January 17, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Shaw and Gore Mutual
Decision Date: 2017-11-30
Heard Before: Adjudicator Lynda Tanaka
CAT IMPAIRMENT : applicant provides clear and ample evidence of impairments that are all resulting from the motorcycle accident; insurer does not make case that impairments are not catastrophic; applicant has access to further benefits
Mr. Shaw was injured in a car accident on June 10, 2014 and sought accident benefits from TD, but when they were unable to resolve their disputes through mediation applied for arbitration at the FSCO.
The issues in this Hearing are:
- Did Mr. Shaw suffer a CAT impairment as a result of the motor vehicle accident of June 10, 2014?
- Is Mr. Shaw entitled to receive the following medical benefits?
- an OCF-18 dated 2014-12-18 for treatment in the amount of $4,904.19; and
- an OCF-18 dated 2015-05-25 for $300.00 being the balance of the amount claimed of $6,297.00?
- Is Mr. Shaw entitled to receive other benefits claimed as follows: $168.36 for prescription medications, and $1,289.51 for transportation expenses?
- Is Mr. Shaw entitled to attendant care for services over and above what has already been paid by TD?
- Is Mr. Shaw entitled to a special award because TD unreasonably withheld or delayed payment of any benefits?
- Is either party entitled to expenses in respect of this Arbitration?
- Is Mr. Shaw entitled to interest for the overdue payment of benefits?
- Mr. Shaw did suffer a CAT impairment as a result of a motor vehicle accident of June 10, 2014.
- Mr. Shaw is entitled to receive the following medical benefits:
- an OCF-18 dated 2014-12-18 for treatment in the amount of $4,904.19; and
- an OCF-18 dated 2015-05-25 for $300.00 being the balance of the amount claimed $6,297.00.
- Mr. Shaw is entitled to receive other benefits claimed as follows: $168.36 for prescription medications, and $1,289.51 for transportation expenses.
- Mr. Shaw is entitled to attendant care benefits in the amount of $8,708.50 for services over and above what has already been paid by TD.
- Mr. Shaw is not entitled to a special award because TD unreasonably withheld or delayed payment of any benefits.
- Mr. Shaw is entitled to interest for the overdue payment of benefits.
EVIDENCE AND ANALYSIS:
The Arbitrator reviewed the Law, and definitions in the Schedule, noting that the AMA Guides are to be given a remedial, broad and liberal interpretation. The Schedule is remedial and inclusive, not restrictive, and constitutes consumer protection legislation, the goal of which is to reduce the economic dislocation and hardship of motor vehicle accident victims. The definition of “CAT IMPAIRMENT” is intended by the legislature to be inclusive and not restrictive. The determination therefore is based on all the evidence before the arbitrator and the onus lies on Mr. Shaw on the balance of probabilities to prove the CAT impairment has been suffered.
Mr. Shaw had a good quality of life before the accident. He lived in and looked after his own apartment, had a new girlfriend, and had the prospect of starting a new business in motorcycle repair with a friend as a partner. He had cared for his mother until her recent death. He was socially active. He was healthy and seldom took a pain killer or had a headache. He took prescription drugs only to control cholesterol and high blood pressure.
Mr. Shaw was struck from behind while he was riding his motorcycle. He had stopped to make a left turn into a farm lane and was waiting for oncoming traffic to clear. The posted speed limit on the road was 80 km/h. The force of the collision threw Mr. Shaw into the air. He landed on a car hood and came to rest on the ground. He lost consciousness, but he has some recollection of some of the time before the ambulance came. His helmet was damaged in the collision. He suffered a broken ankle, a concussion and abrasions to various parts of his body. His elbows were injured so that he had difficulty using his crutches to keep weight off his broken ankle. He lost his hearing in his left ear for a period of weeks and he has continued to suffer from reduced hearing and tinnitus since the accident. His eyesight in his left eye was damaged. Three years after the accident and after various physical treatments, he continues to have headaches, neck and back pain, elbow pain, left leg and ankle pain. In addition to his hearing and eyesight impairment, he gets dizzy and uses a cane. He needs help with any heavy lifting.
He no longer has the endurance to ride any distance. He has lost his motivation to volunteer, though he remains in contact with the organization and his friends there, though with less frequency than before. He now has more prescription drugs than he took prior to the accident. He says these additional prescription medications are required as sequelae to the impairment s he suffered in the accident. He has become moody, irritable and depressed and has taken and continues to take painkillers such as Tylenol 3 and Tylenol Extra Strength. He struggles with fatigue and became suicidal. He continues to have difficulties sleeping properly and he frequently “takes a pass” when invited to social events because of his fatigue and pain. He finds it hard to focus and remember “stuff” such as appointments, and his personal care worker helps him keep his prescriptions in order. He used to do his own cooking but now he only uses the microwave.
Issue 1 – CAT Impairment
Mr. Shaw testified that his impairment s caused by the accident have presented a considerable challenge with respect to keeping his home and his papers, appointments and medications all in order. He cannot change his bed linen or do his laundry and he no longer cooks because of his fatigue, headaches and ongoing musculoskeletal pain. He needs help staying on top of his prescriptions refills, his food shopping, cleaning his apartment, etc. This evidence was corroborated by the occupational therapist. The personal care worker who comes for two and a half hours a week to assist him and, despite the lack of payment for attendant care services past the 104-week mark, she has continued to come at Mr. Shaw’s expense.
Mr. Shaw’s family doctor testified that prior to the accident he was not a sick person and was not a frequent patient, but since the accident Mr. Shaw was anxious all the time, overwhelmed and stressed. She described the concussion as “big”. In 2015 he was on Lorazepam and then moved on to antidepressants because his being down and blue was “tipping into” treatable symptoms.
In February 2015 he lost vision in his right eye, part of the stroke continuum, and the family doctor therefore put him on Aspirin. Unbeknownst to her, he was already experiencing symptoms of gastro-intestinal bleeding. He subsequently ended up in emergency with intestinal bleeding. She testified that, while the duodenum did not have a big hole, the bleed could have killed him, and he lost 4 pints of blood while the emergency doctor watched. Mr. Shaw provided ample medical evidence of his illness and progressing disabilities.
There was substantial agreement between the parties as to certain elements of the rating of the Whole Person impairment and characterization of Mr. Shaw’s impairment s under the definition of whole person impairment s under the Schedule. Where Mr. Shaw’s assessors determined that he was 55% impaired, TD’s assessors determined that he was 40% impaired. TD complained that, where a range of percentages was given for the possible rating, the assessment for Mr. Shaw consistently used the top of the range and that some of the assessors had not applied their medical judgment to determining the proper number within the range. The assessors deferred to the executive summary author and TD’s position is that that is improper and that those ranges cannot be relied on to reach the WPI. TD also takes the position that the ratings included an element of double counting. TD also disputed the use of the cane.
The Arbitrator reviewed all of the evidence and medical reports and concluded that based on all the evidence, Mr. Shaw’s use of his cane falls within the routine use requirement and is properly rated as Moderate and not Mild. This practice is consistent with the safe home environment. The ongoing impairments of hearing loss, dizziness, eyesight issues, headaches and pain in back and his lower limbs all could reasonably cause Mr. Shaw insecurity when he is going outside or when he is uncertain or worried about uneven or slippery surfaces. The Arbitrator agreed that Mr. Shaw’s injuries fall within the second tier under Mental Status. It is well supported on the evidence, as is his determination that the headaches are not transient and therefore should be separately rated. The Arbitrator also accepted the assessment of the cognitive challenges facing Mr. Shaw in his daily living. On this basis the Arbitrator determined Mr. Shaw catastrophically impaired.