November 04, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
This is a very interesting case considering the assessment as to what is the resumption of an injured person´s pre car accident activities of daily living. This case is also particularly noteworthy as Mulhall was 17 at the time of the accident, suffered a brain injury but had a pre car accident history that was questionable including alcohol use, fighting authority and a significantly poor record at school
Director Delegate: Nancy Makepeace
Decision date: October 15, 2007
Mulhall was injured in a car accident on March 18, 2001. He claimed non-earner benefits which were originally refused by Wawanesa. Mulhall suffered a serious brain injury in the car accident. A CT scan showed a skull fracture, deformation of the brain in the left temporal and left parietal lobes and a subdural haematoma. Eight days after the accident parts of his skull and temporal and parietal lobes were removed to relieve intracranial pressure. The removed section of skull was restored and Mulhall was discharged home approximately 4 months post-accident.
There was no dispute that Mulhall had permanent impairments as a result of his brain injury. The issue to be decided by the arbitrator at the original arbitration hearing was whether Mulhall continued to suffer a "complete inability to carry on a normal life" as the phrase is defined under the Statutory Accident Benefits schedule (SABs):
"a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident."
At the arbitration the arbitrator determined that Mulhall did suffer a complete inability and was entitled to non-earner benefits but that he did resume his activities of normal life after approximately one and a half years and was not entitled to any non-earner benefits after September 2002. Mulhall appealed the decision of the arbitrator. This is a report of the appeal decision.
The issue required the arbitrator to identify those activities in which Mulhall was ordinarily engaged before the accident and then determine whether Mulhall´s impairments continuously prevented him from engaging in substantially all of them.
At the arbitration the arbitrator heard, on behalf of Mulhall, from Mulhall, Mulhall´s father, his family doctor, a rehabilitation services coordinator, a pediatrician with brain injury experience and a neuropsychologist. The insurer called a neuropsychologist and a neurologist. In addition there were medical records along with Mulhall's school records.
At the time of the accident Mulhall was 17 years old and enrolled in school. The arbitrator noted that before the accident the most important aspects of Mulhall´s life were his busy social life and his favourite sports of skateboarding, "freestyling" on his BMX and snowboarding. He had planned to return to Alternative Secondary School but school was not high on his list of priorities before the accident. In September 2001 Mulhall was about to return to school and had demonstrated some independence, but the evidence does not indicate that he resumed any of the activities on his list of priorities to the performance levels near pre-accident quality. The arbitrator found that by September 2002 Mulhall no longer suffered a complete inability to carry on a normal life. The arbitrator considered the results of neuropsychological testing and considered a comparison of Mulhall´s school, work and social and recreational activities before and after the accident. The arbitrator concluded that by September 2002 Mulhall "had resumed quality participation in enough of his pre-accident activities that he was no longer prevented from engaging in substantially all of the activities which he normally engaged before the accident".
The Director Delegate noted that Mulhall was not required to prove that the car accident was the only cause of his poor test results. Mulhall was required to prove that the accident significantly contributed to an impairment that continuously prevents him from engaging in substantially all the activities in which he ordinarily engaged before the accident.
It was noted that the arbitrator determined that for a finding of complete inability to carry on a normal life, poor performance of neuropsychological testing must be reflected in diminished performance in daily living.
The test requires a comparison of the injured person´s ability to engage in activities of daily living before and after the accident. This case was made more difficult because of Mulhall´s age. The arbitrator noted that since Mulhall was 17 at the time of the car accident, his life was not static. His post car accident activities have to be measured against his pre car accident "potential and trajectory".
In determining a "normal life" the arbitrator cannot simply reduce the analysis to a list of activities divided into columns of Can Do/Can´t Do to determine if the injured person is continuously prevented from engaging in substantially all of the identified activities. The manner in which the activity is performed or the quality of the performance must also be considered. If the degree to which the injured person is performing the activity is sufficiently restricted then the injured person cannot be said to be "engaging in" the activity.
The Director Delegate was of the opinion that the arbitrator considered whether Mulhall´s accident-related impairments continuously prevented him from engaging "meaningfully" in school, work and social and recreational activities after the accident.
With respect to school, the Director Delegate noted that poor pre-accident academic records do not preclude entitlement if accident-related impairments continuously prevent the claimant from pursuing education in a meaningful way. Due to the importance of education in a young person´s life, inability to continue because of accident-related impairments will be given significant focus in determining non earner benefit entitlement.
