Neutral Citation: 2005 ONFSCDRS 24

FSCO A02–001081

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DAVID McMICHAEL

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

REASONS FOR DECISION

Before: David Muir

Heard: March 22, 23, 24, 25, April 20, 21, 22, and June 10, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on September 27 and October 4, 2004. Further oral submissions were received on December 15, 2004.

Appearances: Alan L. Rachlin for Mr. McMichael

Richard F.L. Rose for Belair Insurance Company Inc.

Issues:

David McMichael was seriously injured in a motor vehicle accident on June 14, 1998. He applied for and received statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ Belair terminated income replacement benefits on or about November 24, 2002. Mr. McMichael seeks the reinstatement of those benefits and their payment to date and ongoing. In addition, he is seeking the payment of attendant care benefits.

The parties were unable to resolve their disputes through mediation, and Mr. McMichael applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In order to be entitled to income replacement benefits Mr. McMichael must show that he has suffered an impairment that continuously prevents him from engaging in any occupation for which he is reasonably suited by reason of his education, training or experience.

In order to be entitled to attendant care Mr. McMichael must establish that he has suffered impairments as a result of the accident and that the expenses claimed are reasonable and necessary as a result of the accident. Because the claim arises more than two years after the accident Mr. McMichael must also establish that he has suffered a catastrophic impairment as defined in section 2(1.1) of the Schedule, as a result of the accident.

A key factual issue in this case is the causal relationship, if any, between the car accident and Mr. McMichael’s current difficulties, in particular his addiction to crack cocaine. Mr. McMichael states that, as a result of the accident, he has become a crack cocaine addict. It is this addiction, primarily, that forms the basis of his position that he is catastrophically impaired and therefore entitled to attendant care and equally, that he is unable to work. Belair states, on the contrary, that Mr. McMichael was a cocaine abuser before the car accident and therefore his addiction to crack cocaine did not arise from the accident. In that case, states Belair, there is no entitlement to either benefit.

A note about the use of terminology regarding cocaine use and abuse. During the course of the hearing, the terms, “use”, “abuse” and “addiction” in relation to cocaine and crack cocaine were used somewhat interchangeably. Despite this usage by some during the hearing, cocaine abuse and cocaine dependence are diagnoses found in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders.² How these DSM-IV diagnoses relate to the terms “use”, “abuse” and “addiction” as they were used by some witnesses is not clear. However, Belair alleges, based largely on the opinion of Dr. Reznek, that Mr. McMichael suffered from cocaine abuse prior to the car accident. Mr. McMichael denies this, but does state that as a result of the accident he is addicted to crack cocaine (cocaine abuse, or cocaine dependence). In coming to the conclusions I have about Mr. McMichael’s pre-accident health and level of function, I have considered the diagnostic criteria for cocaine abuse as set out in the DSM-IV Manual. There is no dispute that he now suffers from cocaine abuse and/or cocaine dependence.

Accordingly the issues in this hearing are:

1. Has Mr. McMichael suffered a catastrophic impairment as defined in the Schedule?

2. Is Mr. McMichael entitled to an attendant care benefit from April 2002, to date and ongoing, pursuant to section 16 of the Schedule?

3. If the answer to issue #2 is yes, what quantum of attendant care benefit is Mr. McMichael entitled to?

4. Is Mr. McMichael entitled to an income replacement benefit from November 24, 2002, to date and ongoing, because he is completely unable to engage in any employment for which he is reasonably suited by reason of his education, training or experience?

Result:

1. Mr. McMichael has suffered a catastrophic impairment as defined in the Schedule.

2. Mr. McMichael is entitled to an attendant care benefit of $5,056.80 per month, from April 2002, to date and ongoing, pursuant to section 16 of the Schedule, less amounts credited to Belair for time when he was otherwise supervised. I remain seized of this issue in the event that there are any unresolved disputes respecting the quantum of attendant care benefit.

3. Mr. McMichael is entitled to weekly income replacement benefits in the amount of $256, from November 24, 2002 to date and ongoing.

Mr. McMichael is entitled to interest on the amounts found to be owing to him, calculated in accordance with section 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

A transcript of the evidence and submissions was taken during the hearing. At the outset, I asked the parties whether either was intending to produce a transcript. Belair indicated that it would produce a transcript and provide copies to myself and Mr. McMichael. In these circumstances, I indicated that the transcript would become part of the record of the proceeding and I would take notes accordingly. The hearing proceeded on that basis and this decision has been written on the basis of the evidence as recorded in the transcript. Accordingly, I have not summarized the evidence in great detail.

As stated earlier, Mr. McMichael was injured in a car accident in June 1998. Mr. McMichael was the rear seated passenger in a taxi cab which was involved in a “T-bone” collision with another vehicle which struck the cab at about the spot where Mr. Michael was sitting. He was thrown through the rear windshield of the cab and was found lying on the sidewalk some feet from the damaged vehicle.

As might be expected from the circumstances of the accident, Mr. McMichael suffered very serious injuries to several parts of his body. It also appears likely that his head was subject to significant forces. Although the ambulance call report and early hospital records indicate that his Glascow Coma Scale was 15/15 at all times, he appears to have been unable to tell anyone whether he had been a passenger or pedestrian at the time of the accident. This confusion continued to be reported in the hospital records for some time after his arrival. There is no dispute that he was a passenger in the taxi when it was hit.

Mr. McMichael had been on a pub crawl over the course of the late afternoon and evening prior to the accident, with members of a hockey team with whom he played. The intention had been to “drink the winnings” from a hockey tournament. Although it is impossible to be precise about how much alcohol was consumed that evening, the levels of alcohol in his blood during testing at the hospital indicate an amount slightly greater than the so-called legal limit under the Criminal Code of Canada. He had also consumed an indeterminate amount of cocaine.

The injuries identified when he first arrived at the hospital included an evulsion skull fracture; an open femoral fracture; a broken rib (and the possibility of a second fractured rib); a fractured scapula and pneumothorax on one side.

In addition to these musculoskeletal injuries, Mr. McMichael suffered numerous abrasions to his face, right arm and hand. He was operated on by a plastic surgeon. Many of the cuts and abrasions on his arm were caused by glass from the car window. Cuts on his right temple, right and left eyelids, left cheek, left temporal area, left post auricular area, right vertex scalp and right post occiput were repaired.

There was indication of confusion and agitation in the hours immediately post accident, although the presence of both cocaine and alcohol in his system at the time complicates the situation. He vomited at least once while in triage and there are reports of nausea and vomiting in the first days after the accident.

He appears to have experienced a period of pre-accident amnesia estimated of at most 10 minutes. The extent of his post traumatic amnesia is controversial as he was under the influence of a number of drugs including a general anaesthetic in the hours immediately following the accident. He has stated that he does not remember anything until seeing his wife, Ann McMichael, at the earliest 18 hours post accident – that is, he appears to have no memory of events in the couple of hours between the accident and undergoing surgery to repair the fractured femur, when he would have been under the influence of a general anaesthetic.

In the days subsequent to the accident there are notations by nursing staff, physiotherapists and others, of agitation and anxiety as well as left sided weakness.³

Just before being released from hospital on June 30, 1998 it was discovered that he had broken a bone in his left hand.

Mr. McMichael also suffered a temporomandible joint displacement as a result of blunt trauma to the mandible. It is not clear when this was first discovered but treatment for this injury began in September 1998.

Later still it was discovered that he had also suffered a crush fracture of the T9 vertebra in the accident, with a 25% loss of vertebral height.

In response to complaints from Mr. McMichael of pain and discomfort in his right thigh, the right femoral nail installed the night of the accident was removed in April 2001.

Mr. McMichael’s current complaints include significant back pain, right thigh pain in addition to the other emotional and behavioural/cognitive issues which will be canvassed more completely below. He has lost a significant amount of weight as a result of his inability to continue with his extensive pre-accident sporting activities as a result, in part at least, of his physical limitations.

Mr. McMichael claimed and was paid attendant care for a period of time. Initially this was provided by his wife and then a sister. Later, outside help was provided and paid for by Belair. However, within months of the accident Mr. McMichael was able to provide for much of his personal care needs and attendant care was no longer required.

Mr. McMichael was referred to the Head Injury Clinic of St. Michael’s Hospital by Dr. M. McKee, his treating orthopaedic surgeon, for assessment by Dr. Ouchterlony on September 21, 1998. His complaints were of irritability, forgetfulness and decreased concentration, as well as problems with visual focus. He was then referred to Dr. L. McFadden, a neuropsychologist. Dr. McFadden noted a number of deficits apparently connected to injuries sustained in the accident – reduced verbal fluency, difficulties with auditory attention and concentration, and poor organization and visual concentration; poor organization and visual constructive tasks; decrease in mental flexibility and a mild degree of impulsive behaviour. In the opinions of Dr. Ouchterlony and Dr. McFadden, these deficits were indicative of left frontal or temporal lobe damage as a result of a mild closed head injury.

Mr. McMichael was seen again by Dr. Ouchterlony in November 1998. He reported irritability, forgetfulness, and difficulties with attention and concentration. Assessment at that time revealed “reductions in verbal fluency, difficulties with auditory attention and concentration and poor organization [of] visual and constructive tasks. There was some decrease in mental flexibility noted and a mild degree of impulsive behaviour.”

The opinions of Dr. Ouchterlony and Dr. McFadden that Mr. McMichael has suffered a mild traumatic brain injury is shared by most of the experts who have assessed him over the years.⁴ The debate amongst the medical experts is not whether there was a brain injury of some kind, but whether there are significant ongoing sequelae of it. Most importantly for our purposes, the debate centres on whether or not the current cocaine addiction is causally related to the motor vehicle accident. In the opinion of most of Mr. McMichael’s expert witnesses, were it not for the cocaine problems, Mr. McMichael would likely not meet the test for catastrophic impairment. It is also possible, according to these same experts, that he may be able to engage in some kind of employment.

Causation:

Is Mr. McMichael’s current addiction to crack cocaine causally connected to the motor vehicle accident? The consensus of medical opinion is that it is.

Despite this consensus Belair takes the position that Mr. McMichael’s drug abuse problems are not caused by the accident as a matter of fact, or in the legal sense contemplated by the Schedule. In large part this position is based on the opinion of Dr. Reznek that Mr. McMichael was a cocaine abuser prior to the car accident.

The basis for Dr. Reznek’s opinion that Mr. McMichael suffered from drug abuse prior to the accident is suspect. The key passage in his February 18, 2002 report is set out here:

Mr. McMichael does admit to abusing cannabis, cocaine, and alcohol prior to his accident of June 14, 1998. In fact, even though he said he would only have a “couple of beers” at any time, on the day of the accident the Police Report documents that Mr. McMichael had three pints at the Balmy Beach Club, and then a further four beers at Coxwell Danforth bar. Mr. McMichael then went on to Madison (sic) where had a “few pints” over a few hours. He then went to a birthday party where he had “a few beer.” Thus, Mr. McMichael had, on the day of the accident, around twelve beers. This is a significant difference from the “couple of beers” that Mr. McMichael told me he would have at most. Thus, it is hard to accept his description that, at most, he would have cocaine “once in a blue moon”. Given the extent of his alcohol abuse at this time, it appears reasonably clear that Mr. McMichael was also probably abusing cocaine prior to his accident on June 14, 1998. According to the report from Dr. Shree Bhalerao, Psychiatrist, of January 15, 2001, “He notified that he used cocaine sporadically prior to his accident.” Given this, and given the effect that cocaine has on mood and general functioning, as well as on any person’s finances, Mr. McMichael would have satisfied the criteria for cocaine abuse prior to the accident on June 14, 1998.”

The DSM-IV criteria for substance abuse are as follows:

A. A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:

(1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household)

(2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)

(3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct)

(4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)

B. The symptoms have never met the criteria for Substance Dependence for this class of substance.

When queried about how Mr. McMichael met the DSM-IV criteria for cocaine abuse, Dr. Reznek conceded that his opinion was based on a supposition that there were facts to support it. As I understand Dr. Reznek’s position, because Mr. McMichael was an unreliable historian as regards the amount of alcohol he consumed on any one occasion, it could be assumed that his reporting of his cocaine use was inaccurate. Accordingly, Mr. McMichael could not be believed when he said that prior to the accident he used cocaine only “once in a blue moon.” Therefore, the reasoning went, because cocaine is highly addictive and can often lead to serious social and functional problems, Mr. McMichael must have also met these other criteria for the diagnosis of cocaine abuse as described in the DSM-IV.

Several of the experts who testified offered that individuals often underestimate/under-report their use and abuse of substances whether illegal or not. I find that Mr. McMichael may have underestimated the frequency of his drug use in the years immediately prior to the accident. Mrs. McMichael may also have tended to do the same thing. However, it does not follow that Mr. McMichael suffered from cocaine abuse or cocaine dependence prior to the accident.

Dr. Reznek saw Mr. McMichael on February 18, 2002, almost four years after the car accident and in excess of three years after Mr. McMichael had begun his descent into acknowledged substance abuse.

Dr. Reznek’s views appear to have been informed by his first impressions of Mr. McMichael during their clinical interview.⁵ The David McMichael that Dr. Reznek saw is described in his evidence as follows:

Well, he was well presented. His hygiene was good. His self care was good. He was appropriately dressed. His behaviour was appropriate. He wasn’t disinhibited and he wasn’t irritable. He wasn’t impulsive in any way. He seemed quite controlled, quite at ease. He wasn’t anxious. And his mood was quite bright really. I mean, he was quite chatty. And we would joke together during the interview. He would smile and laugh quite appropriately.

This David McMichael is not dissimilar to the man who was interviewed by Beverly Cott on March 18, 2002⁶, where he is described as pleasant of manner, cooperative, well groomed, alert and oriented. His speech was fluent and not effortful and conversation was carried out appropriately.

