January 05, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Maggy Murray
Date of Decision: December 19, 2013
REASONS FOR DECISION
MD was injured in a car accident on June 4, 2004. His injuries included loss of vision in his left eye, a skull fracture, multiple facial fractures, headaches, a concussion and emotional problems. He claims a panic disorder that makes leaving the house difficult and that he has only a limited ability to socialize, and only with close friends and family. He can’t cope with new environments or people, cannot work and vomits daily. He claims to have lived an active life before the accident. He now lives with his two young children, looks after them and himself. He claims his panic attacks have improved over the years. Friends and family corroborate his panic attacks, and note a marked change in his behaviour.
He applied for accident benefits from Aviva claiming a designation of CAT (catastrophic impairment). Aviva’s assessment at an Insurer's Examination determined that MD did not sustain a catastrophic impairment. Aviva disagrees with the extent of his mental and behavioural impairment.
The issues in this hearing are:
Did MD sustain a catastrophic impairment within the meaning of clauses 2(1.2)(t) and/or (g) of the Schedule the Schedule?
MD sustained a catastrophic impairment clauses within the meaning of sections 2(1.2)(f) and/or (g) of the Schedule.
Aviva argued MD did not suffer a marked impairment in any of the four areas of functioning and does not meet the catastrophic designation. They also maintain that there are no significant changes in MD’s post-accident life citing:
He was living with his pregnant teenage girlfriend and was financially supported by her at the time of this accident.
He dropped out of high school before finishing grade 11 and had poor grades.
He had a troubled past that included fights and assault convictions.
He was twice incarcerated.
His work history is checkered. His first job led to incarceration.
He was fired from another job following his release from jail.
At a next job he assaulted a co-worker.
Another job came to an end after an altercation with a co-worker.
The Arbitrator reviewed the law and found that an assessor could assign a WPI to a mental impairment and combine it with a physical WPI, noting the burden rests with the Applicant to prove that on a balance of probabilities that, as a result of the accident, he is catastrophically impaired. The Arbitrator found that the Applicant has discharged his burden.
MD provided reliable and credible evidence that he sustained a catastrophic impairment in (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decompensation in work or work-like settings. MD's global assessment of function score ("GAF") was 50 in 2007. He was diagnosed with agoraphobia with panic attacks and major depression.
The Insurer’s Examination conducted in 2008, concluded that MD has a Class 2-3, mild-moderate impairment with respect to: (i) activities of daily living, (ii) concentration and (iii) social functioning and (iv) adaptation to work environments.20 MD was assigned a 15%. MD’s GAF was 51-60.
The Arbitrator found MD’s Dr. L’s insight, both in his report and testimony, credible and useful and preferred his assessment to that of IE assessment because Dr. L recognized the importance that individuals not be rated within their simplified life, but rather, to assess the impact of their mental state on functioning. In addition the IE discounted MD’s serious depression and daily suicidal thoughts. The Arbitrator returned several times to the importance to looking at the whole individual and the global impact of the impairments.
Everyone who examined MD agrees that he suffers from anxiety, panic disorder and some degree of depression. The Arbitrator found that Aviva sought to minimize the impact of MD's psychological impairments by what he can do, such as being a loving parent, implying that impairment due to a psychological condition is minimal if he can function as a parent. That logic is flawed, however, because although MD functions, he does so in a sheltered, narrow and confined world. For example, he takes his children to school, feeds them and cooks for them but he does so in the absence of any other demands. He minimizes exposure to emotional stressors. He does not go to parent-teacher interviews, organized extra-curricular activities, or initiate activities with other parents because of his anxiety.
The parties agree that MD’s physical impairment rating is 34% WPI. His impairment rating based on mental or behavioural disorder, is marked, and the Arbitrator agreed with Dr. L and Dr. K’s assessment of 40%. This meets the threshold of a Class 4 impairment (marked impairment) specified in clause 2(1.2) (g) of the Schedule and the Applicant sustained a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule. When the physical impairment rating of 34% is combined with the mental and behavioural impairment rating of 40%, this results in a WPI of 60%.
Based on the above, the Applicant sustained a catastrophic impairment within the meaning of clauses 2(1.2)(f) and (g) of the Schedule.