Significantly Impeding Useful Function is not the same thing as Significantly Impeding All Useful Function

September 06, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Erik O’Brien and State Farm

Heard Before: Arbitrator Charles Matheson
Date of Decision: August 28, 2017

The Arbitrator agrees with the understanding that significantly impeding useful function does not mean significantly impeding all useful function (which is extreme/severe).  IEs often use the more severe (and incorrect) definition of marked as their rationale for why they use a moderate rating (ratings creep – everything gets shifted). This should also be relevant for the new definition for mental and behavioural, as three markeds should be based on this definition.

Mr. O’Brien was hurt in a car accident on August 21, 2008 and sought accident benefits pursuant to the Schedule. When the parties couldn’t resolve their dispute Mr. O’Brien applied to FSCO for arbitration.

Issues:

1. Did Mr. O’Brien sustain a catastrophic impairment?
2. Is Mr. O’Brien entitled to interest for overdue payment of benefits?

Result:

1. Mr. O’Brien is catastrophically impaired.
2. Mr. O’Brien is entitled to interest.

Mr. O’Brien was 37 working full time at a municipal water treatment plant at the time of the accident. He was married, expecting his first child, and in the process of moving. Six months after the accident he returned to modified work, then moved to full time work. He left his position two years later.

The issue of the Arbitration is whether Mr. O’Brien sustained a CAT injury. Has he suffered an class 4, or marked impairment in at least on of the four spheres defined in the schedule. The parties agree that the WPI is not relevant.

Both parties agree that Mr. O’Brien’s symptoms are chronic and entrenched, that he relies on a cane, that he is licensed to grow his own cannabis, and that he consumes 20g a day.

State Farm submits that the key issue in the hearing is the degree of mental and behavioral impairment. They argue there is no clear evidence that Mr. O’Brien’s level of functioning falls within Class 3 and that he does not suffer a CAT impairment.

Mr. O’Brien argues that the Guides urge for a robust methodology yielding the most accurate assessment. Mr. O’Brien argues that Dr. L employed five methods of assessment prior to rendering his opinion, and that this thorough and detailed analysis of Mr. O’Brien’s life concludes unequivocally that Mr. O’Brien has Class 4 or Marked impairment in all four domains (Activities of Daily Living, Social Functioning, Concentration, Deterioration or Decompensation in work or a work like setting).

Mr. O’Brien argues that the insurer’s OT report is flawed as the author did not conduct any collateral interviews, and lends little or no credence to Mr. O’Brien’s subjective complaints. The OT did not conduct specific cognitive testing, and the results were based solely on her observations alone. Mr. O’Brien argues the glib and convenient conclusions completely disregard the impact of depression and fatigue on his ability to deal with stress. The report presented merely a snap shot in time, not a true picture of the state of Mr. O’Brien’s impairments. Mr. O’Brien also argues that subsequent reports carried out for the insurer were built on these conclusions and thus are also flawed. State Farm’s CAT report should therefore be given little weight.

The Arbitrator reviewed the medical evidence, testimony, and the law. The Arbitrator noted that pain disorder can be considered in the formulation for CAT designation from purely a psychological perspective. The Arbitrator also clearly noted the definition for marked impairment agreeing that significantly impeding useful function is not the same thing as significantly impeding all useful function (extreme/severe).

The Arbitrator concluded that upon reading of the Guides chronic pain is not the same pain as rated in Chapters 3-13 of the Guides. Therefore, it is appropriate to combine chapters 14 and 15 when making this assessment. 

On this basis, the Arbitrator found that Mr. O’Brien sustained a CAT injury.

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.