November 08, 2011, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Joyce Miller
Decision Date: October 21, 2011
Mr. C was injured in a motor vehicle accident on December 1, 2006. He applied for and received statutory accident benefits from Coachman Insurance Company ("Coachman"), payable under the Schedule. A number of disputed issues arose between the parties, including whether Mr. C is catastrophically impaired. The parties were unable to resolve their disputes through mediation, and Mr. C applied for arbitration at the Financial Services Commission of Ontario The preliminary issue is:
1. Is Mr. C catastrophically impaired pursuant to the Schedule?
1. Mr. C is catastrophically impaired pursuant to the Schedule.
(1) Mr. C's Testimony
Mr. C was assisted by a Turkish-speaking interpreter during his testimony which he gave in English. Mr. C provided his testimony standing up, while leaning bent over the table. He would change from leaning on his hands to leaning lower down by resting his arms on the table. Throughout his testimony Mr. C appeared to be in physical discomfort. He was obviously fatigued during his testimony. There was a clear deterioration in his demeanour as examination and cross-examination proceeded.
Mr. C underwent a very aggressive and at times inappropriate cross-examination. Inappropriate in that, counsel for Coachman screamed some of his questions at Mr. C with the clear intention, in the Arbitrator’s opinion, of intimidating Mr. C . Counsel also glared intensely while firing off questions at a very rapid pace, and unnecessarily and redundantly repeated questions that already had been answered. Objections to counsel's behaviour were consistently ignored.
Despite the very vigorous cross-examination, Coachman was unable to impugn Mr. C's testimony. The Arbitrator found that Mr. C provided credible and non-contradictory testimony in support of his claim and gave full weight to his testimony.
Mr. C, who is 47 years old, emigrated from Turkey in 1986. Mr. C is married and has three children: two daughters age 14 and 9; and a son 11 years old. Before coming to Canada, Mr. C completed grade five education and worked on his family's farm. He also trained in stucco plastering.
When Mr. C came to Canada he worked at numerous jobs, which included working as a car wash attendant, as a janitor, a worm picker, and as a machine operator in a factory. At the time of the accident, Mr. C was working for Allied Plastering and Stucco Limited, six and a half days a week as a stucco plasterer.
In 2001, Mr. C was involved in a car accident wherein he injured his back and had to be off work. In January 6, 2002, a CT scan of Mr. C's lumbar spine notes that Mr. C had a "[c]ongenitally small spinal canal. “ and detailed other existing conditions. An MRI report of May 4, 2002 confirmed that Mr. C did not have any disc herniation. The first time any disc herniation is noted is after the car accident in an April 1, 2007 MRI report of Mr. C's lumbar spine.
The evidence reveals that one year prior to his 2006 car accident, Mr. C did not have any body pain, neck or back. This is confirmed not only by his family doctor's clinical notes and records, but also by the OHIP summary. The family doctor's clinical notes indicate that he did not see Mr. C often and they were only for issues not related to his spine.
Mr. C testified that prior to the 2006 accident, except for a two-month winter lay off, he had never missed a day of work. A December 10, 2008 letter from his employer confirmed that he was "a good and valued employee" who they regret losing. Mr. C provided credible evidence, confirmed by the testimony of his wife, that prior to the accident he had a very happy, harmonious family life and a vibrant social life. The details of his pre-accident family life will be described below in the testimony of Mrs. C
(c) The Accident
The accident occurred on December 1, 2006. Mr. C had stopped at a crosswalk in his minivan to let a pedestrian pass by. While stopped, another minivan, which according to Mr. C was going very fast, hit his vehicle. His minivan was pushed into the crosswalk, but avoided hitting the pedestrian. The impact was such that Mr. C's airbags deployed. His minivan was damaged to the extent that he could no longer drive it, and it had to be towed away. Mr. C testified that he was very close to his house and went home. He sent his wife and son to deal with the aftermath of the accident.
(d) Post Accident
Mr. C testified that his immediate injury was to his neck. The pain was such he could not sleep that night. As a result of the extreme pain he called an ambulance and was taken to the hospital. At the hospital Mr. C was x-rayed, was given a prescription for pain and also a hot and cold pack.
