CAT designation appropriate and IRBs awarded in Motorcycle accident - The Applicant v Jevco - 16-002000 v Jevco

October 25, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The Applicant v Jevco - 16-002000 v Jevco 2017 CanLII 63617 (ON LAT)

Date of Decision: August 16, 2017
Heard Before:  Adjudicator Anna Truong

IRBs and CAT DESIGNATION: Applicant meets burden of proof for CAT designation; WPT values combined to reach 55% WPI threshold appropriately; applicant does not prove treatments requested are reasonable or necessary

The Applicant was involved in a motorcycle accident on May 7, 2013, and sought benefits pursuant to the SABs but Avco denied certain benefits and The Applicant submitted an application to the LAT.

ISSUES TO BE DECIDED

1. Is The Applicant entitled to a post-104-week income replacement benefit at the rate of $400 per week from March 27, 2016 and ongoing?
2. Did The Applicant sustain a catastrophic impairment as defined by the Schedule?
3. If the answer to issue #2 is yes:
   1. Is The Applicant entitled to a medical benefit outlined in a physiotherapy treatment plan dated February 18, 2015?
   2. Is The Applicant entitled to a medical benefit for medication expenses submitted on February 25, 2016, in the amount of $1,369.97?
   3. Is The Applicant entitled to a rehabilitation benefit for services recommended in a treatment plan submitted on June 2, 2015, in the amount of $841.83?
   4. Is The Applicant entitled to a rehabilitation benefit for services recommended by in a treatment plan submitted on May 8, 2015, in the amount of $1,197.13?

4.   Is The Applicant entitled to interest on any overdue payment of benefits?

RESULT

1. The Applicant is entitled to a post-104-week income replacement benefit.
2. The Applicant has sustained a catastrophic impairment as defined by the Schedule.
3. The Applicant is not entitled to any of the medical and rehabilitation benefits in dispute.
4. The Applicant is entitled to all applicable interest.

ANALYSIS

The Applicant bears the burden of proving on a balance of probabilities he is entitled to a post-104 week income replacement benefit in the amount of $400 per week from March 27, 2016 and ongoing by meeting the “complete inability” test.

The Applicant sustained serious injuries as a result of the accident. The Applicant submits and the records show he continues to suffer from chronic pain, including pain in his left shoulder, low back, left hip and groin, left thigh, poor sleep, poor mood, anxiety, fatigue, upper chest pain, thoracic back discomfort, headaches, morning fatigue, residual post-traumatic stress symptoms, depression and the effects of his narcotic medications. The Applicant is currently taking many medications to treat his accident-related injuries, including Hydromorphone, a narcotic, for breakthrough pain.

Prior to the accident, The Applicant worked full-time as a truck driver and warehouse labourer. He was paid $38 per hour and worked approximately 44 hours per week. In addition to this, he worked as a volunteer firefighter. His duties consisted of attending fires, dealing with car accidents, participating in training sessions and supervision. He was paid $35-40 per hour for practice sessions, which occurred once weekly. He also had dispatch duties with the fire department for which he was paid $25 per hour and worked on an as needed basis. In addition to these two jobs, The Applicant worked as an attendant key holder for the local town hall. His duties involved allowing people into the hall and locking up. He was paid $19 per hour and he spent most of this job sitting in the office. He worked on an as needed basis.

Post-accident, The Applicant returned to doing dispatch and observation of practice sessions at the fire department as well as working as an attendant key holder, when available. He has not returned to full-time employment and has not done any retraining.

The respondent argued The Applicant has returned to part-time work, which is a strong indication he does not meet the complete inability test. The Adjudicator disagreed. The main purpose of an income replacement benefit is to compensate The Applicant for his inability to earn income at a comparable level to his pre-accident employment. The Applicant did not submit his tax returns, which would have been helpful to properly assess his pre- and post-accident income. However, it is not a  fatal omission, and the Adjudicator did a rough calculation based on the information available in order to illustrate the discrepancy in The Applicant’s pre and post-accident income. Pre-accident, The earned approximately $1,672 on a weekly basis. Post-Accident the Applicant is earning $625 per week. This is less than 40% of his pre-accident income, and the fact remains the Applicant’s current post-accident employment is not comparable in pay to his pre-accident employment. Therefore, the Applicant’s post-accident employment does not preclude him from qualifying for a post-104 week income replacement benefit.

In support of his entitlement, the Applicant submits he was successful in his application for a Canada Pension Plan disability benefit.

The Adjudicator then reviewed the large volume of medical evidence, and the IEs. He did not find the respondent’s reports particularly helpful, because each expert provided their opinion in isolation and there was no analysis of the combined impact from all of The Applicant’s impairments on his ability to work. Alternative job suggestions were dismissed by the Adjudicator as a job search that revealed a very limited number of job postings in the area surrounding Shelburne, Ontario, for which The Applicant is currently suited by education, training or experience. In order to take any of the positions the Applicant would likely be required to commute to in bigger cities such as Toronto and Mississauga at least an hour drive from Shelburne. Commuting would likely be a problem for The Applicant as he has difficulty with prolonged sitting and he consumes narcotic medication.