Mulhall had what can only be described as a terrible academic record. His father testified that there were attendance and behavioural problems which were usually associated with talking back to teachers. At the time of the accident Mulhall was not attending school. He was expelled in the fall of 2000 and was scheduled to attend an alternative secondary school which caters to students with a history of problems at other schools. Mulhall´s school records showed a pattern of poor performance, lack of effort and lack of ability to focus beginning in junior kindergarten. Pre car accident testing at school identified that Mulhall required special education support. He enrolled in a learning strategies program and it was determined that he would require the support of an academic resource teacher upon entering high school. At high school teachers would some times send him to Learning Strategies class but he would often not attend and just leave school. Of the 20 high school courses that he took prior to the car accident he scored C´s in 2, D´s in 13 and failed 5. He was failing every course at the time that he was expelled. He was often not in school at all. He would hang out with friends, go to the community centre, play games, go to a pool hall or hang out in the woods or at a friend´s house.
The arbitrator considered expert evidence about Mulhall´s neuropsychological impairments but discounted opinions that failed to compare Mulhall´s post car accident test performance against his pre car accident performance. Some testing showed improvement from quite impaired in July 2001 to low average or approaching average levels in 2003.
The Director did rebuke the arbitrator with respect to the arbitrator´s overstated comments on Mulhall´s academic achievements post car accident. The arbitrator noted that Mulhall completed high school and college post car accident. However, the college program was designed for students with learning difficulties. Mulhall also had the assistance of a Child and Youth worker during all school hours. However, it was noted that the evidence of Mulhall´s pre car accident school record went strongly against him completing high school and college. The Director determined that the arbitrator did not err when he concluded that by September 2002 Mulhall was "on a trajectory that was not wholly inconsistent with his pre-accident potential".
Mulhall completed a job placement with a cycle shop but was not offered a job after completion. After finishing college he quit a job at a window assembly plant after he was moved from assembly to packaging. He was working part-time as a janitor before the arbitration hearing. The arbitrator was not convinced that this job history meant that Mulhall was unemployable post car accident. The arbitrator noted Mulhall had a job as a dishwasher for a few weeks pre car accident and that he had quit that job. The arbitrator found that the jobs were consistent with Mulhall´s pre car accident employment potential.
With respect to employment, the Director noted that Mulhall´s age and very limited employment history made assessing his employment prospects difficult. Considering Mulhall´s pre car accident employment history, his limited options based on his school records and his demonstrated ability to work after the car accident, this was the best evidence available and it provided a consistent picture. Mulhall was not unemployable after the accident and he was likely to have worked in similarly unskilled jobs if the car accident did not happen.
It was Mulhall´s position that the arbitrator erred by disregarding the evidence that he suffered from "frontal lobe syndrome" and required ongoing structure and supervision after the car accident to maintain independent living, beyond any assistance that he might have required before the car accident. Mulhall claimed that impulsivity, poor safety awareness and poor judgment resulting from his brain injury led to a post car accident assault charge. The arbitrator determined that alcohol consumption and an outburst of temper were the more likely cause and both were present before the car accident. Mulhall did have a pre car accident history of alcohol consumption and problems with authority figures.
The Director did note that the arbitrator may not have considered whether Mulhall´s brain injury exacerbated his pre-accident behavioural problems. However, there was also some question surrounding Mulhall discontinuing to take certain medications. Failure to participate in reasonable rehabilitation or treatment programs could be grounds used by the insurer to discontinue benefits.
At the end of the arbitrator´s decision he noted that Mulhall lost the ability to engage in important pre car accident activities like skateboarding, snowboarding and freestyling. He did continue to do what he liked most which was hanging out with his friends. The arbitrator then concluded that Mulhall had resumed quality participation in enough of his pre-accident activities, that he was no longer prevented from engaging in substantially all of the activities which he ordinarily engaged before the accident.
The Director noted a key underlying concern for Mulhall in this case - that the arbitrator may have discounted the severity of his car accident-related impairments and their effect on Mulhall´s activities of daily living because of an impression that Mulhall had little potential before the car accident.
There is clearly a subjective element to the evaluation. As the Director noted from the FSCO decision in Pisani and Simcoe & Erie - "the determination of disability cannot be done with absolute precision". Determining entitlement to benefits does not depend solely on objective medical evidence. It requires an assessment of the individual and the effect of an injury on a particular claimant. Thought the arbitrator must determine entitlement to benefits based on the tests provided in the SABs, the arbitrator has to be given some flexibility to determine the duration of entitlement based on consideration of the all the evidence.
In arriving at a decision, the arbitrator weighted Mulhall´s activities of normal life based on their importance to him before the car accident - social and recreational activities were important and school and work were not.