Yet a little more than a month after seeing Dr. Reznek and one week after being interviewed by Beverly Cott, he was admitted to St. Michael’s Hospital in a state of crisis after a crack cocaine binge and shortly thereafter was admitted again in a similar state and then confined to the hospital.

By the time that Mr. McMichael saw Dr. Reznek, his counsel had communicated to Belair that David was not a reliable historian and that, in considering his situation, regard should be had to the views of family members and others familiar with his level of function.⁷ Dr. Reznek declined to review collateral information such as the examinations for discovery of Mr. McMichael’s family, and letters from family members which were provided to him by counsel, although he acknowledged at the hearing that this kind of material might have been important to coming to a conclusion.

Discovering the truth of Mr. McMichael’s substance use and/or abuse in the years prior to the accident is complicated by the fact that Mr. McMichael has said quite different things about it at various times since the accident. This lack of clarity or candour on Mr. McMichael’s part has, at a minimum, fuelled suspicion about his claims. Mr. McMichael is an unreliable historian and it is difficult to give much credit to what he has to say about his drug use.

In his evidence in this proceeding, Mr. McMichael was very vague about many things, not least about when he might have begun using drugs. He did testify that he began using cannabis in high school. He also said that he had been using cocaine occasionally for “a few years.” However, when questioned by Belair, he endorsed Dr. Frank Evans’ history, taken at the Bellwood Centre, that he began using powdered cocaine when he was 19. He did not endorse Dr. Evans’ further report that for a short period of time in his early twenties he was using cocaine on a weekly basis. His evidence given during examinations for discovery was different than either version offered in this hearing.

The evidence clearly supports, in my view, the conclusion that Mr. McMichael had a long history of cocaine use, beginning in his late teens and continuing sporadically to the time of the accident. However, was Mr. McMichael at any point in time an abuser of cocaine as opined by Dr. Reznek? The evidence does not support such a finding.

Mr. McMichael has been more consistent when talking about how frequently he was using cocaine in the years immediately prior to the car accident. He has pretty consistently described it as sporadic, recreational use. He testified that he never bought it and only used cocaine when offered at a party or other social gathering where it would be available. Mrs. McMichael confirmed this evidence. There is no evidence to contradict it.

Mr. McMichael testified that he was so busy with other things, like his own sporting activities as well as supporting his son in his active life, that “he did not have time” for regular use of cocaine. The fact that he was an active athlete is confirmed by Mrs. McMichael and Mr. Georgeff.

Byron Georgeff confirmed, to the extent that he could, this pattern of usage in the years prior to the accident. He testified that it would be available at parties that he and Mr. McMichael attended in the Beaches area. He did not readily concede the point, but did admit that he may have seen Mr. McMichael consume cocaine prior to the accident. Despite this use of cocaine Mr. Georgeff described Mr. McMichael as a vital, active, personable, responsible, diligent and competent husband and father. He testified that the man he sees now is not the same person he had known prior to June 1998.

Mr. Ouderkirk, a dispatch supervisor with his pre-accident employer, testified that he was completely unaware that David McMichael was a cocaine user, although he had regular contact with David each week of work. He testified that he would have been surprised to learn that David used cocaine, and never saw any sign of his drug use interfering with his work performance.

Mrs. McMichael was somewhat vague about how frequently her husband used cocaine. She did state that she could tell when he had used cocaine and that he used it only three to four times a year so far as she knew. She further testified that although she was not happy about his use of drugs, it did not affect any aspect of their lives together. He was a loving father, husband and partner prior to the accident. He is, based on the evidence of Mrs. McMichael and others, none of those things now. In examination for discovery she had stated that her husband used cocaine once or twice every two months.

Mr. McMichael was not very helpful in identifying individuals with whom he consumed cocaine prior to the car accident. He did testify that he consumed cocaine with Darren Matias prior to the accident, but never again afterwards. He could not (or would not) identify any other individuals with whom he had consumed cocaine. Belair asked that I draw an adverse interest regarding his drug use based on his deliberate attempt to mislead me by depriving Belair of the opportunity to investigate his claims of limited cocaine use prior to the accident.

Although I agree that Mr. McMichael has been less than forthcoming in identifying persons with whom he consumed cocaine prior to the accident, I do not find that this was part of a deliberate attempt to mislead. In part, I accept his explanation that he did not remember the people with whom he did these drugs. This is not inconsistent with his testimony that his drug use in the years just prior to the accident was sporadically recreational and ad hoc. In equal part, at least, it is likely that other motivations may have led to a reluctance to name names. Drug use and abuse carries with it significant social stigma. Activities associated with it are illegal. It is not surprising that Mr. McMichael would be reluctant to identify friends and acquaintances with whom he might have consumed cocaine prior to the accident.

In any event, he did identify Mr. Matias, yet Belair chose not to call Mr. Matias as a witness. If an inference were to be drawn in this regard it might well be that Mr. Matias’ evidence would not support Belair’s theory of the case.

I find that David McMichael was, in the years leading up to the accident, a recreational user of cocaine. He never used it at home and never in the presence of his wife or son. He did not buy it. His drug use was ad hoc and sporadic and appears to have been associated with post hockey game parties and the bar scene in the Beaches area.

In terms of quantity of use, the best evidence is that his use of cocaine peaked in his early twenties, when, according to what he told Dr. Evans, he was using cocaine as much as once a week. In the history that he gave to Dr. Evans, it appears that his use tailed off after that time. This trajectory is consistent with the other available evidence.

The most critical factor in arriving at my conclusion that Mr. McMichael did not meet the DSM‑IV criteria for cocaine abuse is the complete lack of evidence that Mr. McMichael’s substance use ever interfered in his day-to-day life. Prior to the accident he was an active family man, enjoyed sports on a regular, almost daily basis. He was actively involved in his birth family’s life, with regular visits to his mother and his three sisters. He may have downplayed work and career in favour of other things in his life, such as sports and an active social life in the Beaches. Nonetheless, he maintained steady employment and met his sales targets. In short, he lead an active, productive and by all accounts a complete life in the years prior to the car accident.⁸

In addition to Dr. Reznek’s opinion, Belair also relied upon the evidence of Dr. Evans, as set out above. However, Dr. Evans did not endorse a diagnosis of cocaine abuse for any period prior to the accident. His reference to cocaine abuse in his notes was called an impression, and not a concrete diagnosis. The impression may also have been in reference to earlier periods in Mr. McMichael’s life such as in his early twenties when his use of cocaine and cannabis was clearly more significant.

There is no dispute that Mr. McMichael currently meets the criteria for cocaine abuse. He likely also meets the criteria for cocaine dependence.

Is his cocaine abuse an impairment caused by the car accident?

David McMichael testified that he took crack cocaine for the first time after his failed attempt to return to work in October 1998.⁹ The return to work was made against the advice of some of his treating practitioners, but he may have been under some pressure from his employer. He attended at work for part of one day but was sent home and told that he should not return until he was 100 percent. He has reportedly said on several occasions that he was devastated by his treatment at the hands of his former employer. He went to his wife’s office and broke down in tears. It was, Mrs. McMichael testified, only the third time in their 25 years together that she had seen him in tears. The other two occasions were when his father and brother, respectively, passed away.

Mr. McMichael testified that an acquaintance, Scotty, came by his house shortly after his failed return to work. Scotty offered him some crack cocaine. Mr. McMichael testified that at the time he felt devastated by the failure to return to work.

Under questioning by his counsel,

Q: Well, let’s talk about the addiction. When did you first start using street drugs after the car accident?

A: It was pretty much after I went back to Cargo Direct and they said that, you know, “Come back when you’re ready. We don’t feel that you’re ready.”

Q: When did you start using street drugs?

A: I was devastated. I felt that I wasn’t the same as I was before the accident. I thought I was and as it turned out, I wasn’t. I -- it is just -- I was pretty devastated.

Q: Well, did you take street drugs because you were feeling devastated?

A: It made me feel -- I thought it made me feel a lot more together.

Q: What did?

A: The cocaine. Crack cocaine.

Q: Why did you smoke the crack cocaine that first time?

A: I just -- no real reason. I guess the reason being is just I was upset with myself for the fact that I wasn’t being able to go back to work in the -- you know, at the job that I really loved to do. And it just seemed like my life wasn’t -- it wasn’t the same. And once I smoked this crack cocaine, it felt like I could be back and do the same things that I used to do.

Q: So it made you feel more functional?

A: Yes.

Q: David, why are you still using crack cocaine?

A: Because I’ve tried to go back to work and my life’s not the same. Just everything has changed so much in the last, I guess, five years that it makes me feel that it’s not that bad. I don’t think I really have a relationship with my wife or my son. And it gets frustrating not being able to work, not being able to communicate to people like I used to communicate. I forget a lot. And that’s probably it, I guess.

Under questioning by counsel for Belair:

Q: Okay. During the time that you’re on crack cocaine and you’re on the high, what are you like? Are your restless, or ...

A: I would like to think that I’m in control.

Q: Okay. But you don’t really know, do you?

A: No.

Q: All right. And when you’re not on crack cocaine, you can do more things around the house; correct?

A: I become very lazy when I am not on crack cocaine, so -- I get that “I don’t care” attitude. And that attitude turns into depression, anxiety, that I don’t want to do anything in the house. Then I get very irritable, I don’t want to ‑‑ because it reminds me of what my life used to be, and what my life is now. So that’s when I get the crack cocaine, to take me out of that misery world that I -- that I’ve been living in.

Q: But haven’t you been told, Mr. McMichael, that you should engage in more constructive activities, to get rid of depression?

A: I’ve been told lots of things, sir. I’ve been told lots of things. Don’t’ do crack cocaine because you could die.

Mrs. McMichael testified that she became aware of the drug use around Christmas 1998¹⁰, when she noticed that significant amounts of money were missing from their bank accounts. She testified that she and one of Mr. McMichael’s sisters confronted him. She testified as to her understanding of why her husband began using crack cocaine.

Q: What did he tell you?

A: That he was using crack cocaine to medicate himself.

Q: Did he tell you for what reason he was medicating himself?

A: Yeah, because he was very depressed. He was not happy with the situation that they had placed him in by telling him that he couldn’t come back to work until he was a hundred per cent. Because, he knew, I think that that was going to be a bit of a battle to get, you know — and that’s what – he didn’t want to have to deal with that.

As indicated earlier, the consensus of medical opinion is that Mr. Michael’s addiction to cocaine is as a result of the car accident. In addition to Mr. McMichael’s experts (Dr. Ouchterlony, Dr. Berry and Dr. Bhalerao), the Med-Rehab DAC, considering the reasonableness and necessity of a drug rehabilitation program, agreed that it was. Dr. Salmon, a neuropsychologist who assessed Mr. Michael on two occasions in both a Med-Rehab and Catastrophic DAC assessment (CAT DAC), considered that the accident had materially contributed to Mr. McMichael’s substance abuse problem.

Whether as a result of marginally impaired impulse control as suggested by some¹¹, or as a misguided attempt to self-medicate, I accept those opinions as well as the evidence of the McMichaels’ that the drug addiction was a direct consequence of the accident.

Belair also argues that even if there is a factual connection between the car accident and Mr. McMichael’s addiction, his current addiction problem is not an impairment caused directly by the car accident as required by the Schedule.

Belair’s argument flows from the definition of “accident” in the Schedule:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device;

Belair argues that the term “accident” must have the same meaning wherever it appears in the Schedule. Accordingly, the requirement in the definition of accident – that the incident involving the use of an automobile directly causes an impairment – must be imported wherever the word appears. This argument is made in opposition to the ratio in Correia and TTC Insurance Company Limited (FSCO A00-000045, October 27, 2000), upheld on appeal (FSCO P00-00061, July 16, 2001), decisions Belair says are wrongly decided. Belair states that these decisions are inconsistent with a long line of other FSCO decisions such as Karshe and Non-Marine Underwriters, Mbrs. of Lloyd’s (FSCO A99-000855, December 15, 2000) and Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002).

Subsequent to the conclusion of this hearing, the Ontario Court of Appeal released a decision in Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485, which considers again the question of what is an accident under the Schedule and applies the causation test articulated in the Chisholm v. Liberty Mutual Group, (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (Ont.C.A.), case. As the ratio of this decision appeared to resonate with the arguments made by Belair, I invited submissions from the parties on the impact, if any, of the decision on the facts in this case.

Belair submits that Greenhalgh supports its contention that Correia is wrongly decided and that, contrary to the ratio in that case, Mr. McMichael must prove that his crack cocaine addiction has been caused directly by the car accident. Although Mr. McMichael suffered serious physical injuries in the car accident, he is unable to show that his addiction to crack cocaine has been directly caused by the accident in the manner articulated by the Court in Greenhalgh and Chisholm.

Mr. McMichael states that the decisions in Greenhalgh, Chisholm as well as Karshe, supra, and Kumar, supra, and many others, were concerned with whether or not there was an accident or, alternatively, whether or not the use or operation of a vehicle gave rise to an impairment. The focus of these cases is on whether the incident is an accident and not the unfolding consequences of an injury sustained in an accident.

Although claiming that these decisions were not germane to the instant circumstances, Mr. McMichael submits that the circumstances here meet the two-part test in Chisholm:

1. Was the use or operation of the vehicle a cause of the injuries?

2. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?

In Mr. McMichael’s submission, what we are considering in this case is the sequela of injuries sustained in the accident. If that proposition is accepted, then both parts of the Chisholm test can be met according to Mr. McMichael.

I largely agree with Mr. McMichael and, for the reasons set out below, find that the facts as I have found them meet the causation requirements of the Schedule.

