Failure to prove injury is category 4 impairment due to mental or behavioural disorder results in denial of CAT claim

October 16, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

DUNYA SHABO and ROYAL & SUNALLIANCE

Date of Decision: September 6, 2017
Heard Before:  Rosemary Muzzi

Catastrophic Impairment (CAT): Failure to prove injury is category 4 impairment due to mental or behavioural disorder results in denial of CAT claim

Dunya Shabo hurt in a car accident August 7, 2011.  She applied for and received SABS payable under the Schedule, but when Royal denied payment of other benefits and contested a finding that Ms. Shabo has suffered a catastrophic impairment Ms. Shabo applied for arbitration at the FSCO.

Issues:

1. Is Ms. Shabo catastrophically impaired as a result of the accident due to mental or behavioural disorder?
2. Is Ms. Shabo entitled to a special award in relation to the denial of the catastrophic impairment claim?
3. Is Ms. Shabo entitled to a NEB from October 16, 2012 to date and ongoing?
4. Is Ms. Shabo entitled to an attendant care benefit (ABC) from September 14, 2014 and ongoing?
5. Is Ms. Shabo entitled to housekeeping benefits rom August 8, 2011 to date and ongoing?
6. Is Ms. Shabo entitled to the following medical benefits?
   1. $1933 for a speech language pathology assessment as per an OCF-18 dated November 18, 2011
   2. $843.27 for a weight loss program as per an OCF-18 dated June 22, 2012
7. Is Ms. Shabo entitled to interest on any overdue payments in accordance with the Schedule?

Result:

1. Ms. Shabo is not catastrophically impaired.
2. Ms. Shabo is not entitled to a special award in relation to the denial of the catastrophic impairment claim.
3. Ms. Shabo is not entitled to a NEB.
4. Ms. Shabo is entitled to a monthly ABC from September, 2012 to September 2013.
5. Ms. Shabo is not entitled to housekeeping benefits.
6. Ms. Shabo is not entitled to medical benefits for a speech language pathology assessment or for the weight loss program.
7. Ms. Shabo is entitled to interest on the amounts owing in accordance with the Schedule.

Ms. Shabo was in the backseat of a car that rear-ended a bus. Ms. Shabo received serious injuries including fractures that required surgery, hernia and had limited mobility for well over a year. She continues to experience pain and has ongoing psychological difficulties.

The Arbitrator noted that Ms. Shabo’s pre- and post-accident history and activities are relevant to her claims and reviewed the evidence.  She moved to Canada in 2008. She attended ESL classes and learned English, worked in a greenhouse, and was active scuba diving, attended church, went shopping and attended aerobics/Zumba classes at the local YMCA. She obtained her G2 licence in May 2011. In August 2011, her husband purchased a used car with a view to facilitating her search for a job. She was involved in the accident a few days later.

Since the accident, Ms. Shabo has not worked and has not pursued further education. She failed her citizenship exam in September 2012 but then passed it one year later with assistance. She obtained her full G licence in 2013 with the assistance of a trainer but she has not driven a car since then. She and her husband have attempted to have a child but Ms. Shabo was treated unsuccessfully for infertility in 2012 and 2013. Ms. Shabo was approved for ODSP in May 2013. Ms. Shabo’s recreational activities have decreased. She continues to visit family in Windsor, travelling by public transit, and visiting the mall with friends but she does not experience as much pleasure in these activities as before. She goes shopping. She spends a lot of time watching TV. She stopped going to the gym or attending church on a regular basis. She is depressed and irritable. She testified that no longer feels capable of working or caring for the household.

Ms. Shabo claims that she suffered a class 4 CAT impairment due to mental or behavioural disorder. The parties do not dispute that Ms. Shabo sustained a mental or behavioural disorder as a result of the accident. They also agree that in three of four areas of function she has a moderate impairment.

