Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 201 FSCO A05-001608

BETWEEN:

B. P. Applicant

and

PRIMMUM INSURANCE CO. Insurer

Before: Arbitrator Lawrence Blackman Heard: November 14, 15, 16 and 17, 2006, at the offices of the Financial Services Commission of Ontario in Toronto. Appearances: Mr. Salvatore Shaw for B.P. Ms. Lorraine Takacs for Primmum Insurance Co.

Issues:

The Applicant, B.P. was seriously injured in a motor vehicle accident on May 10, 2002.

He applied for statutory accident benefits from Primmum Insurance Co. ("Primmum"), payable under the Schedule.¹ A number of entitlement disputes arose between the parties which could not be resolved through mediation. Accordingly, B.P. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the beginning of this hearing, the parties advised that they had resolved the question of whether B.P. was barred from arbitration on the basis of an alleged full and final settlement. They had also settled the issues of entitlement to and the quantum of weekly income replacement benefits (IRBs), interest pursuant to subsection 46(2) of the Schedule and a special award under subsection 282(10) of the Insurance Act.

The issues remaining in dispute in this hearing are:

Did B.P. sustain a catastrophic impairment within the meaning of paragraph 2(l)(f) of the Schedule as a result of the accident on May 10, 2002?
Is Primmum liable to pay B.P.'s expenses in respect of this arbitration proceeding under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is B.P. liable to pay Primmum's expenses in respect of this arbitration proceeding under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

B.P. did sustain a catastrophic impairment within the meaning of paragraph 2(l)(f) of the Schedule as a result of the accident on May 10, 2002.
The issue of the legal expenses claimed pursuant to subsection 282(11) of the Insurance Act may now be addressed in accordance with the provisions of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

PRELIMINARY ISSUES:

1. Should the Applicant's name be made anonymous in this decision?

Section 9 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (the "SPPA") sets out the presumption that tribunal hearings are to be open to the public. This can encompass not only the right of the public to attend the hearing, but also the public's right to be informed of the details of the decision, which, in the case of this Commission, enter the public domain via the internet.

In deciding whether this accident materially contributed to B.P.'s current mental and behavioural state, evidence of the Applicant's pre and post-accident mental condition, and the mental condition of his father, were received and are addressed in this decision. At the end of this hearing, I raised with the parties whether the Applicant's name should be made anonymous in this decision. Neither party objected to this proposal. B.P.'s father was not represented in this proceeding and did not have an opportunity to make submissions.

I am persuaded, in accordance with paragraph 9(1)(b) of the SPPA, that intimate, personal matters have been disclosed in this hearing of such a nature that it is desirable to avoid disclosing the Applicant's name and possibly disclosing his father's identity. I find, in this case, that such considerations outweigh, to this limited extent, the value of adhering to the principle enshrined in the SPPA that hearings should be open to the public. Accordingly, I exercise my discretion to have the Applicant's name made anonymous, and that he be identified herein as B.P.

2. Should certain medical reports be allowed into evidence?

The parties made submissions as to whether five medical reports should be entered into evidence.

Dr. F. Lipson, a physiatrist, prepared a report dated January 5, 2005 for Primmum. This report was served on B.P. on November 13, 2006. Primmum submitted that it believed this report had been served earlier², and was only served on B.P. the day before the hearing due to inadvertence. Primmum asked that I waive the thirty day service required by Rule 38 of the Dispute Resolution Practice Code (Fourth Edition, Updated — October 2003) (the "Code") and exercise my discretion to allow the report into evidence. The Applicant objected to this request.

Dr. H. Berry is a neurologist and a psychiatrist retained by B.P. The Applicant served Dr. Berry's report, dated October 23, 2006, on Primmum on November 1, 2006. B.P. submitted that there were extraordinary circumstances justifying accepting late service of this report, as provided for in Rule 39.2 of the Code, namely that while B.P. saw Dr. Berry on June 15, 2006, the report was not completed until late October.

Dr. Berry's report refers to a psychiatric report of Dr. G. Tafler dated October 1, 2005. The latter was a defence report prepared in B.P.'s related tort action. This report had not been served on the Insurer. Primmum requested that the report be produced. B.P. objected on the basis of Director's Delegate McMahon's four-part test in CAA Insurance Company (Ontario) and Sandhu (FSCO P01-00044, January 18, 2002), that:

the report was not relevant as it addressed a different test, namely a class 4 or 5 mental or behavioural disorder (under paragraph 2(1)(g) of the Schedule), rather than the whole person impairment (under paragraph 2(1)(f) of the Schedule) in dispute in this proceeding;
the existing medical documentation was sufficient;
the document might complicate or unduly prolong the hearing; and,
there was no prejudice to the Insurer.

Dr. Tafler's report was critiqued by Dr. F. Cogan, B.P.'s family doctor, in a report dated December 27, 2005, and by Dr. N.C.S. Doxey, a psychologist, in his February 7, 2006 report. B.P. had not sought to have these reports entered into evidence. However, B.P. did file earlier reports of Dr. Cogan (April 24, 2006) and Dr. Doxy (July 3, 2005). B.P. was unable to cite any case law in support of the proposition that he could rely on these experts' earlier reports, but claim privilege for their subsequent reports as they dealt solely with Dr. Tafler's report.

I was persuaded that all five reports should be entered into evidence. As reports of Drs. Cogan and Doxey were already before me, I was persuaded that any privilege pertaining to their subsequent reports had been waived. I also found that the further reports were relevant, were necessary for completeness, and were, prima facie, helpful in determining the issue before me.

As these two reports commented on Dr. Tafler's opinion, I considered it necessary and helpful to have Dr. Tafler's report before me. All three of these reports spoke to B.P.'s mental status, which was relevant as B.P. submitted that a mental and behavioural impairment rating should be included in his whole person impairment ("WPI"). No additional witnesses were to be called, hence, the hearing would not be unduly prolonged or complicated by allowing these further exhibits. Given that reports of some of these experts had already been filed, I was persuaded that having all the relevant medical evidence before me outweighed the sufficiency of evidence argument. The prejudice to the parties appeared to be limited to a question of strategic advantage.

Accepting the arguments of counsel seeking to file their respective reports, I was further persuaded to exercise my discretion in allowing into evidence the reports of Dr. Lipson and Dr. Berry.

3. Should the Applicant be allowed to give oral evidence?

Rule 41 of the Code provides that each party must provide the other parties, at least thirty days before the start of the hearing, with the names of the witnesses it intends to call. B.P. advised Primmum on October 13, 2006 that he intended to give oral evidence. Subsequently, he decided not to testify, both parties being content to call one expert apiece. During the course of the hearing, B.P. decided that he wished to testify, on the basis that Primmum was challenging some of the factual assumptions of the experts. Primmum objected to B.P. being allowed to testify.

I allowed B.P. to give oral evidence. Requisite notice had been provided. A hearing can be a fluid process. Within the restraints of fairness, as events unfold, a party is entitled to change its mind as to which witnesses (for whom appropriate notice was given) it wishes to call. I was not persuaded there was any unfairness to Primmum in this case, in allowing the Applicant to testify. Given that Primmum, in its opening statement, wished me to take note that B.P. had not attended any proceedings at the Commission, I was persuaded that there were legitimate reasons to allow B.P. to testify.

4. Which version of the Schedule applies to this proceeding?

I received little in the way of submissions regarding this issue, and it was not made clear as to what, if any, changes in the legislation were relevant to the issue before me. Primmum, however, submitted that the changes in the Schedule made after 2003 applied to this case, because that is when B.P. applied for catastrophic impairment designation.

