Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 77 Appeal: P-002235

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SHELLEY L.P. Appellant

and

ROYAL INSURANCE COMPANY OF CANADA Respondent

Before: Elisabeth Sachs

Counsel: James D. Young, QC (for Shelley L. P.) Alex W. Demeo (for Royal Insurance)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed and the arbitration order dated February 9, 1994 is confirmed.
No appeal expenses are payable in respect of the preliminary motion heard in this appeal.
Except as provided in paragraph 2, Shelley L.P. is entitled to her reasonable expenses.

May 5, 1997

Elisabeth Sachs Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF APPEAL

Shelley L. P. (Ms. P) was a fifteen year old grade 10 high school student when she was injured in a motor vehicle accident during the night of November 16 -17, 1990. She applied for statutory accident benefits from Royal Insurance Company of Canada (“Royal”). Royal paid weekly benefits to Ms. P under section 13 of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672 ( the Schedule) and made various supplementary medical and rehabilitation payments. While payments were not continuous from the time of the accident, the parties acknowledge the total amount paid represents benefits to January 31, 1993.

Royal stopped paying benefits on the basis that Ms. P was no longer substantially disabled from performing her essential tasks as a student. Ms. P claimed she sustained psychological or mental injuries in the accident which continuously disabled her until at least September, 1993 when she had planned to return to school on a full-time basis. As the parties were unable to resolve this issue through mediation, Ms. P applied for arbitration. Although there were many other outstanding issues between the parties at the start of the proceedings, after the fifth pre-hearing the matter boiled down to whether Ms. P was entitled to weekly benefit payments for the seven month period from February 1, 1993 to September 7, 1993.

The arbitration hearing, at which Ms. P and four witnesses testified, took place over three days in July, 1993. Several volumes of documents, including medical and psychological reports, test results, assessments and hospital records, were filed along with Ms. P’s school records since kindergarten, and a performance assessment. The parties filed additional written submissions after the hearing.

Toward the end of her lengthy decision, the arbitrator concluded that the accident:

...was one of a number of psychological stressors affecting Ms. P, but not a significant factor in the development of her condition.

...I am not persuaded, on a balance of probabilities, that the motor vehicle accident caused or played a significant role in causing her disability, after (February 1993).

(Decision, p. 51, emphasis added)

Ms. P appealed the arbitrator’s order, challenging the arbitrator’s assessment of the medical and psychological evidence and the testimony of the expert witnesses. She also claims that the arbitrator erred in law in how she applied the balance of probabilities standard to the overall evidence.

Ms. P also submits that as the medical, psychological and social work reports, records, opinions and assessments were both complicated and conflicting, questions relating to them should have been referred by the arbitrator (and by the Director on appeal) to a review by the Medical and Rehabilitation Advisory Panel (MRAP) under the Insurance Act , R.S.O. 1990, cI-8, as it then stood. Ms. P asked that a number of expert reports and treatment plans obtained since the arbitration hearing be admitted as new evidence on appeal and for a partial oral re-hearing to amplify those reports.

I dismissed the requests for an MRAP referral, admission of further evidence and a re-hearing in a preliminary decision dated June 23, 1995. Expenses of the motion were reserved to the disposition of the appeal.

The appeal then proceeded on the central issues of the basis for the arbitrator’s findings of fact and the weight she accorded the evidence. Both parties made written and oral submissions. There is no transcript of the hearing. The arbitration exhibits were filed as part of the appeal record.

II. BACKGROUND

Ms. P was a front seat passenger in a car driven by another teenager when it left the road, hit a tree and then slid down an embankment. She sustained serious physical injuries in the accident, including fractures to her spine, left wrist and leg, right elbow and ankle. The admitting hospital records noted “minor bruising” on her face, but stated “no evidence of any scalp or skull injury” was apparent. Ms. P was transferred to another hospital for surgery and a CT¹ scan of her head was taken. The findings were unremarkable, and no further investigations of a possible head injury took place at that time.

Ms. P returned home on December 22, 1990 and went back to high school in February, 1991. She successfully completed the courses she was enrolled in for the spring semester, despite lingering pain from her orthopaedic injuries for which she took medication. She continued to receive physiotherapy and other treatments during this time. Ms. P’s physical injuries eventually healed. Surgery to remove pins in her limbs was completed in mid 1992. The parties agreed she was no longer disabled as a result of those injuries by early to mid 1993.

However, approximately eight to nine months after the accident, Ms. P began to exhibit some disturbing behaviour. Starting around November 1991, Ms. P’s presentation was such that she was placed in a psychiatric hospital. Since then, Ms. P has undergone a number of voluntary and involuntary hospitalizations, numerous tests, assessments and programs to deal with her behavioural problems.

