November 28, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Alec Fadel
Date of Decision: October 21, 2015
Tammy Durepeau was injured in a car accident on November 30, 2008 at the age of 45. At the time of the accident, she was employed as a social worker for the Red Cross where she had been working since February 14, 2005. Prior to this she had worked retail. There was evidence that she suffered from mental health difficulties including struggles with depression and stress prior to 2005. Ms. Durepeau has not worked since the accident. She received accident benefits from State Farm and continues to receive an income replacement up to the time of this hearing. She made an application for determination of catastrophic impairment under the Schedule
She continues to receive an income replacement benefit from State Farm as it determined that she had a complete inability to engage in any occupation for which she is reasonably suited by education, training or experience, and the parties agree that her entitlement to an ongoing income replacement benefit is due to mental and behavioural impairments. The parties agree that she suffers from major depression and a pain disorder and the insurer concedes that this psychiatric illness was caused by the accident. It is only necessary to have a marked impairment in one area of function to be considered catastrophically impaired as per the Schedule.
State Farm’s insurer examination concluded that Ms. Durepeau had a moderate impairment and did not meet the definition for catastrophic impairment. Ms. Durepeau’s own assessment team found that she was catastrophically impaired because she has a marked impairment in one area of function being adaptation to work or work-like setting (adaptation). The parties were unable to resolve this issue through mediation, and Ms. Durepeau applied for arbitration at the FSCO.
Does Ms. Durepeau have a marked impairment on account of a mental or behavioural disorder in the area of adaptation?
Ms. Durepeau meets the definition of catastrophic impairment because she has a marked impairment in the area of adaptation due to a mental or behavioural disorder.
The issue in dispute requires consideration of the language used in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment is moderate, or marked.
Ms. Durepeau argues that the operative words in the definitions of classification of level of impairment must be given their plain meaning, within the context. State Farm argues that Ms. Durepeau and her medical witnesses took an incorrect and unduly narrow interpretation of what is meant by function being “significantly impeded” in the definition of marked impairment, and that Ms. Durepeau is relying on the fact that she continues to receive income replacement benefits beyond 104 weeks as proof that she has a marked impairment in this area of function.
The Arbitrator reviewed the evidence and the law, and in support of his finding, accepted the “fundamental propositions” put forward by Ms. Durepeau.
The phrase and concept of catastrophic impairment are to be given an inclusive and not a restrictive meaning
The findings and conclusions of one doctor should be preferred over those of State Farm’s doctor.
The evidence taken as a whole supports the finding that Ms. Durepeau has suffered a catastrophic impairment
In examining the evidence as a whole, the applicant’s medical assessment and conclusions are preferred over those of State Farm because the findings and conclusions were consistent those of other medical examiners, and are based on a thorough and informed clinical assessments and a fair and reasonable interpretation of the Guides. Ms. Durepeau’s mental and behavioural impairments are consistent with Ms. and Mr. Durepeau’s testimony and that of her occupational therapist regarding Ms. Durepeau’s ability to function. It was striking that Ms. Durepeau was unable to make a decision of the simplest nature with relatively few implications, such as where to sit.
The reality is that Ms. Durepeau held a full-time job that she enjoyed before the accident and has not worked at all since the accident despite her evidence that she would love to be working. Despite this desire to be working, Ms. Durepeau has been unable to even look for volunteer work as a result of her impairments. The evidence taken as a whole supports the finding that Ms. Durepeau has suffered a Catastrophic Impairment
The evidence shows that Ms. Durepeau went from a fully functioning individual who performed the majority of the household responsibilities in a busy household to one who does significantly less after the accident and at her own, much slower pace and time. Her history of depression that existed when she was a stock clerk in the retail industry before 2005 and that she has been asymptomatic at the time of the accident. Her marital life went from one of social and sexual intimacy to the point she thinks her marriage is at an end.
The Arbitrator found that the Ms. Durepeau’s condition precludes her from any active participation in the work force, either for pay or on a volunteer basis, and based on the evidence concluded that Ms. Durepeau has a marked impairment in the area of work or work-like setting or adaptation as illustrated in the Guides. As a result, Ms. Durepeau meets the definition of catastrophic impairment on account of a mental or behavioural disorder.