Mr. C saw his family doctor, Dr. K, on December 11, 2006. His complaints to Dr. K were that he suffered from headaches, neck and back pain, with pain radiating down to his right foot. Dr. K recommended he have chiropractic and physiotherapy treatment. Mr. C also received massage, acupuncture, cortisone shots in both of his shoulders to relieve pain, and has also received nerve blocks.
On January 6, 2007 and February 21, 2007, Mr. C went to emergency because of severe pain. On March 20, 2007, he was taken to the hospital by ambulance because of severe pain.
Mr. C underwent an MRI sometime in March 2007. The radiologist's report dated April 1, 2007, noted that Mr. C had a broad based left paracentral herniated disc at the L4-5 level impinging on the left L5 nerve root. The radiologist noted a broad based central disc herniation at the L5-S1 level which she believed was touching both S1 nerve roots.
On November 10, 2007, Mr. C was evaluated by Dr. M, a psychologist. In her report dated October 10, 2007, Dr. M stated that in her opinion Mr. C's symptoms were consistent with the following diagnosis:
· Major Depressive Disorder (severe intensity)
· Pain Disorder Associated with Both Psychological Factors and a General Medical Condition (herniated discs) (chronic)
· Specific Phobia (driving, car riding)
Dr. M considered Mr. C's prognosis to be guarded at the time. She recommended psychotherapy with a Turkish-speaking psychologist. On her recommendation Mr. C began weekly psychotherapy sessions with Mr. S, a certified psychotherapist, who spoke Turkish.
The following rehabilitation assistance began about one year after the accident: weekly psychotherapy sessions with Mr. S began on November 2, 2007; weekly sessions with a rehabilitation coach, WF, who since July 2008 worked with Mr. C in his home; the case management services of Ms. W since February 2008 assisting Mr. C in coordinating his care; and Ms. H, an occupational therapist, working with Mr. C since April 2008 to assist him in becoming more independent.
Despite all these interventions, Mr. C's mental condition significantly deteriorated by the second year after the car accident. His pain had so impinged on his mental health that in July 2009, Mr. C was hospitalized for expressing suicidal and homicidal ideation where he was assessed by Dr. M. Dr. M called Mr. C's Case Manager, Ms. W, who was a registered nurse, to attend at his office. Ms. W testified that at Dr. M's office she observed Mr. C to be "wild and desperate." Mr. C was admitted to the hospital under a Form 1.
He was discharged the next day. However, because his suicidal ideation included homicidal thoughts in respect of his wife and children, Children's Aid Services (CAS) was notified and his family was investigated. Three weeks after Mr. C's suicidal ideation, on August 10, 2009, he was admitted to emergency for overdosing on his pain medication. Mr. C testified that at that time it was his intention to kill himself.
Coachman disputed Mr. C's intention as the clinical notes of the hospital only indicated that Mr. C had taken an overdose of his medication, but did not mention his intention to kill himself. The Arbitrator accepted Mr. C's testimony as credible and plausible in light of the fact that three weeks before the overdose he had been admitted to the hospital for suicidal ideation.
Mr. C testified that as a result of the accident, he suffers from severe headaches that are so bad that if he had a gun "I just blow myself." Mrs. C, in her testimony, confirmed that when his pain is so severe he has on a number of occasions made this threat as well as the threat of driving his family into the water.
Mr. C indicated that he suffers from constant or near constant pain in his Jaw, his neck, his back, both legs, and his buttocks all or nearly all the time. Mr. C testified that his foot pain prevents him from walking any distance. He needs orthopaedic shoes and also uses a cane for walking since March 2007. The cane helps him keep his balance.
Mr. C stated that his hands get numb and he drops things. He stated that he has dropped his coffee many times. His left hand is more numb than his right hand. He tries to relieve the numbness by massaging. The relief only lasts about 5 minutes.