In Chisholm, supra, the claimant for benefits was driving in his car when shot at by an unknown assailant. Mr. Chisholm argues that “but for” his being confined in his car he would not have been injured and submits that the “but for” test satisfied the causation requirement of the Schedule.

The Court of Appeal dealt with this aspect of the argument at length because it considered that it focussed on the meaning of “directly causes an impairment.” In the Court’s opinion, the so called “but for the accident” test is not determinative of the causation question, although it does serve as an exclusionary test. If a set of circumstances does not meet the test, then the injury would have occurred irrespective of whether or not an automobile was involved. If the test is met, then the car accident is a factual cause of the injury – however, this does not conclusively establish legal causation – it must still be established that the car accident was a direct cause of the injury.

The Court found that even if it could be said that the use of an automobile was a factual cause of the injuries sustained by Mr. Chisholm, a conclusion that it did not reach, the later intervening act of the gun shot could not be considered a normal incident of the risk created by the use of an automobile.

In Greenhalgh, Ms. Greenhalgh became lost while driving. In the course of trying to find her way, the car stalled and the claimant left her vehicle and began walking. Her cell phone failed. She walked all night, fell into a river, lost her boots and as a result of exposure and frostbite suffered serious injuries to her feet and legs.

In Greenhalgh, the Court, echoing the views expressed in Chisholm, articulated a two-part test arising from the definition of accident in the Schedule.

1. Did the incident arise out of the use or operation of an automobile?

– “the purpose test”

2. Did such use or operation of an automobile directly cause the impairment? – “the causation test”

The bulk of the decision concerns the two-part causation test as articulated in Chisholm, supra.

In the result, that Court concluded that there were a number of intervening acts which broke the causal link between the use or operation of the automobile and the injuries sustained and, as a result, could not be said to be a direct cause of the injuries Ms. Greenhalgh suffered.

These cases are both distinguishable from the circumstances at hand. There is no doubt that an accident took place in which Mr. McMichael was seriously injured. The question becomes whether the sequela of the injuries sustained in the accident are causally linked to it, or as required by the test in Chisholm, has there been some intervening cause or causes which breaks the chain of causation?

Belair does not point to an intervening cause as such, but argues that the drug addiction pre-dated the accident so that Mr. McMichael does not meet the screening test of “but for” the accident the injury would not have occurred, etc. I have dealt with this element of the argument with my acceptance of the opinions of the Med-Rehab DAC, the CAT DAC and others, that “but for” the accident and the injuries sustained that night by Mr. McMichael, he would have not have become addicted to crack cocaine. Or, to put it another way, I find that Mr. McMichael’s addiction to crack cocaine is factually connected to the accident.

I find as well, that there is no intervening act or acts breaking the chain of causation here. Accordingly, if I am required to strictly apply the analysis outlined in the Chisholm and Greenhalgh decisions, I find that these circumstances meet the test. To my mind, whether as a result of impaired impulse control as a consequence of a mild traumatic brain injury or as a vain attempt to self-medicate, the fact that Mr. McMichael turned to the use of crack cocaine is not outside of the risks associated with the kinds of injuries which can be sustained in automobile accidents such as the one experienced by Mr. McMichael.

However, I am also in agreement with the submission of Mr. McMichael that because the issue here is not whether there was an accident, in the sense of whether there were impairments caused by the use or operation of an automobile, but rather with tracing the chain of causation from impairments suffered in an accident to other causally linked sequelae, the reasoning in these decisions do not apply directly to these circumstances. In Chisholm, clearly, the question was whether or not the incident that occurred was an accident within the meaning of the statute. In Greenhalgh as well, the question was whether or not the injuries that occurred could be said to have been caused by the use or operation of an automobile where the injuries are sustained outside of the vehicle and long after it had been vacated by the claimant.

In my view, if there is any question of causation to be determined in this case, it falls squarely within the principles articulated in the decision relied upon by Mr. McMichael – Correia. Despite Belair’s vigorous submission that it was wrongly decided and I ought not follow it, I find that I am likely bound by the appeal decision but, in any event, I agree with the analysis of both the arbitrator and the appeals delegate.

Ms. Correia was injured in an automobile accident. She received therapy and was intending to return to work. Her treatment provider required that she undergo a functional capacities evaluation. She was injured during the course of this evaluation.

The arbitrator concluded as follows:

It can be argued, in support of the TTC’s position, that section 2 requires each impairment giving rise to benefit entitlement to be directly caused by the accident. However, the definition of “accident” in section 2 uses the indefinite article: it provides coverage where the use or operation of an automobile “directly causes an impairment.” The preamble to section 4, the IRB entitlement section, sets out the pre-condition for entitlement: “an insured person who sustains an impairment as a result of an accident.” Nothing in the wording of these sections limits benefits to those impairments directly caused by the accident. Moreover, in enacting the Bill 59 amendments to the SABS, the legislature chose not to amend the provisions setting out the entitlement criteria for various types of benefits, all of which retain the “as a result of” test. This supports the Applicant’s view that the “as a result of” test applies in determining the extent of an insurer’s liability for the consequences of an accident. Reading subsections 2(1) and 4(1) together, I find that once the insured person proves that she sustained an impairment in an “accident,” the test for entitlement to benefits is whether the impairments giving rise to the claim for benefits were sustained “as a result of” the accident.

The arbitrator went on to consider how causation has been treated in FSCO decisions, court decisions and workers’ compensation decisions concerning insurance claims. She summarized her views as follows:

To the extent the SABS is ambiguous as to the extent of coverage for the consequences of an accident, I find that it should be given an interpretation that is consistent with the legislative objectives underlying the statutory accident benefit scheme, analogous common-law principles and related (workers’ compensation) jurisprudence. I conclude that the extent of coverage for the consequences of an accident is governed by the “as a result of” test, which requires proof that the accident materially or significantly contributed to the disability or impairment that gives rise to the claim for benefits.

Important policy considerations also favour this approach. Accident benefits are intended to be payable on a non-adversarial, expedited basis. Requiring an insured person to trace the “chain of causation” with precision is inconsistent with this policy. Early rehabilitation is another important objective of the accident benefits scheme. For this reason, the SABS places special emphasis on prompt payment of medical and rehabilitation benefits, and requires insurers to pay certain benefits pending resolution of any dispute about entitlement.

This decision was upheld on appeal.¹²

To my mind the facts of this case point to at least as strong a causal connection between the accident and Mr. McMichael’s current problems as those found in Correia. Indeed, this case is not unlike the circumstance where apparently minor injuries sometimes lead to debilitating psychological problems in the months after the accident and initial physical injuries.

The question becomes whether the primary impairment at issue here, an addiction to a debilitating medication, is within the types of risks associated with the injuries sustained by Mr. McMichael early in the morning of June 14, 1998.¹³ Again I find, whether its genesis was an effect of the mild traumatic brain injury that Mr. McMichael suffered, a vain and misguided attempt to self-medicate, or some combination of these two, the addiction is a direct consequence of the injuries sustained in the car accident.

Catastrophic Impairment:

Much of the evidence and argument in the hearing concerned whether or not Mr. McMichael has suffered a catastrophic impairment as a result of the car accident.

The language of the provision, subsection 2(1.1) of the Schedule, is set out below:

For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is,

(a) paraplegia or quadriplegia;

(b) the amputation or other impairment causing the total and permanent loss of use of both arms;

(c) the amputation or other impairment causing the total and permanent loss of use of both an arm and a leg;

(d) the total loss of vision in both eyes;

(e) brain impairment that, in respect of an accident, results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

(f) subject to subsections (2) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. O. Reg. 281/03, s. 1 (5).

Mr. McMichael submits that he meets the criteria for catastrophic impairment set out in paragraphs (f) and/or (g) above. Belair disputes that position. In support of his contention, Mr. McMichael relied upon the opinions of Dr. Ouchterlony, Dr. Berry, Dr. Bhalerao and others. Belair relied upon the CAT DAC assessment, the opinion of Dr. Reznek discussed earlier, as well as the evidence of Dr. Ameis who testified about the methodology followed by the CAT DAC.

Based on a review of all the evidence related to this issue, I find that Mr. McMichael is catastrophically impaired as a result of injuries sustained in the accident.

I have already found that Mr. McMichael’s addiction to crack cocaine is as a result of the accident. The evidence supports the conclusion that prior to the accident Mr. McMichael was in good health, was gainfully employed, active in his family, and his community. He was a high functioning individual.

The contrary view on this issue is based almost entirely on Dr. Reznek’s opinion. Dr. Reznek’s opinion on this issue is without factual foundation and I disregard it for the reasons set out above.¹⁴

The evidence is that other than when confined to treatment facilities, Mr. McMichael has been unable to abstain from the use of crack cocaine for more than a few days or weeks at a time since sometime in late 1998. He has been described as a binge user. For example, when admitted to St. Michael’s Hospital in March 2002 he reported that he had been smoking crack cocaine for at least 18 hours and had been spending up to $300 dollars a day on drugs in the three previous weeks. Later in 2002, prior to admission to the Bellwood Centre, he reported usage of $150 daily.

The extent of his use has increased over time. In the past year he has suffered a seizure which has been attributed to his crack cocaine abuse. As a result of the seizure he has lost his driver’s license. He has been told that he will die if he continues to use crack cocaine but he seems incapable of ceasing the habit.

Mr. McMichael pays for his drugs with his CPP disability pension payments as well as an annuity from the tort settlement. This is not enough, and Mr. McMichael has had to find drug money elsewhere. Mr. McMichael has sold all of the jewelry he had bought his wife over the years, including her engagement ring and wedding band. He sold a ring given to Ann McMichael by her mother. He has stolen from his mother, Dr. Berry and others who were not identified. He has stolen from complete strangers. He has emptied the family bank account on at least two occasions. At times he has physically abused his wife, demanding she give him money for drugs.

He has ended most contact with his birth family, with the exception of his mother who he still sees quite regularly. He no longer sees his sisters, with whom he had been very close prior to the accident. He has ended almost all of his prior athletic activities, only in part because of his physical injuries. According to Mrs. McMichael, her husband has continued to distance himself from his pre-accident social relationships because he is embarrassed about his, at times, aberrant behaviour.

His relationship with his immediate family has been seriously compromised. At one point Mrs. McMichael asked him to leave the family home for a period of time.¹⁵ She testified that Mr. McMichael had emptied their bank accounts again and they were behind in their mortgage payments. She had had enough. Mr. McMichael went to live with his mother for a short period of time, but returned to his wife and son after a couple of weeks.

Mrs. McMichael testified that she loved her husband, but described life with him as a “living hell” since the accident. He has been physically abusive of her, not only when he is seeking money for drugs as noted earlier. Mrs. McMichael testified about an incident in the days immediately prior to her giving evidence at the hearing where he grabbed her and ordered her to shut a door.

He is estranged from his son, although they had been very close prior to the accident, engaging in a multitude of social and sporting activities. Mr. McMichael is no longer able to participate with, or mentor his son in his sporting activities. He generally does not attend his son’s sporting events because of the inability to control his inappropriate behaviour. He also feels that his son is ashamed of him because of his drug problem, a sense of shame that Mr. McMichael shares.

He has failed in three attempts to return to work, beginning with his attempt to return to Cargo Direct. Shortly thereafter, Mr. McMichael obtained an inside sales job with Canada Water. His duties were to make cold calls to an identified list of potential buyers of spring water. His employer, Earl White, had known David socially prior to the accident and was quite impressed with him. They had discussed the possibility of his joining Canada Water prior to the accident and Mr. White had offered him a job. When Mr. McMichael called after the accident, he was pleased to offer him a job. Although he was employed for some months at Canada Water, Mr. McMichael says that he sold nothing. Mr. White testified that he made some sales, but not nearly enough.

Mr. White testified that he was very frustrated with Mr. McMichael’s performance. He could not seem to get going and would often ask the same question over and over again. Mr. White complained to Mr. Georgeff, who had set up the initial contact prior to the accident, that David McMichael was not the same person that he had met and offered a job to prior to the accident. Because he knew that David McMichael had been in a serious automobile accident he was prepared to keep him on for a period of time. At some point during his period of employment, Mr. White spoke to David about his performance over lunch. Mr. McMichael burst into tears and offered to resign. Mr. White testified that he was taken aback by Mr. McMichael’s emotional response. Mr. White testified that he declined the offer to resign but asked that Mr. McMichael do the job for which he was being paid. Despite this and other interventions, Mr. McMichael was not up to the job according to Mr. White and eventually they parted company.

Mr. McMichael subsequently obtained another sales job, but he claims that he was unable to perform the duties of that position and it ended in failure after a week.

Prior to the accident, Mr. McMichael and Mrs. McMichael shared, more or less equally, the responsibilities of parenting and maintaining their household. In general terms, Mrs. McMichael testified that her husband does help out but is much less of a partner than prior to the accident because of his memory problems and his inability to concentrate and focus on the task at hand.

Mr. McMichael, because he was home from work earlier than his wife, would pick up their son Spencer from school and make dinner. He does not do so in the same way any more. He has forgotten to pick up his son from school.

Mrs. McMichael testified that her husband has difficulty remembering recipes and has difficulty with the timing of various dishes for even a simple meal. As a result, she has taken on much of the cooking for the family. Mr. McMichael helped out with laundry prior to the accident. He does so still, but he is often unable to complete the task successfully. He forgets when and when not to use bleach for example, or which garments can be safely washed. He cannot seem to remember to not mix colours and whites. He leaves wet laundry in the washing machine or on top of the dryer, forgetting to complete the task he has begun or becoming distracted by something else going on.