Ms. Shabo claims that she has a marked impairment in “deterioration or decompensation in work or work-like settings”; Royal asserts that Ms. Shabo’s impairment in this area is no more than moderate.

Upon review of the evidence the Arbitrator determined that her mental and behavioural disorder has had an impact on her daily life. Ms. Shabo suffers anxiety, low mood, has marital problems due to injuries and pain, but she does not have a marked impairment in any area of function and therefore has not sustained a catastrophic impairment as a result of the accident.

The medical evidence relied on by Ms. Shabo is inconsistent within her own team, and incongruent with the preponderance of the other evidence.

The NEB that Ms. Shabo seeks has as its purpose to provide compensation to persons who have suffered a severe diminution in their overall quality of life. Ms. Shabo must show she was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Ms. Shabo seeks a non-earner benefit because she claims that her life has changed so significantly that she now has a complete inability to carry on a normal life.

The Arbitrator reviewed the medical evidence and testimony of Ms. Shabo’s mother, husband, and her friend. Although her mood has changed, she is argumentative, and un-interested in many of her prior activities, she remains able to self care and lives a full life. With respect to household tasks, she has modified how she completes them, takes frequent breaks, paces herself and gets help from her husband. She can do light cleaning and cooking.

Ms. Shabo submits that she had a clear plan to return to the work force and was looking to return to school by obtaining her licence and buying a car. Beyond these two facts, however, there was not sufficient other evidence to show a clear plan. Because she did not work pre-accident, except for one month, she was responsible for most of the household chores. There is some evidence that, post-accident, Ms. Shabo does fewer of the household tasks and has some limited assistance with heavier

The medical evidence regarding Ms. Shabo’s psychological state within 104 weeks of the accident provides useful and significant context to the anecdotal evidence about her daily activities.  Ms. Shabo still has challenges cognitively in terms of concentration, sustained attention and short term memory, but she has become better able to cope using some of the strategies learned in treatment and would not likely require ongoing support in this respect. Moreover, the clinical notes of her last sessions with Dr. S indicated that Ms. Shabo would not likely seek out publicly funded supports (her accident benefits had been exhausted) without trying to manage independently with the skills she had learned in treatment. Nevertheless, the July 30, 2013 note indicates that public services are being coordinated through her GP. This improvement in her psychological state and her willingness to confront her challenges using the skills she had acquired in treatment indicates that Ms. Shabo felt able to cope to a significant degree during the two years post-accident.

There is insufficient evidence of the kind of compromise in activities that is expected to qualify an insured for non-earner benefits. There is evidence of limitation in some activities, decreased activity and decreased tolerances for certain activities but these limitations in her activities are not changes that are sufficient to meet the NEBs test.

Royal paid attendant care benefits to Ms. Shabo until October 16, 2012. Royal accepted that Ms. Shabo’s husband and a friend, Zinah, had provided attendant care to Ms. Shabo (because Ms. Shabo had been in a wheelchair and then required crutches in the year following the accident), and also accepted that the expenses for attendant care had been incurred. Royal terminated benefits based on an occupational therapy assessment that found Ms. Shabo capable of functioning and performing her own pre-accident self-care.

The Arbitrator found that the preponderance of the evidence only supports a claim for very limited further attendant care benefits. The evidence indicates that by late 2012 Ms. Shabo required much less assistance than before and was receiving much less assistance because, in part, her capabilities had increased substantially.

Given the evidence, it is reasonable to allow some of the attendant care assessed in the OT report of September 2012 for one year, until September 2013, for the routine personal care which still challenged Ms. Shabo because of her decreased range of motion. Ms. Shabo is entitled to a monthly attendant care benefit of $364.67 from September 2012 to September 2013.

Given the Arbitrator’s finding that Ms. Shabo did not sustain catastrophic impairment as a result of the accident, she is not eligible to receive this benefit.

The Arbitrator did not find the medical benefits for a speech language pathology assessment or for the weight loss program reasonable nor necessary.

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.