hours to fall asleep;
Her concentration was bad;
She did not experience any anxiety or panic attacks;
She did not suffer from paranoia or delusional thoughts;
She did not have any hallucinations;
She did not have any obsessional thoughts or compulsions;
Since the surgery, she has had chronic abdominal pain and also excessive vomiting from time to time.
Dr. S observed that on mental examination, D.M. denied any suicidal ideations or plans and he did not feel that she was at risk of deliberate self-harm. He noted that there was no evidence of any formal thought disorder, delusional thinking or perceptual abnormalities. She was well-oriented in time, place and person and there was no evidence of any cognitive impairment. She appeared to have partial insight. He could find no evidence of an underlying mental disorder and although it was possible that D.M. might have a Personality Disorder, he was not very sure about this.
From May 24 to May 28, 2008, D.M. was hospitalized for abdominal pain, nausea and vomiting.
D.M. next saw the family doctor on June 6, 2008. In his notes, the family doctor recorded that D.M. advised that she had been hospitalized a week or so before this attendance for four days with abdominal pain but no reason for the pain had been determined during her hospital stay. The family doctor noted that D.M.’s symptoms may be related to “nerves”, “stress” or “IBS” (Irritable Bowel Syndrome).
On July 4, 2008, D.M. saw the family doctor and reported that during the previous week, her speech had been slurred but that it had resolved. She advised, however, that she was still experiencing episodes of dizzy spells and problems with word-finding. The family doctor questioned whether her sleep disturbance was a result of her depression.
D.M. remained off work for a month after the accident and returned to work on modified duties, with reduced hours initially thereafter. In June and July, 2008, D.M. had increased her hours at McDonald’s to full-time and over-time for over a month, yet her return to work ultimately failed. She felt overwhelmed at work and, to escape the pressure, D.M. would lock herself in the employee bathroom. On July 14, 2008, her last day at work, D.M. called her manager from work in an agitated state and was then taken to the Emergency Department with suicidal thoughts. The next day, D.M. took an overdose of pills and was rushed to the local hospital. This was the first of more than 20 suicide attempts following the accident. D.M. has since been admitted to hospital for periods of time from several days to several months. She has been treated with medication and with electro-convulsive therapy. Most of her suicide attempts have been by way of drug overdose, although in 2011, D.M. was injured jumping from a bridge in an attempt to end her life.
In an Admission Record and Discharge Summary, dated August 7, 2008, Dr. KD noted that D.M.:
...reports feeling upset and depressed for a number of months but she hadn’t admitted it to her doctor. She had a sleep study recently which she said identified that she wasn’t getting a restful night’s sleep when she was sleeping. She said that she had been doing relatively well for a while but more recently had increased thoughts of suicide. She said that they started after her parents told her that she would have to leave their house within a 60 day period.
In his Consultation Report, dated September 24, 2008, Dr. S noted that D.M.:
...is a 25-year-old woman who worked as a Manager for McDonald’s in Alliston for four years but she has been off work on sick leave for the past 2½ months. She is single and lives with her parents in Alliston. [D.M.] said that she had been depressed for the past 2½ months and during this period she has had two admissions to the Penetang Mental Health Centre and has made seven suicidal attempts. She said that she felt depressed on a daily basis and said that she cried very easily and for no reason and that she was very emotional. She felt irritable. She denied having a bad temper. She felt hopeless, useless and worthless a lot of the time and felt that she has suicidal ideations most of the time. She also has suicidal plans and she has made seven suicidal attempts in the past 2½ months. She said that she had no self-esteem and that her self-confidence was very low. Her motivation was very low and she said that she had no energy. Her sleep was disturbed.....concentration was very bad. She said that she has been experiencing anxiety attacks about twice a day but these attacks have improved recently...Regarding mental illnesses, she was admitted to the Mental Health Centre in Penetang about 2½ months ago for a period of three weeks and was diagnosed as suffering from depression and a borderline personality disorder...
Dr. S observed that D.M.’s aspect appeared to be depressed. His impression was that “this woman who had been diagnosed as suffering from a major depressive disorder and a borderline personality disorder has benefited only partially from her current treatments.”
By Application for Determination of Catastrophic Impairment (OCF-19), dated August 25, 2010, D.M. applied to Portage for a catastrophic impairment designation. Portage denied her application. It maintained that D.M. did not sustain a catastrophic impairment as a result of this accident, as defined in the Schedule.
On September 11, 2012, D.M. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, seeking: (i) a determination that she sustained a catastrophic impairment as a result of the accident, as defined in clause 2(1.2)(g) of the Schedule; (ii) entitlement to receive a medical benefit for physiotherapy; and (iii) a determination that Portage is liable to pay D.M. a special award because it unreasonably withheld or delayed payment to D.M.
The Schedule defines “impairment” as a loss or abnormality of a psychological, physiological or anatomical structure or function.
The Schedule requires that medical and legal professionals rate impairment using the criteria and methods set out in Chapter 14 of the Guides, entitled Mental and Behavioural Disorders. Following evaluation of the patient, assessors must rate any resulting impairment according to how it impacts four broad and overlapping areas of function, Activities of Daily Living (“ADLs”); Social Functioning; Concentration, Persistence and Pace; and Adaptation – Deterioration or Decompensation in Work or Work like Settings.