Mr. C testified that because of his pain he wakes up many times during the night even though he has taken a sleeping pill before he goes to sleep. He stated that he can't sleep with his wife because he disturbs her due to his restlessness. He sleeps on a massage table purchased by Coachman on the recommendation of Ms. Hilborn. The Insurer also bought him a bed which was better than the one he had.
Mr. C testified that he is always tired. His mood is sad. He has memory problems which cause him to forget people, things and places. Mr. C testified that he gets angry and irritable with his wife and children all the time. To avoid hurting anyone, he slaps himself and has even burned himself by squeezing lit cigarettes in his hands.
Mr. C stated that he becomes very irritated at his children when they are playing. He stated he cannot stand any noise which would include his wife vacuuming or when the television is on. Mr. C testified that since the car accident he is very alienated from his children. He does not initiate any social interactions. His relationship with his wife has completely deteriorated. Their sex life is almost non-existent. His wife has threatened to leave him.
At the present time, he is on a number of prescription narcotics, tranquilizers, and pain relief medications. In addition, Mr. C takes medication for urinary incontinence.
(2) Mrs. C's Testimony
Mrs. C provided her testimony through a Turkish-speaking interpreter. Mrs. C testified under strained conditions. She works night shift in a factory, packing chickens. Her work starts at 11 p.m. and finishes at 8 a.m.
Mrs. C's underwent an aggressive cross-examination. Her cross-examination, on three separate afternoons, was double if not triple the time that Coachman's counsel spent on cross-examining Mr. C. Mrs. C responded to questions in a detailed and non-evasive manner. Nevertheless, she was repetitively asked the same questions in a tone and manner, which were meant to be intimidating. She broke down crying several times. Counsel for Coachman ignored any direction to curtail his repetitive questioning.
Despite a very lengthy and intensive cross-examination, Coachman was unable to impugn Mrs. C's credibility. Accordingly, the Arbitrator gave full weight to Mrs. C's testimony.
Mrs. C confirmed her husband's evidence that prior to the accident they had a happy, harmonious home life and a vibrant social life. Mrs. C described her husband before the accident as "perfect." His relationship with their children was very loving and playful.
She testified that Mr. C's mood was always very good. They got along very well. Mrs. C confirmed her husband's testimony that before the accident she and her husband had a very good sexual relationship.
Mrs. C testified that her husband would help around the house doing laundry, cooking and washing up, and he took charge of the children so that she could sleep when he came home from work. Before the accident, her husband was in charge of the household finances. He made the decisions about any major purchases.
Mrs. C testified that before the accident she and her husband and children had a very active social life and that before the accident her husband had several friends who he would regularly meet at the coffee shop. They regularly attended Mosque.
(b) After the Accident
Mrs. C testified that after the accident her husband's mood and behaviour changed very dramatically. Her relationship with her husband has become very strained. He is now verbally abusive to her. Their sexual relationship was significantly diminished. She testified that Mr. C's relationship with his children has completely deteriorated since the accident. He shouts at the children and is always angry at them. The children no longer want to be around him.
Mrs. C stated that after the accident "he forgets everything." She is now in charge of their finances. She has to remind him about his doctor's appointments, to brush his teeth, to eat and to change his clothes.
Mrs. C testified they no longer socialize with other people and Mr. C is very embarrassed for people to see him in his state. They no longer go out as a family. He does not go to the Mosque anymore. He never sees any friends unless they take the initiative to see him
Mrs. C stated that after Mr. C professed he wanted to kill himself and had overdosed on his pain medication, she now monitors his medication very strictly. He is completely dependent upon her to provide him with his medication on a daily basis.
Mrs. C confirmed his suicide ideation on a number of occasions. She also confirmed his suicidal/homicidal ideation which included driving his family and himself into the lake. Mrs. C testified that, as she told the Children's Aid Society of Toronto (CAS) investigators, she did not believe her husband wanted to harm her and her children, but that he made these statements when he was in extreme pain.
(3) Mr. S's Testimony
Mr. S, a Turkish-speaking psychologist, has been providing therapy to Mr. C on an ongoing weekly basis since November 2, 2007. These sessions, which lasted for 1 ½ hours, were recently decreased to once every two weeks, due to the fact that Mr. C was reaching the $100,000 maximum in medical rehabilitation benefits.
