Applicant's Pain and Psychiatric Issues are not Marked - Not Catastrophically Impaired - ML and Security

November 29, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

ML and Security National

Decision Date: November 11 2017
Heard Before Adjudicator: Marcel Mongeon

CATASTROPHIC IMPAIRMENT: applicant injured and suffers psychiatric problems due to accident; applicant’s impairments are not CAT

ML was injured in a car accident on October 6, 2010 and sought accident benefits from Security but when mediation failed she applied for arbitration at the FSCO.

Issue:

1. Did ML sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?

Result:

1. ML did not sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident.

ML driving when an oncoming car turned left into her path. ML was unable to stop before a collision with the other vehicle. Prior to the collision, ML was travelling at approximately 60 kmh.  ML was wearing her seat belt. She recalls the chest portion of the belt was over her right breast. The air bags deployed during the accident. ML was transported by ambulance to hospital, treated and discharged the same night. Medical imaging reports taken at the hospital show no abnormalities. ML was provided with pain medications and advised to see her family physician.

ML’s testimony was to the effect that she recalls pain to her chest and to her right ankle. She described that her chest pain was from the bottom of her ear to her hips. She recalls seeing the outline of the seat belt in the bruise that was created on her right breast. In addition, the nipple of the breast had become inverted.

ML had a prior history of a serious motor vehicle accident in 1981 when, as a pedestrian, she was hit by a car in Alberta. She has had about 20 different surgeries on her legs as a result of that accident. She also has asthma as a pre-existing condition, some drug allergies and was diagnosed and operated on for cancer about 20 years ago from which she has had no subsequent problems.

ML saw her family physician on October 14, 2010, complaining of pain to her right breast and foot. Other notes show ML had pain to the right ankle, left clavicle, abdomen and chest as a result of the accident. The objective findings of the physician include that there was a hematoma to the right breast and no discharge from the nipple. Additional pain medications were provided and the advice was to “come back if [the] pain gets worst (sic).” ML returned to her family physician November 12, 2010. It indicates that ML was “unable to go teaching much.”, ML continued to complain of tenderness and feeling lumps in her right breast. The objective report of the physician was that there was a large elongated mass, non-mobile and tender. The prognosis was listed as “hematoma rt breast? – US”. 

On December 6, 2010, ML was first assessed by a physiotherapist and notes of that assessment show that the physiotherapy plan would work on the right ankle situation and other matters relating to back pain. ML testified that initially she was looking to fund the physiotherapy from benefits available through her husband’s employment. A report to the family physician was made on December 17, 2010. On December 22, 2010, ML visited her family physician about the breast injury and other relevant concerns were made:[9] “Would like to change mammogram to Hawkes. Hematoma right breast still present but much smaller. Still tender. Getting anxiety when passenger in a car with the weather since MVA, getting flash back, nightmares, not as bad when driving herself. Referrals for an ultrasound of the right breast and to a psychologist for Post-Traumatic Stress Disorder (“PTSD”) post MVA are made.”

The ultrasound report of the right breast reported  “suspected dilated ducts with internal debris with the largest in the 7 to 8 o’clock position. Follow-up as clinically indicated. The patient presently denies any symptoms of infection.” The report also notes that “The patient was in significant pain during the examination.”  An appointment with a breast specialist took place on March 22, 201. The report includes an acknowledgment of the subject accident and that it may take up to 12 months for the breast pain to resolve. It also suggests a mastectomy may be considered after that 12 month period but only as a last resort. The note indicates ML can continue her activities of daily living.

ML continued to seek medical attention for right breast pain and tenderness and the inverted nipple with several specialists and her family doctor. Pain limited her activities and interfered with sleep. Medication was not controlling the pain. The medical records provided at least 40 entries relating to breast pain

Her family doctor filed an OCF-19 on March 27, 2013 (denied) and February 2, 2015 (denied).

The following information from the Insurer’s and Applicant’s assessments is relevant. The assessments that were provided can be considered in three groups. The first group relate to the IE’s conducted immediately after the first OCF-19 was submitted to it in mid-2013. The second group are assessments conducted by ML in the fall of 2015 to support the second and current OCF-19. Finally, a third group of addenda were created by the Insurer in March 2017 to refute ML’s assessments.

The Insurer’s assessments of mid-2013 were consistent and concluded that ML did not fulfill the criteria for a determination of catastrophic impairment.  Both criteria 7 and 8 were considered. A multi-disciplinary medical team was used involving a pre-screening, an Occupational Therapist, a Kinesiologist, a Plastic Surgeon, an Orthopaedic Surgeon, a Psychiatrist, a Neurologist and concluding with a summary report.

Of the three Applicant’s assessments provided the most relevant information came from a report of Psychiatrist who gave an opinion that ML meets the diagnostic criteria for a somatic symptom disorder. He also opined that she suffers from a major depressive disorder. He found that in the area of social functioning, ML can be considered to suffer a marked impairment (Class 4) in this domain. He also believed that in deterioration or decompensation in work or work-like settings – which is also referred to as adaptation – ML can also be considered to suffer a marked impairment (Class 4).

Did ML sustain a catastrophic impairment under Section 3(2)(f) (Criteria 8) of the Schedule as a result of the accident? Does ML suffer from any mental disorders?

The simple answer is yes. The Insurer’s assessor believes that ML suffers from motor-vehicle anxiety. Her own psychologist three years ago believed she suffered from PTSD, major depressive disorder and chronic pain disorder. Her own assessor also believed that she suffers from a major depressive episode and a somatic symptom disorder.

The Arbitrator reviewed all of the evidence, testimony and the law and determined that while there is no questions that ML has developed chronic pain and psychiatric problems resulting from the accident, they are at best Class 3 impairments at worst in the domains required by section 3(2)(f) of the Schedule. Accordingly ML is not catastrophically impaired as a result of the October 6, 2010 motor vehicle accident.

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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.