The Guides recommends the following as anchors for the categories of the scale: “None” means no impairment is noted in the function; “Mild” implies that any discerned impairment is compatible with most useful functioning; “Moderate” means that the identified impairments are compatible with some but not all useful functioning; “Marked” is a level of impairment that significantly impedes useful functioning; and “Extreme” means that the impairment or limitation is not compatible with useful function.
The Ontario Court of Appeal confirmed that a finding of marked impairment in one of the four areas of function delineated in the Guides is sufficient to qualify as a catastrophic impairment under the Schedule.
Therefore, the dispute in this case is determined by answering the following three questions:
Did the accident cause D.M. to suffer a mental or behavioural disorder?
If it did, what is the impact of mental or behavioural disorder on her daily life?
In view of the impact, what is the level of impairment?
Did the accident cause D.M. to suffer a mental or behavioural disorder?
In this case, the burden of proof rests with D.M. She must prove on the balance of probabilities that the accident materially or significantly contributed to her mental or behavioural disorders. She is not required to prove that the accident was the only cause of her mental or behavioural disorders; rather, D.M. is required to show only that the accident was a cause of the mental or behavioural disorders and not the sole cause.
Moreover, if pain due to purely physical injuries cannot be factored out, D.M. is not required to prove that her impairment is due solely to mental or behavioural disorders
Portage disputes causation. It submits that the evidence falls well short of establishing that the 2008 car accident had any effect (let alone a material or significant effect) on D.M.’s development of suicidal ideation and subsequent behaviour. Portage contends that it is clear that prior to the accident, D.M. had a history of chronic suicidal ideation, overdoses and self-harm behaviours. She had problems with obesity leading up to, and after, the date of the accident.
It points out that on February 3, 2007, D.M. suffered a head injury resulting in retrograde amnesia and vomiting. She went on to experience migraine problems and a stomach ailment that even to this day is bothering her. Portage submits that the doctors at Alliston Hospital were so concerned with D.M.’s behaviour in the fall of 2007 that they ordered a CT scan that revealed evidence of Cerebral Atrophy. This, according to Dr. C, likely has its roots in substance abuse. By the fall of 2007, D.M. was ingesting antidepressant medication and was experiencing over two weeks of vomiting near the end of 2007. She was admitted at the Emergency Department of the Alliston Hospital. By the end of 2007, D.M. was diagnosed with a personality disorder.
Portage submits that the last relevant medical entry before the accident is from D.M.’s family doctor indicating bizarre behaviour observed by nurses and doctors alike, with arrangements being made for a psychiatric assessment. Portage argues that unlike the snow-boarding incident, the February 22, 2008 accident records reveal no loss of consciousness, no decreased level of arousal, no retrograde amnesia, and no vomiting. Portage highlights the fact that, after missing some time from work initially, D.M. returned to work and had recovered from the car accident. Portage contends that this is evidenced by no fewer than two psychological assessments in the months post-dating the accident, specifically indicating no suicidal ideation and no risks of self-harm.
Portage argues that it was not until D.M. started to experience pressure from her parents based on a pre-arranged agreement to leave the home at age 25, that D.M. began manifesting symptoms of suicidal ideation. Portage questions whether in fact D.M.’s claim that she was suicidal is true given the note in July 2008 that “she wanted help and did not really want to kill herself”. Portage submits that D.M. quickly learnt that announcing an intention of suicide provided her with hospitalization and care, with accompanying food and shelter, for a minimum of three weeks and at times for as long as three months.
Portage submits that the accident had little if anything to do with D.M.’s deterioration which did not begin until July, 2008. It contends that the accident is only relevant in so far as it happened to occur two months before D.M. attained the age of 25.
Portage argues that, while Dr. VR postulates that a brain injury was the triggering event (albeit latently), there is no evidence that the 2008 car accident caused a brain injury. It argues that the better evidence is that it was the 2007 untreated snow-boarding head injury (assuming that one exists). It argues that by Dr. VR’s own admission, it can take up to 1.5 years for the symptoms of a brain injury to manifest itself. Portage further submits that, even if D.M. sustained a brain injury (for which there is absolutely no evidence), and even if the brain injury was sustained in the car accident (again, there is no evidence of this), there is no evidence that it is a brain injury that caused D.M. to complain of suicidal ideation in July 2008.
Portage submits that the burden of proof is on D.M. to prove on a balance of probabilities that the car accident significantly or materially contributed to D.M.’s ongoing condition. It further submits that the burden is not discharged simply by suggesting that the accident occurred before the suicidal behaviour. In the result, it contends that the evidence falls well short of satisfying the requisite level of proof.
Findings – Causation
The Arbitrator found that the accident caused D.M. to suffer a mental or behavioural disorder, and that both accident and non-accident related factors, including D.M.’s pre-accident medical condition and post-accident stressors, contributed to D.M.’s mental or behavioural disorders. However, the accident was of causative significance, which means more than a minimal or insignificant aspect of D.M.’s mental or behavioural disorders. The Arbitrator found that the accident was a material or significant aspect thereof.
The Arbitrator found that there was a physiological association and a temporal relationship of sufficient degree and duration between the accident and D.M.’s mental or behavioural disorders, such that the accident materially or significantly contributed to D.M.’s mental or behavioural disorders. There was compelling medical and non-medical evidence, including the testimony of D.M. that supports a finding that the accident materially or significantly contributed to D.M.’s mental or behavioural disorders.
