Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 44

FSCO A04-000446

BETWEEN:

Ms. G

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Lawrence Blackman

Heard:

March 2, 3, 7, 9, 10 and May 24, 2005, in Barrie, Ontario. April 22, May 18 and 20, 2005 by telephone conference call. July 15, 2005 in Toronto. Separate interim motion heard December 13, 2005 in Toronto, decision issued December 22, 2005.

Appearances:

M. Steven Rastin for Ms. G William G. Scott for Pilot Insurance Company

Issues:

This decision pertains to an injured individual, Ms. G, who is now thirty years old, married, with a young child. Upon requesting submissions from the parties, I have exercised my discretion to refer to the Applicant as Ms. G, and to make anonymous in my decisions the names of her family members, due to the very personal nature of some of the evidence received in this hearing.

Ms. G's injuries arise out of an August 20, 1998 motor vehicle accident. She maintains that she requires significant ongoing assistance as a result of these injuries. That assistance is expensive. Ms. G looks to her car insurer, Pilot Insurance Company ("Pilot"), to pay those expenses. Accordingly, Ms. G applied to Pilot for accident benefits payable under a statutory policy of motor vehicle insurance known as the Schedule.¹ Pilot has paid Ms. G significant benefits. Pilot says that it is not obligated to reimburse a significant portion of Ms. G’s further expenses because of its view, based on expert opinions, that Ms. G does not meet the minimum level of disability her insurance policy requires for payment of certain additional benefits. The minimum level of disability is that Ms. G must have sustained a catastrophic impairment as a result of her accident.

Section 2 of the Schedule defines what constitutes a catastrophic impairment. Ms. G argues, also based on expert opinion, that she did sustain a catastrophic impairment as a result of this accident. She submits that she meets the Schedules paragraph 2(1)(f) definition of catastrophic impairment of having combined impairments which result in at least a 55% "whole person impairment" (WPI) in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4^th Edition (Guides). In the alternative, she argues, that she meets the Schedule’s paragraph 2(1)(g) definition of having sustained a marked or extreme impairment due to a mental or behavioural disorder as set out in the Guides.

As the parties were at an impasse regarding Ms. G’s entitlement to specific statutory accident benefits, Ms. G applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (Insurance Act). The preliminary issues in this hearing are:

1. Did Ms. G sustain a catastrophic impairment as defined by paragraphs 2(1)(f) or 2(1)(g) of the Schedule?

2. Is Pilot liable to pay Ms. G's legal expenses in respect of this preliminary issue hearing, pursuant to subsection 282(11) of the Insurance Act?

3. Is Ms. G liable to pay Pilot's legal expenses in respect of this preliminary issue hearing, pursuant to subsection 282(11) of the Insurance Act?

Result:

1. Ms. G has suffered a catastrophic impairment as defined by paragraph 2(1)(f) of the Schedule.

2. Ms. G has not suffered a catastrophic impairment as defined by paragraph 2(1)(g) of the Schedule.

3. 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).

EVIDENCE AND ANALYSIS:

General Principles

As indicated, the Schedule entitles an insured person to claim an enhanced level of statutory accident benefits if, as a result of the motor vehicle accident, that insured person sustains an injury which is "catastrophic." As an example, section 19 of the Schedule increases the monetary cap for medical, rehabilitation and attendant care benefits from $100,000 to $1,000,000 where a catastrophic injury has been sustained.

Paragraph 2(1)(f) states that a catastrophic impairment includes:

. . . any impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993, results in 55 per cent or more impairment of the whole person.

The Guides define an impairment as a deviation from normal in a body part or organ system and its functioning. The Guides state that their premise is that it is possible to improve estimates of the severity of human impairments, based on generally accepted medical standards.

The Guides further state that impairments are conditions that interfere with an individual's "activities of daily living, such as standing, walking, caring for the home, recreational activities, social activities, work activities." 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 note that they do not cover all conditions arising out of injuries. They further state that while medical information is essential for the decision process, the key is the interpretation and use of the medical information. The critical problem, state the Guides, is that there is no formula known by which to combine knowledge about a medical condition with non-medical information about one's personal, social, occupational and other activities of daily life. The Guides specifically state that while they can help in such areas as workers' compensation, they "cannot provide complete and definitive answers."

