Posted: November 10, 2020

If you were hurt in a motor vehicle accident, whether as a pedestrian, cyclist or the occupant of a vehicle, you are entitled to claim statutory ‘no fault’ accident benefits from your vehicle insurer or against the insurance company of a driver involved in the collision.   The amount of accident benefits to which you may be eligible depends on the severity of your injuries as assessed by your physicians after the accident.  Under Statutory Accident Benefits (SABS) guidelines, an injured person may be entitled to one of the following levels of benefits: minor injury, non-catastrophic injury or catastrophic impairment. 

Sometimes an injured person is initially assessed at a lower level of injury (and are paid benefits based on this assessment) but their injuries worsen in the months or several years after the accident, and subsequent medical assessments determine that their injuries are more severe and persistent than originally believed.  In such a case, the injured person may apply for, and be entitled to, a higher level of benefits.  This is what occurred in the insurance dispute, J.M. vs. Wawanesa Mutual Insurance Company (2019), which involved a claimant who was assessed as having a catastrophic impairment several years after her accident.  She subsequently applied for attendant care benefits owed to claimants with a catastrophic impairment designation, but her claim was denied by the insurer, Wawanesa Mutual Insurance Company.  The claimant then applied to the Ontario’s Licence Appeal Tribunal (LAT) to have her insurance dispute resolved.

The plaintiff in this dispute was injured in a fairly minor car accident in April 2015, when the car in which she was a passenger was struck by another vehicle that was attempting to avoid being hit by a taxi. Although the car had little damage, the plaintiff suffered several injuries in the accident and as a result, she was paid statutory accident benefits for a non-catastrophic injury.  However, her injuries worsened over time and in the spring of 2018, she was deemed to meet the criteria of a ‘catastrophic impairment’ and this designation entitled her to a higher level of benefits. 

The plaintiff claimed $8,467.65 per month in accident benefits (on an ongoing basis beginning July 5, 2018) as well as expenses for medical cannabis. Wawanesa denied the plaintiff’s claim and argued that, based on their assessment, she is no longer entitled to the $1,583.45 monthly in attendant care benefits for a catastrophic impairment for the following reasons:

  • her reports to doctors are inconsistent;
  • she was able to work for a while after the accident;
  • surveillance indicated that she is sometimes active outside the home;
  • her testimony is inconsistent and she couldn’t remember all details; and
  • her description of her disability differs from reality.

The arbitrator considered the evidence brought by the opposing sides and decided that, despite the fact that the plaintiff suffered from several pre-existing conditions at the time of the accident, the accident was a causal factor in worsening her injuries and substantially reduced her ability to function as well as her quality of life.  The arbitrator found the plaintiff’s evidence of her injuries to be credible and ruled that the plaintiff is entitled to the maximum in attendant care benefits.

Background

At the time of the car accident, the plaintiff was 55 years old and suffered from several pre-existing conditions, including depression, diabetes, fibromyalgia, sleep disturbances, and mild stenosis of the back and back pain.  She was employed as a nurse at a Toronto hospital and was on a workplace accommodation due to her medical conditions. The plaintiff was taking about 16 different medications (including medication to manage her pain, depression, and sleep issues) and her meds allowed her medical condition to largely remain stable and her medical issues only occasionally caused her to miss work.  Further, the plaintiff testified that she was a fully functioning person despite her medical challenges: she was the primary wage-earner and took care of all household chores, since her husband is disabled.

The car accident caused the plaintiff to hit her head and she experienced pain in her head, right arm, right leg and right eye.  Her family doctor diagnosed her with a head contusion, aggravated chronic low back pain, and neck strain.  She attempted to return to work a few months after the accident, but within a few weeks, found that her job exacerbated her pain and pre-existing psychological conditions (which she was previously able to control through treatment).  Within 7 months of the accident, Wawanesa’s psychological assessor determined that “there was compelling evidence that the accident caused a marked exacerbation of a pre-existing psychological condition that was previously treated and controlled”.  The plaintiff was also diagnosed with a driving-related phobia, and was assessed to be in a “fragile psychological state” with suicidal thoughts, a compromised ability to function and deficient coping skills.

In the two years until she received the catastrophic impairment determination, the plaintiff’s injuries substantially worsened. The plaintiff was consistently taking 19 prescriptions and at one point in time, took over 25 medications to manage her impairments.  The 2018 catastrophic determination was based on a finding that she had a 71% WPI (whole person impairment), with 65-69% for her psychological conditions and 5% for her cervical spine injuries. Wawanesa agreed with the catastrophic determination and found that the plaintiff had a Class 4 marked impairment in daily living activities and adaptation. 

The attendant care benefits and cannabis expenses being sought in the plaintiff’s claim are intended to help manage the following injuries relating to the 2015 accident:

  • Soft-tissue injuries which exacerbated her chronic back pain and caused neck pain and a head contusion
  • Mild traumatic brain injury
  • Pain perception
  • Ongoing depressive disorder with persistent and severe major depressive disorder
  • Post-traumatic stress disorder (PTSD)
  • Panic disorder
  • Safety concerns due to suicidal thoughts
  • Relationship problems and distress with spouse
  • Compromised cognitive function
  • Catastrophic impairment involving a minimum of class 4 marked impairment in daily living activities and adaptation
  • Constant headaches, dizziness
  • Increased sleep disorders, fatigue and lethargy
  • Xerostomia, resulting in tooth pain and difficulty eating

The injuries caused a marked impairment in the plaintiff’s day-to-day activities and substantially impaired her ability to function, and she now requires supervision for many tasks.  Examples of her impairment include: being incapable of personal hygiene and care (for example, ignoring prompts to bath herself); ignoring the smell of smoke when she burned a pot on the stove; needing encouragement and cues to eat and drink; and lacking a will to live and twice visiting the hospital for suicidal thoughts.

The adjudicator concluded that the plaintiff proved her entitlement to the attendant care benefits she is seeking and her claim is both reasonable and necessary.

If you were hurt in a car accident and have been denied owed accident benefits, don’t give up.  At Dietrich Law, our legal team has helped many clients successfully resolve their accident claim dispute with their insurance company and get the compensation they deserve. 

 

Posted in Brain Injury, Car Accident and Personal Injury Law, Catastrophic Injury
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