Mrs. McMichael testified that her husband is limited in his functioning by his inability to absorb and retain information. He is easily distracted from the task at hand. Mrs. McMichael testified that even simple tasks will often require prompting about the next step. For example, Mrs. McMichael testified that a simple task like taking out the garbage is beyond Mr. McMichael because he will become distracted between the kitchen and the front door, leaving the garbage in a multitude of places while pursuing the other transitory goal. She has found bags of popcorn and cucumbers in the freezer. When questioned about these things, her husband will deny all knowledge of them.

Mr. McMichael was, prior to the accident, a bit of a “neat freak” in the sense that he was a tidier and not a cleaner. He was also much concerned with his personal appearance. Since the accident, these characteristics have taken on an obsessive character, according to Mrs. McMichael. For example, prior to its being replaced, Mr. McMichael would obsess about the white floor in the kitchen and would wash it over and over again in a single day because of a concern that it was dirty. On the other hand, he is at times unable to sweep the floor completely, leaving swaths of floor untouched. Several assessors have noted Mr. McMichael’s attention to his personal appearance since the accident, with Dr. Berry and others finding an obsessive element to this aspect of Mr. McMichael’s behaviour.

The CAT DAC assessment was conducted over a number of days in April 2002. The CAT DAC concluded that Mr. McMichael’s impairments did not meet the criteria for either paragraph (f) or (g). Mr. McMichael questions both the methodology and the results of that assessment.

The CAT DAC assessment team included Dr. H. Becker (medical), Dr. A. Oshidari (physiatry), Dr. J.D. Salmon (Neurological Assessment), Susan Wong (In-Home Assessment Occupational Assessment), Dr. Salmon (Neuro/Psych CAT file review) and Dr. H. Rosenblat (Psychiatry).

The American Medical Association – Guides to the Evaluation of Permanent Impairment (4th ed.), chapters 1, 2, 4 and 14, “the Guides,” was made an exhibit and the parties were agreed that its contents were incorporated by reference into the Schedule. As such, it is important to my consideration of the DAC’s conclusions.

Paragraph (g) of Subsection 2(1.1)

Guides: Chapter 14 - Mental and Behavioral Disorders

Chapter 14 of the Guides deals with the assessment of mental and behavioural disorders. As a result of a file review, the DAC concluded that it was appropriate that Mr. McMichael be assessed under the mental and behavioural aspects of this criteria. In respect of this aspect of the assessment, Mr. McMichael was seen by Dr. Salmon, Dr. Rosenblat and Sandra Wong.

The Guides establishes a classification table for the assessment of these disorders, entitled Table: Classification of Impairments Due to Mental and Behavioral Disorders:

Area or aspect of functioning

Class 1: No impairment

Class 2: Mild impairment

Class 3: Moderate impairment

Class 4: Marked impairment

Class 5: Extreme impairment

Activities of daily living Social functioning Concentration Adaption

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all, useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

The Guides expands on the levels of disability captured in this table:

The [above] Table (p.301) provides a guide for rating mental impairment in each of the four areas of functional limitation on a five-category scale that ranges from no impairment to extreme impairment. The following are recommended as anchors for the categories of the scale. “None” means no impairment is noted in the function; “mild” implies that any discerned impairment is compatible with most useful functioning; “moderate” means that the identified impairments are compatible with some but not all useful functioning; “marked” is a level of impairment that significantly impedes useful functioning. Taken alone, a “marked” impairment would not completely preclude functioning, but together with marked limitation in another class, it might limit useful functioning. “Extreme” means that the impairment or limitation is not compatible with useful functioning.

In the ordinary individual, extreme impairment in only one class would be likely to preclude the performance of any complex task, such as one involving recreation or work. Marked limitation in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. An individual who was impaired to a moderate degree in all four categories of functioning would be limited in ability to carry out many, but not all, complex tasks. Mild and moderate limitations reduce overall performance but do not preclude performance.

Dr. Salmon’s conclusions in the May 27, 2002 CAT DAC assessment are set out here:

All things considered, in terms of the impact of strictly neurogenic/psychogenic disorders on his daily functioning, Mr. McMichael: (a) remains functionally independent in all daily living tasks (Class 1: No impairment), although some impairment is recognized with regard to some non-CNS physical issues (e.g. back pain); (b) demonstrated sound concentration, persistence and pace upon interview, with minimal difficulties with same upon psychometric testing, but some concerns upon OT home assessment, suggesting a rating in the Class 2: Mild Impairment range in this criterion; (c) appears capable of social involvement compatible with Class 3-4: Moderate to Marked Impairment, with suggested fluctuations in behaviour contingent upon the social context and environmental demands (with minimal impairment noted in the context of a quiet but lengthy personal interview); The final domain of “work adaptation was not formally assessed at this time in light of the above noted ratings. From the overall perspective, Mr. McMichael would appear to fall into Class 2-3: Mild to Moderate Impairment based upon the AMA Guides Mental and Behavioral Disorders classification. As such, Mr. McMichael does not appear to meet Catastrophic Impairment status under this criterion. [Class 4 or 5].

An important aspect of this assessment was the In-Home Assessment conducted by Susan Wong. This part of the assessment was conducted over two days and a little more than five hours.

There are two significant differences between Ms. Wong’s report and the conclusions of Dr. Salmon. Whereas Ms. Wong had determined that Mr. McMichael exhibited marked impairment or Class 4 in the area of social functioning, Dr. Salmon reduced that to the more favourable score of 3-4. In addition, Ms. Wong found that Mr. McMichael was Class 2 or mildly impaired in his ability to carry out activities of daily living. Dr. Salmon determined that Mr. McMichael suffered no impairment in that area of function.

There is no explanation for Dr. Salmon’s differing with Ms. Wong on these two impairment scores.¹⁶ This is significant because, according to the DAC’s understanding of the appropriate assessment protocol, a score of four or more in one area would have required that a formal occupational assessment be conducted. The CAT DAC appears to have interpreted the 3-4 classification as not being a 4 and therefore no workplace assessment was required.

Dr. Salmon and Dr. Rosenblat also differ somewhat in their assessment of Mr. McMichael.

Dr. Rosenblat in his report offered no opinion about Mr. McMichael’s catastrophic status. He did conclude that Mr. McMichael was an unreliable historian, particularly as regards his drug use immediately prior to the March/April 2002 admissions to St. Michael’s Hospital,¹⁷ which it seems, were provoked by Mr. McMichael’s despair at his inability to control his drug problem. Dr. Rosenblat did made the following diagnosis:

Axis 1: Pain Disorder, Chronic Subtype, associated with a Medical Condition.

Major Depressive Episode, Moderate in Severity, Chronic Subtype, most likely secondary to Substance Abuse with cocaine and marijuana or head injury.

Traumatic Brain Injury (the significance of this diagnosis will be left to neuropsychology).

Cocaine and Marijuana Abuse.

Axis II It is impossible to make a diagnosis of character pathology in the presence of substance abuse.

Axis III Sequelae of his Motor Vehicle Accident.

Axis IV His current stressors are related to his substance abuse and pain.

Axis V His GAF score would be approximately 50, as described by serious symptoms with serious impairment of social and occupational functioning.

Dr. Rosenblat makes no attempt to equate his conclusions with impairment ratings in the Guides, although his Axis V notation and GAF score do provide some assistance. In this regard, Dr. Salmon ascribed a GAF score of 51-60 in his Neuropsychological assessment report: Moderate symptoms/difficulty in role functioning.

I was provided, on consent, with descriptions of the GAF scoring system. The score ascribed to David McMichael by Dr. Rosenblat and Dr. Salmon respectively are described as follows.

A GAF score of 41 to 50 is described as follows:

Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR social, occupational, or school functioning (e.g., no friends, unable to keep a job).

A score of 51 to 60:

Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers or co-workers).

Despite these notable if subtle differences in the three reports, the conclusions of Dr. Salmon, as set out above, were then reproduced word for word in the Executive Summary as the consensus determination of the assessment team on the Chapter 14 issue. There is no further elaboration of these divergent views amongst the assessors and no discussion of the differences in assessment scores.

Others, before and after the CAT DAC, have taken different views of the extent of Mr. McMichael’s impairments.

Dr. Ouchterlony, a treating general practitioner and a head injury specialist, offered the following opinion in January 2002:

... Mr. McMichael has substantial cognitive and physical impairment as a result of the accident. I also stated that he had experienced a significant personality change, which continues to the present time. He is completely nonfunctional at this time and is unable to deal appropriately with his cocaine addiction. He meets the criteria for catastrophically impaired based on The AMA Guidelines as he is a Class 4-5 Impairment due to mental and behavioural disorders. His impairment significantly totally impedes useful functioning. He remains competitively unemployable. He faces breakdown of his marriage and family life. I attribute these ongoing problems to the deficits sustained in the accident. ...

Dr. Henry Berry, an expert in internal medicine, neurology and psychiatry, who has seen and assessed Mr. McMichael three times since the motor vehicle accident, concurred with Dr. Ouchterlony.

Dr. Berry, in his testimony, expanded on the Chapter 14 opinion he offered in his reports. Considering the sphere of activities of daily living, Dr. Berry noted that Mr. McMichael did not have much difficulty with personal hygiene although there was an element of obsession associated with these activities. In Dr. Berry’s opinion, Mr. McMichael did have problems communicating and understanding. He also suffers from altered sleep and has nightmares, which he cannot remember afterwards. Dr. Berry assigned David McMichael a Class 4 or marked impairment in this sphere.

Dr. Berry assigned Mr. McMichael a Class 4 in the sphere of social functioning. Dr. Berry was of the view that Mr. McMichael’s explosiveness, irritability, social withdrawal and isolation, lack of sensitivity to others, in particular family members such as his wife and mother, were indications of marked limitations in this area. Dr. Berry also considered the fact that Mr. McMichael had stolen a clock from his office and pawned it as further indication of problems in this area.

In the area of concentration, persistence, and pace, Dr. Berry assigned David McMichael a Class 4 here as well. In his view, Mr. McMichael had noticeable difficulty in sustaining attention long enough to permit the timely completion of tasks. Dr. Berry also noted that he had been unable to work productively since the accident.

In respect to the fourth area, adaptation or deterioration/decompensation in a work or worklike setting, Dr. Berry scored David McMichael as suffering Class 4 limitations in function, noting his repeated failure to adapt to his post-accident life, his social withdrawal and isolation, his inability to get things done or to work effectively in work settings.

Overall, Dr. Berry would score David McMichael as suffering a Class 4 impairment under Chapter 14.

Dr. Shree Bhalerao, a treating psychiatrist for several years, came to a similar conclusion in a report dated September 18, 2002, and offered as follows:

In regards to catastrophic impairment it appears as though Mr. McMichael’s head injury has resulted in significant changes to his activities of daily living, social functioning, task completion and difficulties returning to his previous occupational functioning, as verified by history and after seeing him on numerous occasions.

In a follow-up report dated November 12, 2002, Dr. Bhalerao confirmed his conclusion that Mr. McMichael suffered from a Class 4 impairment.

Ramona Bray, a treating social worker who has seen David McMichael a number of times in the years since the accident, offered the following opinions in a report dated February 24, 2004.

... Since his MVA Mr. McMichael has presented with a subjective chronic pain disorder associated with both psychological factors and a chronic general medical condition (TBI), with an adjustment disorder with chronic mixed anxiety and depressed mood, with features of a special phobia. It is in my clinical opinion that Mr. McMichael has a class 4 marked impairment due to mental and behavioural disorders in regards to activities of daily living. He is (sic) impairment levels significantly impede his abilities to perform activities of daily living. ...

It is in my clinical opinion that Mr. McMichael has a class 4 marked impairment due to mental and behavioural disorders in regards to social functioning. He has significantly demonstrated that he does not possess the capacity to interact appropriately and communicate effectively [sic] with others, specifically with his family members. This has been demonstrated by his history of altercations and avoidance of interpersonal relationships since his MVA. He has been described as: emotionally unstable, unaware of others sensitivities, uncooperative, aggressive, criticizing and blaming by family members since his MVA.

It is in my clinical opinion that Mr. McMichael has a class 4 marked impairment due to mental and behavioural disorders in regard to concentration, persistence and pace. Mr. McMichael is significantly unable to sustain focused attention long enough to permit the completion of everyday tasks in the workplace or at home. Due to his inability to multi-task, set priorities and organize himself his pace is slowed and he does not see tasks to completion due to elevated levels of frustration and agitation.

It is in my clinical opinion, in accordance with Dr. Berry’s opinion, that Mr. McMichael has a Class 4 Marked Impairment due to mental and behavioural disorders in regards to deterioration or decompensation in work or work like settings. It has been over five years since Mr. McMichael’s MVA and since that time he has demonstrated significant repeated failure to adapt to stressful circumstances. In such situations he either withdraws or experiences exacerbation of aggressiveness and agitation. Such behaviours result in him having significant difficulty in maintaining activities of daily living, maintaining social relationships and completing tasks. ...

I find that the CAT DAC assessment has underestimated Mr. McMichael’s level of impairment under Chapter 14 in several important respects. To some degree these difficulties flow from what are, to my mind, significant difficulties with the methodology followed by the assessment team. For the reasons set out below, I prefer the opinions of Dr. Berry, Dr. Ouchterlony, Dr. Bhalerao and Ms. Bray who each have concluded that Mr. McMichael has suffered a Class 4 impairment as described in Chapter 14 of the Guides.

I find that the DAC limited its understanding of Mr. McMichael’s condition by relying too much on clinical testing and in failing to review the collateral material provided to it, such as the examinations for discovery of Ann McMichael and David McMichael’s sisters. There is little or no reference to any of this collateral material in the various reports and I find that it is more likely than not that it was not much considered by the assessment team. In coming to this conclusion, I have taken into account the fact that Ann McMichael appears to have been interviewed by Dr. Salmon and was present during some of the In-Home Assessment of Sandra Wong.