In the Application for Determination of Catastrophic Impairment the Medical Director of the Acquired Brain Injury Program at the Hamilton General Hospital, confirmed that D.M. suffered a catastrophic impairment, namely, an impairment that results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder, as a result of the accident. D.M.’s impairments sustained in the accident were described as “many symptoms as a result of the MVA. Psychological condition also very aggravated (see attached report)”. In the Consultation Report, the physician noted a worsening of D.M.’s depression after the accident that D.M. seemed to be quite functional before the accident as she was working as a manager, and that after the accident D.M. has had many difficulties, including suicidal ideation and attempts at different times. It was further reported that as she understood, after the accident, D.M. developed psychiatric problems, she became quite depressed and began to drink. She had auditory hallucinations and suicidal thoughts and apparently has tried to commit suicide more than 16 times after the accident. Her depression has been a significant problem after the accident. Because of her suicidal attempts, D.M. has been in and out of hospital and has had many psychiatric admissions. Apparently, electro-convulsive therapy has been tried quite a number of times.
In a Catastrophic Impairment Neuropsychological Assessment Report, dated November 22, 2011, Dr. W, the Insurer’s Neuropsychologist, said:
Based on a review of the file documentation, as well as her self-report, it does not appear that [D.M.] was experiencing her current degree of emotional distress, cognitive difficulties, or level of pain severity and associated symptomatology, in the year prior to the subject car accident. As such, it is my view that these aspects of her current clinical condition are materially related to the subject car accident.
In a Catastrophic Impairment Psychiatric Assessment Report, dated February 15, 2012, Dr. C, the Insurer’s Psychiatrist, opined that before the accident D.M. was certainly vulnerable to decompensate emotionally in the face of stressors or situations of abandonment. Dr. C said:
As a result of the accident, [D.M.] sustained a mild traumatic brain injury, whiplash, low back pain and a sprained ankle...In my opinion, the accident and its impact played a significant role in the decompensation of her mental health. Due to the accident, she felt worse physically and she became depressed. The resulting situation overwhelmed her coping skills to the point that she was no longer welcome to stay with her parents, which in turn aggravated her feelings of abandonment, which then led to further impairment in tolerating any negative feelings with the only option being suicide.
In a Neuropsychiatric Assessment Report, dated February 25, 2013, Dr. VR, the Insured’s Neuropsychiatrist, said:
The forces involved in the MVA would also have put [D.M.] at risk for suffering a mild Traumatic Brain Injury (mTBI)...The data in their entirety, though, suggest that it is probable that [D.M.] did suffer the mTBI for which she was at apparent risk during the MVA...Overall, the radiological data cannot, in my opinion, at present inform one way or the other with respect to the diagnosis of mTBI incurred in the MVA. With respect to the mental health outcomes of the MVA, it is important to note that the MVA produced not only a number of apparent injuries, but probably also produced a number of stressors (e.g. acute stress at the scene as indicated for example by the air ambulance crew’s report that [D.M.] was “very anxious” and by The family doctor’s undated OCF-3 indicating onset of a “stress reaction”, impact of pain and early mobility impairments, concern for her health, impact of need for multiple assessments, etc.) and a number of perceived losses (e.g. role losses, reduced quality of life, reduced independence, perceived inability to achieve some of her pre-MVA goals, etc.)......There is also a strong temporal relationship between the MVA and the subsequent onset of [D.M.’s] mental health problems, and the injuries, stresses and losses incurred as a result of the MVA provide pathopsychophysiological mechanisms through which her various mental health difficulties are likely to have arisen in material part. As a probable material result, then, of the injuries, stresses, and losses incurred in the MVA, [D.M.] has probably developed the following sequelae:
1. [Chronic low back pain];
2. [Mobility impairment];
3. [Post-concussion symptoms such as tinnitus, noise intolerance and dizzy spells];
4. [Sleep disturbance]
5. Anergia (fatigue, low energy levels, naps);
6. [D.M.] has suffered with profound mood, anxiety and psychotic symptoms since early on after the MVA. She has required intensive and comprehensive care and support, including but not limited to a number of lengthy psychiatric hospitalizations and multiple interventions including significant doses of multiple medications (with potential for side-effects) and ECT (Electro-convulsive Therapy). The differential diagnostic list for these difficulties is lengthy, and the diagnoses are not necessarily mutually exclusive (i.e. diagnoses may co-exist, or over time with changes in [D.M.’s] condition, her primary diagnoses may change). I believe the primary diagnosis has been one of Major Depressive Disorder (MDD), recurrent, and associated with suicidal ideation, anxiety, psychosis and perhaps (inadequate data to assess for this possibility) substance abuse (reportedly not present currently). The MDD is currently in remission with treatment, but [D.M.] remains at very high risk for future recurrence and indeed for chronic MDD. Differential diagnosis includes at least Bipolar disorder and/or Borderline Personality disorder and/or Schizoaffective disorder;
7. [Cognitive complaints];
8. [Weight gain];
9. Probable deconditioning;
10. [Hypertension]; and
11. [Significant and ongoing risk of medication side effects].
