[The Applicant] v. State Farm Insurance Company, 2017 CanLII 148017

Tribunal File Number: 16-002503/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

[The Applicant]

Applicant

and

State Farm Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Chloe Lester, Member

APPEARANCES:

Counsel for the Applicant: Steven Polak Counsel for the Respondent: Philippa Samworth Language Interpreter: Zaheda Khan-Urdu Court Reporter: Jovana Velimirovic

Hearing Dates: June 21, 2017

Overview:

1The applicant, a minor, was injured in a motor vehicle accident on October 2, 2014 when he was struck as a pedestrian. The applicant applied for and received medical, rehabilitation and attendant care benefits from State Farm, the respondent.

2After exhausting his benefit limits, the applicant applied for a determination that he was catastrophically impaired under s. 3(2)(d)(ii) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ which states that . . . “a catastrophic impairment caused by an accident is . . . a brain impairment that results in a score of . . . 3 (severe disability) on the Glasgow Outcome Scale (GOS). . .” Such a finding would entitle the applicant to enhanced benefits and higher monetary limits.

3The respondent arranged for insurer examinations under s. 44 of the Schedule, which determined the applicant was not catastrophically impaired.

4The applicant disputes the respondent’s determination and filed an application for dispute resolution to the Licence Appeal Tribunal (the “Tribunal”). The application was heard at an in-person hearing on June 21, 2017.

5At the time of the accident, the applicant was a severely disabled eight year old. Both parties agree that as a result of the accident, the applicant suffered a traumatic brain injury and soft tissue injuries. The respondent argues that their insurer examinations have revealed that the car accident may not have caused medical changes in the applicant and have brought forward causation concerns.

Issue in Dispute:

6The issue in dispute is as follows:

(i) Is the applicant catastrophically impaired as defined by the Schedule as a result of the accident under s. 3(2)(d)(ii) of the Schedule?

Result:

7The applicant is catastrophically impaired as defined by the Schedule.

Procedural Issues:

8At the beginning of the hearing, the parties brought forward some preliminary issues regarding the unavailability of witnesses and the admissibility of evidence, the affidavit of the applicant’s mother. The parties agreed that cross- examination of the witnesses would not be necessary and we would spend the day in concluding arguments. The parties also agreed that the affidavit of the applicant’s mother would be entered into evidence as long as the additional 15 pages attached to the affidavit were removed. There were no decisions required on the preliminary issues.

Background:

9The applicant is the youngest of five children who lived between Afghanistan and Pakistan with their father, mother and siblings. The applicant and his mother had been victims of physical abuse by the father. When he was three months old the applicant’s father threw him against a wall and caused a severe brain injury. The mother eventually immigrated to Canada with four of her five children, including the applicant, as refugees in May of 2012.

10The applicant had significant pre-existing medical problems. In addition, to the brain injury the applicant sustained as an infant, he also had epilepsy, developmental delay and autism spectrum disorder.² As a result of these conditions and disabilities, the applicant was more dependent on, and required greater support in his daily routine and functioning from his mother, siblings, teachers and other adults.

11After the car accident, the hospital records show the applicant was diagnosed with a hematoma to head and eventually everyone agreed that he suffered a brain injury as a result of the accident. The mother, treating physicians and assessors all state there were medical changes in the applicant’s condition which increased his dependency and need for support. For example, the applicant had greater issues sleeping and eating, increased behavioural issues and increased seizure activity.

12The respondent’s initial insurer assessments found the accident had exacerbated the applicant’s previous impairments and paid for medical and rehabilitation benefits and attendant care benefits up to the non-catastrophic benefit limits. The applicant is now seeking benefits at the catastrophic level.

Catastrophic definition and GOS explanation:

13In order to establish catastrophic impairment under the Schedule, the impairments need to meet certain criteria and must be caused by the accident. The Schedule defines 6 categories of catastrophic impairment, each with its own set of criteria.

14The applicant is claiming he meets the definition under s. 3(2)(d)(ii) of the Schedule, a brain injury that results in a score of 3 (severe disability) on the Glasgow Outcome Scale.

15The Glasgow Outcome Scale is a ratings scale that applies to individuals with brain injuries to assess an individual’s level of recovery and their potential ability to return to everyday life. The scale ranges from level 1-5. One (1) being death-severe injury or death without recovery of consciousness to five (5) being low disability- light damage with minor neurological and psychological deficits. According to the Schedule, the test needs to be administered at least 6 months after the accident by someone trained for that purpose.

