June 3, 2019

ACCIDENT BENEFITS UPDATE: INSURER CAT EXPERT FAILS TO IMPRESS TRIBUNAL

The Licence Appeal Tribunal (LAT) recently released its decision in Hathaway-Warner and Security National Insurance Company (17-005314/AABS).  The central issue in the hearing was whether the Applicant, Valerie Hathaway-Warner (VHW) had suffered a catastrophic impairment (CAT) from her July 14, 2010 rear-end collision.

At the time of the collision, VHW exchanged information with the otherdriver, but did not report it to the police or call an ambulance.  Later, she self-reported the relatively minor collision and attended a walk-in clinic for her injuries. She also applied for accident benefits with Security National, her auto insurer under the Statutory Accident Benefits Schedule (SABS).

In August 2016, VHW applied to Security National for a CAT Determination under the Mental and Behavioral Disorder (MBD) category.  She claimed that her ongoing physical, cognitive and psychological impairment from the 2010 collision had negatively impacted every aspect of her life.  Security National denied the application, stating that VHW had been involved in a minor accident that aggravated pre-existing fibromyalgia and the after-effects of a previous concussive brain-stem injury, and that she had generally returned to her pre-accident level of function.

In order to qualify as CAT under the MBD category, an applicant must prove on the balance of probabilities that she suffered a Class 4 (Marked) or 5 (Extreme) impairment in one of four designated areas of function: Activities of Daily Living (ADL), Social Functioning (SF), Persistence, Pace and Concentration (PPC) or Adaptation.  A Marked impairment is defined in the SABS as one that, “significantly impedes useful functioning.” An impairment is understood as, “a loss or abnormality of a psychological, physiological or anatomical structure or function.”

Note: Under the current version of the SABS, an applicant must suffer Marked impairments in three of the four areas of function (or one Extreme impairment as before).

VHW’s expert, Dr. Dory Becker (psychologist)had performed the CAT assessment, identifying Marked impairments in ADL, PPC and Adaptation, and a Class 3 (Moderate) impairment in Social Functioning.  Security National’s psychiatry assessor, Dr. Luczak disagreed, and found that VHW suffered mild to moderate impairments in all four areas. He also disputed whether the 2010 collision caused her ongoing impairments.

CAUSATION

In order to succeed on the CAT claim, VHW had to meet the three-part MBD test set out in the Pastore decision:

1)  Did the accident cause the applicant to suffer a mental or behavioral disorder

2) If so, what is the impact of the MBD on the applicant’s life?

3) In view of this impact, what is the level/Class of impairment

Regarding the first part of the test, LAT Member Paluch confirmed that the current test for causation- “but for” the collision, would VHW have suffered the injuries and impairments? He emphasized that the collision need not be the only cause of the impairments, in recognition that other factors can contribute to an Applicant’s overall level of function.

Although there was disagreement over the specific diagnosis for VHW’s impairment, both sides acknowledged that she experienced some form of MBD from the collision.  Dr. Becker identified a Pain Disorder and Major Depressive Disorder. Dr. Luczak disregarded VHW’s pain complaints expressed during the assessment and in her clinical records as an element of her collision-related impairment but diagnosed an Adjustment Disorder.  He deferred comment on the pain complaints to the “appropriate assessor”- although no such assessor was engaged by Security National.

VHW had been diagnosed with fibromyalgia in 1993, a condition that was complicated by right-side weakness from the above-noted brain stem injury.  There was some evidence of anxiety in her records, although no formal diagnosis or specific treatment. Life-stressors included separation from her husband in 2004, and her son’s 2007 epilepsy and Kawasaki Disease diagnoses, which required supervision. Despite these challenges, however, the evidence showed that VHW wasgenerally functioning well.  She was active in her children’s lives, maintained a circle of friends, and was pursuing a graduate degree in Education at the time of the collision.

Post-collision, the preponderance of evidence from VHW, her family (and particularly her adult daughter), and the medical and rehabilitation records showed that her ability to function in any capacity had declined sharply.  She was forced to withdraw from graduate school for poor academic performance, could no longer sustain employment, withdrew socially and struggled with basic tasks like hygiene, housework and meal preparation. She relied upon her parents to maintain the household, which deteriorated drastically when they wintered in the US.  She was unable to cope with simple tasks, becoming irritable and frustrated. VHW’s daughter described her mother as a completely different person, and a shell of her former self. This was fully documented by her rehabilitation team.

As a result of this evidence, Member Paluch accepted that the collision was a cause of VHW’s ongoing MBD.

Given the documented impact of the collision on VHW’s functioning, and based on her own psychological testing, Dr. Becker assigned Marked impairment ratings except in Social Functioning (SF).  SF was deemed moderate because there as evidence that VHW was able to function to a degree in social relationships with her family and limited other situations.

Member Paluch accepted Dr. Becker’s opinions and assessment over those expressed by Dr. Luczak for several reasons. First, Dr. Becker’s assessment resonated with the evidence generally. Second and most importantly, he found that Dr. Becker had applied the methodology set out in the AMA Guides for testing and rating MBD in a consistent and objective fashion, while Dr. Luczak had not.  Specifically, he had failed to establish a single Class rating for each area of function, offering Mild to Moderate ratings in two categories, while providing a bizarre “provisional” Adaptation rating of, “… no more than Moderate.” MemberPaluch stated that straddling the fence in this way defeated the main purpose of his report, which was to provide guidance for the Tribunal in making the CAT determination. It also suggested that Dr. Luczak failed to appreciate the nuances of the MBD assessment criteria.  His report and evidence generally demonstrated that he did not actually understand or apply the appropriate criteria to the MBD evaluation. Whereas the Guides indicate only that the MBD must “significantly impede useful functioning” to warrant Marked impairment rating, Dr. Luczak mischaracterized it as, “persistentpermanent and impedes useful functioning”. Member Paluch correctly explained that this definition would impose a much higher burden of proof on an Applicant than the one established in the clear language of the SABS.  Based on this, he did not accord much weight to Dr. Luczak’s ratings.

As a result, Member Paluch determined that VHW had suffered a catastrophic impairment.

If you have been seriously injured in a car accident, and have questions about CAT, your entitlement to accident benefits or other issues related to this decision, we are pleased to offer a free consultation.  Campisi LLP- “Clients First, Excellence Always!”


Cesar Carranza

Cesar Carranza is the head of Campisi Law's Accident Benefits Department. He represents the firm’s clients at mediations and pre-arbitration hearings at the Financial Services Commission of Ontario (FSCO). Under Cesar’s representation, clients are in very good hands. Cesar is a veritable encyclopaedia of accident benefits and is well-versed in the intricate issues that surround Accident Benefits claims.

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