On the basis of the evidence the Adjudicator found the Applicant does not have work capacity. It is highly unlikely that an employer would hire and retain such an unpredictable and unreliable worker. The Applicant would not be able to fulfil the basic expectations of an employer such as punctuality, regular attendance and the ability to consistently complete his job duties in a timely manner due to his accident-related impairments. In other words, The Applicant is unable to meet reasonable standards of productivity in a competitive marketplace. He would be too inconsistent as a worker based on his accident-related impairments. This is supported by The Applicant’s own assertion, the records from Dr. Catania, and the reports of Dr. Scherer. Based on the evidence before me, the Applicant does not have the capacity to work.

The Schedule provides several criteria for an accident related impairment to be considered catastrophic. In catastrophic impairment assessments, whole person impairments under section 3(2)(e) are referred to as criterion 7 impairments. Mental and behavioural impairments under section 3(2)(f) are referred to as criterion 8 impairments. The Applicant claims he has sustained a catastrophic impairment pursuant to section 3(2)(e) on the basis his combined accident-related impairments results in a 55% WPI as defined by the Schedule.

The Adjudicator reviewed the evidence submitted and found that the Applicant was given three individual WPI ratings. The Adjudicator noted the disagreement over the Applicant’s physical WPI rating, noting the Applicant would did not reach the 55% WPI threshold to be deemed catastrophic in any of them, and therefore, there was no need to make a finding as to which physical WPI rating is correct.

The catastrophic impairment determination in this case will turn on whether or not the % mental status impairment rating from Chapter 4 and the 29% mental and behavioural rating from Chapter 14 can be combined to calculate The Applicant’s total WPI rating. If they can be combined the Applicant’s total WPI rating would be 56% and he will have sustained a catastrophic impairment. If I find they cannot be combined, The Applicant’s total WPI rating would be 50% and he will not have sustained a catastrophic impairment.

Jevco’s position is if the two ratings were to be combined, there would be an overestimation of The Applicant’s total WPI. They argue that since the tables from Chapters 4 and 14 all rely on the same evidence of function and behaviour, combining both ratings from Chapter 4 and Chapter 14 would result in double-counting and lead to an artificially high total WPI figure. In order to avoid double-counting the assessor disregarded the lower mental status impairment WPI rating. He only combined the 29% mental and behavioural WPI rating with the 28% physical WPI rating in calculating The Applicant’s total WPI rating. This resulted in a total WPI rating of 49%.

The Applicant’s position is if the two ratings are not combined, there would be an underestimation of The Applicant’s total WPI. Their assessor argued the two ratings are obtained from different chapters rating different body systems. Chapter 4 deals with cognitive impairments associated with brain injury and Chapter 14 deals with mental and behavioural impairments. Therefore, they should be combined.

The Adjudicator reviewed the evidence and the law, noting the overlap between Chapter 4 and Chapter 14 is encompassed predominately by Table 3 and not Table 2 of Chapter 4. If there was an overlap between Chapter 14 and Table 2 of Chapter 4, it would be under the sphere of “Concentration, Persistence and Pace”, not “Activities of Daily Living” and “Social Functioning.

While it can be difficult to discern the psychological causes from the neurocognitive ones when assessing mental status impairment, it is not impossible. The Adjudicator acknowledged the overlap between Chapters 4 and 14 creates the possibility of double counting, which may lead to the overestimation of The Applicant’s impairments. However, in this case, the specific neurocognitive disorder diagnosis of Mild Neurocognitive Disorder Without Behavioural Disturbance due to Multiple Etiologies as well as the distinct psychological disorder diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood supports the conclusion that The Applicant’s impairments should be accounted for and rated under both chapters, because there are two distinct causes.

From the review of the evidence, the Adjudicator was satisfied the cause of the Chapter 4 and Chapter 14 impairments are different. I find there is no overlap between the Chapter 4 and Chapter 14 WPI ratings. Based on this, I find the Chapter 4 and Chapter 14 WPI ratings can be combined. On this basis the Applicant has sustained a catastrophic impairment as defined by section 3(2)(e) of the Schedule.

Sections 14, 15 and 16 of the Schedule provides an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The Applicant bears the onus of proving on a balance of probabilities the treatment plans in dispute are reasonable and necessary.

The Case Conference Order dated January 26, 2017 was clear, evidence the parties intend to rely on for the hearing has to be resubmitted, because nothing submitted for the Case Conference would be before the hearing adjudicator. The treatment plans and expense forms in dispute were not available to the Adjudicator. The Applicant has made insufficient submissions as to why they are reasonable and necessary. There is no discussion about the goals and benefits of the proposed treatment, and why the treatment plans and expenses are reasonable and necessary. The Applicant did not argue the treatment plans and expenses in dispute are reasonable and necessary. The words “reasonable and necessary” do not even appear in The Applicant’s submissions.

For the reasons above, the Adjudicator found that the Applicant has not met his onus of proving on a balance of probabilities the treatment plans and expenses in dispute are reasonable and necessary. Therefore, The Applicant is not entitled to any of the medical and rehabilitation benefits claimed.

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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.