I agree with Arbitrator Manji in her decision in Smith and General Accident Assurance Company of Canada (FSCO A-012681 and A-013811, January 30, 1997) that:

The general common law rule of construction is that legislation (including regulations and other forms of delegated legislation) is presumed only to apply prospectively. It is not to be construed as having retrospective or retroactive operation unless such a construction is expressly or by necessary implication required by its language

I further agree with Arbitrator Manji that "[t]here is also a presumption that legislation (including regulations and other forms of delegated legislation) is not to be applied in circumstances where its application would interfere with vested rights." I find that the applicable Schedule in this case is the one which was in place at the time of this accident.

EVIDENCE AND ANALYSIS:

Background

B.P. was 22 years of age when the motorcycle he was driving collided with a car turning left in front of him. In addition to other injuries sustained, B.P.'s right leg was severed when it was caught in the front wheel well of the other vehicle.

He was taken by ambulance to Sunnybrook and Women's College Health Science Centre (Sunnybrook) where he underwent emergency surgery. His right lower leg could not be salvaged. B.P. required a revision of his leg stump at the level of the knee. Other medical procedures including nailing his right femur (thigh bone) fracture and washing and debriding (removing foreign material or devitalized tissue from) the open wounds on both of his knees.

After two weeks in Sunnybrook, B.P. was transferred to St. John's Rehabilitation Hospital, from which he was discharged on June 12, 2002. He then began out-patient gait training with a prosthesis, which continued into 2003.

In September 2003, B.P. saw Dr. M. Kara, a plastic surgeon. Dr. Kara noted that B.P.'s prosthesis fit poorly because of excessive skin and soft tissue. The latter were irritated and, on occasion, infected. In his oral testimony, B.P. described the problem as the muscles in his right leg breaking down after the accident and turning to fat. The fat and excess skin would hang over the prosthetic. To remedy this problem, B.P. underwent liposuction under general anaesthetic, later that year.

B.P. retained the services of Ms. E. Lipkus, an occupational therapist, to assess his future medical and rehabilitation needs. Ms. Lipkus' March 23, 2004 report sets out several pages of anticipated expenses, including a new prosthesis every five years. The cost of a single prosthesis is presently in excess of $42,000. The present value of these expenses is estimated by Mr. G. Principe, a chartered accountant, at more than $1,000,000 in future medical and rehabilitation expenses and over $350,000 for a lifetime of housekeeping and home maintenance expenses.

Regulatory Framework

Paragraph 19(1)(a) of the Schedule, however, sets a monetary limit of $100,000 for medical and rehabilitation expenses. Paragraph 18(1)(a) limits an insurer's liability for payment of such expenses to ten years from the accident. Subsection 22(2) limits housekeeping and home maintenance expenses to 104 weeks from the onset of the disability.

These time restrictions do not apply if an insured person has sustained what is termed in the Schedule a "catastrophic impairment." Further, the monetary limits on medical and rehabilitation benefits are increased to $1,000,000 in respect of insured persons who sustain such an impairment as a result of an accident.

Subsection 2(1) of the Schedule defines catastrophic impairment. There are several alternative means by which one can be so designated. B.P. claims entitlement to this designation solely on the basis of paragraph 2(1)(f). The criteria under this provision require that an insured person sustain 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 (the "Guides"), results in 55% or more impairment of the whole person.

B.P. submits that he has sustained a whole person impairment (WPI) of 71% to 73%. Primmum submits that B.P. has sustained a 44% WPI rating.

Chapter 1 of the Guides states, at page 2, that:

An impairment percentage derived by means of the Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual's capacity to carry out daily activities has been diminished.

The Guides further state, at page 3, that it does not and cannot provide answers about every type and degree of impairment, in part because "the field of medicine and medical practice is characterized by constant change in understanding disease and its manifestations, diagnosis, and treatment." That the Guides is not exhaustive is confirmed by subsection 2(3) of the Schedule, which provides that if an impairment is not listed in the Guides, then the impairment shall be deemed to be the impairment most analogous to the impairment sustained by the insured person.

In its introductory chapter, the Guides further recognize that "normal" is not an absolute in terms of physical and mental functioning, but rather more often a range or zone. Normal can vary with age, sex, and other factors. The Guides state that the "art" of medicine, which includes experience, training, skill and thoroughness, must be combined with the science of medicine in estimating the degree of a patient's impairment. Simply put, as I understand it, the Guides is stating that it is not discrete body parts that are being assessed in a vacuum; rather, it is individuals with unique, personal impairments, who are being assessed.

B.P.'s Impairment Ratings

To determine B.P.'s impairment rating, it is necessary to assess each of an individual's alleged impairments. That assessment follows.

1. The Neck

A comprehensive catastrophic assessment of B.P. was conducted by Work Able Centres Inc. Designated Assessment Centre (the "CAT DAC"), under a team led by Dr. H. Becker. Dr. A. Oshidari, a physiatrist, conducted the physical injury review. Dr. W. Gnam, a psychiatrist, conducted a mental and behavioural review.

Dr. Oshidari's March 21, 2006 report notes that B.P. continued to experience intermittent pain and discomfort in his neck. There was, however, no radiation, or any tingling, numbness or weakness in the arm. There was full range of motion of the cervical spine in flexion and rotation; extension and lateral bending were decreased 10% from normal. No tightness of the muscles was detected by Dr. Oshidari, nor any radiculopathy or instability.

Chapter 3 of the Guides addresses the musculoskeletal system. Table 73 of Chapter 3 (at page 110) assigns a 5% WPI rating for "minor impairment," which is defined as clinical signs of neck injury being present without radiculopathy or loss of motion segment integrity. A 0% WPI rating is assigned where there are simply complaints or symptoms. Dr. Oshidari assigned zero impairment. This rating was not challenged.

Accordingly, I assign a 0% WPI rating for the neck.

2. Left Wrist and Left Elbow

Dr. Oshidari's report noted B.P.'s history of pain and discomfort in his left elbow and left wrist and that he continued to experience discomfort and pain in the volar (pertaining to the palm) aspect of his left wrist area, but without swelling, numbness or tingling. Dorsi flexion (backward bending of the hand) was mildly restricted and produced complaints of pain. Examination of the left elbow did not reveal any abnormalities. Dr. Oshidari, however, did not provide an impairment rating because there was no evidence of structural abnormality.

Dr. Becker, however, was of the view that Dr. Oshidari was being very conservative in his assessment. Pages 35 to 38 of Chapter 3 (entitled the Musculoskeletal System) of the Guides provide ratings for abnormal motion of the wrist. Based on Table 26 (on page 36 of Chapter 3), Dr. Becker would have given a rating of 3% WPI or less. However, he was of the view that this was not a hard number, noting that a 3% WPI rating was for somewhat more than mild restriction.

Dr. Ameis, a physiatrist retained by the Applicant's counsel, states in his July 17, 2003 report that B.P.'s left elbow was lacerated and that he had a full range of motion recovery. I received no evidence from B.P. in his oral testimony as to how his wrist or elbow complaints affect his activities of daily living, which is the definition of impairment at page 1 of the Guides.

However, Dr. Berry states in his October 23, 2006 report that B.P. has left elbow discomfort which is worsened if he should lean on his elbow. Dr. Berry also noted that B.P.'s left wrist dorsiflexion was diminished, that his left wrist was stiff and that he has to move it about several times daily. I find that these impairments interfere with his activities of daily living.

I am persuaded that every impairment, no matter how minor, must be rated. I am persuaded that an impairment has been established for B.P.'s (non-dominant) left wrist and elbow. I assign a 2% WPI rating for this area, based on Dr. Becker's evidence that a 3% WPI pertained to a more than mild restriction of motion.

