Arbitrator did not find the Whole Person Impairment range provided by insured to be of any use.

November 12, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Matthews and Dumfries

Date of Decision: September 29, 2016

Heard Before: Adjudicator Sudabeh Mashkuri

Patrick Matthews was injured in a motorcycle accident on August 13, 2011.  He applied for and received statutory accident benefits from Dumfries but when the parties were unable to resolve their disputes through mediation Mr. Matthews applied for arbitration at the FSCO.

The issues in this hearing are:

1. Did Mr. Matthews sustain a catastrophic impairment within the meaning of section 3(2)(e) of the Schedule?

2. Whether Mr. Matthews is entitled to attendant care benefits in the amount of $1,462.45 per month from January 18, 2013 and ongoing?

3. Is Mr. Matthews entitled to a special award?

4. Is Mr. Matthews entitled to interest on overdue payments?

5. Is Mr. Matthews entitled to the expenses of the hearing?

Result:

1. Mr. Matthews did not sustain a catastrophic impairment within the meaning of section 3(2)(e) the Schedule as a result of the accident; specifically, Mr. Matthews does not suffer from an impairment or combination of impairments that, in accordance with the Guides, results in 55 percent or more WPI.

2. Mr. Matthews is not entitled to attendant care benefits.

3. Mr. Matthews is not entitled to a special award.

4. Mr. Matthews is not entitled to the expenses of the hearing.

Mr. Matthews was in a motorcycle accident on August 13, 2011. The circumstances of the accident are undisputed. While riding his motorcycle, at approximately 40 KM an hour, Mr. Matthews lost control and hit the guard rail at the side of the road. According to the medical records he did not lose consciousness. One of his riding companions called an ambulance and Mr. Matthews was taken to the hospital. His injuries included multiple fractures of bones in his face, injury to his right shoulder, fracture of ribs on his right side, lacerations to his right knee, and lower back soft tissue injury. The medical records indicate that Mr. Matthews did not sustain any other significant musculoskeletal or abdominal injuries at the time of the accident. Mr. Matthews had several operations because of his facial fractures prior to his release from the hospital.

Mr. Matthews was released from the hospital on August 24, 2011 with diagnoses including facial and mandibular fractures, haemoptysis, and right ear bleeding. After his release from the hospital, Mr. Matthews had further jaw and dental surgery. Subsequent to his release, Mr. Matthews began to see Dr. Charbonneau, chiropractor. On October 16, 2012, Mr. Matthews had a right rotator cuff surgery on his shoulder. He continued to have physiotherapy after the rotator cuff tear was repaired. The medical history of the Applicant indicates that he has a family history of colon carcinoma and he has had extensive diverticular disease prior to the accident.

At the time of the accident Mr. Matthews had been working as a receiver for Samuel Steele for 29 years.  Mr. Matthews completed Grade 7 in Newfoundland. He has not been able to return to work because his job entails manual labour. Prior to the accident his hobbies included playing horse shoes, fixing cars and trucks, and socializing with friends and family. Prior to the accident, Mr. Matthews duties at home were restricted to mowing the lawn, shovelling snow, home maintenance and barbequing. He has been married to his wife for 27 years. Mrs. Matthews has been and continues to be the primary person who prepares all meals, cleans the home and takes care of the day to day maintenance and housekeeping of the house.

It is not disputed that Mr. Matthews suffered both physical and mental/behavioural impairments because of his accident. The issue that the Arbitrator must decide is whether these impairments together are sufficiently severe that it can be found that Mr. Matthews has suffered a catastrophic impairment as defined under the Schedule.

After careful consideration of the totality of the evidence the Arbitrator found that on a balance of probabilities, Mr. Matthews does not suffer from catastrophic impairment. The test that applied was the following. It must be determined whether Mr. Matthews is catastrophically impaired based on a combination of impairments that in accordance to the Guides results in 55% or more impairment of a whole person. The Guides are a reference source used by physicians in evaluating the extent of impairments.  The combined value chart at the end of the Guides allows physicians (and arbitrators) to combine impairment ratings from different chapters to arrive at a whole person impairment rating. The Arbitrator rated each impairment with respect to the Guides, and took into consideration the test as delineated in Desbiens v. Mordini in combining the psychological impairment ratings with the physical impairment ratings.

OMEGA, on behalf of Mr. Matthews, provided a summary of findings by Dr. HB, physician, which stated that Mr. Matthews is catastrophically impaired because his combined physical and psychological impairments are 34% -64% WPI. MDAC, on behalf of Dumfries, provided a summary prepared by Dr. BM, a physiatrist, which found that Mr. Matthews had a total impairment of 49% which even if rounded out to 50%, falls short of 55% WPI.

Dr. HB authored the OMEGA CAT summary report and testified at the arbitration hearing. The OMEGA assessments were conducted by a physiatrist, a psychologist, and a Neuropsychologist. The CAT assessment of OMEGA did not include a review of Mr. Matthews’ medical history. Dr. HB testified at the hearing that he did not have Mr. Matthews’ physician’s notes and records (“CNR”) when assessing and writing the CAT report and that he did not request the CNRs from the Applicant’s counsel. The Guides specifically require that medical assessors review the whole medical history of the patient in reaching their conclusion with regards to impairment. According to the Guides, the first key to an accurate evaluation is a review of office and hospital records of physicians, including notes on surgeries (this would be with regard to Mr. Matthews’ shoulder operation as well as his several bowel operations post MVA), and discharge summaries. Because Dr. HB did not review the medical history and the available CNRs of Mr. Matthews, the Arbitrator put less weight on his assessment of Mr. Matthews’ impairments.

Upon review of each individual report the Arbitrator found MDAC’s reports to be more persuasive than OMEGA’s reports.  In reaching this decision the Arbitrator considered the totality of Mr. Matthews’ life since the accident and contextualized his daily physical activities as well as his psychological and mental impairments. In reaching the conclusion that Mr. Matthews is not catastrophically impaired within the definition of the Guides, the Arbitrator did not review each individual assessor’s ratings of each part of Mr. Mathew’s body and the psychological and emotional ratings in a vacuum. The Arbitrator also analyzed the totality of his physical and psychological limitations and whether he met the threshold for the 55% WPI. Therefore, Mr. Matthews’ physical and mental/psychological impairments do not add up to at least 55% WPI.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.