December 07, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
REASONS FOR DECISION
Heard Before: Arbitrator Alec Fadel
Date of Decision: November 5, 2013
Mrs. B was 25 when she driving home from work when she was t-boned in a car accident on August 18, 2005. She complained immediately of extreme neck/back pain, and was flown by air ambulance to hospital. She applied for and received statutory accident benefits from State Farm. Mrs. B claims that the disc herniations and the resulting difficulties, including a conversion disorder she experienced nine months after the accident are a result of the motor vehicle accident of August 18, 2005. She claims that she sustained a catastrophic impairment in the motor vehicle accident.
Is Mrs. B. catastrophically impaired?
Is Mrs. B. entitled to an income replacement benefit from August 15, 2008 to date and ongoing?
Is Mrs. B. entitled to an attendant care benefit in the amount of $5,916.60 per month from May 7, 2006 to date and ongoing?
Is Mrs. B. entitled to interest for overdue payments?
Before the accident Mrs. B was a healthy woman. This was confirmed in her medical files. After the accident Mrs. B was unable to return to work and started a new job in February of 2006. She continued physiotherapy until she experienced disc herniations in May 2006 while folding laundry on the floor Mrs. B experienced intense sudden pain in her back and legs. She returned to hospital. There she was admitted as she could not ambulate. CT and MRI scans showed disc herniations in her back.
It was noted that she seemed to have exaggerated pain responses, and there was no evidence of cauda equine. She was not a surgical candidate. She later underwent a spinal decompressive surgery in August 2006 which relieved some symptoms, but reported she could not walk without canes, a scooter, or walker. She continues to take narcotics and Lyrica for pain. She cannot dress or bathe her lower body, needing toileting help occasionally.
Prior to May 2006 she had not complained of lower back pain to this point. She developed cauda equine-like syndrome and is now unable to work, ambulate without assistive devices and is dependent on opioid analgesics daily. It’s also suggested she has conversion disorder. She claims catastrophic impairment with 55% whole person impairment (WPI).
The Arbitrator found Mrs. B to have a credible, detailed, sincere manner and her testimony was corroborated by medical evidence presented at the hearing.
State Farm takes the position that the disc herniations were not caused by the accident and refuses to pay an ongoing income replacement benefit beyond August 15, 2008 and denied Mrs. B’s claim for attendant care benefits. Most medical experts maintain the time lag between the accident and herniation to be too great to have been caused by the accident. They also dispute the claim for catastrophic impairment.
At the hearing State Farm presented only reports as their experts were unavailable for the hearing. The Arbitrator did not find the reports helpful in determining whether the disc herniations were caused by the motor vehicle accident. The reports concluded no casual connection between the accident and disc injury.
One of the primary issues in this case is whether or not the disc herniations suffered by Mrs. B are causally related to the motor vehicle accident of August 18, 2005. Section 2(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment…”
A number of assessors including some of Mrs. B’s conclude that the disc herniations were not related to the accident; however there were a number of persuasive opinions that conclude that the accident is responsible. From an adjudicative perspective the Arbitrator was left with medical opinions that support both interpretations. He noted that the reality is that the applicant had no documented pre-accident lower back issues, she was in a serious car accident and complained of lower back issues throughout.
The Arbitrator turned to the question of Conversion Disorder next. He relied on the testimony of Dr. C
who concluded that a diagnosis of Conversion Disorder was appropriate.
The question of a catastrophic impairment was determined next. Mrs. B claims a catastrophic impairment as defined by the Schedule when combining both her physical and mental and behavioural impairment ratings. Two separate assessments were reviewed by the Arbitrator done on behalf of Mrs. B. The Arbitrator preferred the findings which showed Mrs. B sustained a 21% WPI given earlier findings on causation.
The Arbitrator then reviewed the assessments of Mrs. B.’s Mental and Behavioural Impairments and Ratings, impacts on her activities of daily living, social functioning, concentration, persistence and pace, and her work adaptation. He concluded that The Guides, fourth edition, give no instruction on how to quantify WPI for mental or behavioural impairments and noted from the case law that the most common approach taken by judges and arbitrators seems to be a hybrid approach of both the methodology from the 2nd edition, referenced at page 301, and Table 3 from Chapter 4.
In the end the Arbitrator concluded a finding that the Mrs. B should be rated with the combined score for physical impairments of 21% WPI, and for mental and behavioural impairments 28% WPI. The combined value according to the chart starting at page 322 of the Guides is 43%. This is short of the 55% WPI required to be entitled to a catastrophic impairment designation from the motor vehicle accident of August 18, 2005. The applicant therefore is not catastrophically impaired from this accident.
None of Mrs. B’s doctors have cleared her to return to work, and she has not worked since May 6, 2006. She was paid an income replacement benefit for nearly three years following the accident. She is currently receiving a CPP disability benefit and has been specifically found by the CPP disability review board to have suffered a severe and prolonged disability that is unlikely to cease. State Farm conducted a post-104 week insurer examination but that report was not filed as an exhibit. Mrs. B tried to do telemarketing but was not able to do that job. Other assessments showed it would be very difficult, if not impossible, for her to attend to a workplace setting even to find a job that has sedentary work requirements because she is so limited in her personal care function, her ability to be timely and to sit for reasonable length of time as required by any of the three occupations selected in the insurer’s examination. Dr. K stated that he was confident that the Mrs. B’s condition was deemed permanent and that she suffered a complete inability to perform the job tasks for any employment for which she is reasonably suited by education, training or experience.
The Arbitrator found that the Mrs. B entitled to an ongoing income replacement benefit as claimed.
Based on the evidence before the Arbitrator and his finding on causality the attendant care recommended is reasonable and necessary for the period of May 2006 - August 2007 including applicable interest.