3. Low Back

The July 2000 pre-accident clinical notes of Dr. R. Mason, a general practitioner, record the Applicant's progressively increasing low back pain as a result of his work duties, which ultimately required B.P. to leave that employment. Dr. Mason and Dr. T.N. Siller, an orthopaedic surgeon, diagnosed a lumbar strain. Although a July 10, 2000 x-ray revealed a normal lumbar spine, B.P. was still complaining in September 2000 of pain at all times during the day and that his condition was not improving despite physiotherapy. B.P. testified that at the time of this 2002 accident his back would flare up every now and then, but otherwise, he was in good condition.

Ms. Lipkus states in her March 23, 2004 report that B.P. noted right hip and back pain a few months after "his discharge as the mechanism of his walking changed." At the time of her report, B.P. was noting low back pain that felt tight and could be sharp. In his October 23, 2006 report, Dr. Berry noted that B.P.'s back was stiff and sore most of the time, and is worsened by walking and by movement. I find that walking and movement are activities of daily living, and that interference in those activities constitutes an impairment.

When seen by Dr. Oshidari in December 2005, B.P. noted intermittent stiffness across his back, occasional radiating to his right pelvis. Dr. Oshidari did not detect any sign of muscle tightness, weakness, or any numbness or tingling in the left leg. On physical examination, rotation and lateral bending were 50% of normal and caused complaints of pain.

Dr. Oshidari was of the view that although there was a history of pain and discomfort in the lumbosacral area, the way B.P. was walking put more stress on his low back. Based on Table 72 (Chapter 3, page 110) of the Guides, Dr. Oshidari assigned a 5% WPI. Similar to cervical impairment, the criteria for minor impairment are that clinical signs of lumbar injury are present without radiculopathy or loss of motion segment integrity. This rating was not challenged. Dr. Becker, who was called by Primmum, agreed that this rating was reasonable.

B.P. testified that his low back and right hip pain go hand in hand, the pain radiating down to his right buttock. He testified that while he had injured his back before this accident, the condition had been aggravated by this accident.

The onus is on B.P. to prove that it is more probable than not that the contribution by this accident was more than minimal and thereby made a material contribution to the development of his alleged condition.³ Based on Dr. Oshidari's evidence, I find that B.P. has established that this motor vehicle accident has made a material contribution to his ongoing low back problem. I accept Dr. Oshidari's unchallenged opinion regarding the appropriate WPI rating. Accordingly, I assign a 5% WPI rating for B.P.'s low back impairment.

4. Right Hip and Right Thigh

As noted, B.P. fractured his right femur in this accident. Dr. Ameis, testified that x-rays showed that the femur was fractured in multiple places. Dr. Ameis notes in his July 17, 2003 report that B.P. had continuing aching in his right hip with walking, as well as fatigue and pain. Ms. Lipkus' March 2004 report states that B.P.'s right hip pain felt tight and could be sharp, and that his sleep was interrupted. Dr. Berry states in his October 2006 report that B.P.'s right hip bothers him most of the time and is worsened by walking and activity.

Dr. Oshidari noted that B.P. continued to experience pain and discomfort in the lateral aspect of his right hip. While finding that there was some restriction of the range of motion of the right hip, Dr. Oshidari opined that there was no sign of contracture (abnormal shortening of muscle tissue) and that the right hip was functional. Dr. Oshidari also noted that B.P. experienced constant numbness and tingling in the right thigh area.

Neither Dr. Oshidari, nor any other practitioner, specifically rated B.P.'s right hip or thigh injury. Dr. Oshidari, however, indicated his view that the Guides provide a 40% maximum rating for the right lower extremity. In assigning that maximum to the Applicant, Dr. Oshidari references the right femur fracture and the restricted range of motion of the right hip. Neither party argued that a specific rating should be given for these areas of impairment. Accordingly, I am not assigning a specific WPI rating for B.P.'s right hip and right thigh.

5. Left Knee

As a result of the accident, B.P. lacerated his left knee. Dr. Ameis noted in July 2003 that the knee continued to click, and at times, swell. Dr. Ameis found the left knee tender along the medial aspect, which suggested to him the possibility of either a collateral ligament or meniscal lesion. Dr. Berry's October 2006 report noted that B.P.'s left knee will "lock up" at times.

The Applicant testified that as a result of the accident, his left knee was opened up, it was scarred and ballooned up, and he wore a brace on that side. His left side continues to take a lot of the strain of walking. He went to a podiatrist for assistance to take part of the strain off that foot, but to no avail.

Dr. Oshidari noted the history of direct trauma to B.P.'s left knee in this accident. He further noted B.P.'s continuing intermittent left knee pain and discomfort. Prolonged standing or walking, and rising from a sitting position caused or increased discomfort. B.P. was also experiencing occasional swelling and weakness in this area. On the basis of Table 62 (Chapter 3, page 83), Dr. Oshidari gave a 2% WPI rating for the left knee based on direct trauma, complaint of pain and crepitation (a dry crackling sound or sensation) on physical examination. This rating was not challenged by either party.

I accept Dr. Oshidari's evidence. I assign a 2% WPI rating for B.P.'s left knee impairment.

6. Left Ankle

B.P. hurt his left ankle in this accident. In his oral evidence, Dr. Ameis described this as a soft tissue injury. The ankle was initially swollen and had to be placed in a cast. Dr. Ameis noted in his July 17, 2003 report that this problem had settled down.

Dr. Oshidari's report of March 21, 2006 does not note any complaints by B.P. regarding his left ankle. No WPI rating is provided in his report. Dr. Berry, however, notes that B.P. was complaining of stiffness and soreness of the left ankle as well as the entire leg. However, Dr. Berry provides no assessment rating for this, or for any other injury.

No claim is made for a WPI rating for this injury. Accordingly, none is given.

7. Right Knee Amputation

B.P.'s most serious injury is his through the knee amputation. As explained by Dr. Ameis in his July 2003 report, such an amputation separates the tibia from the femur, such that the femoral joint surfaces are left intact, though covered by a muscle and skin flap.

Dr. Ameis testified that a through the knee amputation has positive and negative implications. The positive is that the femur, the upper leg bone, is preserved in its entirety and that the end of the femur is intended to take weight. The negative is that the leg does not taper, hence the artificial leg has to fit that bulbous end.

In addition to cosmetic problems, there is a problem of sensitivity. When surgeons are dealing with an amputated leg, the nerves must be cut back and buried behind the stump. The most important nerves cut are the sciatic nerve and the femoral nerve. However, the nerves want to heal and grow back to where they are supposed to go. They usually grow back into a ball, a neuroma, which can be exquisitely painful. Dr. Ameis testified that he found a neuroma on B.P.'s stump which was extremely sensitive.

Ms. Lipkus' March 2004 report enumerated a variety of limitations related to B.P.'s right leg amputation, including decreased walking and standing tolerances, decreased balance, decreased lifting and carrying abilities, an inability to kneel, and decreased activity level, leading to weight gain. She also noted that B.P. was suffering phantom limb pain, a constant tingling sensation which interrupted his sleep.

In noting B.P. had lost both his ankle joint and knee joints, Dr. Ameis writes that:

These joints are critical structures for the efficiency of gait. Usually not apparent to the lay person, the functions of these joints include adjustment of stride length to control pace, adjustment of leg strength to accommodate different terrains, stairs, ladders, etc., and minimization of energy wasting vertical motion in walking . . . the loss of the living knee joint dramatically reduces the ability to shift stride speeds, or to accommodate to different terrains. The loss of efficient control of vertical motion in walking causes the energy consumption per step to increase significantly.