The Guides suggests that a multitude of information sources should be consulted before arriving at a conclusion, at page 14/293:

The methodology of the Guides requires that the presence of a mental disorder be documented primarily on the basis of reports from accepted professional sources, such as psychiatrists, psychologists, psychiatric nurses, psychiatric social workers, and health professionals in hospitals and clinics. Adequate descriptions of functional limitations should be obtained from these sources and, if possible, from programs in which the individual has been observed over a period of time. Data gathered during a period of years are particularly useful.

The individual’s own description of his or her functioning and limitations is an important source of information. The presence of a mental disorder does not automatically rule out the individual as a reliable source of information. Information from nonmedical sources, such as family members and others who have knowledge of the patient, may be useful in indicating the level of functioning and the severity of the impairment.

An individual’s level of functioning may vary considerably over time. The level of functioning at a specific time may seem relatively adequate or, conversely, rather poor. Proper evaluation of an impairment must take into account variations in the level of functioning with time in arriving at a determination of severity. Thus, it is important to obtain evidence over a sufficiently long period before the date of examination. This evidence should include treatment notes, hospital discharge summaries, work evaluations, and rehabilitation progress notes if they are available.

An individual may have worked or have attempted to work when there was a question about impairment. .... Information concerning the individual’s behavior during the attempt, and the circumstances surrounding termination of the work effort, are particularly useful in determining the individual’s ability to function in a work setting and with others. Results of work evaluations and rehabilitation programs can be significant sources of data concerning impairments affecting work capabilities.

Taking a standardized test requires concentration, persistence, and pacing; thus, observing individuals during the testing process may provide useful information. ...

It appears, based on the various reports, that the assessments were based primarily on the medical information provided to the DAC, the interviews with David McMichael, as well as testing conducted during the course of the various assessments. I note that there is limited reference and no analysis of Mr. McMichael’s attempts to return to work or, as indicated earlier, little or no reference to any of the collateral evidence provided such as the transcripts for discoveries or letters from family members, marriage counsellors, etc.

There is also limited reference to Mr. McMichael’s admissions to St. Michael’s Hospital, the first, late in the day on March 24 and another on March 30, 2002. On both occasions, Mr. McMichael attended hospital after an intense period of crack cocaine use. On March 24, he complained of left sided chest pain and that he felt “unstable.” He initially did not admit to any suicidal ideation, but later that night spoke of the pointlessness of continuing on “like this.” He was released on March 26.

On March 30, David McMichael attended St. Michael’s Hospital in crisis. At the time he was suicidal. He was detained there on a Form 1 under section 15 of the Mental Health Act until discharged on April 8, 2002.

Dr. Rosenblat did review at least some of St. Michael’s records. Dr. Salmon only notes that Mrs. McMichael reported that her husband was dealing with things better after his recent hospitalization. There is no reference to the records of these admissions in Dr. Salmon’s neurological assessment or his File Review and Analysis report, other than a comment that Mr. McMichael may not be clinically stable in light of the recent admission to hospital.

The importance of relying on more than clinical interviews, mental status examinations and neuropsychological testing is commented in the Guides again, at p. 14/300:

Medically determinable impairments in thinking, affect, intelligence, perception, judgment, and behavior are assessed by direct observation, formal mental status examination, and neuropsychological testing. Translating specific impairments directly and precisely into functional limitations, however, is complex and poorly understood; for example, current research finds little relationship between psychiatric signs and symptoms such as those identified during a mental status examination, and the ability to perform competitive work.

To bridge the gap between impairment and disability, the group that advised the SSA on disability due to mental impairment identified the four categories of functional limitations [as set out in the table above]. These categories tend to be complex social impairments that may be directly related to work or to other pursuits, such as recreation or caring for a family. Yet there is no specific medical test for any one of the categories. The physician’s observations made during the medical examination should be incorporated into the evaluation together with other relevant observations, including those pertaining to carrying out activities of daily living, social functioning, concentration, persistence and pace, and adaptation.

A further fundamental problem arises with the elimination from the protocol adopted by the DAC of any assessment of Mr. McMichael’s ability to function in a work or worklike situation, in conducting this assessment. The protocol adopted by the DAC treated the ability to work as the separate fourth area of activity that was to be assessed only if the patient scored a 4 in any of the three other spheres. It is not clear where this protocol comes from. It does not come from the Guides.

Dr. Arthur Ameis gave evidence about the proper protocols to follow in assessing catastrophic impairments. He endorsed the protocols followed by this DAC¹⁸ and suggested that the requirement for at least one score of Class 4 or more was intended to limit the scope of such assessments – a benefit both to insured persons and insurers. Although I can appreciate the rationale behind the protocol apparently adopted by this DAC and endorsed by Dr. Ameis, I find that the approach is flawed and not contemplated by the Catastrophic Impairment Designated Assessment Centre Assessment Guidelines (Assessment Guidelines)¹⁹ or the Guides. On the contrary, I find that the Guides often stresses, and appropriately so in my view, the importance of the assessment of a patient’s ability to function in a work or worklike setting in coming to valid conclusions about the level of impairment in each of the areas set out in the Table above.

For example in section 14.3 of the Guides, Assessing Impairment Severity, subsection 3, at page 14/294:

Concentration, persistence, and pace ... refer to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks. Deficiencies in concentration, persistence, and pace are best noted from previous work attempts or from observations in worklike settings, such as day-treatment centers and incentive work programs. ... Major impairments of these abilities can often be assessed through direct psychiatric examinations or psychological testing. However, mental status examinations or psychological test data alone should not be considered adequate to describe fully the patient’s concentration and sustained ability to perform work tasks.

In chapter 14.6 at page 14/299, the Guides provides further indication of the importance of assessing a patient’s ability to function in a work or worklike environment. In a discussion of the format of an assessment report, under General Observations:

Assessment of Severity

Describe in detail the severity of limitations imposed by the disorder ....

1. Activities of daily living, including adaptive activities, such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working.

2. Social functioning and ability to get along with others, including family members, friends, neighbors, grocery clerks, landlords, and others of the public. Social functioning in work situations may involve responding appropriately to persons in authority and cooperative behaviour towards coworkers.

3. Concentration, persistence, and pace (task completion); this refers to the patient’s ability to sustain focused attention long enough to permit the completion of everyday tasks in the workplace or home. Describe deficiencies in concentration, persistence, and pace that have been observed at work or in worklike settings. Include relevant information from the mental status examination and from psychological testing.

4. Deterioration or decompensation in worklike settings; describe failures to adapt to stressful circumstances that cause the individual either to withdraw from the situation or to experience signs and symptoms and difficulties with activities of daily living, social relationships, and concentration, persistence, and pace. Describe any decompensation at work, which might involve decisions, attendance, schedules, completing tasks, interactions with supervisors, and interactions with peers.

I find that in adopting the protocol it did, the DAC deprived itself of useful information about Mr. McMichael’s level of functioning that may have resulted in it scoring him more favourably than the evidence taken as a whole would support. This deficiency was exacerbated, I find, by the DAC’s failure to incorporate into its analysis much of the collateral evidence of family members and others, which was provided to it.

Another important lacuna in the CAT DAC’s approach to assessment was its apparent failure to consider Mr. McMichael’s addiction to crack cocaine in and of itself, to be a disabling impair­ment. The Guides, while acknowledging the controversy surrounding this issue, provides that substance abuse or dependence be considered in assessing degrees of impairment. It may be that the differences between the assessments offered by the CAT DAC in contrast with those of Dr. Berry, Dr. Ouchterlony and Dr. Bhalerao flow from a different approach to this question.

I also note that I have had the advantage of access to more information accumulated over a longer period of time than was available to the DAC. Moreover, Mr. McMichael has undergone more treatment for his drug addiction since the CAT DAC. I have taken subsequent events such as this further treatment into account in my conclusions as set out below.

I find that Dr. Salmon’s conclusion that Mr. McMichael was not impaired in any respect as regards his activities of daily living is not supportable. Even on the basis of the material before the DAC, the conclusion is difficult to understand. Other than his ability to turn himself out, there is some level of impairment in respect of several of his activities of daily living. Although he is able to do some things, on balance his ability to function in the day to day: including adaptive activities, such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working²⁰ have been substantially impacted by impairments sustained in the accident. Although, in assessment by Ms. Wong, Mr. McMichael functioned reasonably well, the evidence tendered before me supports a finding of more significant dysfunction.

The evidence is that Mrs. McMichael has had to take over much of the management of the household both in terms of the physical doing of the tasks required, but equally significant, the executive functions of responsible homemaker and family partner. I have also considered the facts that Mr. McMichael has not been comfortable driving since the accident and has lost his license to drive after he suffered a seizure related to his drug abuse; he is limited in his ability to read or watch television quietly for any length of time; he no longer has any responsibility for management of his family’s finances because he is unable to control his spending on drugs; he is socially isolated; and is unable to work competitively.

In light of the above, a score of Class 3 Moderate Impairment would be most appropriate.

Similarly, as regards concentration, persistence, and pace in carrying out day-to-day living tasks, the DAC has underassessed Mr. McMichael’s level of impairment. In this area, Dr. Salmon scored Mr. McMichael at Class 2: Mild Impairment – levels compatible with most useful functioning.

Again, I am unable to agree with this conclusion. Dr. Salmon seems to have based his score largely on Mr. McMichael’s performance in their interview. It is significant that Ms. Wong noted more dysfunction in the closer to real-world setting of the In-Home Assessment.

The Guides suggests that, in assessing limitations in the four areas, independence, appropriateness, and effectiveness of the activities performed should be considered.

I note that while Mr. McMichael was able to perform many of the tasks assigned to him during the In-Home Assessment, the report gives no indication one way or the other about how self directed these assignments were. For example, Mr. McMichael was able, with some notable problems of impulsivity, socially inappropriate interactions and one error, find 10 grocery items from a list. That Mr. McMichael was able to retrieve the 10 items with only one error is a positive finding, however, the report gives no indication about how independent Mr. McMichael was required to be in initiating and completing the task. The report does not indicate who created the list or how it was generated. For example, is he able to independently determine that groceries need to be purchased, make up a list of things required, and successfully make his way to the grocery store and back in a timely fashion? He may be, but the report does not tell us, one way or the other.

According to the Guides, this is an area of assessment where the ability to function in a work or worklike setting is quite important. As noted, the DAC explicitly declined to consider Mr. McMichael’s functional abilities in a worklike setting and thereby limited the completeness of their assessment.

In my view, having considered all of the evidence including the evidence that the DAC did not have or did not review, such as the evidence of Mrs. McMichael concerning the limitations on her husband’s functional capacities; the evidence of Mr. McMichael’s long time friend, Byron Georgeff; the evidence of Mr. White and Mr. McMichael regarding his attempt to work at Canada Water, I find that Mr. McMichael is more appropriately scored at the Class 4 level in the area of concentration, persistence, and pace, as determined by Dr. Berry and Ramona Bray in particular.

I also find that the description of this level of impairment – levels which significantly impede useful functioning – is a more accurate description than, on the one hand, Class 5: impairment levels that preclude useful functioning, or, on the other hand, Class 3: impairment levels which are compatible with some, but not all, useful functioning. I also find that this score is more compatible with the GAF score ascribed to Mr. McMichael by Dr. Rosenblat and the description of his difficulties under Axis V, provided by Dr. Salmon, if not the GAF score he arrived at.

As regards his level of social functioning, again I find that the evidence would support a higher level of dysfunction than arrived at by Dr. Salmon. I would restore the Class 4 score arrived at by Ms. Wong. I do so for a number of reasons. One relates to the concern expressed above that Dr. Salmon’s conclusions rest too heavily upon impressions arrived at in his clinical interview. As the Guides indicates, while this kind of testing is important, it should not be relied upon to the exclusion of other evidence from more real-world situations. Ms. Wong observed Mr. McMichael in a somewhat more real-world environment and found a higher level of dysfunction. Others, Dr. Berry, Dr. Ouchterlony and Dr. Bhalerao in particular, have observed Mr. McMichael over much longer periods of time and have found more profound disability. Mrs. McMichael’s evidence of her husband’s withdrawal from family life and other social engagements; his physical and emotional abuse of her; the marked estrangement from their son; the evidence of Mr. Georgeff of the profound changes in his friend, supported to a limited degree by both Mr. Ouderkirk and Mr. White – all of this suggests a more significant level of impairment than found by Dr. Salmon.

For all of these reasons I find that the more appropriate score in this area would have been Class 4 – a level where impairments significantly impede useful functioning.

The DAC declined to consider Mr. McMichael’s level of function in the fourth area, adaptation or deterioration/decompensation in a work or worklike setting because it understood that the appropriate protocol was that this was a singular area of activity requiring a formal workplace assessment. Dr. Ameis attempted to suggest that there was no formal assessment, the implication being that Mr. McMichael’s ability to work was taken into consideration. I find nothing in the material that indicates that this is the case. I find that the DAC did not consider Mr. McMichael’s ability to function in a work or worklike setting in coming to its conclusions in respect of the three areas of function that it did assess. For the reasons set out at length above I have found that this is not the approach that the Guides contemplates.

The Guides describes this fourth area of assessment as follows:

Deterioration or decompensation in work or worklike settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder, that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers. ...

I accept the opinions of Dr. Berry and Ramona Bray that Mr. McMichael suffers Class 4 impairments in this area as well.

In conclusion, I find that Mr. McMichael has suffered Class 4 impairments in two of the three spheres assessed by the CAT DAC and further, that his impairment in the area of deterioration or decompensation is Class 4 as well.

