Applicant is CAT impaired - 16-001226 A State Farm Mutual Automobile Insurance Company, 2018 Canlii 13155 (ON LAT)

May 05, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-001226 A State Farm Mutual Automobile Insurance Company, 2018 Canlii 13155 (ON LAT)

Date of Decision: February 21, 2018-02-21
Heard Before: Adjudicator Paul Gosio

CAT IMPAIRMENT: Applicant provides evidence of pre-existing medical conditions significantly worsened by accident; applicant sustained class 4 impairments due to accident;

The applicant was involved in a car accident on January 3, 2014 and SABs benefits from State Farm.  In July 2015, the applicant applied to State Farm for a determination that her accident-related impairments met the definition of a catastrophic impairment under the Schedule.  State Farm determined that the applicant’s injuries did not meet the definition of a catastrophic impairment. The applicant disagreed with State Farm’s decision and submitted an application to the LAT.

Issues

1. Did the applicant sustain a class 4 (marked) or class 5 (extreme) mental or behavioural impairment that qualifies as a catastrophic impairment under the Schedule?
2. Did the applicant sustain an impairment or combination of impairments that results in 55 per cent or more impairment of the whole person?

Result

1. The applicant sustained a catastrophic impairment under the Schedule.

Discussion

The onus is on the applicant to prove entitlement in one category to be determined catastrophic injured.  The applicant submits that she meets the criteria under two categories described in the Schedule. 

The applicant submits that she meets the test for catastrophic impairment under section 3(2)(f) which deals with mental and behavioural impairments.  In this case, the applicant asserts that she suffers a marked impairment in three of the four areas of functioning due to a mental or behavioural disorder. 

State Farm takes the position that the applicant does not suffer a marked (class 4) or extreme (class 5) impairment in any one of the four areas of functioning due to a mental or behavioural disorder.

The Applicant provided evidence that as an adult she has experienced a range of health-related issues.  She was diagnosed with depression and eventually Bipolar II Disorder in 1994.  She has been under the care of a psychiatrist since that time and has been taking medication to manage her bipolar symptoms.  In 2006, she went on disability due to left wrist pain which required surgery in 2007, and she has not been able to return to work since that time.  In 2012, the applicant was diagnosed with Fibromyalgia syndrome.  She also had been diagnosed with chronic pain syndrome.

The Adjudicator reviewed the medical evidence from the accident injuries and the medical history and accepted that the applicant’s functioning in the area of activities of daily living has been significantly impeded and she has been unable to return to the independence she enjoyed before the accident. 

The applicant’s disorders undermine her ability to cope and adjust, leading to an increased perception of pain and increased functional decompensation, resulting in a more pronounced level of disability.  I find that the applicant was a psychologically and physically vulnerable individual pre-accident and her response to the accident-related impairments must be considered in that context.  Again, despite her pre-existing challenges, the evidence clearly supports a picture that the applicant was functioning at a much higher level pre-accident.   

The Adjudicator determined that applicant suffered a marked impairment (Class 4) in activities of daily living, concentration, persistence and pace and adaptation according to the criteria set out in Chapter 14 of the Guides. Her ability to function in these areas has been significantly impeded as a result of the motor vehicle accident.

As this finding is sufficient to meet the catastrophic threshold under section 3(2)(e) of the Schedule, there was no need to determine whether the applicant meets the 55% WPI threshold under section 3(2)(f) of the Schedule.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.