November 03, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: William Renahan
Decision date: October 4, 2007
Ms. H was injured in a car accident on December 31, 2000. She applied for and received Statutory Accident Benefits (SABs) from her insurer Lombard. H applied for a determination that she was catastrophically impaired. A Designated Assessment Centre (DAC) determined that H did not suffer a catastrophic impairment. The question to be decided by the arbitrator was whether H suffered a catastrophic impairment as defined in the SABs.
At the time of the accident H was 21 years old and enrolled at University in a Bachelor of Arts program majoring in Philosophy. She was working at two part time jobs to pay for her education. She was close to her family and she was active socially and in recreational activities.
H sustained multiple injuries in a car accident. Her most significant orthopaedic injuries were a mandible broken in 2 places and 8 pelvic fractures with one slightly displaced. The mandible fractures were treated with two metal plates and 15 screws. The pelvis was treated with boot traction.
H eventually returned to University in September 2001 and graduated with an honours degree in English and Philosophy in January 2004. After University she was living in an apartment in London and was receiving income replacement benefits. Her physiatrist completed an Application for Determination of Catastrophic Impairment in which she noted that H had sustained a catastrophic impairment. The physiatrist assessed the whole person impairment at 50%. A psychologist assessed psychological impairment at 23% and when the two scores were combined the Whole Person Impairment rating was 62%. Another physiatrist assessed the physical whole person impairment rating at 59%. The arbitrator noted that the FSCO decision in George and State Farm, and the court decision in Desbiens v. Mordini, both confirmed that a Whole Person Impairment rating could be assigned to a mental impairment and combine it with a physical impairment.
At the DAC assessment, the physiatrist assigned a 1% Whole Person Impairment rating. In an initial draft report that was prepared by the physiatrist, he had expressed the opinion that H´s physical impairments were close to catastrophic. H argued that the DAC assessment was unfair and the DAC assessors were looking for other reasons for the impairments, other than the car accident, by reviewing H´s pre and post car accident medical history to attribute physical problems to other issues. Further, the DAC psychologist had originally concluded that H suffered a "marked" impairment in social functioning. Under the case law and FSCO decisions, this would have been sufficient alone to attribute a catastrophic impairment rating to H. However, the psychologist amended her report 3 months later to say that there was only marked impairment in social functioning with respect to H´s interaction with her former boyfriend.
Lombard argued that H´s impairments were caused by pre or post car-accident events. In the year prior to the accident H was diagnosed with depression and prescribed anti-depressant medication, Paxil. H was diagnosed with dyspareunia. She saw a rheumatologist for life long knee pain, perhaps chronic pain syndrome. Also, in the year before the accident H was involved in the rave culture and had used street drugs such as cocaine and ecstasy. After the accident her younger brother died in a car accident. She was involved in another car accident and fell down stairs. She was hit in the jaw by a child. She underwent an abortion. She broke up with her fiancée. Her father suffered significant health problems.
Evidence at the arbitration was heard from H´s father, former employer, best friend, godfather, mother and family friend. Evidence was also provided by several doctors including the various medical records and reports.
Ms. H´s psychological condition was her primary complaint. The arbitrator was considering a catastrophic impairment due to a mental or behavioural disorder. The arbitrator noted that in order to have a "marked" impairment the impairment levels have to significantly impede useful functioning.
At the time of the accident H was enrolled full time in University. She lived at home with her parents but paid for her own education. She worked as a waitress 20 hours per week and also delivered 200 newspapers daily with her mother in the morning. H was an athlete in high school and performed break dancing. H testified that she was happy before the accident. Nine months before the accident her family doctor diagnosed depression and prescribed a low dose of Paxil. H acknowledged that she was depressed about her relationship with her boyfriend. She had used cocaine and ecstasy but she testified that she stopped using drugs shortly before the car accident.
H testified that since the car accident she is not the same person. Before the accident she was the "life of the party". Now she is paranoid and fearful. She related an incident where she went to the hospital with a kidney infection and because she had to wait she went outside, laid on the ground and cried.
The lay witnesses (family, friends and co-workers) were consistent in describing H as happy, healthy and a positive person in the year before the accident. She was described as vibrant, extroverted and engaging. Since the accident H was seen as depressed, withdrawn and unable to cope. Where there was a discrepancy in the description between the lay witnesses and the medical information, the arbitrator noted the comments from the psychologists when the comment that H was a person who minimizes her problems, a person who is almost detached from her situation. She was viewed as not a complainer by nature. The arbitrator concluded that she was depressed prior to the car accident but that did not affect her function. H appeared to everyone as happy, outgoing, energetic and engaged. She was the life of the party and had fun all the time. The arbitrator noted that the evidence from the lay witnesses was persuasive.
The evidence after the car accident showed that she did not engage in extra curricular activities when she returned to school. She found classes stressful. She lives on her own in an apartment in London. She cooks vegetarian meals and shops frequently because she cannot carry heavy loads. H communicates with a smaller group of friends.
The catastrophic assessment completed on behalf of H found that she had a marked impairment in all 4 categories of mental or behavioural impairment (activities of daily living, social functioning, concentration and adaption). However, the arbitrator noted that the Guidelines provide that impairment in two or more areas would likely preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. The arbitrator did not feel that H required support in a sheltered environment. The arbitrator did find that H´s impairment with respect to social functioning affects all but the simplest social functions. Aside from shopping on her own, the evidence indicated impaired social functioning. Evidence indicated that there were several incidents of crying by H - at the airport, hospital parking lot and social engagements with family and friends. The arbitrator noted that H was not the person she used to be. The severity of the impairment is "marked" because it was at a level of impairment which "significantly impedes useful functioning".
The arbitrator noted there was pre accident depression but there was no evidence that it affected her social functioning. The arbitrator noted the observation of one medical practitioner that her pre-existing depression may have made her more vulnerable to the significant depression she now experiences and which affects her social functioning. The arbitrator concluded that her depression, behavioural impairment and pain where worse than before the car accident.
The arbitrator also commented that despite the emotionally stressful experiences after the car accident, there was no evidence that these events significantly contributed to her psychological impairment.
In considering her physical impairments, the arbitrator noted that the test was whether the car accident significantly contributed to impairment. There was some discussion regarding causation issues and when injuries were reported after the car accident. The arbitrator agreed with H´s counsel that a preoccupation with certain injuries could well have delayed complaints regarding other injuries. In H´s case, complaints regarding her arms and hands were made later but around the time when she was returning to university, when she would be back to carrying books and making notes. When combined with the opinion that H was not a complainer, then the arbitrator was prepared to accept that certain injuries noted later were likely damaged in the car accident.
After reviewing all the physical injuries that were accepted as arising from the car accident, the arbitrator found a Whole Person Impairment rating of 52%. However, when combined with the mental or behavioural disorder, then the Whole Person Impairment rating is 73%.