- The Applicant's Evidence

B.P. testified that he still gets phantom limbs pains. He experiences a constant tingling all around what would be the bottom of his right leg, that feels like squeezing or pushing. When he has pain, it feels as if someone is sticking him with a pin. The pain makes it difficult to fall asleep, and can wake him up. B.P. indicated that his prosthesis has gone through many fittings as his leg shrunk. As he cannot always make the trip for the adjustment, he sometimes uses duct tape to ensure his stump fits the socket. He presently has a neuroma, which he described as all the nerves clustering in one spot. He indicated that his sockets are made with a concave bubble, or he would not be able to walk. He described the neuroma as hypersensitive, any pressure on that spot is extremely painful.

B.P. also testified that he cannot stand perfectly still; after a minute or two he feels pins and needles and has to move his leg around. He can walk an hour on a flat, dry surface. On uneven terrain, even grass, he cannot walk even a half an hour. Sitting is not too bad, depending on the type of chair. He cannot sit on stools or on a bicycle type seat. Squatting is out of the question. He requires the use of his hand for balance when he kneels.

The loss of his right leg and the necessity of a prosthesis presents some limits on what he can do around the house. The bottom of the fridge and bottom shelves are useless to him. He cannot clean the tub or the base of the toilet. B.P. stated that using a ladder or a step stool gives him an unsteady feeling, and he worries about falling.

At the time of this accident, B.P. managed a tattoo parlour, where he also did body piercing and tattooing. As a result of this accident, B.P. is unable to do tattooing, as one needs to be steady on one's feet. Ambulating through narrow areas of his present place of employment is difficult. There are days when he does not have the energy to work his normal shifts.

- Dr. Oshidari

Dr. Oshidari's March 2006 report notes that B.P. walked with a mild limp as a result of the right prosthesis. Although the stump did not show any sign of redness or discharge at the time of examination, there was hypersensitivity due to the combination of callus and neuroma formation.

Dr. Oshidari noted that Table 63 of Chapter 3 of the Guides provides a rating of 32% WPI for a through the knee amputation. Section 3.2i of Chapter 3 states that the final lower extremity impairment cannot exceed 40% WPI. Dr. Oshidari opined that B.P. should be provided this maximum rating, given his further complications such as neuropathic pain, skin disease, as well as his history of right femur fracture and restricted right hip range of motion.

Dr. Oshidari was of the view that although the cost of a single prosthetic is about $40,000, and there is no doubt that B.P. will need to replace his artificial leg every six or seven years over the course of his lifetime, financial or legal arguments do not change his medical judgment that the Schedule does not deem B.P. to be catastrophically impaired. Therefore, it was his view the definition of catastrophic impairment needed to be changed.

- Dr. Ameis

Dr. Ameis assigned a WPI of 32% to the through knee amputation based on Table 63 of the Guides, which he opined was the appropriate rating for an average amputee. He was, however, of the view that B.P. was not an average amputee, that his situation was "complicated by [his heavy weight], excess stump skin, pronounced neuroma pain, poor stump socket fit and comfort, and consequent significant limitations to the distance he can walk, the duration of standing and walking, and the time period in which he can use his prosthesis through each day." I agree.

Dr. Ameis testified that the Guides are silent as to what is encompassed within the 40% ceiling for lower extremity impairment set out in section 3.2i. It was Dr. Ameis' opinion that this figure does not include the skin impairment or disfigurement. Dr. Ameis argued that 40% is not the absolute limit for a through the knee amputation because:

The Guides provide, at page 9, that an insured may be evaluated without one's prosthesis. Therefore, Dr. Ameis opines that Table 36 of Chapter 3 (the Gait Derangement Table) is applicable in evaluating an amputee. This table provides a WPI range of 40% (where routine use of two canes or two crutches is required) to 80% (where one is wheelchair dependant);
Dr. Ameis understanding of Desbiens v. Mordini 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 and Snushall v. Fulsang [2003] O.J. No. 1493 (S.C.J.) was that the Guides are not a complete guide and that an evaluator should exercise clinical judgment to adjust a score upwards where the severity of impairment is analogous to other cases where the threshold is met. Dr. Ameis opined that the cosmetic, comfort, mobility and independence issues faced by a single leg amputee are analogous to those faced by a paraplegic or a person suffering extensive lower extremity burns of Class 4 severity. Both these impairments warrant scores of at least 55% WPI.; and,
A one-leg amputee may have hundreds of thousands of dollars in future prosthetic costs over a lifetime, several times the non-catastrophic medical/rehabilitation ceiling of $100,000. The significant financial costs of amputation justified, in Dr. Ameis' view, adjusting B.P.'s score upwards to a 55% WPI. and designating him catastrophically impaired.

In the alternative, Dr. Ameis submitted that one should add to the Table 63 (32% WPI) rating additional applicable ratings both within the same Chapter 3 and elsewhere under the Guides.

Within Chapter 3, Dr. Ameis was of the view that Table 68 provided an additional 5% WPI for the sciatic nerve and 3% WPI for the femoral nerve as appropriate acknowledgment of B.P.'s higher level of neuropathic pain. Under the Guides' Combined Values Chart, the 32% through the knee amputation in combination with the 5% and 3% ratings for neuropathic pain results in a 37% WPI. While the Guides state that in combining numbers, one must start with the highest number, and work downwards, neither Dr. Ameis or Dr. Becker could assist as to whether one should first combine ratings within a chapter and combine the total ratings chapter by chapter, or whether one should combine the ratings individually regardless of whether they are found in the same chapter. Evidently, however, the end result varies little regardless of which approach one may take.

Dr. Ameis was of the view that relevant ratings outside of Chapter 3 would include Chapter 13 (the Skin) to capture B.P.'s daily care activities to prevent stump swelling and skin breakdown as well as social issues, including negative self-image.

- Dr. Lipson

As noted above, Dr. Lipson, a physiatrist, prepared a January 5, 2005 paper review for the Insurer. Without having seen B.P., Dr. Lipson opined that the Applicant did not meet the definition of catastrophic impairment as it was his view that the 32% Dr. Ameis' had recorded for a through the knee amputation would incorporate all standard requisite care, as well as all cosmetic, adaption, personal concerns and all other aspects of an amputation. Dr. Lipson provides no support for this opinion; in fact, he never refers directly to the Guides in his report.

Dr. Lipson appears to have, at best, only a very superficial understanding of the Guides. He advises that since B.P. has only lost one leg, he cannot be considered to have a catastrophic impairment. Dr. Lipson's failure to properly analyse and rate every potential impairment, his superficial review of B.P.'s injuries, combined with his failure to examine the Applicant, causes me to give no weight to his report.

- Dr. Becker

Dr. Becker prepared the executive summary of the CAT DAC with the philosophy, as clinical coordinator, of respecting the opinion of his assessors and allowing them to do their own ratings without being second guessed or reinterpreted. He indicated that Dr. Oshidari is very knowledgeable regarding the Guides and that he provided a very sound, albeit conservative approach, based on Dr. Oshidari's view that a 40% WPI was the cap on lower extremity impairment.

However, Dr. Becker indicated that there is a broad range of interpretation that can be applied in some cases. Testifying as an individual who undertakes catastrophic assessments on his own, he stated that he was in agreement with Dr. Ameis that B.P. was catastrophically impaired as having sustained a 55% WPI.

There were differences, however, as to how these two experts reached the 55% WPI. Dr. Becker was comfortable with allotting a 40% WPI for the right leg amputation itself, the figure proffered by Dr. Oshidari. Page 75 of the Guides state that where ever possible, the evaluator should use the more specific method of evaluation. Accordingly, Dr. Becker used the Gait Derangement Table (Table 36) more as a check. In this case, he was comfortable with the 40% WPI rating from Table 36 for a person who requires the routine use of two canes or two crutches (based on page 9 of the Guides which provides that if a prosthesis can be removed, the organ system should be tested and evaluated without the device).