III. ISSUE AND ANALYSIS

A. Issue

The arbitrator was asked to determine, under subsection 13(1) of the Schedule, whether Ms. P sustained a psychological or mental injury resulting in a “substantial inability to perform the essential tasks in which ...she would normally engage” as a result of the motor vehicle accident. The inquiry was directed firstly to whether such an injury had occurred, and if so, was Ms. P thereby unable to perform her essential tasks. The onus of establishing that the injury and any effects of it resulted from the accident was on Ms. P.

B. Analysis

A great deal of written medical and psychological evidence was filed about Ms. P’s behaviour and personality, and the attempts by numerous mental health professionals to both diagnose and treat her. The evidence was supplemented at the hearing by the testimony of Dr. D.M. Johnson, a psychiatrist who began to treat Ms. P in February 1992, and Dr. C.I.G. Kumchy, a clinical neuropsychologist who assessed Ms. P at Royal’s request in January 1993. Ms. P did not testify on her own behalf, but was called as a witness by Royal. Ms. P’s mother and a high school counsellor were the other witnesses.

The arbitrator recognized that there were conflicting conclusions drawn by the experts, based on substantially different versions of Ms. P’s physical and mental condition immediately after the accident (i.e. loss of consciousness and duration), her pre-accident social and family circumstances, the contribution of continued drug and alcohol consumption, and the degree of her behavioural disorders. Ms. P’s representatives’ position at the outset, maintained on appeal, is that she was a normal, well adjusted adolescent, whose behaviour took on pathological overtones only after the motor vehicle accident.

The main objections to the arbitrator’s weighing of the evidence are her findings that Dr. Johnson acted more as an advocate for Ms. P at the hearing and not as an impartial expert witness, and her acceptance of Dr. Kumchy’s evidence on key points, such as the value of diagnostic tools such as SPECT-scans in determining brain injury in cases like Ms. P’s. The arbitrator also referred with approval to the reports of Dr. G.A. Hawryluk, retained by Royal, whose opinion was that a mild head injury could not explain the severity of the symptoms Ms. P experienced. Ms. P characterises the arbitrator’s reliance on this evidence as “conclusive”. In giving the evidence of Drs. Kumchy and Hawryluk that weight and by labelling Dr. Johnson as not impartial, Ms. P.’s counsel argued that the arbitrator in effect “cast a jaundiced eye” over, and ignored, the rest of the psychological/psychiatric evidence. She therefore incorrectly applied the balance of probabilities standard to the issue before her.

A review of the decision shows the arbitrator organized the evidence into several components, starting with the accident itself and the lack of any indicia of brain injury. The arbitrator then summarizes the immediate post-accident period, finding that the hospital records and doctors’ reports reveal no discernible mental problems or obvious head injury beyond a bruise on Ms. P’s right forehead. A CT-scan taken within hours of the accident was negative, as noted by the arbitrator at page five of her decision. The records of the surgical team and a neurological consultant at McKellar General Hospital, which I reviewed, show that Ms. P had some amnesia about what exactly happened during the accident, but no further tests or investigations regarding a head injury were called for.

The arbitrator then moves on to review Ms. P’s behaviour starting around seven months after the accident. She refers to a report of Dr. Oyewumi, a psychiatrist who was involved in an assessment of Ms. P in London from the end of September to November, 1992; the testimony of Ms. P and her mother; and Dr. Kumchy’s evidence, concluding several incidents up to November, 1991 (a house party gone awry, damaging property, taking her father’s car without permission) indicate Ms. P’s conduct was “not unusual for adolescents and not necessarily indicative or probative of any serious mental illness or pathology”. My reading of the reports referred to support this conclusion. After that time, however, Ms. P’s conduct deteriorated to the point that she was hospitalized, and despite interventions and direct personal treatment (which began in early 1992 with Dr. Johnson), she was repeatedly admitted to various institutions and remained an outpatient at her local psychiatric hospital at the time of the hearing.

Ms. P’s pre-accident condition was also canvassed. The school records and expert testimony along with Ms. P’s and her mother’s evidence, were the subject of over four pages of the decision. Again it was argued nothing in Ms. P’s history before the accident might explain or have a bearing on her presentation in late 1991 and thereafter, but the arbitrator concluded the evidence showed otherwise. She had to analyse Ms. P’s stated position that her problems were “a spontaneous development... directly resulting from the accident” which was also the position taken on appeal. Having reviewed all of the documentary evidence available to the arbitrator, it is my view that she properly considered evidence concerning Ms. P’s pre-existing psychological makeup. The arbitrator could readily conclude that Ms. P’s background included signs of attention-deficit disorder at an early age, alcohol and drug use, problems relating to her father’s absence from the home starting in 1989, a dysfunctional family unit and possible abuse.