Prior to the release of this decision, the parties requested an opportunity to make submissions on the effect, if any, of a decision of Mr. Justice Spiegel in the matter of Desbiens et al. v. Mordini et al., 2004 CanLII 41166 (ON S.C.), principally the Court’s conclusion that it was proper, when considering the whole person impairment (WPI) criterion under paragraph (f) of section 2(1), to add psychological impairments determined under Chapter 14 to the purely physical impairments under Chapters 3 and 4 (and possibly others) of the Guides. This issue will be canvassed further when I consider the WPI issues, below.

The other point raised by the Desbiens decision, supra, relates to the determination under Chapter 14. In that case, it was not disputed that a Class 4 or marked impairment in any one area of assessment was sufficient to meet the standard of paragraph (g). In the post hearing oral submissions, in response to a question from me, Mr. McMichael agreed that a remedial approach to the Schedule would support such a conclusion. Belair submits that there is no precise formula mandated by the Schedule, but that an overall impairment assessment must be made. This is the approach that appears to have been adopted by the CAT DAC assessors, as well as Dr. Berry and the other experts relied upon by Mr. McMichael.

It is implicit in the protocol adopted by the CAT DAC that more than one score of Class 4 impairment is required for a positive finding of catastrophic impairment. The question arising out of the Desbiens case is whether or not that is what is required by paragraph (g).

Following my conclusion that Mr. McMichael has suffered Class 4 impairments in three of the spheres of assessment under Chapter 14, I find that he has met the standard of paragraph (g) of the definition of catastrophic impairment, however, were I required to decide this question, I would agree with the approach adopted, but not decided, by the court in Desbiens.

The Mental and Behavioural Impairments Assessment Guidelines found on the FSCO web site, but never precisely identified beyond that, indicates that at least two findings of Class 4, Marked Impairment were required to meet the standard of paragraph (g). Whatever the import of this document, it is not binding on me, and I cannot find support for the need for at least two scores of Marked Impairment in the language of paragraph (g).

The Guides itself does not definitively prescribe a calculus for this determination. It does provide some general advice relating these scores to functional abilities.²¹

The methodologies of the Guides are primarily intended to assist in the assessment of functional abilities and disabilities.²² Moreover, on my reading of Chapter 14, the methodology described there is not intended to result in a derived Class 4 or 5 impairment “score.” It is intended to allow an assessor to quantify with some degree of precision the levels of impairments associated with mental and behavioural disorders for a number of purposes including, but not confined to, entitlement to disability benefits.

What flows from the level of impairment as determined by the assessment will depend on how the results are intended to be used. To be clear, the protocols in the Guides are not intended to result in a determination of “catastrophic impairment”, rather the Legislature has determined that these assessment protocols and the results that obtain from their use should form part of the definition of catastrophic impairment in the Schedule.

The Guides has as a primary focus, function, reflecting its origins in workers’ compensation assessments and social security administration in the United States. However, there is no necessary linkage between a finding of catastrophic impairment under the Schedule and an inability to work, for example. It does follow from a positive finding under the Schedule, that the insured person has access to significantly enhanced medical, rehabilitation and other benefits.

Significantly there is nothing in the language of paragraph (g) to suggest that the approach taken by the Court in Desbiens, is incorrect. If the provision is ambiguous and I find that it is, that ambiguity ought to be resolved, in the absence of anything pointing elsewhere, in a liberal manner having regard to the ultimate remedial purpose of the legislation.²³

Whether as a consequence of my conclusion that Mr. McMichael should be scored as Class 4 in three of the four areas of assessment or, as in Desbiens, only one, I find that Mr. McMichael has met the definition of catastrophic impairment because he has scored a Class 4, marked impairment in accordance with the Guides under paragraph (g) of subsection 2(1.1).

Paragraph (f) of Subsection 2(1.1)

Mr. McMichael was also assessed under paragraph (f) of section 2(1.1) of the Schedule:

For ease of reference the provision is set out here:

subject to subsections (2) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a 55 per cent or more impairment of the whole person.

This section requires the assessor to consider any and all of the relevant Guides chapters in order to arrive at Whole Person Impairment rating (WPI). The WPI is derived using the Combined Values Chart contained in the Guides.

The CAT DAC conducted an assessment under these criteria and concluded that Mr. McMichael did not meet the 55% WPI required under the section.

As a part of this aspect of the assessment, Dr. Oshidari concluded that as a result of the physical injuries sustained in the accident – multiple fractures of the right scapula, left index finger, thoracic spine, and femoral bone – Mr. McMichael had suffered an 8% whole body impairment. Mr. McMichael does not take issue with this conclusion.

Because of the evidence that Mr. McMichael had suffered a brain injury of some degree, Mr. McMichael was also assessed under Chapter 4 of the Guides. Chapter 4 concerns the evaluation of permanent impairments resulting from dysfunction of the brain, and other elements of the nervous system. It is not concerned with mental and behavioural impairments as such – the subject of Chapter 14

The CAT DAC concluded that Mr. McMichael had sustained 29-31% whole person impairments due to neurocognitive and behavioural impairments. The determination of the CAT DAC in this regard is captured in the undated Neuro/Psychological CAT File Review & Analysis report of Dr. Salmon:

In light of the above, it would appear that a rating of 5% to at very most, “7%” would be reflective of the degree of neurocognitive impairment based on Table 2 (Mental Status Impairments) and “29% to 31%” based upon Table 3 (Emotional or Behavioural Impairments) of Chapter 4 (The Nervous System) in the AMA Disability Guides. Currently there is no significant rating recognized on Table 1 (Impairments Related to Aphasia or Dysphasia) of the same chapter of the AMA Guides. According to the Guides Convention, the above noted tables are non-additive and only the greatest of these may contribute to the whole person impairment (WPI) rating. Thus the Table 3 value may be utilized towards this end.

The score selected by Dr. Salmon straddles two categories of Table 3. The descriptions of the respective levels of impairment are set out here:

Impairment Description

% Impairment of the whole person

Moderate limitation of some but not all social and interpersonal daily living functions

15-29

Severe limitation impeding useful function in almost all social and interpersonal daily functions

30-49

Severe limitation of all daily functions requiring total dependence on another person

50-70

Although the CAT DAC did not perform the calculation, it is evident that a score of 31 when combined with the orthopaedic impairment of 8% whole body, Mr. McMichael did not meet the 55% whole person impairment required by paragraph (f).

In order to get to a score of 55% whole person impairment, given the 8% orthopaedic impairments, Mr. McMichael would have to be scored at 51% on this scale. The narrative description for this level of impairment is set out above.

Dr. Berry offered the opinion that Mr. McMichael met this criterion. In his April 12, 2002 report, Dr. Berry stated:

With reference to the [Guides] and the central nervous system (4.1c, emotional or behavioural disturbances), his condition does fluctuate in the severe (30 to 70 percent) impairment range of the whole person. As his substance abuse has been ongoing and, for the most part, on a more or less daily basis with only brief intervals of abstinence, I would rate the whole person impairment to be at the 55 percent level. With the orthopaedic impairment of 8 percent, the combined values chart would therefore indicate a combined value of 59 percent whole body impairment and he therefore does meet the definition of catastrophic impairment.

Belair submits, based on a series of questions put to Dr. Berry in cross-examination, that the doctor had first consulted the combined values tables contained in the Guides in order to determine the score needed to get Mr. McMichael over the 55% hurdle. Dr. Ameis testified that this was an inappropriate use of the tables. I agree with Belair and Dr. Ameis that if that is what Dr. Berry had done, it would be inappropriate and would have cast a pall over all of his evidence.

I am, however, not persuaded that this is what Dr. Berry did. The exchange between Dr. Berry and counsel for Belair is recorded in the transcript. Dr. Berry agreed that he had assessed Mr. McMichael’s level of impairment based in part on the fact that his GAF scores had fluctuated between 30 and 70.²⁴ He testified that he did not feel compelled to average those figures, but derived a score of 55% from the entire clinical impression, which when combined with the orthopaedic impairments, led to a final result of 59%.

The dialogue continued:

Q. Now Doctor, did you look at the chart to see what it would take to take him over 55 before you picked 55 as your number?

A. Well, I looked at these descriptions, and ---

Q. No. My question is did you look at the combined value chart before you made your decision?

A. Yes. I don’t specifically remember it, but that’s the kind of thing I would do under the circumstances.

Q. Right. So you went to the chart to see what it would take to take him over 55 and then applied your subjective evaluation to make sure you picked a number that was high enough to take him there, didn’t you?

A. Well, I mean, that sounds pretty contrived and opportunistic. But I felt that he was in this 30 to 70 range. I didn’t feel I was committed to average it. And he has, in that 30 range, he has severe limitations impeding useful action in almost all social and interpersonal functions, and then has severe limitations requiring total dependence.

So he ranges between those, and I thought the degree to which he is in that severe category warranted a value of 55. That’s the way I reasoned it.

I am unable to agree with Belair’s contention that Dr. Berry contrived to pick the right number that would take Mr. McMichael to the 55% whole person impairment. I accept his evidence as set out above regarding his thought process. The fact that he may have looked at the combined values table prior to fixing on a number does not necessarily require the conclusion urged on me by Belair. I note in this regard, that 55 is not the only number that he could have chosen if that was his goal. Whatever one might conclude about his ultimate conclusions on this question, I have no difficulty accepting his evidence that he made the determination based on the totality of the evidence before him.

That said, I do not agree with Dr. Berry’s conclusions as regards paragraph (f). Although, as with the other scores assigned to Mr. McMichael by Dr. Salmon, I find that the CAT DAC underestimated to some degree his level of impairment, having regard to the criteria in Table 3, I have difficulty placing David McMichael in the 50 to 70 range – that he suffers severe limitation of all daily functions requiring total dependence on another person. (emphasis added)

That Mr. McMichael meets the criteria for catastrophic impairment under one set of criteria and not another is not surprising even where they are, on the face of it, related to some degree. The various sets of criteria are in the alternative. Although the experts relied upon by Mr. McMichael, who offered an opinion on this issue²⁵, were in agreement that he met the criteria under both paragraphs, it does not follow that absolute concordance is required. I note for example that Dr. Salmon and Dr. Rosenblat seem to have disagreed to some degree about Mr. McMichael’s level of disability and that Dr. Salmon appears to have scored him somewhat differently under paragraphs (f) and (g).²⁶

Turning now to the issue raised by the parties arising out of the Desbiens decision, Mr. McMichael submits that they only become material if I have not already accepted his evidence of catastrophic impairment or, alternatively, Belair’s submissions on causation. However, if the approach adopted by the Court in Desbiens affects the outcome of my determinations, it ought to be followed in Mr. McMichael’s case. Mr. McMichael also submits that in the event that I disagreed with the approach to this issue taken in the Desbiens matter, then the constitutional issue raised in that case may need to be dealt with here. In light of my findings above, and those set out below, there is no need at this juncture, to consider the constitutional issues.

However, the argument as it relates to paragraph (f) may affect the outcome, because I have concluded on the basis of what was before me prior to these latest submissions, that Mr. McMichael did not meet the 55% WPI under that provision.

Mr. McMichael submits that if his psychological impairments can be added to his physical impairments, including the conclusions of the CAT DAC under Chapter 4, then it becomes a matter of converting the Chapter 14 results to a percentage score for purposes of the WPI calculation. If this is done, submits Mr. McMichael, using the CAT DAC determinations, Mr. McMichael exceeds the threshold 55% WPI requirement.

Mr. McMichael submits that a remedial approach and a “black letter” reading of the definitions of impairment as well as catastrophic impairment support the approach adopted by Justice Spiegel. Moreover, subsection 2(3) requires that all impairments whether contemplated by the Guides or not, be somehow accounted for and therefore this requires that a Chapter 14 impairment be converted into a percentage figure for inclusion in the WPI.

Belair argues to the contrary that I must decide this case on the basis of the evidence before me and not on the basis of a legal submission. In Desbiens, the Court had the opinion evidence of Dr. Finlayson that one could translate or convert a Chapter 14 finding of impairment into a WPI rating. In our case, this issue had not been identified prior to the evidence being called and therefore there is no evidence upon which I could conclude that it is appropriate to make such a conversion. Similarly, it was Belair’s submission that there was no evidence before me to derive the appropriate WPI score under Chapter 14.

I do not agree with Belair that I require the evidence of an expert to determine the question of whether or not it is appropriate to add psychological and physical impairments together in coming to a conclusion. The question involves the interpretation of the Schedule, a matter beyond the expertise of a medical practitioner. As for the practical question of whether or not such a translation can be made, while a medical opinion on this question might be helpful, it is entirely clear from the Guides that such a translation or conversion is possible, but equally rife with practical difficulty and not recommended. Indeed, as pointed out by the Court in Desbiens, prior editions of the Guides provided percentage impairments in Chapter 14 and the current edition continues to provide those scores as a guide, recognizing that there are circumstances where a WPI score is required.

I am also not persuaded that there is insufficient evidence upon which to derive a WPI score based on the CAT DAC’s conclusion under Chapter 14.

However, Belair also submits that to add a Chapter 14 result to the Chapter 4 conclusions would amount to a double counting of Mr. McMichael’s psychological impairments as these Chapters are measuring essentially the same phenomenon.

Mr. McMichael submits in this regard, that the Guides contemplates the addition of different causes of an impairment in deriving the WPI. For example, both orthopaedic and neurological injuries might give rise to the same impairment(s), however, the Guides requires that these different causes be added together in determining the WPI.

Again, I am inclined to agree with Mr. McMichael that, practical difficulties aside, the Schedule requires the addition of all impairments, however caused, together in arriving at the appropriate WPI. The analysis is set out nicely in Desbiens and there is no need to repeat it in detail here.

