Insurer’s expert recommendation to accident victim
Catastrophically impaired car accident victims in Ontario are eligible for medical and rehabilitation benefits up to $1 million.
Victims suffering serious, but non-catastrophic impairment are eligible for medical and rehabilitation benefits up to only $50,000 (the Ontario no-fault limit of $100,000 was cut in half in 2010).
Insurance companies seem prepared to make any argument to limit the number of victims who qualify for catastrophic benefits.
At least that appears to be the case from the recently reported arbitration decision involving a 53-year-old woman, D.B., (the decision doesn’t reveal the victim’s name) and her insurance company, Economical Mutual.
D.B.’s vehicle was hit head on by a truck while driving on Highway 24 to Cambridge.
The collision was so severe paramedics had to use the jaws of life to remove her from her vehicle.
She was initially hospitalized for 10 days.
Along with injuries to her neck, back, shoulders, knee and abdomen, she suffered a fractured right leg below her knee.
After five surgeries, with extensive hospitalization, the fracture had not healed, she could not bear any weight on her right leg, could not move one leg in front of the other and could not stand independently.
Prior to the accident, D.B., led an active life including housekeeping, babysitting her grandchildren and attending exercise classes.
Following the accident, she was unable to walk, suffered pain requiring daily doses of opioids, and felt depressed, not wanting to leave her bed. She withdrew from social functions. Due to her inactivity and eating for comfort, her weight increased by 90 pounds. She gets around with a wheelchair, save when she is in a chairlift, although she can use a walker to take a few steps.
D.B.’s doctors believe she satisfies the criteria for catastrophic impairment benefits.
That her insurer and its doctors disagree isn’t troubling; what’s troubling is why they disagree.
The insurer’s expert concluded D.B. doesn’t suffer from any psychiatric impairment based, in part, on a trick.
He had an assistant knock on the door to his office to see if D.B. would be startled by the knocking.
Hyperarousal is said to be a feature of a stress disorder and D.B.’s failure to jump at the sound of the knocking was used against her.
But as D.B.’s expert, Dr. Dory Becker, stated, door-knocking is not an accepted test for diagnosing a stress disorder. In addition, being sedated on her daily medication, her reactions would be muted and being wheelchair bound, of course D.B. did not jump.
The insurer’s expert also relied on his observation that D.B. was able to smile and laugh. But, as Dr. Becker pointed out, even a depressed person is able to laugh and enjoy some things and laughing at a doctor’s — even an insurance company’s doctor’s — jokes, is the polite thing to do.
The insurer’s expert also took the bizarre view D.B. ought to have her right leg amputated below the knee and that she’d then no longer require a wheelchair.
So he assessed D.B.’s impairments based on the assumption she was an amputee!
D.B.’s doctor pointed out even with an amputation it was doubtful D.B. could get around with a prosthetic and that she’d more than likely remain wheelchair bound.
In the end the arbitrator decided in favour of D.B., ruling she was indeed catastrophically impaired.
In doing so he stated that, “(n)o doctor, insurer, arbitrator or judge can dictate to D.B. that she must have an amputation as a remedial procedure. I am mindful that D.B. has had five remedial surgeries as a result of the accident and has suffered from the non-union of a fracture. No one can assure D.B. that she will increase her mobility if she consents to an amputation.”
Those are wise words, along with these: Don’t laugh at a doctor’s jokes and remember to be startled if you hear someone knocking at your door.
Source: By Alan Shanoff ,Toronto Sun First posted: Saturday, October 26, 2013 06:33 PM EDT http://www.torontosun.com/2013/10/25/amputate-your-leg