While he was comfortable with the additional WPI ratings of 5% for sciatic dysesthesia (abnormal distortion of sense) and 3% for femoral dysesthesia allotted by Dr. Ameis, Dr. Becker was not sure that these adequately rated B.P.'s pain, when the loss of the tip of a finger rated a 5% WPI.

Further, Dr. Becker did not agree with Dr. Ameis assertion that future care costs should be a consideration in the determination of catastrophic impairment.

- Conclusion

I am not persuaded by the Applicant's argument that I have discretion to make a finding of catastrophic impairment where the cost of future treatment exceeds the non-catastrophic limits under the Schedule. That, in my view, simply defeats the intent of the legislation that a requisite designation of impairment, in addition to reasonable and necessary need, determines entitlement at a certain monetary level.

I also have significant doubt that, in the absence of some direction from the Guides, I can exercise my discretion to make a finding of catastrophic impairment where I think that an impairment which does not meet the 55% WPI threshold (upon a proper, individualized and thorough assessment under the Guides), in my view, is as significant as another, this time hypothetical impairment, which does meet that threshold.

However, I am not persuaded that the Guides is to be treated as a meat chart, hidden under a silk lining called "consistency." As stated on page 2 of the Guides, an impairment percentage derived by means of the Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual's capacity to carry out daily activities has been diminished.

Dr. Oshidari has taken a far more considered and fair approach than Dr. Lipson. I am persuaded, however, that the former's assessment was too cautious and conservative. I sense in Dr. Oshidari's own report, that he was of the view that 40% WPI for the traumatic impairment B.P. has sustained was inadequate.

I am persuaded, that B.P.'s most significant injury is the traumatic amputation of his right lower leg. I am further persuaded that this one injury has resulted in distinct problems. These include the mobility issues that arise from the loss of his lower leg, his neuropathic leg pain, the excessive strain on his lower back, the care and maintenance of his stump skin, and the mental and behavioural consequences of his losses. I am persuaded that each of these areas constitutes a distinct impairment. I am persuaded that each of these impairments must be separately rated, being careful to avoid any double counting of impairment.

In coming to this conclusion, I am guided, in part, by page 8 of the Guides, which states that:

It may be necessary to refer to the criteria and estimates in several chapters if the impairing condition involves several organ systems. In that case, each organ system should be expressed as a whole-person impairment, then the whole-person impairment should be combined by means of the Combined Values Chart . . .

I also accept the evidence of Dr. Ameis that Chapter 3 (the Muskuloskeletal System) was not intended to address skin impairment (for which there is a completely separate chapter), as Chapter 3, which I note has some 120 pages, addresses the skin system in only one instance.⁴ I accept the evidence that skin has a number of functions (and hence, potential impairments) including protection and preventing infection, as well as cosmetic and social significance, which are not captured by Chapter 3.

I further accept the evidence of Dr. Becker who also did not believe that Chapter 3 included skin disorders. In Dr. Becker's view, if one has an amputation and, further, has a skin breakdown, the evaluator does not have a choice, Chapter 13 must be considered and combined with Chapter 3. I find compelling Dr. Becker's evidence that Chapter 3 was written by orthopaedic surgeons, who may be somewhat blind to non-orthopaedic issues.

I am further guided, in part, by the case examples provided in Chapter 13. Example 2 (on page 283) provides a case description of a person who has suffered second degree burns of his neck, resulting in a raised, red, hard scar, as well as limited flexion and extension of the neck. The Guides provide a 10% WPI skin impairment, with the comment that this rating should be combined (the emphasis being in the Guides) using the Combined Values Chart, with the estimated impairment of the neck using the chapter on the musculoskeletal system (being Chapter 3).

Example 4 (also on page 283) describes an individual splashed on the face, scalp and neck with a liquid chemical. He was left with well-demarcated areas of depigmentation. As well, he was experiencing considerable embarrassment and avoided many kinds of social activities in which he had previously participated. The Guides provided a 20% WPI for the skin impairment, with the comment that the "behavioural changes exhibited by this patient should be evaluated according to the criteria described in the Guides chapter on mental and behavioural disorders (p. 291); any psychiatric impairment would increase the skin-related impairment" [emphasis added].

I find that B.P.'s mobility impairment is captured by the 32% WPI set out in Table 63. I find that the best evidence before me for a WPI rating for neuropathic pain is that of Dr. Ameis, which brings the WPI to 37%. I find it appropriate, in this case, to combine these conditions within Chapter 3, rather than combining them separately with all the individual impairment ratings. I have already rated B.P.'s back pain, for which the amputation is a material contributing factor. I address B.P.'s skin condition and the mental and behavioural impairments below, which I am satisfied merit their own evaluation.

Although B.P. is also suffering from problems with his upper leg, in part due to the femur fracture, I have no evidence as to how to appropriately rate this problem. Accordingly, although I feel that B.P. may well merit what I find to be the maximum 40% for lower extremity orthopaedic and neurological impairment, on the evidence before me, I find that only the 37% WPI opined by Dr. Ameis has been established on a balance of probabilities.

8. The Skin

When Dr. Ameis saw the Applicant wearing his prothesis in July 2003, he found a lot of excess skin in the upper medial portion of his thigh which was both unsightly and, likely, highly uncomfortable. The distal stump was quite red on the lateral aspect and there was a neuroma of considerable sensitivity, such that even light touch produced a significant reaction. B.P. was taking Neurontin to treat the neuropathic pain. Dr. Ameis testified that there are significant side effects to taking this medication, including dizziness, nausea and sometimes confusion.

B.P. testified that although liposuction improved his situation, there is still a problem with excess skin. It limits the types of pants he can wear. If there is a problem with the fit of the prosthesis, it causes rubbing, which affects his walking. The rubbing causes the skin to break down, causing redness, rashes or skin peeling. B.P. testified that on two occasions he had to wipe blood off his stump. Skin breakdown is more frequent in humid weather. When he gets blisters, it feels as though he is kneeling on a small stone, and he is unable to use the prosthesis until the blister heals. Without the prosthesis, he uses two crutches, or hops on one foot.

B.P. uses two liners on his stump, which have to be washed and thoroughly dried daily. He has to use extra care, including rubbing alcohol, to ensure the stump is clean. The stump has to be checked every time the prosthesis is taken off, or if he feels something. B.P. testified that he presently needs to have the socket altered again as he is experiencing daily redness.

In addressing the skin care and management of B.P.'s stump, Dr. Ameis looked to Table 2 of Chapter 13, which has five classes of skin impairment. Dr. Ameis was of the view that B.P. fell into at least Class 2 (with a 10 to 24% WPI) as he must be constantly protective and vigilant regarding the care and size of his stump. As there was a serious disfigurement, Dr. Ameis was of the view that B.P. should be at the top of the range.

On cross-examination, Dr. Ameis conceded that the liposuction in October 2003, removing excess skin, could affect his opinion. He also indicated that his concerns were based on the general needs of amputees.

Chapter 13 states that impairment ratings for the skin should be generally expressed in whole numbers ending in 0 or 5. Dr. Ameis, therefore, opined that a 25% WPI was appropriate for the skin, but that if the mental effect was taken into account, he would assess a 35% WPI.

Dr. Ameis was of the view that Chapter 13 dealt with social isolation and depression in the context of disfigurement, whereas Chapter 14 (Mental and Behavioural Disorders) had a broader scope. Dr. Ameis did indicate that as a physiatrist, this was outside his area of expertise, and one would have to ask a psychiatrist to discern what psychological component one attributes to Chapter 13 and what to Chapter 14. Dr. Ameis, however, said that he maintained his view that a rating for psychological impairment is fraught with difficulties.