However, there is a further practical issue which arises in this case. As noted earlier, there is a broad consensus that Mr. McMichael has suffered a mild traumatic brain injury. There is also a broad consensus that a significant portion of his current impairments are a consequence of his drug use, itself an impairment. The difficulty is in teasing out the relative significance of these different causes in assessing impairment levels. As a matter of evidence, there is no basis for my concluding that, for example, the mild traumatic brain injury is responsible for 70% of Mr. McMichael’s impairments and the drug addiction the remainder or vice versa. None of the experts addressed this issue although they might have if this issue had been identified earlier. In terms of these reasons, there was no need to tease out the precise weight to be given to these sources of disability once the general causation issues were determined. In short, there is no evidentiary basis to distinguish between the Chapter 14 impairments and those properly considered under Chapter 4. So that while I agree it may be appropriate and required in certain circumstances to add different causes of impairment, i.e., add Chapter 14 impairments together with Chapter 4 impairments, it is not clear, on the evidence in this case, that this would not result in the double counting that Belair warns of.

Belair made two additional submissions that are equally applicable to a consideration of both paragraphs (f) and (g).

Firstly, Belair states that an assessor following the Guides should neither increase or decrease a score because a patient has declined treatment. I find for reasons set out below that Mr. McMichael has not declined treatment and, accordingly, there would be no basis for altering his levels of impairment on that basis. I also do not accept that this is the approach that is suggested by the Guides. My reading is that it recommends that the assessor not alter the scoring because of a failure to seek treatment, but make a note of it with the explanation, if any, provided by the patient.

Finally, Belair submits that all of the impairments supporting that rating had to be directly attributable to the car accident. If, for example, on the 55% whole person score in paragraph (f), an applicant with pre-existing impairments resulting in a score of 30%, would be required to prove a further 55% whole person impairment that is directly attributable to the accident. In this example, the resulting composite whole person impairment would be 69%.²⁷ Dr. Ameis, in his evidence, supported this interpretation. Equally, a determination in respect a Class 4 impairment under Chapter 14 would require a determination that all of those impairments were a direct consequence of the accident. So, for example, an individual already suffering moderate impairments in two or more of the four spheres of life would have to show marked impairments in a further two or more areas as a result of impairments solely attributable to the accident. It is easy to imagine scenarios under both paragraphs where individuals would be catastrophically impaired as a result of the accident, but not entitled to the benefits of that designation.

In respect of entitlement to most benefits under the Schedule, where there may have been pre‑existing health issues, arbitrators have determined that the accident must have made a contribution to the disability – the usual formulation is that the injury sustained in the accident made a “material contribution” to the impairment.

It is not clear from the language of the definition in subsection 2(1.1) why a determination of catastrophic impairment would be treated so dramatically different by the Legislature. However, I need not decide the question in this case, because I find that Mr. McMichael’s impairments are all causally related to the car accident. As noted a number of times, Mr. McMichael was in good health prior to the accident, leading an active family, work and social life. He was for our purposes impairment free prior to the accident.

Income Replacement Benefits:

Mr. McMichael takes the position that he is completely unable to engage in any occupation for which he is suited by reason of his education, training or experience. In support of this contention, Mr. McMichael relied primarily upon the evidence of Dr. Doxey, Dr. Berry, Dr. Ouchterlony, Dr. Bhalerao and Ramona Bray, in addition to his evidence and that of his spouse.

Belair disagrees and relies primarily upon a Disability DAC assessment and the opinion of Dr. Reznek. The Disability DAC which was conducted in September and October 2002 concluded, notwithstanding Mr. McMichael’s drug abuse, that he was not completely unable to engage in any employment. The psychiatric assessment was conducted by Dr. W. Longdon. He found that in the absence of specific cognitive problems or significant psychiatric difficulties, Mr. McMichael’s GAF score would be in the range of 51 to 60. Dr. Longdon describes Mr. McMichael’s addiction to cocaine as mild to moderate.

The Med-Rehab DAC was conducted concurrently with the Disability DAC described above. Dr. Longdon participated in both. In his report filed as part of the Med-Rehab assessment, Dr. Longdon described Mr. McMichael as having developed a “very destructive pattern” of drug abuse “which impacts significantly on his mood state and his relationships with people including his wife and son.”

In neither of these reports, which are largely identical, does Dr. Longdon refer to Mr. McMichael’s hospitalizations in St. Michael’s Hospital in March 2002, nor is there any reference to his failed attempts to return to work since the motor vehicle accident. I find that these are both important factors that ought to have been considered.²⁸

I do not agree with the conclusions of the Disability DAC or those of Dr. Reznek. On the other hand, I accept the evidence of Dr. Doxey, Dr. Ouchterlony, Dr. Berry, Dr. Bhalerao and Ramona Bray, each of whom are of the view that Mr. McMichael is competitively unemployable.

It is, as I have noted earlier, Mr. McMichael’s inability to cease his abuse of crack cocaine as the source of much his disability. Dr. Doxey opined as follows on November 9, 2002:

Thus, with regard to the issue you wish me to address, I find him to be presently suffering from a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. I believe that, given the personality and other changes apparently arising from his head injury, and his utter inability to remain drug-free for more than short periods since the accident, it is highly unlikely that he will remain drug-free in the future. This alone will render him competitively unemployable.

Dr. Ouchterlony, in a report dated December 18, 2002, stated:

I agree with Dr. Longdon that Mr. McMichael did suffer a head injury. I disagree with Dr. Longdon that he could be employed. Dr. Longdon has stated that his cocaine/crack addiction has escalated since the accident. It has been my experience that the usual management of addictions does not go well with head injured individuals. This has resulted in special programs for such individuals in the United States unfortunately we are far behind the U.S. in such programs. As it is now two years post accident and David has failed two programs for addiction I think it is clear that he suffers a complete inability to engage in any employment for which he is suited.

This is an unusual case in many ways, not least in the fact that Mr. McMichael’s entitlement to income replacement benefits after 104 weeks rests almost entirely on the fact and consequences of his addiction to crack cocaine.

There is no substantial dispute that Mr. McMichael’s difficulties, functionally and emotionally, are inextricably linked to his drug abuse. To the extent that he is able to control his drug use he is able to function, albeit with some important physical, emotional and cognitive limitations.

The difficulty is that as time has passed Mr. McMichael has shown a marked inability to stay clear of crack cocaine. Dr. Longdon recognized this fact in the context of the Med-Rehab DAC and accordingly approved an extensive course of drug rehabilitation therapy. Several courses of treatment of his addiction have been undertaken since the accident and after the Med-Rehab and Disability DACs at issue here, with no success.

Mr. McMichael’s failed attempts to return to work, his social withdrawal, his abuse of wife and family, his estrangement from his son, the seizure in November 2003, as well as the hospitalizations in March 2002, are evidence, I find, of the consequences of Mr. McMichael’s impairments arising from the injuries sustained in the June 1998 accident. Almost everyone, with the possible exception of Mr. McMichael himself, agrees that if he could get off the drugs he would function at a higher level and become a more productive member of society. However, to date he has been unable to do so.

It is, as suggested by counsel for Mr. McMichael, contrary to common sense and reason to say, that a binge crack cocaine abuser with the consequent functional limitations described at length above, is competitively employable. In addition, there is the fact that he has been unable to work competitively, despite three attempts, since the accident. I find, for all of the reasons set out above, that Mr. McMichael is entitled to income replacement benefits from November 24, 2002 to date and ongoing.

Belair also states that the income replacement benefit available to Mr. McMichael should be reduced pursuant to section 55 of the Schedule in that he has failed to comply with the requirement that he obtain treatment necessary to allow him to return to employment.

One instance in particular was relied upon. Belair gave notice to Mr. McMichael on March 6, 2003 that he had a responsibility to obtain treatment and participate in rehabilitation in accordance with section 55. In particular, Belair advised that the Bellwood Centre had indicated that Mr. McMichael was not responding to attempts by a treatment provider to initiate treatment in a drug detox program made available to him. The letter put Mr. McMichael on notice that the failure to contact the treatment provider within 14 days could result in a reduction of his income replacement benefit.

The difficulty with Belair’s submission is that Mr. McMichael did comply with and ultimately entered the drug treatment program in question. I was referred to no evidence one way or the other whether Mr. McMichael strictly complied with the 14-day deadline outlined in Belair’s March 6, 2003 letter.

Belair also sought to rely upon Mr. McMichael’s consistent failure to not relapse in his drug abuse after treatment. This submission is without merit. The fact that Mr. McMichael, despite his participation in several drug treatment programs, has failed to stay clear of crack cocaine is not the kind of situation contemplated by section 55 any more than the failure of a surgical intervention might be said to be a failure to obtain treatment. Mr. McMichael has sought, and been provided with, extensive treatment in an effort to get off crack cocaine.²⁹

The only concrete instance of a failure to attend treatment that Belair can point to is Mr. McMichael’s failure to follow up with the Bellwood Centre’s in-patient program in the weeks prior to this hearing commencing. However, I accept Mr. McMichael’s excuses in the sense that I accept that this was his thinking process at the time. His evidence was that he relapsed within days of his discharge from Bellwood in September 2003 and was essentially incapable of attending the out-patient programs. I also accept his evidence that subsequent to his seizure in November 2003, he got himself in a position to participate in the program. I also accept his evidence, once he was accepted into the appropriate program, that he was sent home from one session because he was ill and that the two subsequent sessions were cancelled because of bad weather. I also accept that he did not return again because he had begun using drugs heavily again and reasonably believed that he would be kicked out of the program as a consequence.

I find that Mr. McMichael has not failed to comply with section 55 of the Schedule. He has undergone extensive treatment, unsuccessfully to date. To some considerable degree the failure to follow up with the Bellwood’s out-patient programs is a function of the trajectory of his addiction.

I also note that in respect of these last alleged failures, Belair has not provided notice as required by section 55(4). Accordingly, even if I were to find that the actions of Mr. McMichael in the weeks prior to the hearing constituted a failure to access treatment as required, which I do not for the reasons set out above, I would not be able to make the order sought by Belair because of the lack of notice to Mr. McMichael.

Attendant Care:

Mr. McMichael claims attendant care from April 2002 to date and ongoing. The request is for an attendant to be with Mr. McMichael 24 hours, 7 days a week, to assist him in resisting his urge to use crack cocaine. The claim for attendant care for this purpose arose in March 2002 when Mr. McMichael was admitted to hospital as discussed above. Belair states that the claim is unwarranted and that no expense for attendant care has been incurred, therefore there is no entitlement.

Mr. McMichael’s representative commissioned Beverly Cott, an Occupational Therapist, in March 2002 to assess Mr. McMichael’s need for attendant care and provide a report. The report dated March 27, 2002 was filed as an exhibit. Attached to her report was a Form 1 which provides for attendant care for 722.4 hours per month at the Part 2 rate of $7.00, for a total of $5,056.80 per month. The Form 1 does not account for any periods of time where Mr. McMichael may be otherwise supervised.

In her report, Ms. Cott notes that despite her view that Mr. McMichael was motivated to get clear of his crack cocaine use and despite various treatment programs to date, he had been unable to do so.

The text of the report reflects a disconnect between the impression Ms. Cott had of Mr. McMichael when she met him on March 18, 2002 and what subsequently transpires. As discussed earlier, the impressions that she had of Mr. McMichael during the interview are not entirely dissimilar to the observations of Dr. Reznek, although because her interview was apparently significantly longer (a 3.5 hour assessment undertaken by Ms. Cott, as opposed to “at least an hour” as suggested by Dr. Reznek), the impatience and withdrawal from assessment were not noted by Dr. Reznek.

The rationale for her conclusion that Mr. McMichael was in need of attendant care is set out below :

He has exhibited a high rate of recidivism and thus, a return to drug usage and dependence. If on errs on the side of caution and accepts that Mr. McMichael indeed continues to suffer from a mild head injury, has difficulty with multi tasking, memory impulsivity, judgement, anxiety, agitation, and general executive functioning, then it is likely that he will continue to be at risk of making poor choices. To this end, he likely remains at risk of returning to drug usage and by extrapolation, possibly overdosing and/or at the very least, risking his relationships with family and friends as well as facing financial ruin.

During this therapist’s visit, Mr. McMichael reported having been drug-free for the past six weeks, the longest period of drug abstention since his dependence commenced following the accident. He sees a drug counsellor twice weekly and has found this beneficial. He and his wife stated that he seems to be more committed to overcoming his drug usage than previously seen. He reported having been referred to an in-patient drug rehabilitation program and it is the anticipation of involvement in this program that appeared to assist him in remaining emotionally strong and motivated.

Having stated all of the above, this therapist was informed that on March 25, 2002, one week following this therapist’s visit, Mr. McMichael had again returned to drug usage over the previous few days. He had again removed monies from the family finances and used crack cocaine for several hours prior to being admitted to the psychiatric unit of St. Michael’s Hospital where remained until March 26, 2002. It is clear that he requires an intensive in-patient drug rehabilitation program which this therapist fully supports.

As Mr. McMichael has now been discharged from hospital, there are no immediate options of having him admitted to a publicly funded rehabilitation program. He remains in crisis and at great risk or returning to drug usage, particularly in view of his history and his poorly structured daily routine. In an effort to assist Mr. McMichael to remain drug free, he requires immediate intervention via ongoing supervision either by family, friends or an ‘attendant’.

Ideally, the nature of any supervision/assistance would be more appropriate if it were provided to assist Mr. McMichael in making good judgements about the use of his time/day. i.e. assisting with reintegration into the community and engaging in productive activity. One might argue that this assistance could be viewed as part of a rehabilitation program.

Nonetheless, in an effort to ensure his safety and prevent a risk of overdosing, Mr. McMichael requires ongoing supervision which does qualify as “attendant care”. Given that Mr. McMichael continually finds himself in crisis, this therapist supports the provision of attendant care, at least until such time as he is admitted to an in-patient drug rehabilitation program.