Mr. S testified that when he met Mr. C for the first time, Mr. C displayed symptoms of severe depression. Mr. S testified that since the accident Mr. C has difficulties controlling his anger. Mr. S testified that as far as he could ascertain Mr. C was reclusive. Mr. S stated that Mr. C is embarrassed by his condition and unable to be "like anyone else" in Mr. C's words. According to Mr. S this really disturbs him.
Mr. S stated that he interviewed Mr. C's children, "… [the children] did indicate that their relationship was not what it was prior to the accident, and that they don't like going to the park with [their father], because he doesn't stay there very long. He wants to get back home, so they don't go with him anymore, they go with the mother only."
Mr. S testified that Mr. C indicated that "he was very saddened and embarrassed" over the fact that he could not be a proper father to his children. For example, "[h]e took them to school one day, one of the kids [was] asked … whether this was their grandfather. Because of his hunched back, they thought he was the grandfather. So that was a low point for Mr. C"
Mr. S testified that there hasn't been much improvement in Mr. C's relationship with his wife. "He still gets angry, and he says he can't control himself. … when I questioned it a little bit deeper, he says they go days without speaking to each other, and then they start again to try and function. He insists that he's unable to control at times his irritability and his anger and lashes out at either the kids or his wife." Mr. Mr. S testified that his therapeutic role was supportive with the intention of preventing Mr. C's condition from getting worse.
(4) Mr. WF’s Testimony
WF, a rehabilitation coach, has been working with Mr. C in his home on a weekly basis since July 2008. These sessions, which lasted for 1 ½ hours, were recently decreased to once every two weeks, due to the fact that Mr. C was reaching the $100,000 maximum in medical rehabilitation benefits.
WF described Mr. C's mood when he met him to be depressed. WF testified that: "…the sessions involved distracting [Mr. C] from his depressional thoughts … I would have to lift up his spirits somehow during the session. It was a victory in itself if I could get him to maybe feel a touch better at the end of the session than he was at the beginning. That was a huge goal."
WF testified that in his sessions with Mr. C, his job was to find ways in which to encourage Mr. C to become more involved with his children. WF testified that because of Mr. C's memory problems, he assists him with keeping track of his appointments, and organizing the wealth of paper work in relation to his car accident. He has assisted in helping Mr. C search for an apartment and facilitate the move.
WF testified that he has "observed [Mr. C's] concentration to be very limited. His frustrations seem to be so much that it prevents him from engaging…”According to WF, Mr. C's concentration and persistence continue to be limited. As well, Mr. C's relationship with his wife and his children is only marginally better than when he began to work with Mr. C. WF testified: "As far as engaging human activity, it hasn't progressed from the time I've met him. But I think providing emotional support of continuing on to try and get into some kind of value of life, or role in his family is ongoing."
(5) Ms. W's Testimony
Ms. W, a registered nurse, has been providing case management services since February 2008. She assisted Mr. C in the co-ordination of care, which included attending many doctor's appointments with him and helping him to understand information being provided with respect to diagnosis and treatment options.
In her testimony, Ms. W confirmed Mr. C's limitations as provided by Mr. and Mrs. C and the other witnesses in their testimony.
(6) Ms. H
Ms. H, an occupational therapist, who has been working with Mr. C since April 2008, was recommended by Ms. W to assess Mr. C's functioning in areas of self-care, productivity and leisure, and to assist him in becoming more independent.
She arranged for assistive devices which included a zero gravity chair, bathroom equipment, a new mattress, a massage table to facilitate sleep and an infrared hot bed. As well, she arranged for Mr. C to participate in a mindfulness-based stress reduction program geared to clients with depression, anxiety and chronic pain. He was unable to continue this program.
Ms. H confirmed Mr. C's limitations as provided by Mr. and Mrs. C and the other witnesses in their testimony.