What I took from Dr. Ameis evidence was that psychological impairment was to be rated in this situation, but that it should be included as part of the Chapter 13 assessment. I again note that Example 4 (on page 282, within the Skin chapter) states that one should use the Chapter 14 criteria to evaluate behavioural changes. I am persuaded that psychological impairment should be separately rated using Chapter 14. In this particular case, I am not sure that the end result is significantly different.

Dr. Becker observed that Table 2 provides no guidance where a person may fall within a class. Dr. Becker preferred to use the range, rather than pick an arbitrary number. He noted that the footnote to Table 2 indicates that:

The signs and symptoms of disorders in classes 1 and 2 may be intermittent and not present at the time of examination. The impact of the skin disorder on daily activities should be the primary consideration in determining the class of impairment. The frequency and intensity of signs and symptoms and the frequency and complexity of medical treatment should guide the selection of an appropriate impairment percentage and estimate within any class . . .

Dr. Becker agreed that B.P., is, at a minimum in the range of Class 2. He agreed that Class 2 can provide a WPI rating 24% even if there are no signs or symptoms on examination. He further agreed that the Guides appear to indicate that the 24% maximum should be 25%. He noted that while Dr. Oshidari, on examination in December 2005, did not find any sign of redness or discharge on the stump, he did note hypersensitivity due to callus and neuroma formation. Dr. Becker agreed that B.P.'s skin condition impacted on his activities of daily living. He agreed that B.P. may need treatment and that treatment can include cleaning.

Regarding possible overlap between Chapter 13 (the Skin) and Chapter 14 (Mental and Behavioural Disorders), Dr. Becker was of the view that one should proceed with caution. Dr. Becker held Chapter 14 to be more inclusive, looking at social functioning, concentration and adaption, in addition to the impact on activities of daily living, whereas Chapter 13 focuses on the latter.

Based on the case examples provided for guidance in Chapter 13, I am persuaded that a WPI rating of 20% for skin impairment by itself is warranted.

In example 3 (on page 283 of the Guides), a case of eczema where a 15% WPI is allotted, the individual required only intermittent application of topical steroid creams during remissions, whereas B.P.'s stump requires daily care. In that example, exacerbations were caused by changes in weather and stressful situations. For B.P., exacerbations are brought on by humidity and sweating. In the case example, there was some interference in daily activities such as sleeping, washing dishes and concentrating. In the case of B.P., redness, rashes, blisters and skin peeling affect a broader range of activities of daily living, from the type of pants he can wear to his ability to walk with his prosthesis.

I find closer to the case of B.P., example 5 (on page 284) where the individual lost all ten of her fingers nails. Her nail beds were swollen and tender, with persisting paresthesia, aggravated by hand activities. She wore gloves most (but not all) of her waking hours. 20% WPI was rated for her skin condition. Most importantly, I again note the comment of the Guides that this rating is to be combined with an appropriate Chapter 3 value for the parasthesia. In addition, the Guides note that a mental and behavioural impairment under Chapter 14 might further increase the estimate.

9. Mental and Behavioural Disorders

The pre-accident clinical notes and records of Dr. R.L. Mason note B.P. suffering from mild to moderate depression with lethargy, despondency, insomnia, stress, both anorexia and overeating and significant suicidal ideation in 1997. The doctor, however, notes a very supportive girlfriend. There is then a gap in the notes of more than half a year. Unfortunately, the subsequent notes are difficult to read.

B.P. testified that his pre-accident problems were not even close to what he was experiencing after this accident.

- Post-accident History

In July 2003, after the accident, Dr. Ameis found B.P. "decidedly uncomplaining despite the serious circumstances emotionally and physically that he had found himself in since the accident in question." Nonetheless, Dr. Ameis felt that the Applicant was "anxious, stressed, and depressed by his current circumstances, which include the alteration of body image, the fear for his independence and for his future, but most importantly the stress on his marital relationship and the current lack of domestic and financial stability."

In her March 2004 report, Ms. Lipkus notes that B.P. was suffering adverse changes in mood as well as cognitive difficulties, specifically with attention and concentration. She noted that he had decreased endurance and tolerance to activity and fatigue.

- Dr. G. Tafler

On September 16, 2005 Dr. G. Tafler, a psychiatrist, saw B.P. for a defence medical examination in the related tort action. Dr. Tafler described B.P.'s childhood as difficult. He was a loner, with family issues, issues with self-image, problems academically and with socializing, and had been expelled from school. B.P. was estranged from his father, who allegedly had a psychiatric condition. She notes B.P.'s pre-accident medical history, including complaints of migraines.

B.P. indicated to Dr. Tafler that after the accident he tried to appear cheerful and "upbeat" in the hospital for the sake of his wife and family. I find this is a reasonable explanation for the notations in the May 2002 records of St. John's Rehabilitation Hospital, relied upon by Primmum, wherein B.P. is quoted as saying "I think about losing my leg & I'm fine with it," and is reported as not feeling sad with his right leg being lost. B.P. testified that he did not think anyone would be fine with losing their leg. He attributed his statement in part to the drugs he was taking, and in part, to the thrill of survival.

Dr. Tafler notes that it took B.P. about a year to realize his post-accident condition was permanent. She details the deterioration in his marriage, as well as his post-accident depression, insomnia, poor concentration, restrictions in his activities, isolation and loneliness. B.P. also felt he had less motivation, confidence, energy and enthusiasm, and sometimes regretted having survived the accident. Dr. Tafler notes that B.P. was wearing shorts for their mid-September interview, with his prosthetic leg encased in a flesh-coloured stocking. She does not comment whether this was due to lack of self-consciousness, to better show the prosthesis to a female examiner without having to remove his pants, or for some other reason.

- Causation

Dr. Tafler opined that B.P. did not demonstrate findings consistent with a significant depressive illness or anxiety disorder. She felt that B.P. was likely, based on TOMM (Test of Memory Malingering) testing, deliberately portraying himself as worse than he was. Her opinion was that B.P. had a pre-accident psychiatric disorder, Chronic Dysthymia, to which he was probably genetically predisposed. She further felt that B.P. had suffered an adjustment disorder as a result of his leg being traumatically amputated, which had largely remitted. His other symptoms, in her opinion, were no different than what he had experienced before the accident, symptoms which, in her opinion, the accident had certainly not caused.

Dr. Tafler concluded that B.P. did not meet the Class 4 or 5 impairments, which are the prerequisites of catastrophic impairment under paragraph 2(1)(g) of the Schedule. Dr. Tafler did not otherwise endeavour to rate B.P.'s mental and behavioural impairment, if any.

Dr. F. Cogan, B.P.'s family doctor, prepared a report dated December 27, 2005, critiquing Dr.Tafler's report. Dr. Cogan opined that although the TOMM test may indicate that the test taker is malingering, "there is still a small chance that he/she was actually responding honestly." Dr. Cogan further felt that B.P.'s pre-accident psychological history made him more susceptible to his post-accident emotional difficulties. Dr. Berry was also of the view that B.P. was probably vulnerable to depression and anxiety as a result of his pre-accident troubled family life.

Dr. Cogan's earlier report of April 2004 documented, amongst other difficulties: B.P.'s post-accident stump irritation, redness and blisters, phantom pain, right wrist discomfort, reduced appetite, scattered focus and concentration, insomnia, depression, low back and right hip pain, as well as treatment with a variety of medications, including Remeron for depression, and referral to out-patient mental health assistance. Dr. Cogan also notes the negative impact of B.P.'s injuries on his potential employment options.

