Insured provided credible evidence to be found catastrophically impaired

March 19, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: February 26, 2016

Heard Before: Adjudicator Eban Bayefsky

Amir Salman was injured in a car accident on January 30, 2008, when he pulled out of a laneway and was struck by another vehicle. He did not seek immediate medical attention but went home and when he awoke later from a nap felt as though he’d been hit by a truck. Mr. Salman saw his family physician the following day and was diagnosed neck, right shoulder and back strain, as well as knee strains and/or tears. He was prescribed pain medication and referred for physiotherapy and further tests. Mr. Salman maintains that he has suffered constant neck and back pain since the accident, as well as headaches, and sensitivity to light, with only temporary relief from medication and physical therapy. His pain radiates to his arms and legs, and he reports difficulty walking more than short distances. He also complains of difficulty sleeping, depression, lack of energy and inability to concentrate.

He applied for and received statutory accident benefits from Allstate, but when Allstate denied certain claims and, mediation failed, Mr. Salman applied for arbitration at FSCO.

The issues in this hearing are:

1. Did Mr. Salman sustain a catastrophic impairment within the meaning of the Schedule?

2. Is Mr. Salman entitled IRBs, from December 15, 2008, onward pursuant to the Schedule?

3. Is Mr. Salman entitled to attendant care benefits, from October 17, 2011, onward pursuant to the Schedule?

4. Is Mr. Salman entitled to payments for housekeeping and home maintenance services, from April 24, 2008, onward, pursuant to the Schedule?

5. Is Mr. Salman entitled to payment for a treatment plan, dated May 25, 2012, pursuant to the Schedule?

6. Is Mr. Salman entitled to payment for the cost of the following examinations,

   1. An in-home assessment on October 17, 2011 in the amount of $1,301.54;

   2. A catastrophic impairment assessment on September 26, 2011 in the amount of $7,800

   3. A catastrophic impairment assessment on April 3, 2014, in an unspecified amount.

7. Is Allstate liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Salman?

8. Is Mr. Salman entitled to interest for the overdue payment of benefits, pursuant to the Schedule?

Result:

1. Mr. Salman sustained a catastrophic impairment.

2. Mr. Salman is entitled to income replacement benefits.

3. Mr. Salman is entitled to attendant care benefits.

4. Mr. Salman is not entitled to payments for housekeeping and home maintenance services.

5. Mr. Salman is entitled to payment for a treatment plan prepared by Ms. LD.

6. Mr. Salman is entitled to payment for the cost of an in-home assessment, but not the catastrophic impairment assessments.

7. Allstate is liable to pay a special award, in the amount of $5,000.

8. Mr. Salman is entitled to interest on the benefits ordered to be paid.

Before the accident Mr. Salman maintains that he was healthy and active, but as a result of the car accident he suffered a catastrophic impairment, to the point that he now leads a significantly diminished life and is largely incapable of taking care of himself.  He claims he suffers class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder as defined in the AMA Guides. Courts have ruled it is sufficient for a person to establish at least marked impairment in only one of these areas to be found to have suffered a catastrophic impairment due to mental or behavioural disorder. The Court also indicated that the determination of catastrophic impairment due to mental or behavioural disorder involves a three-step process, namely, the diagnosis of any mental disorders, the identification of the impact of those disorders on a person’s daily life, and the assessment of the severity of those limitations in relation to the four categories of functioning set out in the AMA Guides.

Allstate maintains that neither the accident nor Mr. Salman’s injuries were particularly serious and that Mr. Salman’s claim of catastrophic impairment is significantly undermined by his lack of credibility, as it relates both to the nature of his alleged injuries and the extent to which those injuries might have affected his day-to-day functioning.

As part of the assessment process Mr. Salman was diagnosed as suffering from chronic PTSD secondary to the car accident pain. He was assessed by other medical professionals who determined that Mr. Salman had “Pain Disorder Associated with Both Psychological Factors and a General Medical Condition, Chronic” and “Major Depressive Disorder, Single Episode, Moderate.” A further IE concluded that Mr. Salman “would appear to meet the criteria for a DSM-IV-TR Adjustment Disorder with Mixed Anxiety and a Depressed Mood.” A further orthopaedic exam concluded that Mr. Salman did not cooperate with the exam.

A multidisciplinary IE CAT assessment concluded that that the “presence of malingering undermines the conclusion that Mr. Salman is suffering from any psychiatric disorder” and that he was not suffering from a Major Depressive Disorder, Adjustment Disorder, Post-Traumatic Stress Disorder or Pain Disorder.

The Arbitrator noted that the issue of whether Mr. Salman’s injuries constitute a catastrophic impairment within the meaning of the Schedule, and whether he is entitled to the specific benefits claimed, must be considered in the context of his pre- and post-accident medical and social history. The Arbitrator considered the following facts:

• Mr. Salmon lived independently prior to the accident. He has been divorced three times.

• He was born in Israel, moved to Canada in 1991

• He had epilepsy as a child but it resolved, and intermittent back stain/pain between 1992-2002

• In 1996 he moved back to Israel where he was a close witness to a suicide bombing involving the dismemberment of many people. He was injured and severely traumatised by the event.

• He returned to Canada and worked with his brothers living a full and active life.

• Since the accident several witnesses testified that Mr. Salman became unkempt, depressed, and lethargic.

• Family and friends have given Mr. Salman money to take holidays and accompanied him on them.

• When Allstate discontinued funding pain and antidepressant medication Mr. Salman tried commit suicide and was found hanging by the neck in the stairwell of his apartment building.

The Arbitrator noted the validity of Mr. Salman’s claim of catastrophic impairment turns, to a large extent, on the reliability of his evidence, in terms of both his complaints of widespread pain and social withdrawal following the accident, as well as his presentation to the various assessors. While there are some discrepancies in Mr. Salman’s evidence these are relatively minor, and that, in all of the circumstances, Mr. Salman provided a reliable description of the nature and extent of his accident-related impairments. The Arbitrator found that Mr. Salman has provided credible and reliable evidence of his accident-related impairments. The Arbitrator concluded that Mr. Salman met the three-step process in Pastore to establish his claim of catastrophic impairment.

On the basis of all the evidence the Arbitrator ruled that Mr. Salman suffered significant psycho-emotional injuries as a result of the accident, that these injuries have profoundly affected the quality of his life, and that his impairment is marked in at least one of the four categories of functioning. The Arbitrator ruled Mr. Salman suffered a catastrophic impairment within the meaning of section 2(1.2)(g) of the Schedule.

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 at 1-519-742-7774.

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.