May 16, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: February 26, 2015
Heard Before: Adjudicator Barry Arbus
Mr. Georgios Apostolidis, 43, was injured in a car accident on October 30, 2009. He was a cook working at a restaurant in Richmond Hill. He immigrated to Canada at age 16, had completed grade 7 in Greece, and had worked at the same restaurant for 10 years continually prior to the accident. He read and wrote Greek poorly, and had a very limited ability to speak or read English. He had been married to Albina Dimitrova for seven years prior the accident. He met her while she was working at the restaurant where they both continued to work after their marriage. As a result of his accident, Mr. Apostolidis was taken to Humber River Hospital in severe pain where he underwent surgery. The surgery consisted of having his nose stitched, spending approximately three hours in surgery for his leg and ankle where metal plates and 10 screws were inserted. Mr. Apostolidis was sent home in a wheelchair where he spent three months immobilized until physiotherapy commenced.
He applied for and received statutory accident benefits from Wawanesa however a number of disputed issues arose between the parties, including whether Mr. Apostolidis is catastrophically impaired. The parties were unable to resolve the disputes through mediation and Mr. Apostolidis applied for arbitration at FSCO.
The issue in this Preliminary Issue Hearing is:
1. Is Mr. Apostolidis catastrophically impaired?
1. Mr. Apostolidis is catastrophically impaired.
The uncontradicted evidence of both Mr. Apostolidis and his wife was that prior to the accident, he worked up to 60 hours per week and they had a busy social life which included annual trips to Montreal, Niagara, and bi-annual trips to Greece. They had a few friends who they saw on a regular basis, including social trips to the Danforth. Their marriage was a happy and loving one including intimacy. Mr. Apostolidis played soccer and billiards, and at home cooked, cleaned, and gardened.
As a cook Mr. Apostolides had to carry heavy items; stand on his feet for nine to 12 hours per day; lift bags of rice and potatoes of 20 to 25 pounds each; and do much bending and lifting. His evidence indicated that he liked his job very much, this being the only job that he was trained to do.
Phsyiotherapy did not help Mr. Apostolidis and a second surgery was undertaken on September 26, 2011, after which he was in a cast for an additional three weeks. He continues to have pain in his shoulder, neck back and legs. He has difficulty breathing though his nose. He is unable to work or socialize, he is no longer intimate with his wife. He is anxious and depressed. They have moved into a small apartment
As a result of the accident Mr. Apostolidis and his wife gave up the rental home they were living in and moved to a smaller apartment, both for financial reasons and because of the Applicant’s inability to perform the tasks that he formerly did at the home. Mr. Apostolidis did undertake some physiotherapy but stopped because of the fact that he could no longer afford to outlay the cost personally.
Wawanesa produced surveillance video showing Mr. Apostolidis driving his car, going to the mall, walking with his wife, and performing a number of normal day-to-day tasks, including shopping and visiting one friend and attending at the bank. The parties also filed numerous medical reports dealing with the Mr. Apostolidis’ physical and psychological examinations.
The Arbitrator reviewed the facts of the case and the law and determined the only issue to be addressed is whether Mr. Apostolidis suffered a catastrophic impairment as defined by the Schedule.
The first issue was whether Mr. Apostolidis has sustained an impairment of the whole person (WPI), of 55% or more. Based on the medical evidence of both the Applicant and the Insurer, there is no evidence sufficient to meet the threshold of an impairment or combination of impairments resulting in a 55% or more impairment of the whole body.
The Arbitrator then addressed whether there was a Marked Impairment due to Mental or Behavioural Disorders. He reviewed extensive medical testimony, the testimony of Mr. Apostolidis and his wife, and surveillance video from the insurer. He determined there was marked impairment in this category.
The Arbitrator chose to give greater weight to Mr. Apostolidis’ medical evidence. A requirement of Wawanesa to insist that he attend English as a Second Language (ESL) classes placed an impossible burden and added additional frustration.
The Arbitrator found Mr. Apostolidis catastrophically impaired because he has a marked impairment due to a mental or behavioural disorder as a result of a Class 4 Impairment (Marked Impairment) in the area of activities of daily living.