(7) Dr. R’s Testimony
Dr. R, a psychiatrist, conducted a catastrophic impairment assessment on November 2, 2009 on behalf of Mr. C In his report dated January 4, 2010, Dr. R diagnosed Mr. C with a major depressive episode, chronic, severe, partially treated; anxiety disorder NOS (not otherwise specified); and a pain disorder associated with both psychological factors and a general medical condition.
Dr. R's assessment also found that Mr. C's injuries are a direct result of his car accident and that he "… is judged to be stable as it has been more than 2 years since the index accident in accordance with Bill 198."
Dr. R's ratings in relation to the four domains of functioning pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment Guides, "the Guides" were as follows:
· Activities of daily living – moderate impairment
· Social functioning – moderate to marked impairment
· Work adaptation – marked impairment
· Concentration , persistence and pace – moderate impairment
Accordingly, Dr. R concluded that based on his assessment, as a result of mental and behavioural impairments, Mr. C was catastrophically impaired.
Mr. C's treatment providers, who testified at the hearing, had the advantage of seeing Mr. C on a regular basis over several years. This included Mr. Mr. S and WF, who saw Mr. C on a weekly basis, in his home or in an office setting. The Arbitrator accepted their testimony and evidence at the hearing provided a much more comprehensive picture of Mr. C's abilities to function than could have been obtained alone from any expert's in-depth catastrophic impairment assessment.
Taking into consideration the observations of Mr. C's treatment providers, who have observed him over a long period of time, as well as the credible evidence of Mr. and Mrs. C, as noted below, the Arbitrator increased Dr. R's ratings on her findings on the four domains of mental or behavioural impairments.
ANALYSIS AND FINDINGS
The burden of proof rests with Mr. C to show on a balance of probabilities that he is catastrophically impaired as a result of his car accident.
After reviewing the evidence and testimony of witnesses in this hearing, for the following reasons the Arbitrator concluded that Mr. C is catastrophically impaired pursuant the Schedule.
Before dealing with the findings on the ratings in respect of the four areas of functional abilities as outlined in the Guides, the Arbitrator first dealt with the issues of credibility, and causation, as well as Coachman's defense in this arbitration.
The Guides, at page 293, state that in gathering evidence of an applicant's mental disorder:
The individual's own description of his or her functioning and limitations is an important source of information. The presence of a mental disorder does not automatically rule out the individual as a reliable source of information. Information from non medical sources, such as family members and others who have knowledge of the patient, may be useful in indicating the level of functioning and the severity of the impairment.
Given these guidelines, credibility is an important factor in coming to a decision. In assessing the credibility of the various witnesses, the Arbitrator concluded that despite lengthy, vigorous and at times inappropriately aggressive cross-examination, Coachman completely failed to impugn the very clear, consistent, credible testimony of Mr. C, his wife and all the witnesses who testified on his behalf.
Having reviewed the treatment providers' reports and records and taking into consideration their very detailed testimony, the Arbitrator found that the treatment providers' observations and their experience with Mr. C were all substantially consistent with each other and consistent with the testimony of Mr. and Mrs. C, as well as Dr. R's assessment and testimony.
The Arbitrator found Mr. C, and the witnesses on his behalf, provided consistent, credible and reliable evidence in support of his claim that he is catastrophically impaired as a result of his car accident in December 2006.
In deciding whether an applicant has suffered a catastrophic impairment due to mental or behavioural impairments, it must be shown that these impairments are a direct result of a car accident or that a car accident significantly contributed to and exacerbated a pre-accident condition.
In reviewing the totality of the evidence there was no medical evidence, whatsoever, that at any time before the car accident Mr. C suffered from any mental or behavioural problems. There is no evidence that he had ever suffered from a major depressive disorder or suicidal/homicidal ideation.
Less than a year after the car accident Mr. C was diagnosed with a Major Depressive Disorder (severe intensity); Pain Disorder Associated with Both Psychological Factors and a General Medical Condition (herniated discs) (chronic); and Specific Phobia (driving, car riding). On July 20, 2009, Mr. C was admitted to the hospital for suicidal/homicidal ideation. On August 10, 2009, he was taken to emergency, because he overdosed on his pain medication.
