May 29, 2019

ACCIDENT BENEFITS UPDATE- SUPERIOR COURT WEIGHS IN ON CAUSATION IN CAT CLAIM

In Pucci v. Wawanesa (2019 ONSC 1706), a recent Ontario Superior Court of Justice decision, the court weighed in on causation in a catastrophic impairment (CAT) claim. The plaintiff claimant, Brittany Pucci, had been injured n a car accident on June 16, 2013. She suffered various physical injuries and psychological impairments following the accident. Her insurer, Wawanesa paid for her accident benefits including income replacement benefits (IRBs), attendant care (AC) and housekeeping and home maintenance (HKHM) as required under the Statutory Accident Benefits Schedule (SABS) until her non-CAT limits were exhausted. Following termination, she applied to the Court for declarations that she had suffered a CAT impairment from a mental or behavioral disorder (MBD), and that she was entitled to ongoing IRBs, HKHM and AC benefits.

PRE-ACCIDENT HEALTH

It was accepted by expert witnesses for both parties that the plaintiff was CAT due to an MBD. Wawanesa rejected the application for CAT because it took the position that the accident was not the cause of the plaintiff’s ongoing impairments. The parties accepted that the appropriate test for causation was whether, but for the accident, the plaintiff would have suffered CAT level impairment.

Justice Pierce reviewed the plaintiff’s personal history in detail in order to frame the causation discussion. She had been sexually assaulted at age 12 by a 16-year old from her school in Thunder Bay. She received extensive counselling following the assault. However, she was subjected to sustained bullying, both from the perpetrator’s friends and from her own former friends. She became involved with a very controlling boyfriend in Grade 11, moving in with him for 10 months. He introduced her to street drugs and prevented her from contacting her family. During this period, she developed Crohn’s disease and was hospitalized. Ultimately, she returned to her parents following her recovery.

The plaintiff attended university, but her mental health declined. She was hospitalized following a suicide attempt by overdose following a break-up. She was diagnosed with depression, alcohol abuse and PTSD. She received medication for the depression.
Despite ongoing challenges, the plaintiff experienced a positive phase following her return to university. She was granted a “permanent disability” classification for her Crohn’s disease, which allowed her to take an easier course load and receive additional assistance with assignments and exams.

However, starting in fall 2012, cognitive difficulties led the plaintiff to withdraw from university. She became involved with a new boyfriend who was a drug user. She began using opioid drugs heavily. In March 2013, she sought a leave of absence from her part-time job.
With support from her parents, the plaintiff enrolled in a methadone clinic, and slowly weaned herself of her drug dependency. She was provided with mood stabilizing medication for ongoing psychological complications stemming from the sexual assault and its repercussions. By June 2013, she was off the methadone, attending addiction counselling and putting her life back together.

POST-ACCIDENT HEALTH

As a result of the collision, the plaintiff suffered a whiplash-type injury. The cars were both written off. She was diagnosed with a suspected mild traumatic brain injury and PTSD with panic attacks, anxiety and depression. Within months, her condition had deteriorated significantly. By September 2013 she was exhibiting child-like speech, often with an inexplicable accent. She developed a speech impediment as if her lower jaw was locked. She also experienced ongoing neurological impairment in her extremities.

The plaintiff’s family physician arranged a neuropsychology assessment that identified several areas of significant impairment including working memory, processing speed, auditory memory and attention.

These impairments continued to worsen throughout the fall of 2013. The plaintiff became dependent upon her family for everyday functioning. Following a neurology consultation in June 2014, she was required to stop driving. A second neuropsychological assessment revealed increasingly severe symptoms. There was no evidence of malingering or lack of effort.

By the fall of 2014, the plaintiff required daily attendant care. Her cousin, a social worker, was hired to care for her daily needs. Wawanesa paid for this care through the spring of 2015.

As of the hearing of this claim, the plaintiff was completely dependent upon her family for care and support. Along with the debilitating psychological and cognitive impairment, she continued to have neurological issues and ongoing pain from the collision, for which she attended a Chronic Pain Program.

CAUSATION

The psychiatrists for both parties agreed that the plaintiff suffered from a conversion disorder, amongst other impairments. A conversion disorder is a diagnosis of exclusion defined by neural symptoms without evidence of a neurological disorder. The plaintiff’s expert, Dr. Feinstein attributed the disorder to a mild traumatic brain injury suffered in the collision. He also diagnosed a Somatic Symptom Disorder to characterize her ongoing pain symptoms.

Wawanesa’s expert diagnosed a major depressive disorder, sleep disorder, conversion disorder and opiate addiction. He argued that there was no evidence linking the car accident to an exacerbation of the plaintiff’s pre-accident conditions. On cross-examination, however, he conceded because of the plaintiff’s fragile emotional state at the time, “almost anything,” including the accident, could have been the stressor that led to the conversion disorder.

Justice Pierce acknowledged that the plaintiff had undergone traumatic events in her pre-accident life. For the most part, though, she continued to function in society, and was making solid progress on her recovery when the accident occurred. There was no evidence of cognitive dysfunction or a conversion disorder. Following the collision, she experienced a “shocking cognitive decline” that left her dependent upon family. Based on this, Justice Pierce held that but for the accident, the plaintiff would not have suffered a catastrophic conversion disorder.

Wawanesa did not contest the payment of outstanding HKHM benefits, given the finding of CAT. Regarding the claims for IRBs, Justice Pierce found that these were payable to the plaintiff at the rate of $185 per week from February 28, 2016 (termination) until the date of judgment.

The parties disagreed over the plaintiff’s entitlement to historic Attendant Care benefits. Under the version of the SABs at the applicable time, AC was not payable after 2 years, unless a claimant was deemed CAT. As a result, Wawanesa cut off AC at the two-year anniversary of the collision. It argued that it should be entitled to rely on its expert’s opinion that the collision was not the cause of the impairments exhibited by the plaintiff. As well, it took the position that there was insufficient evidence that any AC expenses had been incurred after June 15, 2015, despite the plaintiff’s claim that her monthly AC needs were over $8,000.

After reviewing the relevant case law, Justice Pierce rejected Wawanesa’s position. She found that Wawanesa had been put on notice that two reputable psychiatrists considered the plaintiff CAT, and that the accident was at least a contributing cause. As well, she agreed with the Divisional Court in Smith, a 1998 decision involving Wawanesa, that a plaintiff need not actually incur the expenses- it is sufficient that the need for AC at the requested rate is demonstrated with certainty and that any care received was paid for by the claimant as a result of the insurer’s refusal to do so. Therefore, Justice Pierce ordered a declaration that the plaintiff was entitled to AC at the CAT limit of $6,000 per month from the date of termination to judgment, and ongoing as incurred.

If you have been seriously injured in a car accident, and have questions about this decision, your entitlement to benefits or to a determination of catastrophic impairment, 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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