In a report dated September 5, 2013, Dr. Cu, the Insured’s treating Psychologist, said:
Even though [D.M.’s] mental and behaviour history prior to the MVC is rather complex, it does not appear that she was experiencing the current level of impairment in emotional, behavioural or cognitive functioning before the accident. Her current disability has persisted in spite of the fact that she has received rehabilitation treatment and living support over the past year that has continued to emphasize improving her day-to-day- functioning. The goal with [D.M.] has been to build consistent, day-to-day routines around personal hygiene, self-care and engagement in meaningful activities. Even with the provision of extended support, [D.M.] has shown only very minimal changes in functional behaviour.
The Arbitrator accepted the evidence of Drs. M, W, C, VR and Cu in respect of causation, and found that the accident materially or significantly contributed to the development, continuation, worsening and aggravation of D.M.’s mental or behavioural disorders. These disorders include depression, profound mood, anxiety and psychotic symptoms, multiple significant cognitive impairments, emotional, behavioural or cognitive functioning impairments, emotional distress, cognitive difficulties, level of pain severity and associated symptomology.
If the accident caused D.M. to suffer a mental or behaviour disorder, what is the impact of the mental or behavioural disorder on her daily life?
The Arbitrator found that the mental or behavioural disorders significantly impacted on D.M.’s daily life. The overall weight of the evidence supports this finding.
The Arbitrator agreed with Dr. C, and find, that D.M. was certainly vulnerable to decompensate emotionally in the face of stressors or situations of abandonment; that there was evidence for emerging mental health difficulties in 2007 when D.M. began having abdominal pain; that her doctors were sufficiently concerned about her mental health that she was referred to psychiatry; that despite D.M.’s physical and emotional problems in January 2008, she was working full time as a manager at McDonald’s; that it was in this context of instability with her physical health and a certain deterioration of her mental health that D.M. had the subject car accident; that as a result of the accident, she sustained a traumatic brain injury, whiplash, low back pain and a sprained ankle; that the accident and its impact played a significant role in the decompensation of her mental health; that due to the accident, D.M. felt worse physically and she became depressed; that the resulting situation overwhelmed her coping skills to the point that she was no longer welcome to stay with her parents, which in turn aggravated her feelings of abandonment, which then led to further impairment in tolerating any negative feelings with the only option being suicide.
The Arbitrator accepted Dr. VR’s opinion, and find, that as a probable material result of the injuries, stresses and losses sustained in the accident, D.M. has probably developed the sequelae described above; that her cognitive impairments are probably materially related to the accident, and they are likely to significantly and adversely impact on her current ability to manage a McDonald’s restaurant; that as a result of the sequelae, D.M. has suffered and lost much; that she is probably handicapped by the sequelae, which means that she is probably significantly disadvantaged in the maintenance and pursuit of her usual and expected social roles, functional abilities, limitations and needs; that her ability to attain and to maintain competitive employment is significantly limited; that D.M. herself perceives that she is significantly limited in a number of her usual/expected activities, including activities dependent on mobility, social and leisure functioning; that D.M. has significant difficulties with concentration and pace; D.M. remains at high risk for permanent suffering, impairment and handicap, and for future decline in wellness and functional ability, including high risk of recurrence of Major Depressive Disorder (MDD), risk of medication side effects, risk of accidental injury, and risk of medical complications of obesity and deconditioning.
D.M.’s pre-accident circumstances left her vulnerable, in a “thin skull” sense, to future physical, mental or behavioural disorders. D.M. was an emotional “thin skull”.
In tort law, there is an established principle that a tortfeaser must take his or her victim as found. This principle is known as the “thin skull rule”. The rule renders a tortfeaser liable for damages in respect of a plaintiff’s injuries, even if they are unexpectedly severe due to a pre-existing condition, including not only a pre-existing physical condition but also a pre-existing condition of mental health frailty.
These findings are supported by the non-medical evidence which comprised the testimony of D.M., her friend, ND, and of CS, a case-worker and former women’s advocate at the YWCA. The Arbitrator accepted their testimony both of whom he found to be credible. Although their motives may be inclined to advocacy rather than to the provision of objective evidence, the Arbitrator accepted their evidence and give it weight. Both did their best to provide truthful and complete evidence concerning D.M. and her pre- and/or post-accident condition, expectations, needs, daily life functioning, limitations, and physical, mental or behavioural impairments. Their evidence is consistent with the weight of the medical evidence and with D.M.’s testimony in that regard.
Portage challenges the credibility of D.M. The challenge was not persuasive. D.M.’s evidence needed to be approached with caution. The Arbitrator accepted and relied on most of D.M.’s testimony. Some of her testimony, however, was unreliable because of her inability to accurately describe, recall and recount certain relevant facts and circumstances. This is understandable, however, given her medical condition, currently and at the time of the material events, the traumatic circumstances of the accident and its aftermath, and the limitations and frailties of recollection generally.
The Arbitrator did not accept D.M.’s testimony that:
Before the accident, she never thought of suicide or attempted it;
She had not used marijuana before the accident; and
That she had “no problems” before the accident.
That being stated, the Arbitrator did not find D.M. to be a malingerer. On the contrary, he found her testimony to have been given entirely without guile. It did not appear to be contrived. D.M.’s evidence concerning her pre- and post-accident condition, life, needs and level of impairment, withstood scrutiny. It was also supported and corroborated by the preponderance of the medical and non-medical evidence in this case.