16The applicant submits that he falls within this definition of severe disability, despite the fact that his brain impairment both before and after the accident rated the applicant a Glasgow Outcome Scale (“GOS”) score of 3. The applicant argues the injuries sustained in the accident caused a significant increase in his dependency, need for care, and daily supports.

17Dependency is a key criterion in the assessment of severe disability under this section, and this particular definition of catastrophic impairment because the Lancet,³ “severe disability” describes someone who is conscious but disabled, and dependant for daily support by reason of mental or physical disability, usually a combination of both.⁴

18Significantly, the applicant was a minor at the time of the accident. Although the GOS has been established for individuals who are over the age of 16, the Schedule takes into account that the GOS rating must be adapted for someone under the age of 16, as someone under that age would still normally be dependent on a parent and/or guardian. The younger the individual is, the more dependant they would be. Sections 3(3) and 3(4) of the Schedule allows for some flexibility in determining how a brain impairment results in a GOS rating when applied to a minor. In assessing whether a minor meets the GOS rating of 3, medical assessors would have to take into account the normal dependencies for minors of a certain age and whether the dependencies increased due to the impairments caused by the accident.

Positions of the parties:

19The applicant submits that, as a result of the accident and despite his pre-existing impairments, he meets the catastrophic definition in the Schedule under s. 3(2)(d)(ii) because he has a greater degree of dependency than what he had before. The comparison of his pre-existing state versus his post-accident state cannot be compared with a regular and healthy 8 year old minor and must account and weigh the pre and post state to his specific functioning and dependencies. The applicant relies on his medical records, expert medical opinions and other evidence such as the affidavit of his mother.

20The applicant also relies on two decisions⁵ to establish that both functionality and dependency need to be compared in both the pre and post-accident state and that a GOS rating cannot be established on the brain injury alone but involves the assessment of neural, psychological and physical impairments. Although the principles in both cases do apply to this decision, the determinations are fact specific and not so easily comparable to the facts in this case.

21The respondent submits that based on their catastrophic assessments by medical examiners, the applicant is not catastrophically impaired because, as their assessments concluded, the accident may not have exacerbated the applicant’s pre-existing impairments.

22The respondent argues that the changes in symptoms and dependency were not caused by the accident. They rely on several cases to support their position that the applicant must now meet a causation test to be deemed catastrophically impaired.⁶ Many of the principles cited in the decisions focus on causation relating to tort law, apportioning negligence, and whether the accident caused impairments. In this case there is no question as to whether the car accident caused injuries, the parties both agreed that it did, this decision hinges on whether the applicant is catastrophically impaired due to those injuries. Therefore, the decisions presented are fact specific and not applicable to this case.

23The respondent also challenged the reliability of the mother’s affidavit as there are inconsistencies between the information she provides in the affidavit and her reports to medical assessors. The evidence from the mother not only in her affidavit, but as reported to the assessors is crucial in understanding the applicant’s post –accident changes. The applicant, as noted in the medical evidence, has the mental capacity of a 2-3 year old child. Therefore, he is unable to self-report or describe the changes in his conditions. The medical evidence and the evidence from the school are important, but the mother’s evidence is significant because it speaks to the day to day functioning and changes that have occurred since the accident. I disagree with the respondent’s submissions on the inconsistencies. I find her evidence largely consistent. While some of the details about the nature of the changes in her son’s symptoms vary depending on which assessor she was speaking to, in every case she is clear and consistent that her son’s condition worsened after the accident. The variances could reflect any number of factors. For example, she may have been reporting the concerns that were of the most significance to her that day or the concerns that were related to the doctor’s specialty. Regardless, I do not find that they undermine the reliability of her evidence as to the worsening of her son’s condition. The respondent chose not to cross-examine the mother and I find no basis for their argument.

The applicant established that he sustained a catastrophic impairment as a result of the accident:

24In order to meet the catastrophic definition under s. 3(2)(d)(ii) of the Schedule the applicant must establish he suffered a brain injury as a result of the car accident and meets the definition of a GOS 3 rating. Using the definition described by Lancet, the brain injury would have to cause changes in the person’s dependency for daily support. As the applicant was disabled and dependent on someone before the accident, he would have to prove the car accident caused an increase in his dependencies or created new dependencies.

