Material Contribution Test Is Correct Test for CAT Designation

January 23, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Mohammad and Allstate – Catastrophic Impairment; Pre-existing conditions worsened as a result of car accident; holistic approach to make CAT determination; causation standard inappropriate test in this case

Mohammad and Allstate
Date of Decision: December 19, 2016

Heard Before: Adjudicator Alan Smith, Regulation

REASONS FOR DECISION

Issues:

Ms. Bibi Mohammad was injured in a car accident on November 20, 2010 when she was a passenger being driven by her daughter.  They were travelling through a strip plaza when another car reversed from a parking space into their vehicle.  Following the accident, Ms. Mohammad and her daughter drove to the Collision Reporting Centre to report the accident.  They then drove home. She sought accident benefits from Allstate, but when the parties were unable to resolve their disputes through mediation Ms. Mohammad applied for arbitration at the FSCO.

The issues in this Hearing are:

1. Is Ms. Mohammad Catastrophically Impaired pursuant to the Schedule?
2. Is Ms. Mohammad entitled to Housekeeping and Home Maintenance Benefits from November 20, 2010 to November 20, 2012?
3. Is Ms. Mohammad entitled to Attendant Care Benefits from November 20, 2010 to November 20, 2012?
4. Is Ms. Mohammad entitled to Non-Earner Benefits (NEBs) from May 20, 2011 to the present?
5. Is Ms. Mohammad entitled to payment of $3,100.00 for the cost of examinations?
6. Is Ms. Mohammad entitled to interest for the overdue payment of benefits?
7. Is Allstate liable to pay Ms. Mohammad’s expenses in respect of the Arbitration?

Result:

1. Ms. Mohammad is Catastrophically Impaired pursuant to the Schedule.
2. Ms. Mohammad is not entitled to Housekeeping and Home Maintenance Benefits.
3. Ms. Mohammad is not entitled to Attendant Care Benefits.
4. Ms. Mohammad is not entitled to Non-Earner Benefits.
5. Ms. Mohammad is entitled to payment of $3,100.00 for the cost of examinations.
6. Ms. Mohammad is entitled to interest for the overdue payment of the cost of the examination. 

EVIDENCE AND ANALYSIS:

Ms. Mohammad did not feel any symptoms until later that night when she reportedly felt pain in her back and throughout her whole body.  She went to a hospital emergency department, but went home prior to consulting a doctor after three to four hours of waiting.  On November 22, 2010, she visited her family physician complaining of back pain, shoulder pain, knee pain and headaches.  She was prescribed Tylenol 2 and referred for physiotherapy.  A couple of days after the accident, Ms. Mohammad began a course of physiotherapy, massage and chiropractic treatment.  The treatment continued for approximately six months.

She had been in a prior accident in 2009 which left her with injuries to neck, back and spine.

At the time of the accident Ms. Mohammad lived a full life with her children, and their families in a multilevel home. She had a long history of Rheumatoid Arthritis as well, and had undergone two surgeries and had just completed the related physio 5 days prior to the latest accident.. She was approved for CPP disability benefits.

Ms. Mohammad testified that in the months leading up to the accident, her functioning significantly improved.  She reported she had achieved a seventy percent recovery from her surgery at the time of the accident and was beginning to be independent in her activities of daily living, including personal care tasks and housekeeping duties, and she was occasionally driving short distances prior to the accident.

As a result of the accident, Ms. Mohammad stated she sustained injuries to her upper back, bilateral knees and bilateral ankles.  She also asserted that the pre-existing injuries to her neck, shoulders, and lower back, as well as her headaches, were aggravated and she additionally suffers from sleep deprivation, depression, loss of motivation and hope, and feelings of frustration, anger and sadness.  She further testified that “... I don’t sleep.  That’s one thing.  I’m always tired.  I – I cannot do anything for myself.  I get very depressed.  I cry.  I sit and cry for days.”  She stated that some days she doesn’t even have the “courage to put clothes on”. Ms. Mohammad testified that she has learned to cope with the symptoms of RA and it has had a minimal effect on her daily living and employment.  She was employed as a collection agent until December 2008.  Prior to the accident, she was independent in her personal care tasks and housekeeping tasks.  She could drive on her own.

Ms. Mohammad testified that there was a significant change to her life after the accident.  She requires help and is often fatigued due to lack of sleep, she feels depressed as she cannot do anything for herself, she is stressed, she is often tearful, and she does not have the energy to go out or get dressed.  Ms. Mohammad testified that when she does go out, she gets tired, frustrated and just wants to go home.  She no longer attends the mosque. She no longer completes her pre-accident housekeeping duties.

The Arbitrator reviewed extensive medical evidence provided by Ms. Muhammad concluding she was Catastrophically Impaired as a result of the accident pursuant to Section 3(2)(e) and (f) of the Schedule.  The accident resulted in a class 4 impairment (marked impairment) due to mental or behavioural disorder, in all four spheres of function.  The Rebuttal Report also concluded that Ms. Mohammad suffered impairment or a combination of impairments that, in accordance with the Guides, resulted in a 70% whole person impairment, 15% beyond the minimum percentage necessary for a determination of Catastrophic Impairment pursuant to the Schedule.

The consensus opinion of Ms. Mohammad’s medical examiners was that Ms. Mohammad is credible and forthright

Allstate’s Psychiatrist testified that he was of the opinion that, from a psychological perspective, she was not Catastrophically Impaired pursuant to the Schedule.  The possibility that she had some impairment was expressed as perhaps five percent. He did not conduct any formal testing, the appointment lasted one hour, and there were many inconsistencies in his report. He did not review the other medical assessments made.

Allstate’s rheumatologist concluded that he could not determine the role of the accident on Ms. Mohammad’s current condition.  It was possible that the impact from the accident could have influenced Ms. Mohammad’s condition.  He also testified that even if there was movement in the upper neck caused by the accident, it may not have shown up on the imaging conducted afterwards. 

Allstate’s Orthopedic Surgeon testified that he formed his opinions based on a thorough and accurate analysis of the medical records, as well as his own examination.  His report concluded that “from an orthopedic perspective, Ms. Mohammad’s deterioration overall is due to the nature of her RA rather than the direct sequelae of the accident-related injuries”. When cross examined he admitted he had not looked at the imaging for Ms. Mohammad, nor did he remember if he questioned Ms. Mohammad as to the nature, severity, or duration of her pain and the differences in her pain before and after the accident.

The Arbitrator reviewed the testimony and the evidence presented and determined that it was appropriate to use a holistic approach to make the CAT determination. He noted that the Insurer made no submissions to this. He concluded that Ms. Mohammad argues she meets the CAT Impairment definition. Allstate didn’t argue the point, rather focussed on causation standard.

The Arbitrator noted that in the context of the Schedule and disputes stemming from it, the “material contributing factor” test has been repeatedly endorsed as the correct test to apply in relation to determining causation.  The Arbitrator concluded that he cannot accept Allstate’s submission that the “but for” test endorsed by the Courts in accident negligence cases is to be applied to the determination of causation in the statutory accident benefit context.  On this basis, the Arbitrator found that the correct causation test in determining Schedule benefits is whether the accident is a “material contributing factor” in the causation of the Applicant’s catastrophic impairment.

On this basis Ms. Mohammad is Catastrophically Impaired pursuant to the Schedule.

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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.