In the Occupational Therapy Assessment Report, dated October 18, 2011, the Insurer’s Occupational Therapist, reports that D.M. was referred for an Insurer’s Examination Catastrophic Determination Occupational. In the report:
During the assessment [D.M.] was cooperative and participated in all areas of the assessment within her observed or reported abilities. In terms of participation in pre-accident Activities of Daily living, [D.M.] reported as dependent on others for tasks requiring motivation, initiation and multi-tasking. Some areas of function appear limited during my assessment by attention, concentration and memory.
In terms of social functioning, [D.M.] is not as active as she was prior to the accident. The client reported that prior to this accident she socialized with family and friends on a daily basis. At this time, [D.M.] reportedly attempts to socialize outside of the group home but when in the group home she prefers to stay in her bedroom as means to avoid the other residents. She has no face to face contact with family at the present time. Her adoptive parents live outside of the province.
In terms of concentration, persistence and pacing, [D.M.] managed to attend to the length of the assessment but she appeared quite fatigued. She reported as what could be described as cognitive impairment since the accident. During the assessment [D.M.] responded to questions appropriately but was a poor historian. There were observations suggestive of difficulties in the areas of memory, concentration and attention.
As per the above, [D.M.’s] demonstrated presentation during this assessment process included reported and observed functional difficulties associated with the mental and behavioural realms. This is based upon the client’s reported abilities to participate in tasks and the objective functional assessment components of this examination. Other mental/behavioural assessments within this multi-disciplinary process will determine the accident-relevance of her current demonstrated abilities and further clarify the degree of impairment and/or disability.
In an Occupational Therapy Consultation Report, dated August 10, 2012:
As a result of her involvement in the indexed collision, [D.M.] continues to suffer significant emotional sequelae, including depression, anxiety and Post-Traumatic Stress Disorder. Additionally, neuropsychological testing revealed considerable cognitive impairment that affects daily functioning. Finally, physical concerns remain present, including pain, balance disturbance and impaired sleep with resultant fatigue.
When contrasted to her pre-injury functioning, [D.M.] remains severely limited. At present, she requires assistance to manage her personal care, she has limited mobility skills and requires the use of a wheeled walker. She is unable to complete many household chores and tasks, has lost her driver’s licence, has decreased leisure participation and remains unable to return to work or school. As such, [D.M.] has notable treatment needs.
Due to the severity of her needs, sixteen occupational therapy treatment sessions are proposed to address:
Re-teaching personal care skills, including supervising the Therapy Support Worker for personal care skill training
Re-teaching daily living skills
Development of cognitive compensatory strategies to assist with managing, scheduling, improving organizational skills, developing problem solving skills, etc.
Development, monitoring and progression of a daily and weekly schedule to increase overall activation
Monitoring of equipment needs
In an Occupational Therapy Progress Report #1, dated June 5, 2013, the Occupational Therapist, noted that, unfortunately, on February 12, 2013, [D.M.’s] mood deteriorated to the point that she became suicidal. She was admitted to hospital where she remained until approximately early May. Upon discharge from hospital, [D.M.] moved back into the YWCA in Niagara Falls. In her report the OT said:
[D.M.] has made many gains during this block of OT treatment, including re-learning tasks for personal care such that use of a Personal Support Worker has been discontinued, increasing her walking tolerance, working on development of a personal budget, working on self-scheduling including medication management, re-learning basic cooking skills and some cleaning skills. However, when contrasted to her pre-injury functioning [D.M.] continues to remain severely limited.
[D.M.] continues to reside at the YWCA women’s shelter. The goal is to work toward developing the skills required to move to the next level of supportive housing through the YWCA, that of supported apartment living. In order to do so, [D.M.] must become independently able to manage all of her own personal care as well as tasks of daily living, including cooking and cleaning. The Operations Manager (of the Niagara Falls YWCA has confirmed that her staff does not have the requisite training to teach these skills to [D.M.] and that occupational therapy intervention remains required.
In view of the impact, what is D.M.’s level of impairment?
In the Application for Determination of Catastrophic Impairment (OCF-19), dated August 26, 2010, Dr. M confirmed that D.M. suffered a catastrophic impairment that, in accordance with the Guides, results in a Class 4 impairment (marked impairment) or Class 5 impairment (extreme impairment) due to mental or behavioural disorder. Dr. M commented that, “Due to severity of symptoms and functional difficulties & due to length of time since MVA, I do not think that [D.M.’s] condition will cease to be catastrophic.”
In response to the Application for Determination of Catastrophic Impairment, Portage arranged for psychiatric, neuropsychological and occupational therapy assessments of D.M. for a Catastrophic Impairment Calculation/Determination through Independent Rehabilitation Services Inc. (“IRSI”). Assessments were conducted by Dr. W, Neuropsychologist, Dr. C, Psychiatrist, and Ms. LSD, Occupational Therapist. The Catastrophic Impairment Calculation/Determination, dated April 2, 2012, was prepared by Dr. HP, M.D. He said that, “Dr. C concludes that D.M. does not satisfy the Criterion 8 with a Class 4 (marked impairment) or a Class 5 (extreme impairment) due to mental or behavioural disorders.” Dr. W and Ms. LSD agreed with that overall consensus conclusion.