25The parties agree the applicant sustained a brain injury as a result of the accident. In order for the applicant to establish he meets the GOS 3 criteria for catastrophic impairment is to compare what the applicant was dependent on for daily support before the accident with his dependency afterwards. This includes comparing his level of functioning, activities of daily living, and contributions to society, mental and cognitive abilities. If the applicant proves he is more dependent due to the brain injury than he was before the accident, then he meets the definition of being catastrophically impaired.

26In this case, I find that the applicant meets the definition of catastrophic impairment under s. 3(2)(d)(ii) of the Schedule because he has established a significant increase in his dependency, need for care, and daily supports.

Applicant’s condition pre-accident

27The applicant’s pre-accident medical history begins in May of 2012. He was first assessed by a doctor from [a local clinic] and was diagnosed with cognitive sequelae, seizure disorder, developmental, speech and cognitive delays. At that time, he had been taking anti-seizure medication for almost 6 years. Over the next year and half the medical and school records show the following pre accident problems and improvements.

28The applicant had behavioural issues which included recurrent angry outbursts, aggression toward others, hitting his mother and siblings and head banging. The applicant would sometimes become incontinent when he did not get his way or throw a tantrum that would resemble a “seizure”.

29His treating neurologist felt that the applicant may have been misdiagnosed as having epilepsy. The applicant was taken off of his seizure medication as his neurologist felt the “episodes” were linked to his behavioural issues and not neurological. The applicant exhibited symptoms that he suffered from anxiety and an attachment disorder to his mother.

30The applicant had difficulty sleeping, and experienced periods of sporadic eating where he was placed on pediasure. But the evidence also noted that his incontinence issues seemed to have improved just prior to the accident as the records show he was only wearing diapers at night and was occasionally waking up wet.

31The school records also show a great improvement in the applicant’s abilities. Since arriving in Canada he slowly increased the amount of time he was capable of attending school. Just prior to the accident, he was attending school full days and had become very responsive to social interactions, social praise and good manners. He still needed to work on sharing with other students and personal safety issues were a concern as he still attempted to leave the classroom. But the evidence showed that he showed significant improvement in controlling his emotions as he did not become frustrated as frequently as he used to when he didn’t get his own way. He had shown abilities to self-calm. He was able to name shapes and letters, and engage in polite greetings.

Applicant’s condition post-accident

32After the accident, I find the evidence shows deterioration in the applicant’s condition and an increase in the applicant’s dependency, need for care, and daily supports.

33There was evidence to support an increase in behavioural issues and an increase in safety concerns. In addition, the evidence showed that the applicant was now self-harming, for example, by pulling off his toe nails, biting his lips to the point of bleeding and sticking his head outside their 23rd story apartment building window. Around this time, the medical evidence indicated that his treating doctor increased his anti-psychotic medication as a result of the post-accident behavioural changes. The mother indicated during many of her interviews that previously she could leave the applicant in one room while doing something in another. In the past, the applicant had shown some signs of aggression by hitting his siblings, but this has escalated after the accident where now he bites his siblings. During one of the applicant’s assessment’s he had even spat in the assessor’s face.⁷ This is also evident by the applicant’s and respondent’s Form 1 which acknowledged a need for 24 hour supervision due to the injuries sustained from the accident.⁸ There has been an increase in the required supervision for the applicant’s safety. This is a significant change in the applicant’s daily support that was not required pre- accident.

34There has been an increase in seizure activity that would require more supervision for the safety of the applicant and medication administration. Although the applicant had a history of seizures prior to the accident, it was believed to be by the treating neurologist behavioural based and not neurological. Since the accident and based on medical records and reports, the applicant has experienced an increase in frequency of his seizures. The applicant’s seizures began to re-occur about two months after the accident. He was taken to the hospital and he was put back on seizure medication. The respondent’s neurological assessment ⁹ dated June 25, 2015 explicitly stated the applicant’s conditions had been exacerbated by the accident. It resulted in a change in his epilepsy condition where he now needed additional medication. The assessor indicated that these challenges and conditions will likely persist through adolescence and adult life and his autonomy for activities of basic living has been compromised. This conclusion was supported by the fact he was later referred to a comprehensive pediatric epilepsy program.