Dr. Tafler's report was also critiqued by Dr. Doxy, a psychologist retained by B.P.'s counsel. Dr. Doxy felt that the views held by he and Dr. Tafler coincided to a considerable degree. He felt that both had diagnosed a pain disorder and both had identified significant post-traumatic stress disorder symptomatolgy, albeit insufficient to make a full diagnosis. Dr. Doxy, however, was prepared to offer what he described as a kinder interpretation of the TOMM testing, namely that it most likely reflected a "cry for help."

Dr. Doxy states that the only matter in which he and Dr. Tafler appear to hold a difference of opinion is that Dr. Tafler:

appears to take the position that, despite the horrendous injuries [B.P.] sustained, and the profound losses that resulted, he never became significantly more depressed after the accident, and that the accident therefore did not exacerbate his depression.

Dr. Doxy viewed the accident as having significantly exacerbated B.P.'s depression, which he felt (as indicated in his earlier report of July 4, 2005, which preceded Dr. Tafler's report) may have preceded this accident by six or seven years.

As noted above, the onus is on B.P. to prove that it is more probable than not that the contribution by this accident was more than minimal and thereby made a material contribution to the development of his present mental and behavioural condition.

I found B.P. to be an honest and very credible witness. I did not find that he tried to exaggerate the obvious and significant impact that a through the knee amputation would have on a young man, especially one whose vocational and recreational pursuits to a large extent relied on his physical abilities. Rather, I found that he endeavoured to present his problems in a straight-forward, objective manner. I note that Dr. Berry felt that B.P. appeared to minimize his ongoing emotional symptoms in his interview earlier this year, and I find this consistent with the evidence I heard.

Primmum conceded in its submissions that there was no suggestion that B.P.'s evidence was other than credible. I find B.P.'s presentation at this hearing, which was subject to cross-examination, of far greater weight than the TOMM results, a psychiatric reliability test for feigning cognitive impairment. In any event, cognitive impairment due to brain impairment is not in issue in this proceeding; rather, the issue is depression and its multi-faceted effect on this Applicant.

Given the uncontradicted evidence that at the time of the accident B.P. was married (and is now separated), had full-time employment (which is now restricted in what he can do), was engaged in a variety of social and recreational activities, including building motorcycles (which he can no longer do), I am persuaded that this is not a case of a "crumbling skull" but, if anything, of a "thin skull."

I am thus persuaded, certainly on a balance of probabilities, based on B.P.'s oral evidence and the documentary evidence filed, that the serious, obvious, and traumatic injuries sustained by B.P. in this accident have materially contributed to his present mental and behavioural difficulties.

The next question is what, if any, rating is to be given to those difficulties.

- Dr. Doxy

Dr. Doxy notes that when he saw B.P. in January 2005, he was of the view that the Applicant's depression was at a level consistent with a diagnosis of a Major Depressive Disorder, Moderate Severity, Chronic. Dr. Doxy opined that perhaps when B.P. saw Dr. Tafler in September 2005, the Applicant may have been coping better and was perhaps less depressed. Dr. Doxy does not, however, provide any impairment rating under the Guides.

- Dr. Hershberg

At the request of B.P.'s counsel, Dr. R. Hershberg, a psychiatrist, conducted a paper review. Based solely on Dr. Doxy's report, Dr. Hershberg places B.P. as having a Class 3 Mental and Behavioural Impairment. Class 3 is defined as moderate impairment, that is, impairment levels are compatible with some but not all useful functioning with regard to activities of daily living, social functioning, concentration and adaption.

Dr. Hershberg notes that while B.P. was relatively independent with respect to his activities of daily living and was able to carry on with many aspects of his former vocational duties, he was quite limited regarding social and recreational activity. Dr. Hershberg was of the view that the appropriate WPI rating was 20 to 25%.

A major weakness of Dr. Hershberg's opinion, like that of Dr. Lipson, is that he never saw B.P. As well, his opinion is based on Dr. Doxy's assessment in early 2005, when Dr. Doxy indicates that there may have been an improvement in the Applicant's condition when seen by Dr. Tafler in September 2005.

- Dr. Berry

At the request of his counsel, B.P. saw Dr. H. Berry, a neurologist and psychiatrist, in June 2006. Dr. Berry thus has the benefit of a more recent interview. He also had the benefit of having Dr. Tafler's report. Dr. Berry noted B.P.'s symptoms of depression, hopelessness, anxiety, recurring nightmares, feelings of nervousness and worry, difficulty with concentration and memory attributable to his troubled emotions. Dr. Berry notes that B.P.'s emotions improved after receiving counselling and medication.

As noted above, Dr. Berry felt that B.P. appeared to minimize his ongoing emotional symptoms. Dr. Berry also found B.P. highly motivated with a belief that he could overcome some of his difficulties on his own. Nonetheless, Dr. Berry was of the view that B.P. continued to have a significant level of depression and anxiety attributable to this accident.

However, Dr. Berry does not provide any analysis of the Guides' mental and behavioural impairment ratings. Regarding such an evaluation, I find the best evidence before me to be that of Dr. W.H. Gnam, a psychiatrist, who conducted the psychiatric portion of the CAT DAC in January 2006.

- Dr. Gnam

While B.P. reported to Dr. Gnam that he had no significant past psychiatric history of anxiety or depression (which may not be accurate depending on what one means by "significant") he did advise Dr. Gnam of his behavioural problems in adolescence, his mediocre academic performance and his being overweight which lead to social ostracization.

Certainly, however, Drs. Doxy, Berry and Tafler were aware of B.P.'s pre-accident history, and on the basis of the entire evidence, I have made my above findings on causation and credibility.

Dr. Gnam notes that his testing (unlike that of Dr. Tafler) indicated that B.P. was not dissimulating regarding any cognitive problems. Dr. Gnam also indicated that he met with B.P.'s wife, who noted that her husband had become negative and pessimistic in his outlook, with frequent, unexpected bad moods. She also noted some changes in his memory and ability to concentrate, and that their relationship had become distant and had lost its intimate and sexual component.

Dr. Gnam indicated that while it was not clear that B.P. met the depressive symptoms of a Major Depressive Disorder, he had more than an Adjustment Disorder. Dr. Gnam was of the view that while the overall clinical impression was that B.P. was having mild to moderate depressive symptoms, his reported long and sustained periods of post-accident study and paid employment suggested that B.P.'s mental impairment likely fell below the moderate level.

Without the benefit of B.P.'s complete pre-accident history, Dr. Gnam opined that this accident materially contributed to the Applicant's current psychiatric disorder, notwithstanding a temporal lag of several months before B.P. developed a persistently depressed mood. Dr. Gnam further opined that as more than three years had passed since the accident, B.P.'s mental impairments could be considered stable, although there they might remit in response to appropriate trials of anti-depressant medication.

Of greatest assistance, Dr. Gnam provided a rating for B.P.'s mental impairment according to each of the four categories provided in the Mental and Behavioural Disorder Table on page 301 of Chapter 14, as follows:

Activities of Daily Living

Dr. Gnam rated B.P. as falling in Class 2, Mild Impairment, based on what he found to be plausible reporting of some diminished libido and significant sleep impairment.

Social Functioning

Dr. Gnam rated B.P. as not having greater than Class 2 impairment, based on the reports of significant irritability, guardedness and pessimism which was impairing his relationship with his wife and others.

Concentration, Persistence and Pace

Dr. Gnam rated B.P., again, at a Class 2, mild impairment. Dr. Gnam stated that given the nature of B.P.'s chronic pain and depressive symptoms, some impairment in persistence and concentration would be expected.

Adaptation to Work or Work-Life Settings

While Dr. Gnam indicated that there was no formal occupational therapy situational assessment, on the basis of B.P.'s report that he had been working adaptively full-time over several years, as long as 12-hour shifts on weekends, he rated B.P.'s impairment as none to mild (Class 1 to 2).