Two years post-accident, Mr. C is completely alienated from his wife and children. Outside of attending numerous medical appointments, driving short distances to a coffee shop, a shopping mall or his children's school, Mr. C lives mostly a reclusive existence.
From a pre-accident self-sufficient person, he has turned into a person who now needs constant supervision and reminders for the most basic care such as brushing his teeth, changing his clothes or eating a meal. He has serious memory problems and has had to cede the task of managing the family finances to his wife. His concentration and persistence is very limited. From an easy going person, he has turned into a person who is in a constant state of irritability and anger, lashing out inappropriately at his wife and children.
Accordingly, the Arbitrator found that the totality of the evidence shows that Mr. C's present mental and behavioural impairment is a direct result of the December 2, 2006 car accident.
COACHMAN'S EVIDENCE AND SUBMISSIONS
(1) Coachman's Evidence
After reviewing the evidence and transcripts of the hearing, the Arbitrator concluded that Coachman did not have a defense of any substance in this case.
Coachman did not call any witnesses to defend its case. Mr. C, however, summoned for cross-examination Dr. W and Dr. L in respect of their catastrophic impairment assessment reports that were prepared on behalf of Coachman.
Very little weight was given by the Arbitrator to Dr. W and Dr. L's reports and their testimony wherein they conclude that Mr. C is not catastrophically impaired as a result of his car accident. Both came across as poor examples of an expert witness. They both clearly appeared to be strong advocates for Coachman.
(a) Dr. W’s Testimony
On October 8, 2009, Dr. W, a psychiatrist, performed an attendant care assessment for Coachman. In her report dated October 22, 2009, she concluded that Mr. C suffered from symptom magnification and did not require attendant care.
Coachman provided Dr. W with Dr. R's catastrophic impairment assessment report and asked her to review it. Dr. W prepared a very short three-page report where she concluded that Mr. C was not catastrophically impaired. Dr. W testified that she was fully qualified to make a catastrophic impairment determination and came to the conclusion that Mr. C was not catastrophically impaired even though she had never examined him for a catastrophic impairment determination.
Dr. W testified that she based her conclusion that Mr. C was not catastrophically impaired because in her view Mr. C was a malingerer. Dr. W, however, did not provide any objective, credible evidence to support this conclusion. Her conclusion stands alone in the face of an abundance of consistent and objective evidence that Mr. C's behaviour and complaints are credible. The Arbitrator, therefore, gave very little weight to Dr. W’s opinion.
Dr. W came to the conclusion that Mr. C was "moderately" impaired in all four classes mostly for the same reason, namely, that Mr. C could drive his car and go to a coffee shop. Accordingly, she concluded he was not catastrophically impaired. While the evidence shows that Mr. C drives, it clearly shows that he does so because he has no choice as he is limited in his ability to walk any distance. He drives out of necessity, in a limited fashion and for very short distances.
The evidence is very clear that Mr. C has a lot of anxiety around driving. As noted in Dr. Ro's report, which Dr. W reviewed, Mr. C has frequent disturbing memories of his accident. He is afraid of driving and is fearful for his safety. As a result of his assessment, Dr. R had significant concern about Mr. C's ability to drive and, accordingly, notified the Ministry of Transportation of his concern.
While Dr. W emphasized Mr. C's ability to drive, she completely ignored commenting on the fact that in July 2009, Mr. C was hospitalized under a Form 1 for suicidal/homicidal ideation which included driving his car into a lake with his family. She also ignored the fact that three weeks after being hospitalized for suicidal ideation, he was taken to emergency for overdosing on his medication. In fact, she completely ignored commenting on any of the objective, relevant evidence that could support a catastrophic impairment determination.
Significantly, is the fact that in coming to his determination that Mr. C was catastrophically impaired, Dr. R had relied upon the occupational therapy assessment of FP, which formed part of the catastrophic determination report by Work Able on behalf of Coachman. This report provided a detailed account of Mr. C's functional impairments.
Dr. W failed to comment or even consider this very important report.
Accordingly, for all these reasons the Arbitrator gave little weight to Dr. W' report and testimony that Mr. C is not catastrophically impaired.