The arbitrator then looks at and summarizes, in detail, Ms. P’s first admission to the Lakehead Psychiatric Hospital, and the records, notes, reports and assessments generated as a result. My reading of those same documents shows the summary is accurate, both in specific details and overall description.

Subsequent to Ms. P’s hospital discharge, Dr. Johnson became involved with her treatment. Dr. Johnson’s reports and oral evidence are the subject of considerable analysis in the decision, as are the reports and findings of other experts who both agreed and disagreed with her eventual diagnosis that Ms. P has an organic personality syndrome secondary to the accident (which is markedly different from the conduct disorder noted in her January 22, 1992 report). The arbitrator also deals with the controversy around the use and interpretation of Ms. P’s SPECT-scan, referring to both Ms. P’s and Royal’s experts’ views. She then sets out her reasons why Dr. Johnson’s evidence and the SPECT-scan results were not sufficient for her to come to a conclusion that the accident caused any brain damage which Ms. P’s problems could be reasonably connected to.

Dr. Johnson was clearly concerned about her patient, but her reports, especially the one dated May 15, 1993, show a distinct defensiveness about adverse evidence relating to Ms. P’s pre-accident presentation and family disruption. Considerable frustration is also shown with the inability to successfully manage Ms. P’s problems with personal and drug therapy. This backdrop must have been apparent in the testimony at the hearing, particularly during cross-examination, but cannot be evaluated absent a transcript. The arbitrator had the benefit of observing Dr. Johnson, as well as her written reports. I have no grounds on which to overturn her assessment of Dr. Johnson’s evidence

The arbitrator moved on to review other expert, hospital and report evidence tendered by Ms. P., finding much of it suffered from a reliance on erroneous facts or assumptions about the circumstances surrounding the accident and Ms. P’s pre-accident condition. Ms. P’s representatives continued to insist that her behaviour before the accident was normal and without difficulties. As the arbitrator noted, this position did not stand up when Ms. P’s background was looked at further.

There was evidence of defiant behaviour, reduced school performance, alcohol abuse, and conflict within the family well before the accident. A social work assessment dated November 28, 1991, done shortly after Ms. P’s admission to Lakehead Psychiatric Hospital, noted behavioural changes coinciding with Ms. P’s father’s absence for employment reasons and her brother’s own attempts to control substance abuse. Ms. P herself reported similar problems quite consistently. Time was passing and much of the information given to professionals who became involved later in 1992 and 1993 was second or third hand, or came from family members who had their own fixed view of Ms. P’s problems. The arbitrator was entitled to view the documentary evidence in that light. Having done the same, it is my opinion that the arbitrator appropriately assessed the impact of the evidence after faulty assumptions were discounted.

The arbitrator also referred to articles submitted by Ms. P. about head injuries and their sequelae. Although these were not qualified as expert evidence, she accepted them. The arbitrator concluded that while the literature was of interest in describing symptoms which could arise from a head injury, they did not materially assist in coming to any conclusions about potential causes of Ms. P’s behaviour and whether it was “organically based”.

The arbitrator next scrutinizes Royal’s medical and psychological evidence. She noted Dr. Hawryluk’s opinion that Ms. P may have received a mild head injury, but ultimately the best that might be said was that the accident could be considered one “psychological stressor” among others. She reviewed Dr. Kumchy’s written reports and testimony, finding this witness to be “knowledgeable and credible” whose opinions were “sensible and persuasive”. (Decision, p. 47).

The record shows there was conflict in the medical and psychological evidence on a scientific answer to why Ms. P was experiencing psychological problems. Opinions about what may have caused Ms. P’s condition at various points in time ranged from post traumatic stress, bi-polar conduct disorder, schizophrenia, drug induced psychosis, possible genetic factors (which could not be evaluated: Ms. P was adopted and little information about her birth parent’s health was available from the Children’s Aid Society); the effects of pre-existing cranial asymmetry (present from at least the age of 5 months); to organic personality syndrome secondary to the accident and dementia.

With those parameters in mind, it was up to the arbitrator to evaluate the contradictions and couple her analysis with what was brought out at the oral hearing. This she did throughout the course of her lengthy decision. The arbitrator rightly stated that it was not up to her to come to a “correct” diagnosis of Ms. P’s problems. Her function was to determine, on all the evidence available, the degree to which the accident may have been a contributing cause, if at all. After reading the documentation filed, it is my view the arbitrator did not unduly isolate particular reports or records, although she necessarily limited her references in the decision to ones she specifically did or did not rely on and why. Nor did the arbitrator dismiss any of the medical and psychological evidence out of hand. The oral testimony was added in to her analysis throughout. Comment was made on the failure to cross-examine Dr. Kumchy, and that this “enhanced” her credibility. In my view, lack of cross-examination of a witness may not necessarily add to his or her credibility, but it certainly does not challenge or minimize its impact on the trier of fact.