35The school records also indicate the applicant had regressed in his abilities. His high rate of absenteeism contributed toward his difficulties. The applicant was absent from school for various reasons, some having to do with the pain he was in from his strains and sprains, some were due to the behavioural issues and self- harming occurring on the bus, and some were issues were unrelated to the accident. The evidence related to his interaction at school showed that he could no longer self-calm and began throwing items at other students when he became upset. The school had also documented self-harm incidents on the school bus. Although, the applicant had some emotional and behavioural issues before the accident, he now has behavioural and emotional issues that negatively impact on his ability to function, attend school and engage in day to day activities.

36The applicant was also diagnosed with strains and sprains. The applicant complained of pain in his back, knee and hip and weakness in his hands. This caused impacts on his activities of daily life as the mother reported changes in his mobility and level of functioning.¹⁰

37I find that the applicant demonstrated that the accident and the resulting brain impairment caused a change in his condition and an increase in the daily support he required pre-accident and a need for new daily support(s).

Catastrophic assessments

38The applicant commissioned a catastrophic assessment by Omega Medical Associates (“Omega”) which was dated July 25, 2016. The multi-disciplinary assessment was comprised of:

• A clinic summary authored by Dr. L.B., MD, and Dr. H.B., MD
• A file review of the applicant’s medical records
• A cognitive assessment authored by Dr. M.K., Psychologist
• An in-home GOS assessment authored by T.L., Occupational Therapist

39The clinic summary took into account the file review of the records they had on file and the two assessments authored by Dr. M.K., and T.L.. The in-home GOS assessment focused on the changes that occurred as a result of the accident. This included changes in daily self-care, behavioural responses and changes in medical needs and treatment. The examiner, T. L., concluded that the applicant had the following post-accident changes:

• No longer assists in choosing clothes
• Frequent episodes of incontinence; increase diaper usage
• Self-harming behaviors
• Re-occurrence in seizures that are more intense and result in several hours of sleeping, increased falls which leads to striking head on walls and floor
• Direct physical assistance for some self-care tasks, such as transferring in and out of bathtubs
• Increased aggression and wandering
• Sleep cycle disturbance
• No longer initiates feeding or choosing beverage of his choice
• Placed on pediasure since accident
• Needs for administration of medication has increased¹¹

40Dr. M.K.’s cognitive report took into account the normal dependencies for someone of the applicant’s age, pre-accident medical history, the in-home assessment, and a clinical interview with the mother. She determined the applicant’s dependencies were significantly higher post-accident and therefore met the definition of being catastrophically impaired.

41Dynamic Functional Solutions conducted a multi-disciplinary assessment of the applicant on behalf of the respondent. The report was dated February 13, 2017 and it consisted of:

• An executive summary authored by Dr. B.M, MD
• A neuropsychological evaluation authored by Dr. C.I.K., Clinical Neuropsychologist
• A neurological assessment by Dr. D.M., Neurologist
• A paediatric evaluation by Dr. M.G., Paediatrician
• An occupational therapy paediatric assessment by R.G., Occupational Therapist

42The executive summary concluded that the applicant did not meet the criteria for a catastrophic determination as he had a pre-existing brain impairment corresponding to GOS rating of 3 and that the applicant’s current brain impairment continued to correspond with a GOS rating of 3. A summary of their findings are as follows:

• The occupational therapist observed that the applicant had behavioural and emotional issues which negatively impact on his ability to function, attend school and engage in day to day activities.
• The paediatric assessment determined that the applicant’s autism may have been exacerbated by the accident but it is impossible to assign an absolute percentage.
• The neuropsychologist assessment determined the applicant as a result of the accident sustained a concussion which may have exacerbated his pre-existing state but the extent of the exacerbation is difficult to ascertain. The applicant was significantly impaired in advance of the accident and the accident at worst mildly exacerbated that impairment.
• The neurological assessment determined that the applicant, as a result of the accident, sustained a mild closed head injury as well as musculoskeletal strain. The assessment concluded that the evidence does not support a change in the level of care he requires as a result of the accident.

43I find Omega’s catastrophic assessment conducted on behalf of the applicant more compelling than the respondent’s because they take into account pre-accident medical records, the mother’s reported changes in her son, and generally provide a good analysis of GOS rating and its applicability to this applicant.