(b) Dr. L’s Testimony
Dr. L, a psychologist, conducted a catastrophic impairment assessment on behalf of Coachman on August 4, 2009.
Like Dr. W, Dr. L was a poor example of an expert witness. Dr. L's demeanour when testifying, was argumentative, evasive, confusing and demonstrated a lack of understanding of his role as an expert to assist the Tribunal in reaching its decision on the complex issue of whether Mr. C is catastrophically impaired.
Like Dr. W' report, the Arbitrator found Dr. L's report to be superficial and biased in favour of Coachman. Dr. L ignored the significance of Mr. C's very recent suicidal/homicidal mental state in relation to Mr. C's ability to function in any of the four domains noted in the Guides.
Another significant omission in Dr. L's report is his failure to comment on or consider the occupational assessment by Ms. P. Dr. L was on the same team as Ms. P, who were carrying out a catastrophic impairment assessment on behalf of Coachman. Nevertheless, Dr. Lawson, without any explanation, ignored this very relevant assessment regarding Mr. C's capacity to function.
Dr. L completely failed to substantiate his conclusions. He did not provide any supporting evidence or rationale for his conclusions. Like Dr. W, Dr. L ignored consistent, credible medical evidence, which could lead to a finding that Mr. C suffered a "marked" impairment in one or more domains and accordingly was catastrophically impaired.
(2) Coachman's Submissions
Little weight was given to Coachman's submissions. In its written submissions, the Arbitrator found that Coachman engaged in a self-serving summary, "cherry-picking" its way through the evidence, in minute detail, to present a completely distorted, out of context picture of the reality of the objective evidence.
In reviewing the submissions, one easily sees that there are numerous significant distorted assertions of the evidence. They consistently distorted, omitted, or caused expert testimony to be questioned.
Coachman made submissions on the law which, like its submissions on the evidence, was out of context, distorted and mostly incorrect.
Significantly, Coachman had surveillance on Mr. C's functionality that it chose not to present at the hearing. The Arbitrator drew an adverse inference from this, namely, that Coachman was unable to record any surveillance that had Mr. C functioning at a higher level than his evidence indicated.
What is especially disconcerting about this submission is that Coachman should clearly have known that its submission is not the correct law. Accordingly the Arbitrator found that Coachman's submissions on the law in this case are distorted and incorrect.
For all these reasons, little weight was given to Coachman's defense and submissions in this case.
Although Coachman did not have a substantial defense in this case, the burden still remains with Mr. C to show on a balance of probabilities that he is catastrophically impaired as a result of his car accident. For the following reasons, the Arbitrator found that Mr. C has discharged his burden.
FINDINGS ON THE FOUR DOMAINS OF MENTAL OR BEHAVIOURAL IMPAIRMENTS
For the reasons stated above little or no weight was given to the catastrophic impairment assessments by Drs. W and L.
(1) Effect of Mr. C's Mental or Behavioural Impairments on Activities of Daily Living
On reviewing all of the evidence presented the Arbitrator found that Mr. C's activities of daily living impairment as a result of mental or behavioural impairment is "moderate to marked."
(2) Effect of Mr. C's Mental or Behavioural Impairments on Social Functioning
Based on the totality of the evidence, the Arbitrator found Mr. C's impairment to social functioning as a result of mental or behavioural impairments is marked.
(3) Concentration, Persistence and Pace
The Arbitrator found that Mr. C's impairment in this area as a result of mental or behavioural impairments is "marked."
(4) Deterioration or Decompensation in Work or Worklike Settings
The Arbitrator found that Dr. R succinctly summed up the evidence regarding Mr. C's functionality in this domain and agreed with Dr. R's rating, as it is also consistent with the totality of the medical evidence and the evidence of his health care providers. Accordingly, for these reasons, the Arbitrator found that Mr. C's impairment in the area of "work adaptation" as a result of mental impairments is "marked."
Accordingly, for all of these reasons, the Arbitrator found that Mr. C is catastrophically impaired pursuant to the Schedule.