In his Neuropsychological Assessment Report, dated November 22, 2011, Dr. W said:
From a cognitive perspective alone, with respect to the contribution of [D.M.’s] acquired brain injury to the Whole Person Impairment rating, criterion (f) of the AMA Guides indicates that ratings should be done in accordance with criteria listed in Chapter 4. More specifically, Table 2 of Chapter 4 (page 142 of the Guides) indicates that organically-based mental impairment can be considered along a scale ranging from mild to extreme. It is my view that there are mild neurocognitive deficits secondary to a head injury in this case. In my opinion, this corresponds to a Whole Person Impairment Rating of 10%, due to purely neurocognitive factors alone. Despite being potentially impaired post-MVA, it is felt that [D.M.] cannot be said to be Catastrophically Impaired due to cognitive factors alone.
Based on the information on hand, from a strictly psychological view, any determination of [D.M.] meeting the definition of catastrophic psychological impairment due to the results of the February 22, 2008 car accident is deferred to the Psychiatric Evaluator assigned to the current case.
[D.M.’s] neuropsychological test results suggests highly impaired cognitive functioning problems across all assessed areas of cognitive function with the exceptions of specific areas of executive functioning and her achievement abilities. Upon review of the mechanism of the accident, immediate and post-accident course of neurological/neurosurgical care, unremarkable CT Scan taken the day of the assessment, and the lack of a report of a clear loss of consciousness would suggest that there should only be mild impairment that should have resolved to a degree at this time. As such, the question of the noted impairments being a function of pain and/or psychiatric disturbance should be considered by the Psychiatric Examiner to explain the noted impairment at its current level.
In her Catastrophic Impairment Psychiatric Assessment Report, dated February 15, 2012, Dr. C said:
[D.M.] presented with psychiatric disorders as described by the provided DSM IV-TR Axis. It is my opinion that the subject car accident has contributed to her psychiatric conditions, but other factors pre and post-accident have also been responsible for the deterioration of her mental health. At the time of my assessment and over of the course of the past 6 months there has been some degree of stabilization and noted improvements. While she has psychiatric disorders, it is not of the severity necessary to meet the standards in accordance with the AMA Guides to Evaluation of Permanent Impairment, 4th Edition. [D.M.’s] mental health status does not meet the criteria of marked or extreme impairment due to a mental disorder or behavioural disorder in any of the four domains. As such, taking into account all four areas of function identified in the Guides, she has a Class 3 rating at best.
The AMA Guides provide for categories (Classes) but not for percentage values for emotional/behavioural impairment. However, if [D.M.’s] assessed level of emotional/behavioural impairment (Class 3) were to be translated into a percentage score, by the rationale of “most analogous impairment”, a correlation with Table 3 of Chapter 4 of the AMA Guides (which provides for percentage values of emotional or behavioural impairment secondary to neurological dysfunction), as in the Desbiens v. Mordini judgment, this score would correspond to a whole person impairment not greater than 20%.
The Arbitrator deferred final catastrophic determination to the Catastrophic Impairment Calculation/Determination Report.
In his report, dated February 25, 2013, Dr. VR said:
Overall, the available data indicate that [D.M.] is probably at least markedly impaired, overall, as assessed via chapter 14 of the AMA Guides. Her functional impairment is due in the main to the combined effects of the many mental health sequelae of the MVA. It follows that [D.M.] is probably catastrophically impaired under the SABS mental health criterion.
In his report, dated March 11, 2013, Dr. VR said:
[D.M.] is at risk, though, for high levels of handicap as a result of the combined effects of her many MVA-related mental health sequelae and based on the data now available it would appear to be probable that she is at least markedly (if not severely) impaired with respect to “productive” activities (e.g. work), and further she is likely to be markedly impaired with respect to concentration and pace. I do not have adequate data to assess her current level of functioning in the remaining two spheres, but would note that she has probably been at least markedly impaired in these spheres at various points in the past (e.g. during her hospitalizations) and she remains at risk for significant functional impairment in these realms at present.
In her report, dated September 5, 2013, Dr. Cu said:
It is my opinion that [D.M.] demonstrates a marked degree of impairment across three [activities of daily living, concentration, persistence and pace, and deterioration or decompensation in a work or work-like setting] of the four categories of the AMA Guides, which continues to significantly impede useful functioning and independence. Even though [D.M.’s] mental and behavioural history prior to the MVC is rather complex, it does not appear that she was experiencing the current level of impairment in emotional, behavioural or cognitive functioning before the accident. Her current disability has persisted in spite of the fact that she has received rehabilitation treatment and living support over the past year that has continued to emphasize improving her day-to-day functioning. The goal with [D.M.] has been to build consistent day-to-day routines around personal hygiene, self-care and engagement in meaningful activities. Even with the provision of extended support [D.M.] has shown only very minimal changes in functional behaviour.
The Findings – D.M.’s Level of Impairment- Social Functioning
The Arbitrator found that D.M.’s level of impairment in Social Functioning is Mild Impairment (Class 2).