- B.P.'s Evidence

B.P. testified that he loses his train of thought. He had a lot of suicidal thoughts after the accident. He became very depressed. He received counselling until April of this year. He was taking anti-depressants, but stopped because of the side effects. He blamed his marriage breakup on his change in attitude. He indicated that he is doing better now, but has not changed his mind that he should have died in the accident; however, he is not going to do anything about that.

B.P. stated that his educational level (completing Grade 10) and his present physical condition are not a "good cocktail," and he is trying to improve his education. He worries whether he will be able to play with any children he might have. Regarding relationships (he presently has a girlfriend who helps with his cleaning), he indicated that he is "a little bit of a handful." Prior activities, such as building motorcycles and auto mechanics, have been adversely affected. He testified that he does not go out or "hang out" with people as much anymore.

B.P. testified (notwithstanding his apparent appearance at his interview with Dr. Tafler) that he does not go out in shorts, as it is embarrassing. He feels self-conscious the way he climbs stairs, if someone is behind him. Going away on a trip caused him pain sitting in the close confines of an airplane. His prosthesis prompted the airport security to activate. While away, his prosthesis overheated and he had to phone Toronto to get instructions how to "reboot" the system.

B.P. is evidently heavily tattooed. Primmum raised the question as to how concerned the Applicant could be about his body image. I accept as a full answer B.P.'s statement in cross-examination, that tattoos were something he chose, he did not choose the amputation.

- Conclusion

Primmum submitted in its opening statement that the CAT DAC assessment was fair, appropriate and in accordance with the Guides. I accept Dr. Gnam's ratings, except for the Adaptation category, where I find that B.P. should also be rated as Class 2. I accept B.P.'s evidence that prior to this accident, he was employed as a manager at a tattoo parlour, but also did body piercing and tattooing. I accept his further evidence that because of his impairments, which prevent prolonged standing, he has stopped doing tattooing. He has continued working in a managerial capacity, and does body piercing which can be done while sitting.

I further accept the Applicant's evidence that there are days he does not want to go to work, does not want to talk to customers and wants to be alone, which is difficult in a customer service business. This is in addition to his evidence that his hours of work may be reduced because of lack of energy or because of sweating due to humidity which affects his stump condition, impairments which may be captured elsewhere in the Guides.

Dr. Becker testified that the CAT DAC's final 44% WPI assessment did not include any rating for mental and behavioural disorders under Chapter 14 of the Guides. Dr. Becker believed that there were psychiatric and emotional issues and that a rating for mental and behavioural impairment should be added to the WPI. Dr. Becker believed that Dr. Gnam's GAF (Global Assessment of Functioning) rating for B.P. indicated reasonably high functioning and was consistent with mild impairment under the Guides. Dr. Becker opined that Dr. Gnam's assessment would result in a WPI rating of 10 to 20%.

I am persuaded that B.P. has established a mental and behavioural mild impairment under Chapter 14 of the Guides, including depression, irritability, pessimism and anxiety. I find that this impairment has, by itself, negatively impacted on B.P.'s activities of daily living, social functioning, concentration and adaption. I find this impairment distinct from the mobility issues addressed in Chapter 3 and the skin care and management issues addressed in Chapter 12.

Primmum submitted that as mental or behavioural disorders are dealt with in subsection 2(1)(g) of the Guides, such disorders cannot be included in a consideration of subsection 2(1)(f). The Insurer provided no case law in support of this proposition. Primmum, however, was of the view that the Commission Guidelines support their position. However, I note that these non-binding guidelines state that the CAT DAC "should ensure it evaluates the whole person." I find that mental and behavioural conditions are part of "the whole person," and should be evaluated, as the Guides themselves state in the case examples given in Chapter 13.

Primmum is essentially arguing that the inclusion of a distinct impairment in one section means that it is excluded in another. Carrying this argument to its logical conclusion, the inclusion as a criteria for catastrophic impairment in paragraph 2(1)(b) of the amputation of an arm and a leg means that B.P.'s right leg amputation could not be included in the paragraph 2(1)(f) WPI computation. Indeed, to follow this argument to its logical conclusion, the only impairments which could be rated for this Applicant's impairment would be the 2% WPI left knee impairment and the 2% left wrist and left elbow impairment.

I did not accept this argument in Ms. G and Pilot Insurance Company (FSCO A04-000446, March 16, 2006), in which I followed the approach taken in Desbiens v. Mordini 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 and McMichael and Belair Insurance Company (FSCO A02-001081, March 2, 2005), upheld on appeal (FSCO P05-00006, March 14, 2006).⁵ I am still persuaded that the evaluating the whole person approach is correct, regardless of whether certain disabilities (at a more significant level of impairment) may also appear in other paragraphs of the definition section.

The Guides, at page 301, refer to the earlier Second Edition, which lists mild impairment as rating a 10 to 20% impairment rating. Dr. Becker indicated his preference to state a range. My preference is to provide a hard number. I again note that this class is applicable where impairment levels are compatible with most useful functioning. I find that B.P., to his credit, is endeavouring to function in most areas of his life, but with some significant restrictions. I find that a mid-point 15% WPI is appropriate based on the facts of this case, notwithstanding that there may have been some improvement in B.P.'s mental condition.

Dr. Becker noted that the Guides vary as to the timing of the impairment. Some assessments are anatomic, such as Table 63 (amputations), which provide a rating totally unrelated to time. Some ratings are diagnostic, such as the diagnostic related estimate (DRE) in Table 72, which rates low back impairment. Some ratings are functional, such as range of movement testing. Dr. Ameis explained that the differences are due to different practitioners writing different sections of the Guides.

Subsection 2(2) of the Guides provides that catastrophic impairment may be determined once three years have elapsed since the date of the accident. Dr. Gnam's assessment was conducted more than three years after the accident. I asked Primmum whether it would commit to allowing a further catastrophic assessment if B.P.'s condition were to deteriorate. The Insurer would not give that commitment. I find it appropriate, given that emotional factors may wax and wane, to base the assessment as of the date of Dr. Gnam's review. In any event, I am persuaded, especially considering the subsequent breakdown in his marriage, that there has not been substantive change in the Applicant's mental and behavioural condition which would warrant a WPI rating of less than 15% in this area of impairment.

10. Other Possible Areas of Impairment

B.P., in his submissions, also noted the following additional injuries sustained in this accident:

lacerations to and scarring of his left arm;
left shoulder pain; and,
lacerations and scarring to his left leg.

I was not provided with any evidence as to what, if any WPI rating was appropriate to these injuries, nor was I provided with any submissions in this regard. Accordingly, I find that no WPI rating has been established for these injuries.

CONCLUSION

Both experts appearing at this hearing, Dr. Ameis called by the Applicant, and Dr. Becker, called by the Insurer, agreed that B.P. meets the paragraph 2(1)(f) definition of catastrophic impairment.

I am persuaded that the following impairments have been established:

	Individual WPI%	Combined WPI%
right lower extremity	37	37
the skin	20	50
mental and behavioural	15	58
low back	5	60
left knee	2	61
left wrist and left elbow	2	62

Accordingly, I find that B.P. has sustained a catastrophic impairment within the meaning of paragraph 2(l)(f) of the Schedule as a result of the accident on May 10, 2002.

EXPENSES

The parties agreed that it was appropriate to bifurcate from the main decision, the issues of entitlement to and the quantum of the legal expenses of this arbitration hearing.

Having determined all of the issues in dispute in this proceeding except that of legal expenses, if the parties cannot agree on the entitlement to or the quantum of legal expenses, either party may request, in writing, an appointment before me to determine same, in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition Updated —October 2003).

December 21, 2006

Lawrence Blackman Arbitrator

Date