May 23, 2019

ACCIDENT BENEFITS UPDATE- LAT CONSIDERS CAUSATION IN CAT CLAIM

In F.D. and Allstate Canada, a recent decision of the Licence Appeal Tribunal (LAT) before Adjudicator Daoud, causation was again a central issue in a claim for determination of catastrophic impairment (CAT). The claimant, F.D. had been rear-ended on August 6, 2014. She suffered extensive soft-tissue injuries, with post-concussion symptoms, anxiety and depression. She sought treatment for ongoing pain and functional limitations, as well as increasing cognitive dysfunction and psychological impairment. Her insurer, Allstate, paid her accident benefits claims up to the non-CAT limits then denied further funding. Mediation failed to resolve the issue between the parties, which led to the present hearing.
At the hearing, the sole issue was whether F.D. had suffered a catastrophic impairment from a Mental and Behavioral Disorder (MBD) as a result of the collision. A CAT determination would entitle her to enhanced benefits under the Statutory Accident Benefits Schedule (SABS).

CAUSATION

Adjudicator Daoud heard submissions from the parties concerning the appropriate test for causation. F.D. argued that but for the collision, she would not have sustained the injuries and ongoing CAT-level impairments, or, in the alternative, that the collision materially contributed to them. Allstate relied upon the FSCO Sabadash appeal under Director’s Delegate Evans which held that the “but for” test was appropriate. In Sabadash, DD Evans acknowledged that the accident need not be the only contributing factor to the claimant’s condition. There can be other factors- the effect can be cumulative and still satisfy the “but for” test.

While not bound to follow FSCO precedent, Adjudicator Daoud agreed with the reasoning in Sabadash.

Prior to the accident, F.D. had a significant medical history. In November 2011, she was referred to a psychiatrist who diagnosed a generalized anxiety disorder with panic attacks, and an adjustment disorder related to her father’s recent stroke. He prescribed 3 months of Cipralex, an antidepressant. The psychiatrist also identified chronic neck pain with bulging cervical discs. He wrote a note in support of F.D.’s Ontario Works application to the effect that her chronic pain rendered her unable to work.

Allstate argued that F.D.’s pre-accident conditions, and not the 2014 collision, were the cause of her ongoing impairments.

F.D. acknowledged in her testimony that she experienced significant psychological issues in 2011, triggered by her father’s illness, and that it made her chronic neck pain more disabling. She claimed, however, that the psychological issues were short-lived and that she did not take the prescribed medication. Her evidence, corroborated by her family physician, Dr. Nahri and several lay witnesses, was that none of these issues affected her functioning by the time of the accident, and she had returned to her regular active routine.
Adjudicator Daoud accepted F.D.’s evidence on the basis that there was no contrary evidence suggesting that she continued to suffer from either condition to the point that it interfered with her daily life by August 2014. While these pre-accident conditions may have contributed to F.D.’s current impairments, the post-accident decline in function and poor prognosis could not be attributed to them. Therefore,the adjudicator accepted that, “but for” the 2014 accident, F.D. would not have suffered the impairments in dispute.

CAT DESIGNATION

F.D. sought a CAT determination under Criterion 8- impairments from a Mental or Behavioral Disorder (MBD). In the alternative, she claimed that she had sustained a CAT Whole Person Impairment (WPI) rating under Criterion 7. No reference was made to her WPI rating in the judgment.

To be deemed CAT, F.D. had to prove that she had sustained a Class 4 (Marked) or 5 (Severe) impairment (as set out in the AMA Guides used for evaluating CAT under the SABS) in one or more areas of function because of an MBD.

Note: Since the amendments to the SABS were introduced in June 2016, a claimant must show three or more areas of Marked Impairment, or one Severe, to qualify.

The areas of function are: activities of daily living; social functioning; concentration, persistence and pace; and adaptation. Impairment is defined under the SABS as, “a loss or abnormality of a psychological, physiological or anatomical structure or function”. A Marked Impairment “significantly impedes” useful functioning, whereas a Class 3 (Moderate) Impairment is “compatible with some, but not all” useful functioning. It is a recognized gray area between these two classes, which makes CAT determinations for MBD claimants particularly challenging.

Adjudicator Daoud observed that the MBD category is concerned primarily with loss of function, and that it does not require a specific psychiatric diagnosis. She reviewed the medical briefs and expert testimony in detail. Without disclosing F.D.’s specific diagnoses, the adjudicator commented that experts for both parties arrived at similar results. In fact, Dr. Kiraly for Allstate added Post-Concussion Syndrome and a Somatic Symptom Disorder to the overall picture. All experts found F.D. credible and found her self-report consistent with the assessment results, which identified serious ongoing psychological and cognitive impairment. However, while F.D.’s experts found that she suffered Marked Impairments in both activities of daily living and adaptation, Dr. Kiraly felt that the functional impairment was better characterized as Moderate.

Prior to the accident, F.D. was very active in her community and the lives of her family. She taught Arabic, organized large community events, and volunteered in Scouts, fundraising and at her Mosque. Post-accident, witnesses reported, and F.D.’s experts noted that she performed very little productive activity in or out of the home, and she was not engaged in social events. She lacked motivation or tolerance for most daily interaction and had become isolated and dependent upon her family physically and emotionally.
Dr. Kiraly maintained that F.D.’s impairments were compatible with some useful functioning and provided Moderate ratings for all four areas of function. Despite this position, his report described her functional loss in similar terms to those used by her own assessors. He found her incapable of returning to work in any capacity, for example. He defended his rating in vague terms, stating that she continues to have a relationship with her children, watches TV and “does some things”. He also noted that she did not “look” like other claimants with Marked Impairment ratings. He attempted to correct his opinion that F.D. cannot handle stress, claiming that he “should have written” cannot handle stress “very well”. As well, he proposed that there as a possibility that her condition might go into remission at some future point.

Adjudicator Daoud gave little weight to Dr. Kiraly’s conclusions. She felt that F.D.’s team (including her family physician, two Occupational Therapists, and a Psychiatrist) was better positioned to evaluate the functional impact of F.D.’s impairments on her activities of daily living and adaptation. She observed that the CAT assessment for MBD does not engage in speculation- it is concerned only with present loss of function. Overall, the adjudicator found that the impact of F.D.’s impairments on her life were profound. Therefore, she determined that F.D. was CAT because of the accident.

If you have been seriously injured in a car accident, and have questions about this decision, your entitlement to accident benefits, catastrophic impairment (CAT) or other related issues, 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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