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Insured had significant pre car accident medical history.

May 31, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision:  April 10 2014

Heard Before: Adjudicator Edward Lee

 

Issues:

 

Cathy Roberts was injured in a car accident on February 19, 2007.  She claims the accident caused Class 4 impairment due to a mental or behavioural disorder and as a result she is catastrophically impaired pursuant to the Schedule. She claims the accident markedly impaired her daily living, her work, and her social functioning. She also claimed other statutory accident benefits from Gore Mutual On October 26, 2010 and April 11, 2013. She applied to Gore Mutual for determinations of catastrophic impairment.

 

Ms. Roberts claims she could no longer perform her job, many of her housekeeping and home maintenance functions, self care, and other activities. She developed severe depression, agoraphobia, post traumatic stress disorder, and difficulties with concentration, word loss, memory, numerical calculation, and sleep. She also lost control of her fine motor skills and could no longer enjoy many of her pre-accident leisure activities. Determining her status was complicated by her numerous pre-existing conditions and because she had significant functional limitations before the accident.

 

At the time of the accident, Ms. Roberts was receiving treatment from a psychotherapist, and her work situation, activities of daily living, and home life had already been negatively impacted by her many pre-accident mental and physical health conditions, which may have been caused by two car accidents that occurred in 2000, and at least one previous work-related accident. Mutual argued that even if the 2007 accident caused Ms. Roberts to develop a mental or behavioural disorder, any impairment she suffered was moderate, and not marked, and therefore did not meet the definition of catastrophic. Gore Mutual has concluded that Ms. Roberts was not catastrophically impaired as a result of the accident.

 

The issues in this hearing are:

 

  1. Has Ms. Roberts suffered a catastrophic impairment?
  2. Is Ms. Roberts entitled to attendant care benefits in the amount of $334.45 per month from December 10, 2009 to date on ongoing?
  3. Is Ms. Roberts entitled to payments of $100.00 per week from February 19, 2009 to date and ongoing for housekeeping and home maintenance services?
  4. Is Ms. Roberts entitled to Income Replacement Benefits of $400.00 per week from June 10, 2009 to date and ongoing?
  5. Is Ms. Roberts entitled to the four massage therapy treatment plans of $1,150.00, $1,150.00, $722.10, and $1,200.00?
  6. Is Ms. Roberts entitled to receive physiotherapy treatment in the amounts of $998.55, and $2,431.68?
  7. Is Ms. Roberts entitled to receive occupational therapy services of $1,536.94?
  8. Is Ms. Roberts entitled to payment for the costs of examinations in the amounts of $3,500.00 to $5,000.00 for a neuro-psychological assessment?
  9. Is Ms. Roberts entitled to $456.51 and $4,665.83 for speech therapy services?
  10. Is Ms. Roberts entitled to payment of $6,000.00 for a service dog recommended by Dr. Harris in a treatment plan dated August 10, 2010?
  11. Is Ms. Roberts entitled to receive a medical benefit of $1,000.00 and $2,000.00 for the psychological therapy?
  12. Is Ms. Roberts entitled to $23.70 for prescription medication?
  13. Is Ms. Roberts entitled to a special award?
  14. Is Ms. Roberts entitled to interest on the overdue payment of benefits?
  15. Which party is entitled to the expenses in respect of the arbitration?

 

Is Ms. Roberts catastrophically impaired as a result of the accident?

 

The Arbitrator determined that the test to be applied for determination of catastrophic injury is

The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, and is an injury that results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder.

 

The jurisprudence has also held that a determination of catastrophic impairment may be made if a person is assessed to have a marked impairment in one of the four categories of functional limitation set out in the Guides. The Arbitrator determined four key questions to be answered:

 

  1. Does Ms. Roberts suffer from a mental or behavioural disorder?
  2. Was this mental or behavioural disorder caused by the accident?
  3. If yes, what is the impact of the mental or behavioural disorder(s) on her daily life?
  4. In view of the impact, what is the level or severity of impairment?