The evidence indicates that D.M., in terms of social functioning, is not as active as she was before the accident. Prior to the accident, D.M. socialized with family and friends on a daily basis, whereas after the accident she attempted to socialize outside of the group home but when in the group home she preferred to stay in her bedroom as a means to avoid the other residents. She had a boyfriend with whom she enjoyed being with. She is capable of expressing her needs and participating in programs. She can engage with other residents in her home albeit in a limited way. She goes out with friends to the movies and to restaurants. She engages with people on a daily basis. While D.M. tends to avoid interpersonal relationships, she has been able to maintain a small circle of friends and relationships with some family members. Since she is easily cognitively and emotionally overwhelmed, D.M. has difficulties interacting and participating consistently in group activities. However, D.M. typically gets along with others, is cooperative and considerate and socially responsible, that is, she cares about others. She is courteous and respectful in her interactions with the other women in her program, although she does not extend herself much beyond this point. She has some difficulty with negotiation and compromise and requires support in this regard, as she can easily misunderstand or misperceive the statements or actions of other people. Although in some areas of social functioning, D.M. may not be particularly effective, she is fairly independent in this area.
Activities of Daily Living, Concentration, Persistence and Pace and Adaptation-Deterioration or Decompensation in Work or Work-like Settings
In regard to D.M.’s level of impairment in the areas of Activities of Daily Living, Concentration, Persistence and Pace, and Adaptability-Deterioration or Decompensation in Work or Work-like Settings, the key opinions are those of Drs. VR, Cu, C and W. The Arbitrator preferred the opinions of Drs. M and Cu over those of Drs. C and W and gave little weight to the opinion of Dr. W.
Activities of Daily Living
The evidence indicates that D.M. has marked restrictions of activities of daily living due to her mental and behavioural disorders.
The Arbitrator accepted the evidence of D.M., ND and CS concerning D.M.’s activities of daily living before and after the accident and her diminished and restricted capacity to carry out daily activities of life. The Arbitrator agreed with Dr. M that D.M. seemed to be quite functional before the accident as she was working as a manager and now she has many difficulties, including increased suicidal ideation and attempts at different times. In her Occupational Therapy Assessment Report, dated October 18, 2011, Ms. LSD, Occupational Therapist, noted that:
“During the assessment [D.M.] was cooperative and participated in all areas of the assessment within her observed or reported abilities. In terms of participation in pre-accident Activities of Daily Living, [D.M.] reported as dependent on others for tasks requiring motivation, initiation and multi-tasking. Some areas of function appeared limited during my assessment by attention, concentration and memory.”
The Arbitrator agreed with the Occupational Therapist, that as a result of the accident, D.M. continues to suffer significant emotional sequelae, including depression, anxiety and Post-Traumatic Stress Disorder; that D.M.’s considerable cognitive impairment affects daily functioning; and that physical concerns remain present including pain, balance disturbance, and impaired sleep with resultant fatigue. D.M. remains severely limited, and she requires assistance to manage her personal care, she has limited mobility skills and requires the use of a wheeled walker, she is unable to complete many household chores and tasks, has lost her driver’s licence, has decreased leisure participation and remains unable to return to work or school.
In his report, dated February 25, 2013, Dr. VR said:
Overall, the available data indicate that [D.M.] is probably at least markedly impaired, overall, as assessed via chapter 14 of the AMA Guides. Her functional impairment is due in the main to the combined effects of the many mental health sequelae of the MVA. It follows that [D.M.] is probably catastrophically impaired under the SABS mental health criterion.
In his March 11, 2013 report, Dr. VR said:
[D.M.] is at risk, though, for high levels of handicap as a result of the combined effects of her many MVA-related mental health sequelae, and based on the data now available it would be probable that she is at least markedly (if not severely) impaired with respect to “productive activities” (e.g. work), and further she is likely to be markedly impaired with respect to concentration and pace...
In her report, dated September 5, 2013, Dr. Cu said:
It is felt that at this time, based on observations and descriptions of [D.M.’s] functioning, she is only able to live independently with the presence of regular, structured support. Without the presence of such structure, it is probable that [D.M.’s] mental/behavioural/emotional competence would be even more problematic. Thus, her overall impairment rating in this class [Activities of Daily Living] would be considered at Class 4 or marked impairment.
The Arbitrator accepted the opinions of Drs. VR and Cu, and found that D.M.’s level of impairment in her activities of daily living is Marked Impairment (Class 4).
For the reasons stated above the Arbitrator did not accept the finding of Dr. C that, in the area of Activities of Daily Living, D.M. “presented with moderate impairment with respect to a mental or behavioural disorder that could be attributed to the accident”; nor did the Arbitrator accept Dr. C’s conclusion that D.M.’s “mental health status does not meet the criteria of marked or extreme impairment due to a mental disorder or behavioural disorder in any of the four domains. As such, taking into account all four areas of function identified in the Guides, she has a Class 3 rating at best.”
Concentration, Persistence and Pace
Under the Guides:
Concentration, Persistence and Pace refer to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks. Deficiencies in concentration, persistence and pace are best noted from previous work attempts or from observations in work like settings, such as day-treatment centers and incentive work programs....
The Arbitrator accepted the non-medical evidence concerning D.M.’s difficulties with concentration and persistence at a task. In her Occupational Therapy Assessment Report, dated October 18, 2011, Ms. LSD, Occupational Therapist, said:
In terms of concentration, persistence and pacing, [D.M.] managed to attend to the length of the assessment but she appeared quite fatigued. She reported what could be described as cognitive impairments since the accident. During the assessment [D.M.] responded to questions appropriately but was a poor historian. There were observations suggestive of difficulties in the areas of memory, concentration and attention.
Dr. VR noted that D.M.:
...has been found (e.g. with neuropsychological testing) to exhibit significant difficulties with concentration and pace.” He is of the opinion that D.M. is “likely to be markedly impaired with respect to concentration and pace”.