44Omega’s assessment thoroughly takes into consideration the applicant’s pre and post-accident abilities, changes in rendered care and changes in medical needs and treatments. Those are determining factors for analyzing the GOS ratings which are largely based on dependencies for daily support. The entire assessment takes a comprehensive approach to both the applicant’s mental and physical limitations, the changes that occurred post-accident and how they relate to his dependencies. The report compares the findings and current symptomology to the GOS ratings and takes into account dependencies for someone of his age.

45Dynamic Functional Solutions’ assessment failed to address the mother’s concerns and reports of the post-accident changes in her son. They failed to analyze or comment whether those concerns and changes were as a result of the accident. The assessors failed to analyze how a GOS rating is applicable to a minor and whether the applicant meets that rating.

46It is also unclear whether the assessors understood which catastrophic determination the applicant was applying for. The occupational therapist organizes her report as if she was providing feedback on a catastrophic impairment under criterion 8 marked impairment and the paediatric assessor concludes that he cannot assign the applicant an absolute percentage as if he is commenting on criterion 7 whole person impairment. Neither of which are the basis for the applicant’s application for catastrophic determination. Significantly, none of the in- person assessors explicitly state that the applicant does not meet the catastrophic definition under the GOS ratings.

47Many of the respondent’s assessors acknowledge medical changes in the applicant, both observed and in review of the medical records, but fail to address whether they are caused by the accident or not. The paediatric and neuropsychological assessors conclude that the accident may have exacerbated the applicant’s impairments but it was difficult for assessors to qualify them.

48Also the medical documents reviewed by the insurer’s assessors did not take into account the medical records from [the local clinic] These medical records cover a large amount of the pre-accident history recorded by the applicant’s treating physicians from June 2012 until February 2015. Without these records it would be very difficult for the respondent’s assessors to have a complete picture of the applicant’s pre-accident medical history.

49The respondent also argues a causation issue. They claim because their assessors were not able to conclude the accident had exacerbated the applicant’s pre-existing condition then the applicant should have to meet the “but for” test for causation. But I note that their initial assessors concluded that the accident did exacerbate the previous impairments and in fact, the respondent paid out the non- catastrophic benefit limits.

50As stated previously, the evidence established that applicant’s condition worsened after the accident to a significant degree relative to his pre accident impairments. Both the applicant¹² and respondent presented case law to support their position on whether the applicant needs to meet a “material contribution” or “but for” test regarding causation. In my opinion, as the applicant’s condition worsened to a degree that rendered him catastrophically impaired, he meets either causation test, whether a ‘but for’ or ‘material contribution’.

Conclusion:

51Overall, the applicant provided sufficient evidence that his pre-accident impairment, abilities and limitations were worsened by the accident and that the brain injury caused by the accident contributed significantly to his medical and behavioural changes and his needs. Although he had many challenges prior to the accident he seemed to be coping at school and improving. The evidence showed that his injuries as a resulted of the car accident caused dramatic changes in his life. This caused an increase of daily supports and dependencies to a degree that meets the definition of catastrophic impairment. .

Order:

52I order that the applicant be deemed catastrophically impaired.

Released: January 12, 2018

Chloe Lester

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Joint Medical Brief 1 of 3 Tab 3
3. 3Assessment of Outcome After Severe Brain Damage Lancet i:480, 1975
4. 4Book of Authorities of the Respondent Tab 2
5. 5Caselaw brief of the applicant – Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] OJ No 4735 (QL); Denise Watters v. State Farm (FSCO A13-006328, June 26, 2015)
6. 6Book of authorities of the respondent; Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32; Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165; Resurfice Corp. v. Hanke, [2007] 1 SCR 333, 2007 SCC 7; Kozhikhov v. Insurance Corporation of British Columbia, 2015 BCCA 515
7. 7Joint Medical Brief 1 of 3 Tab 2
8. 8Joint Medical Brief 1 of 3 Tab 2 and 4
9. 9Joint Medical Brief 1 of 3 – Tab 3
10. 10Joint Medical Brief 1 of 3 – Tab 2 and 4B
11. 11Joint Medical Brief 1 of 3 – Tab 7
12. 12Caselaw brief of the applicant; Vandergaag and Aviva, FSCO (A12-007924, February 1, 2016); Monks v. ING Insurance Company of Canada, 2008 ONCA 269; Ghabn and Dominion, FSCO (A12-002238, December 4, 2014); Sabadash v. State Farm Mutual Automobile Insurance Company, FSCO (A14-0018939, March 7, 2016); Mohammad and Allstate, FSCO (A13-006712, December 19, 2016)