 

The Arbitrator was convinced by all the medical reports that Ms. Roberts suffers from a mental or behavioural disorder. He determined that Ms. Roberts needed to prove that the car accident was a material contributor to her injuries. He also concluded that the medical evidence showed that it was not possible to distinguish how much of her current symptomology was due to her previous conditions, but that some symptoms including depression clearly emerged only following the car accident in 2007.

 

Arbitrator Lee found that Ms. Roberts’ testimony was unreliable and that she was not credible as a witness. She claimed extensive memory loss, and that as a result of that she could no longer work. At the hearing, Ms. Roberts had little or no problem with verbal expression. There was no sign of memory loss or the loss of words, which she complained were results of the 2007 accident. Only in cross-examination did Ms. Roberts seem to suffer loss of memory. She often did not remember, or had no intelligible response when presented with questions, evidence, or testimony that apparently contradicted her testimony-in-chief, especially in regard to her work history which she misrepresented.

 

Ms. Roberts testified she could no longer perform housekeeping duties, and she needed help with buttons and dressing and undressing. She developed agoraphobia and sometimes stayed in her pyjamas or in bed all day. She did little cooking or shopping and usually relied on her daughter to perform these tasks. She slept only 2-3 hours per night, and was troubled by sleepwalking and nightmares. She claimed she had lost her fine motor control, and could not concentrate, and was afraid of driving and being in a car. Again, Arbitrator Lee found this testimony unreliable.

 

Arbitrator Lee concluded that although Ms. Roberts testified that the 2007 accident had led to a mental or behavioural disorder that caused a significant impairment in every one of her four spheres of activities, the impact of the impairment was less than what she suggested. Many of her social, leisure, and life activities had been greatly curtailed or had completely ceased well before the 2007 accident. Her problems with memory and concentration pre-dated the 2007 accident. Her work record demonstrated that she had had serious problems well before the accident. Anxiety, nightmares, and sleep problems were all in place well before the accident.

 

Result:

 

  1. Ms. Roberts has not suffered a catastrophic impairment.
  2. Ms. Roberts is not entitled to attendant care benefits in the amount of $334.45 per month from December 10, 2009 to date on ongoing.
  3. Ms. Roberts is not entitled to payments of $100.00 per week from February 19, 2009 to date and ongoing for housekeeping and home maintenance services.
  4. Ms. Roberts is not entitled to Income Replacement Benefits of $400.00 per week from June 10, 2009 to date and ongoing.
  5. Ms. Roberts is entitled to the four massage therapy treatment plans of $1,150.00, $1,150.00, $722.10, and $1,200.00.
  6. Ms. Roberts is entitled to receive physiotherapy treatment in the amounts of $998.55, and $2,431.68.
  7. Ms. Roberts is not entitled to receive occupational therapy services of $1,536.94.
  8. Ms. Roberts is entitled to payment for the costs of examinations in the amounts of $3,500.00 to $5,000.00 for a neuro-psychological assessment.
  9. Ms. Roberts is entitled to $456.51 and $4,665.83 for speech therapy services.
  10. Ms. Roberts is not entitled to payment of $6,000.00 for a service dog recommended by Dr. Harris in a treatment plan dated August 10, 2010.
  11. Ms. Roberts is entitled to receive a medical benefit of $1,000.00 and $2,000.00 for the psychological therapy.
  12. Ms. Roberts is entitled to $23.70 for prescription medication.
  13. Ms. Roberts is entitled to a special award for the unreasonable delay or denial of payments for the neuro-psychological assessment and psychological therapy.
  14. Ms. Roberts is entitled to interest on the overdue payment of benefits.
  15. This item will be dealt with in accordance with Rule 79 of the Dispute Resolution Practice Code, if necessary.
Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Chronic Pain, Drunk Driving Accidents, Pain and Suffering, Paraplegia, Physical Therapy, Treatment

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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