Accident Benefits Update FSCO- Clarifies CAT Marked Impairment Threshold

In O’Brien v State Farm Mutual Automobile Insurance Company, a recent FSCO arbitration decision, the Applicant, Erik O’Brien was seriously injured in a car accident on August 21, 2008.  Despite extensive rehabilitation, he continued to suffer from Chronic Pain Syndrome with related depression and fatigue issue.  To support his family, he returned to work on modified duties 6 months after the accident, and full-time after that.  However, he was unable to continue working approximately 2 years after his return to work.

Because of his ongoing impairments, the Applicant applied for a determination of Catastrophic (CAT) Impairment from State Farm, his insurer under the Mental and Behavioral Disorders Category.  

Following the landmark Pastore decision, to meet the CAT threshold under this category, an Applicant must demonstrate Level 4 (Marked) or 5 (Extreme) Impairment in one of: Activities of Daily Living; Social Functioning; Concentration, Persistence and Pace; or Deterioration or decompensation in work or a work like setting.

Marked Impairment, "significantly impedes useful functioning".  Extreme Impairment, "precludes useful functioning". A Level 3 (Moderate) Impairment, on the other hand, is "compatible with some, but not all, useful functioning".  

The arbitration focussed on whether the Applicant’s Chronic Pain Syndrome resulted in Moderate or Marked Impairment in any of the four domains of function.  

The evidence showed that the Applicant relied on a cane for mobility and used medical marijuana for pain management. The parties agreed that his condition was chronic and entrenched, and unlikely to improve.  However, he continued to drive, he was able to care for his four children for short periods and he was able to participate in some social functions. State Farm argued that these were useful functions, and therefore the Applicant’s Impairment was properly characterized as Moderate.  

In support of its position, State Farm submitted an Occupational Therapy assessment and a CAT Psychiatry Assessment.  

The OT found that the Applicant was "self-limiting" under testing and that his results did not reflect his "true capability".  She did not perform any cognitive testing, nor did she consider the impact on the Applicant’s Chronic Pain on his performance.

Dr. Kiraly, State Farm’s psychiatrist, accepted the findings from this OT report, and performed a 90-minute assessment based on a personal interview and screening tests.  He did not refer to, or explore in any meaningful way, the Applicant’s psychological diagnosis. He justified this decision on cross-examination by explaining that the Applicant "had a good interview". Neither he nor the OT conducted any collateral interviews of family members to validate the Applicant’s subjective complaints.  He assigned Mild Impairment ratings in the four functional domains.

The Applicant relied upon a CAT Psychology assessment by Dr. Levitt.  This assessment was conducted over five days and included six hours of cognitive testing.  Dr. Levitt also conducted interviews of the Applicant’s family. Based on his findings, Dr. Levitt determined that the Applicant suffered Marked Impairment in all four domains.  

Arbitrator Matheson was required to consider the degree of impairment suffered by the Applicant, based on the evidence presented.   He noted that an evaluation of "useful function" must account for the impact of the Applicant’s constant, moderate pain. He also observed that:

When calculating where an Applicant fits best (Class 3 vs. Class 4), one must expect that there is some level of useful functioning in more than one domain, otherwise the Applicant would be in Class 5... Class 4 "impairment levels significantly impede useful functioning". The word "all" has not been included within that statement.

Arbitrator Matheson e Applicant and his family witnesses were genuine, consistent and reliable. He preferred Dr. Levitt’s methodology and report.  He found that the Applicant’s useful functioning was significantly impaired, and therefore, that he was catastrophically impaired.

Following controversial recent amendments to the Statutory Accident Benefits Schedule (SABS), the new CAT definition requires "marked impairments" in three domains, or an "extreme impairment" in one domain.  This will have profound impact on CAT applications for accidents on or after June 1, 2016. If you have been seriously injured in a car accident, and have questions relating to Catastrophic Impairment or other issues, please contact us for a free consultation.  At Campisi LLP, we practice under our "Clients First, Excellence Always" philosophy.  Put us to work for you.