Dr. Cu found that D.M. is consistently vague, distracted, easily confused and impulsive in her responses:
Mood and chronic pain issues also factor significantly into [D.M.’s] ability to concentrate and stay focused. There are periods when she ‘zones out’ and loses track of what she is saying....she is only able to sustain attention in our discussions for 45 minutes to 1 hour at the most before there are visible signs of mental fatigue (e.g. yawning, losing her train of thought, asking for repetition, etc.). It is very likely that if she were placed in a more chaotic or less structured home or work-like setting, issues with concentration, persistence and pace would be even further exacerbated. Her general level of impairment (in the area of concentration, persistence and pace) would be considered in the marked range of impairment or class 4.
The Arbitrator agreed with the opinions of Drs. VR and Cu, and find, that D.M.’s impairment levels in the domain of Concentration, Persistence and Pace is Marked Impairment (Class 4), that is a level of impairment that significantly impedes D.M.’s useful functioning.
For the reasons above, the Arbitrator did not accept Dr. C’s finding that, in the area of Concentration, Persistence and Pace, D.M. “presented with moderate impairment with respect to a mental or behavioural disorder that could be attributed to the accident.”
Adaptation-Deterioration or Decompensation in Work or Work-like Settings
Under the Guides:
Deterioration or Decompensation in Work or Work-like Settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances, the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers...
The preponderance of medical and non-medical evidence shows D.M.’s repeated failure to adapt to stressful circumstances and her deterioration or decompensation and difficulties maintaining activities of daily living, continuing social relationships, and completing tasks in the face of such circumstances.
In her report, dated September 5, 2013, Dr. Cu said:
In the final domain, deterioration or decompensation in a work or work-like setting considers [D.M.’s] reaction to stress and her ability to adapt to stressful circumstances. Certainly, this is the area of functioning in which [D.M.] experiences the most difficulty and she requires extended support to manage common stressors such as changes in routine, uncertainty in her living situation, conflict with peers, or having to communicate with authority figures (e.g. advocates, doctors). She reports that she is overwhelmed with “everything” and high stress levels precipitate mood change leading to depression, social withdrawal/isolation and inability to even minimally engage in necessary life tasks/roles. I have had opportunity to observe [D.M.’s] decompensation in the face of common as well as increased stressors. When this occurs, she is completely unable to meet the usual commitments of self-care and home-based tasks. She has had two significant episodes of major depression with suicidal ideation over the past year for which she has been hospitalized for an extended period and has required psychiatric input and adjustment of medication. She has also demonstrated several periods of dysregulated or “manic” behaviour during which she has been highly impulsive (e.g. overspending, shaving her head, use of alcohol after an extended period of abstinence). It is also important to consider that [D.M.’s] recurrent deterioration or decompensation with stress has occurred even in the context of her structured living situation where she receives ample support. Her overall rating within this fourth category would be at a marked level of impairment or class 4.
The Arbitrator agreed with Dr. Cu, accepted her opinion and give it significant weight.
For the reasons stated above in the area of deterioration or decompensation in complex or work-like settings, D.M. “presented with moderate impairment with respect to a mental or behavioural disorder that could be attributed to the accident”.
The Arbitrator therefore found that D.M.’s level of impairment in Adaptation-Deterioration or Decompensation in Work or Work-like Settings is Marked Impairment (Class 4).
Conclusion With Respect to Clause 2(1.2)(g) of the Schedule
The Arbitrator found that D.M. has a Marked level of impairment (Class 4) in three of four areas of function, namely, in Activities of Daily Living, Concentration, Persistence and Pace, and Adaptation-Deterioration or Decompensation in Work or Work-like Settings, and a Mild level of impairment in the fourth area, Social Functioning. Therefore, D.M. has proven on a balance of probabilities that she sustained a catastrophic impairment as a result of the accident, as defined in clause 2(1.2)(g) of the Schedule.
Is D.M. entitled to a medical benefit in the amount of $2,164.02 for physiotherapy provided by Motion, in respect of a Treatment and Assessment Plan (OCF-18), dated January 20, 2011, pursuant to section 14 of the Schedule?
Portage denies D.M.’s entitlement to the medical benefit claimed.
D.M. bears the onus of proving entitlement to the claimed accident benefit. Since no evidence was presented to support her claim for the disputed medical benefit, this claim is denied.
Is D.M. entitled to a special award under subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended?
D.M. contends that Portage is liable to pay a special award because it unreasonably withheld or delayed payments to D.M.
Portage denies that it has unreasonably withheld or delayed payments and denies D.M.’s entitlement to a special award.
D.M. is entitled to a special award where the Arbitrator makes a finding that payments have been “unreasonably withheld or delayed” in an amount “up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amount then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly from the time the benefits first became payable under the Schedule.”
Whether an insurer has “unreasonably withheld or delayed payments” in respect of a benefit is a question that is fact-driven and highly dependent on the Arbitrator’s view of the evidence. The type of conduct that constitutes “unreasonable” behaviour includes “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” behaviour.
In this case, D.M. claims a special award in respect of Portage’s alleged unreasonable withholding or delaying its designation of D.M. as being catastrophically impaired, and in respect of payments for income replacement benefits claimed.
The Arbitrator found that a special award is not warranted in this case.