The arbitrator considered the evidence as a whole, as she was required to do. The arbitrator then had to draw a legal conclusion from it - she was entitled to determine the sufficiency of the evidence enabling her to do so. She had to apply the balance of probabilities standard to her findings on the evidence, and did so with reasons.

Finally, the arbitrator relates the evidence before her to the issue of whether any brain injury sustained by Ms. P (accepting as she does that if it occurred, it was of a minor nature) led to the late onset of her psychiatric problems. It is important to note that in coming to her legal conclusion on the evidence, the arbitrator was confronted by Ms. P’s submission that her problems were organic - the result of a head injury. The arbitrator rejected this “sole cause” argument, correctly in my view, and went on to determine whether the accident significantly or materially contributed to the development of a mental injury. She concluded the accident certainly resulted in post-traumatic stress but, given all of the evidence, found it was not the cause or a significant contributor to Ms. P’s later presentation.

C. Conclusion

The Director’s duty on appeal has been discussed in many decisions, and can be taken as settled. That duty encompasses a complete review of the documentary evidence and hearing record to ensure the arbitrator’s conclusions have a proper foundation - that is, they have sufficient evidence to support them. Whether I might have come to a different conclusion on a particular issue or piece of evidence is not the test.² Arbitrators have the advantage of observing and hearing witnesses in person, considering their credibility and evaluating experts’ opinions and medical reports in the context of the evidence as a whole.

The arbitrator here had to weigh all the evidence - oral and written - assess its credibility and then accept or reject it. My role is not to re-try the issue or weigh the evidence as if it was being presented for the first time. Nor is it to substitute my view of the weight to be attributed to the evidence.

Where the arbitrator’s conclusions are supportable on a review of the evidence they will not be interfered with by me unless she was clearly wrong. This case comes down to a disagreement about the weight the arbitrator gave to the totality of the evidence: the testimony of Ms. P and her mother, a school counsellor and two doctors, and most particularly, the hundreds of pages of assessment and treatment records and reports. The factual findings resulting from this exercise are essentially a matter for the arbitrator’s judgment having regard to all evidence before her. My role is limited in reviewing the foundation for the arbitrator’s conclusions and determining whether they are supportable or not.

This case presented difficulties. Could it be said there was a possibility, however remote, that the accident might have contributed to Ms. P’s psychological problems which manifested themselves only about a year after the accident? Perhaps so. The real question to be asked however, and answered on facts which in my opinion were properly established, is whether the accident caused or significantly contributed to the development of these problems, on a balance of probabilities.

The accident resulted in serious physical injuries to Ms. P. There is no doubt these were the focus of Ms. P’s treatment in the following year. When Ms. P’s behaviour then changed, sometimes dramatically, a logical cause was sought and opinions became divided. Over the years up to the hearing in 1993, different treatments were tried, including prescribing of drugs such as Lithium, Tegretol, Stelazine and Cogentin, often with success until Ms. P’s behaviour shifted again. The root cause of the behavioural disorders became more intuitive rather than clearer. Notwithstanding, the arbitrator had to come to a legal conclusion on this evidence. On a review of the arbitration exhibits along with her reasoning as set out in the decision and her summary of the oral testimony, I cannot say the arbitrator misdirected herself such that her decision should be overturned. Accordingly, the appeal is dismissed.

IV. EXPENSES

An award of appeal expenses does not strictly follow the outcome. It has been noted before that when an appeal is based primarily on a disagreement with the arbitrator’s evaluation of the evidence and unless a substantial issue is raised, expenses are not normally awarded to an unsuccessful party.

In this case, there was a continuing refusal to consider that Ms. P’s situation might be related to factors quite apart from a motor vehicle accident and to accept that the function of the arbitrator is to evaluate all of the evidence (whether a party agrees or disagrees with it) and make a decision. This led to the preliminary motion on new evidence and for an MRAP referral which was rejected for the reasons set out in that decision.

The issue on appeal was not novel: it was about the arbitrator’s exercise of her judgment in weighing the evidence. However, the evidence was complex and its interpretation led each party to approach the case differently. Ongoing psychological intervention in Ms. P’s case led to more reports being generated. The appeal was not misguided or completely without merit. It was not frivolous or vexatious, nor were any other factors present which would justify an award to Royal.

In the circumstances, each party will bear their own expenses for the preparation of, and argument on, the preliminary motion. This includes preparation of originating documents and written submissions on the admission of new evidence and the request for an MRAP referral. Ms. P is entitled to her reasonable expenses of the balance of the appeal. If the parties cannot agree, they may apply for and make written submissions on an assessment through the Registrar’s Office.