Ms. Cott’s report does not record Mr. McMichael’s readmission to St. Michael’s on March 30 and confinement there to April 8, 2002 under the Mental Health Act.

Ms. Cott’s recommendation is supported in part by Dr. Ouchterlony³⁰ and Dr. Berry,³¹ but only with significant qualification by Ramona Bray.³² The recommendation for attendant care is not necessarily open ended, but for both Ms. Cott and Dr. Ouchterlony, it is recommended as an interim step in a comprehensive drug treatment program.

Dr. Ouchterlony, in her evidence, described the need for this type of attendant care as the first element of a comprehensive behavioural modification program. In her view, in the absence of treatment, Mr. McMichael will be unable to cease abusing crack cocaine and other substances.³³ In the absence of treatment, according to Dr. Ouchterlony, Mr. McMichael will die either due to substance abuse or suicide. In Dr. Ouchterlony’s view, Mr. McMichael had hit bottom in early 2004, a potentially useful starting point for the kind of program she is proposing. In Dr. Ouchterlony’s opinion, this comprehensive program would be intense for six months, then tail off but continue for another 18 months.

I am not being asked to determine whether or not Dr. Ouchterlony’s comprehensive behaviour modification program is reasonable and necessary under section 15. Rather, the question I am asked to decide is whether Mr. McMichael is entitled to the attendant care benefit calculated in accordance with a Form 1, appended to Beverly Cott’s March 2002 report.

It is impossible not to note the significant divergence in the views of the experts relied upon by Mr. McMichael, as regards the length of time and circumstances during which Mr. McMichael may need attendant care. Despite these divergences of view, I am required to determine whether or not he is entitled to the benefit based on the evidence before me.

Having considered all of the evidence, I am persuaded that Mr. McMichael was in need of attendant care at the time that Ms. Cott authored her report and, given Mr. McMichael’s proven inability to stay clear of crack cocaine since that time, notwithstanding further treatment recommended by her and others, he remains entitled to the benefit.

Belair states that Mr. McMichael is not entitled to attendant care because it was not incurred, in that no services were provided. Belair also relies upon the divergence of opinion discussed above and submits that Mr. McMichael has not established that attendant care was reasonable and necessary.

It is well established that an applicant need not actually receive the items or services claimed in order to be entitled to an expense.³⁴ To do otherwise would allow the insurer to set up the inability of an insured to pay for a benefit as a shield from its obligation under the policy of insurance. It is sufficient that the reasonableness and necessity of the service be established and that the amount of the expenditure can be established with certainty.

The divergence of opinion amongst Mr. McMichael’s experts, while a matter of concern for Mr. McMichael perhaps, is not fatal to his claim to entitlement to attendant care. The claim was based on the straightforward proposition that he had demonstrated over the course of more than four years (now six) a complete inability to stay off crack cocaine for any significant period of time. I have found that his addiction to crack cocaine is an impairment sustained as a result of an accident and, based upon the preponderance of medical evidence before me, likely the single most important impairment preventing Mr. McMichael from leading a more socially useful life. Mr. McMichael has also provided the opinions of several experts familiar with his circumstances who support with some qualifications, his need for this kind of attendant care. There is no evidence to the contrary. I find therefore that Mr. McMichael is entitled to an attendant care benefit as calculated in the Form 1, appended to Ms. Cott’s report, subject to the comments below.

Belair seeks a credit for times when it claims Mr. McMichael would have been under supervision and therefore not entitled to the benefit. I agree to some degree. For example, during the periods Mr. McMichael was an in-patient at Bellwood, he would be supervised and not in need of additional attendant care (or notionally already in receipt of the benefit). However, to cite another example relied upon by Belair, I do not agree with the submission that while on vacation in Jamaica Mr. McMichael was not in need of such services. Indeed, on the basis of Mrs. McMichael’s evidence, Mr. McMichael was in acute need of supervision during that trip. I also agree that for the period of time that Mr. McMichael might be in attendance with Ramona Bray or Jack Polnksy he would not need attendant care, however he would require that someone be in attendance with him to and from these kinds of appointments.

I leave it to the parties to resolve the fine details of this issue. I remain seized of this matter in the event that there are any unresolved disputes regarding the precise quantum of the attendant care benefit.

INTEREST ON OVERDUE BENEFITS

Mr. McMichael seeks interest on amounts found to be owing. No submissions were made on this point. I find that Mr. McMichael is entitled to interest on all of the amounts found to be owing.

EXPENSES:

The parties asked that the question of expenses be deferred pending the result of the arbitration. They may speak to the issue now, in accordance with Rules 75-79 of the Dispute Resolution Practice Code, if unable to resolve it themselves.

March 2, 2005

David Muir Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 24

FSCO A02–001081

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DAVID McMICHAEL

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. McMichael has suffered a catastrophic impairment as defined in the Schedule.

2. Mr. McMichael is entitled to an attendant care benefit of $5,056.80 per month, from April 2002, to date and ongoing, pursuant to section 16 of the Schedule, less amounts credited to Belair for time when he was otherwise supervised. I remain seized of this issue in the event that there are any unresolved disputes respecting the quantum of attendant care benefit.

3. Mr. McMichael is entitled to weekly income replacement benefits in the amount of $256, from November 24, 2002 to date and ongoing.

4. Mr. McMichael is entitled to interest on those amounts found to be owing under subsection 46(2) of the Schedule.

March 2, 2005

David Muir Arbitrator

Date

Prev. well and healthy, Non-smoker, social [alcohol] use, no known drug use. Very athletic - runs, plays hockey, squash. Personality style: good sense of humour, very independent. I also note that there is reference in the material to Mr. McMichael holding a part-time job until six months prior to the accident.

The Assessment Guideline is a guide to the assessment of all of the categories of impairment in section 2(1), while the web site document is in relation to Chapter 14 assessments only. In Dr. Ameis’ view, this protocol had been superseded by the other more general, Assessment Guideline. Dr. Ameis agreed that the more specific and likely earlier protocol limited the scope of assessments, by eliminating the need for a formal work assessment, for the benefit of both applicants for benefits and insurers. On the other hand, the Assessment Guideline does not outline the protocol followed by this DAC – it does refer to the fact that a mental and behavioural assessment “will also include functional analysis involving a Situational (Work) Assessment as specifically directed by the AMA’s Guides.”

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(4th Edition, Washington, DC, American Psychiatric Association, 1994)
3. 3See for example the notes of a Physiotherapy/Occupational Therapy Assessment on June 16, 1998: “Patient does not follow instructions, impulsive and preferred to do what he wanted to do, patient became anxious following about 5 minutes of standing and stated that once he was seated he won’t get up again.”
4. 4The only expert opinion filed by Belair that questioned this conclusion was the May 6, 2002 report of Dr. L. Freedman who, while acknowledging some measurable cognitive and emotional difficulties, strongly questioned whether Mr. McMichael had suffered anything more than a benign Grade I concussion. In this expert’s opinion, that level of trauma does not lead to ongoing neuro-cognitive or emotional/behavioural sequelae. This opinion was not referred to in argument and, while it is strongly worded, is outside of the broad consensus of opinions offered by others who have actually met with David McMichael. I have not disregarded it but prefer the consensus opinion that differs with it. I also note that Dr. Ameis questioned the extent of Mr. McMichael’s brain injury as well, however Dr. Ameis is a physiatrist with no particular expertise in this area. I also note (see note 17 below) that his opinion in this regard is supported in large part by an error in his reading of one other DAC report.
5. 5The two accounts of how long Dr. Reznek was in contact with Mr. McMichael were at significant odds. David McMichael believed that it was a twenty minute interview, while Dr. Reznek indicates that the interview would have taken “at least an hour.” In my view, nothing much turns on this discrepancy, however I have accepted that Dr. Reznek is likely more accurate in his estimation of the time that the interview took.
6. 6Discussed further below in consideration of the attendant care claim.
7. 7See letter from Alan Rachlin to Sharon Royer, dated June 22, 2000.
8. 8In a note prepared by Susan Todd, a social worker at St. Michael’s Hospital, based on an interview of David McMichael’s mother, the following is recorded within 48 hours of the accident, about his pre-accident functioning:
9. 9Mr. McMichael claims that he never took crack cocaine prior to the motor vehicle accident. Belair took issue with this, largely on the basis of a note of Dr. Bhalerao. I do not think much turns on this question. The fact remains that the substance abuse had no significant impact on Mr. McMichael’s life or level of function.
10. 10In Beverly Cott’s report, it is recorded that Mrs. McMichael was not aware of the drug use until December 1999. Little turns on this discrepancy although I find it more likely that it was in December 1998.
11. 11See for example Dr. Ouchterlony’s report of July 17, 2000.
12. 12TTC Insurance Company Limited and Correia, (FSCO P00-00061, July16, 2001).
13. 13For a detailed discussion of this aspect of the causation analysis, see the decision of Director’s Delegate Naylor in Correia, supra.
14. 14Dr. Ameis, informed by Dr. Reznek’s views, also supported Belair’s theory of the case. However, his view is based on a misreading of a report of Dr. Rosenblat, and a too easy acceptance of Dr. Reznek’s suppositions. See Note 17 below.
15. 15It is not precisely clear when this occurred, however it appears likely that it was either in early 2002 or early 2003.
16. 16Dr. Ameis suggested in his evidence that the more favourable scores in Dr. Salmon’s report may have been as a consequence of some concern the DAC harboured with respect to causation. Nothing in the report suggests that this was the case, indeed the DAC assessors are quite clear that they considered that all of Mr. McMichael’s impairments at the time of the assessment were attributable to the car accident.
17. 17I note that Dr. Ameis placed considerable weight on Dr. Rosenblat’s view that Mr. McMichael had mislead him about his drug use. In his February 28, 2003, Dr. Ameis, informed by Dr. Reznek’s views as expressed in his report, goes on to describe Dr. Salmon’s view that there was no significant pre-accident drug use as an “assumption.” Dr. Ameis, therefore, questions the validity of the CAT DAC’s conclusion that Mr. McMichael’s cocaine addiction is causally related to the accident. The difficulty with this conclusion is that Dr. Rosenblat’s remark is in respect to the amount of cocaine, alcohol and cannabis that Mr. McMichael was using in the days and weeks prior to his hospitalizations in March 2002 – it is not a reference to his pre-accident drug use.
18. 18During Dr. Ameis’ evidence, a document obtained from the web site of the Financial Services Commission was tendered in evidence by Mr. McMichael. The document was not definitively identified and I have not relied much on it. Dr. Ameis testified that he believed that the document was an early attempt to develop a protocol for catastrophic assessments. It is more detailed in its elaboration of the process than the April 2002, Catastrophic Impairment Designated Assessment Centre Assessment Guidelines (Assessment Guidelines), which was also referred to.
19. 19See Note 18 above.
20. 20The Guides, at p.14/299.
21. 21See for example the discussion at pages 14/300; “In the ordinary individual, extreme impairment in only one class would be likely to preclude the performance of any complex task, such as one involving recreation or work. Marked limitation in two or more spheres would be likely to preclude the performing complex tasks without special support or assistance, such as that provided in a sheltered environment. An individual who was impaired to a moderate degree in all four categories of functioning would be limited in ability to carry out many, but not all, complex tasks. Mild and moderate limitations reduce overall performance but do not preclude performance.”
22. 22See the discussion at pages 14/291-292 which describes the genesis of the material in Chapter 14.
23. 23See Smith v. Co-operators General Insurance Company, [2002] S.C.R. 129.
24. 24These scores are taken from various assessments conducted between the time of the accident and the date of Dr. Berry’s report. For example, the GAF of 30 is taken from St. Michael’s hospital records from the second hospitalization in March 2002.
25. 25Dr. Ouchterlony did not offer an opinion under paragraph (f).
26. 26I also note the similarity between the text associated with the score the CAT DAC assigned to Mr. McMichael under Chapter 4, and that related to a Class 4 Marked Impairment under Chapter 14.
27. 27This figure is derived from the Combined Values Chart of the Guides.
28. 28It is not clear whether or not Dr. Longdon even had the records of St. Michael’s for review. There is no reference to them in the list of documents reviewed, appended to the report. In any event, there is no reference to these hospitalizations in either DAC assessment report.
29. 29In addition to the treatment described in the text, Mr. McMichael received treatment at the Centre for Addiction and Mental Health in December 1999 and again from January 19, 2001 to March 16, 2001. As indicated, he was hospitalized on two occasions in March 2002. He attended treatment at the Bellwood Centre from May 6 to June 11, 2003 when he was asked to leave after using crack cocaine. He returned to Bellwood on July 31 and was discharged to out-patient treatment on August 29, 2003. Mr. McMichael testified that he immediately began using drugs and could not participate in the out-patient program. Subsequent to the seizure in November 2003 he attempted to stay off drugs long enough to return. He was initially successful and was admitted to the Bellwood out-patient program but tested positive for cocaine and consequently was transferred to a relapse prevention program which, he testified, he abandoned. He also testified that he attends meetings of Cocaine Anonymous, although probably not regularly, as well as seeking assistance from Ramona Bray and on occasion Jack Polnsky.
30. 30And elaborated upon in a report dated February 16, 2004.
31. 31Report dated January 29, 2004.
32. 32Addendum Report dated February 24, 2004. Ms. Bray initially rejected the notion of 24-hour attendant care, but later endorsed it but only in the event that her other treatment recommendations were unsuccessful.
33. 33This was not much commented on by the parties in the hearing, but the materials are filled with references to Mr. McMichael’s abuse of alcohol and cannabis post accident as well.
34. 34Wawanesa Mutual Insurance Company v. Smith, 1998 CanLII 18861 (ON CTGD), 42 O.R. (3d) 441; Stargratt and Zurich Insurance Company (FSCO A99-000521, October 4, 2001)