May 23, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Isoken Osunde
Date of Decision: April 13, 2015
Deborah Ellis, 60, was injured in a car accident on November 15, 2005, while she was a passenger on a city bus. She applied to Guarantee for a determination of Catastrophic Impairment. Guarantee concluded that Ms. Ellis did not suffer a catastrophic impairment, and Ms. Ellis applied for arbitration at the FSCO.
The issues in this hearing are:
Has Ms. Ellis suffered a catastrophic impairment under Section 2(1.2)(f)?
Has Ms. Ellis suffered a catastrophic impairment under section 2(1.2)(g)?
Is Ms. Ellis entitled to a special award?
Ms. Ellis has not suffered a catastrophic impairment under Section 2(1.2)(f).
Ms. Ellis has suffered a catastrophic impairment under section 2(1.2)(g).
Ms. Ellis is not entitled to a special award.
Ms. Ellis seeks a finding of Catastrophic Impairment following the Accident on the basis that her physical and mental or behavioural impairments have resulted in a whole person impairment rating of 55% or more.
Guarantee’s position is that Ms. Ellis does not meet the 55% whole person impairment rating and therefore, she is not catastrophically impaired under this section.
EVIDENCE AND ANALYSIS:
There is no dispute that Ms. Ellis does not meet the 55% or more WPI threshold due to her physical injuries alone. It is now settled law that an individual may achieve the 55% WPI threshold through a combination of physical and mental impairments, and therefore, in order for Ms. Ellis to be catastrophically impaired, she must attain a WPI of 55% or more due to a combination of her physical and psychological impairments.
As a result of the accident, Ms. Ellis underwent several x-rays and there was a general consensus among the examiners that Ms. Ellis’ pain in her lower back was as a result of the accident and most likely a disc bulge. Ms. Ellis’ symptoms of pain, dysesthesia and weaknesses were the direct result of the motor vehicle accident in question. He further opined that because of her age and body habitus, there may have been a predisposition to such injury but the clear temporal association with exacerbation in therapies, made it clear that the primary problem was the motor vehicle accident.
The conclusions of an orthopedic assessment conducted in 2007 at Ms. Ellis’ request was rejected by the Arbitrator. The physician had reported that Ms. Ellis has suffered an impairment that results in a WPI of 55% or more as a result of her dependence on a motorized scooter for her mobility. The Arbitrator rejected the conclusions as the physician neither attended the hearing, nor saw Ms. Ellis personally.
Ms. Ellis’ position is that the regulation does not require an applicant to submit a detailed medical report when applying to an Insurer for a catastrophic determination. Guarantee’s position is that the application should be rejected because there was no catastrophic impairment assessment on Ms. Ellis.
In the orthopaedic assessment in 2007 the physician opined about Ms. Ellis’ ability to perform her pre-accident housekeeping and home maintenance activities and her ability to perform her pre accident work duties, but he did no catastrophic assessment on Ms. Ellis in order to arrive at a rating of 55% or more as indicated in the OCF 19. Without an assessment to accompany the OCF 19 from the orthopedic assessment, the Arbitrator found insufficient evidence to determine Catastrophic Impairment.
As part of a multidisciplinary catastrophic assessment by LifeMark Assessments conducted at Guarantee’s request, a physiatrist assessed Ms. Ellis on August 13, 2011. His report formed part of the multidisciplinary catastrophic assessment report dated September 27, 2011 and was filed by Guarantee. The physiatrist did not testify at the hearing. He assigned a WPI of 20% to Ms. Ellis for her physical injuries. There is no dispute about this rating.
The Psychological Assessments:
There were three catastrophic assessments conducted to address Ms. Ellis’ mental and behavioural impairments as a result of the accident; two at the request of Guarantee. The Arbitrator found one was most consistent with the evidence presented and preferred it, but had concerns with the methodologies employed by both doctors. There does not appear to be a standardized methodology for assigning WPI ratings for mental and behavioural impairments under the Guides.
Arbitral jurisprudence has found that in the absence of a standardized methodology in the Guides for assigning WPI ratings for mental and behavioural impairments, adopting a flexible approach results in the most fulsome and true picture of an individual’s impairments
The Arbitrator took the preferred CAT assessment and averaged the numbers to arrive at a WPI of 26.75%. Rounded up, the number becomes 27%. Given the fact that Ms. Ellis is moderately impaired in two spheres and mildly impaired in one sphere, this number is a more accurate reflection of overall WPI based on her mental and behavioral impairments.
Therefore, having assigned a WPI for Ms. Ellis’ mental and behavioural impairment and also accepted 20% WPI for Ms. Ellis’ physical impairment, Ms. Ellis’ overall WPI is 42%. The Arbitrator therefore found that Ms. Ellis is not catastrophically impaired under section 2(1.2)(f) of the Schedule.
After reviewing the evidence and law in light of section 2 (1.2)(g) of the Schedule (accidents after September 30th 2003) the Arbitrator found that there is sufficient evidence to support the fact that Ms. Ellis suffers from a Pain Disorder driven by both psychological and physical factors.
In reviewing the entirety of the evidence the Arbitrator concluded that Ms. Ellis was assessed by a wide variety of assessors most of whom concluded that there is a psychological component to her pain, and therefore on a balance that there is sufficient evidence to support Ms. Ellis’ position that she suffers from a Pain Disorder associated by both Psychological Factors and a General Medical Condition.
Overall, after considering Ms. Ellis’ limitations in the realms of activities of daily living, social functioning, travel and the opinion of assessors that Ms. Ellis is unemployable at other jobs much less her pre accident employment, the Arbitrator was persuaded that there is sufficient evidence to establish Ms. Ellis’ impairment level in the realm of adaptation significantly impedes her useful function. He therefore found that Ms. Ellis is markedly impaired in the realm of adaptation. Reaffirming a rating of 42% WPI appropriate in the circumstance.
The Arbitrator concluded that a marked impairment in at least one of the four domains, qualifies an applicant to a designation of catastrophic impairment under Section 2(1.2)(g). Ms. Ellis is catastrophically impaired under section 2(1.2)(g) of the Schedule.
Ms. Ellis submits that a special award should be awarded against Guarantee for unreasonably withholding benefits. Guarantee submits that no special award is payable because, the dispute in this case is with regard to whether Ms. Ellis has suffered a catastrophic impairment and there is no way of calculating a special award. The Arbitrator found there is no special award payable in this case as there is no dispute with regards to payment of benefits, only to the designation of Catastrophic Impairment.