The Guides further caution as to their reliability by strongly discouraging the use of any but the most recent edition of the Guides. The Guides are now more than a decade old, and have been replaced by further editions. The Schedule, however, dictates adherence to the outdated Fourth Edition, but with the proviso at paragraph 2(1)(3) that an "impairment that is sustained by an insured person but is not listed in the [Guides] shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person." The Guides strongly state that the impairment percentages derived from the Guides' criteria should not be used to direct financial awards or to make direct estimates of disabilities. However, as noted both in 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.), "the insurance legislation in Ontario appears to require precisely what the Guides themselves discourage."

Section 40 of the Schedule sets out the process by which catastrophic impairment is determined. Where an insured person applies to their insurer for such a determination, and the insurer is of the view that the impairment is not catastrophic, either the insured or the insurer may require an assessment by a designated assessment centre (DAC). Under subsection 40(4) of the Schedule, the DAC’s determination is binding, subject to determination of the dispute in accordance with sections 279 to 283 of the Insurance Act, which allow dispute resolution through the courts, private arbitration or arbitration at the Financial Services Commission of Ontario.

Hence, the approach of the Schedule is that ultimately this is an adjudicative, not a medical determination. The trier of fact is not simply reduced to choosing between expert medical opinions. The trier of fact, rather, has the responsibility under paragraph 2(1)(f) of the Schedule to endeavour, in accordance with the rules of statutory interpretation, to capture and accurately estimate all of the impairments that an insured person has sustained as a result of the accident.

It is important to remember that the Guides are, by reference, incorporated into the Schedule, and hence are to be given a remedial broad and liberal interpretation² that can be justified, as stated in Ruth Sullivan ed., Driedger on the Construction of Statutes, 3^rd ed. (Toronto: Butterworths, 1994) at p. 131 in terms of:

(a) its plausibility, that is, its compliance with legislative text;

(b) its efficacy, that is, its promotion of the legislative purpose; and

(c) its acceptability, that is, the outcome is reasonable and just.

In addition, it is important to be cognizant that the Guides are not intended to reduce human beings to a collection of bones, nerves, flesh and sinew. Body parts do not have impairments.

People have impairments. I agree with the comments of Dr. J. McCall, orthopaedic surgeon, in his December 3, 2003 report that "[i]n dealing with a case like [that of this Applicant], it is important to deal with the person as a whole and not just focus on the individual injuries." The challenge for adjudicators is to rise above the trees and to see the forest.

The intent of the Guides to accurately estimate the extent of each impairment means, amongst other things, not underestimating or overestimating the extent of the impairment. The former includes not penalizing insured persons for gaps in the Guides or in the catastrophic impairment designated assessment (CAT DAC) process. The latter concern includes not double counting impairments.

Double counting does not mean that one activity of daily living can only be counted once. Impairments of various parts of the body can affect one activity of daily living. Vacuuming may be affected by neck, back, foot, arm or other impairments. Each of those impairments must be separately rated. Double counting may exist where the impairment originates in one area of the body, such as the back, and the impairment extends to another body part, such as the leg, and each bodily area is rated separately. However, if one assesses the related back/leg impairment solely as one impairment, that rating must accurately and fully capture the complete extent of that impairment.

The DAC Report

In this case, Ms. G's counsel retained Comprehensive Medical Evaluations & Diagnostics Inc. (CMED) to address whether Ms. G had sustained a catastrophic whole person impairment (WPI) as a result of the August 20, 1998 motor vehicle accident. Dr. A. Taverniti, D.C., Clinical Director of CMED, concluded in his August 29, 2001 report that Ms. G had sustained a 62% WPI, based significantly on neck and back impairments.

On the basis of this report, Ms. G applied to Pilot, pursuant to subsection 40(1) of the Schedule, for a determination as to whether she had sustained a catastrophic impairment. Pilot did not accept CMED's opinion. Accordingly, Pilot set up a CAT DAC assessment with Multi-Disciplinary Assessment Centre (MDAC), which is authorized to determine catastrophic impairments under the Schedule.

Ms. G objected to the choice of this DAC, initially in January 2002 asserting there was a closer CAT DAC (as required by paragraph 53(3)(b) of the Schedule). Subsequently, by letter to Pilot dated March 13, 2002, Ms. G queried whether MDAC had a conflict of interest, in that one of its assessors, Dr. Jack Mayer, may have previously conducted an insurer's medical examination (IME) of the Applicant in May 2000.

Regarding the first objection, Ms. G submitted that the North Toronto Assessment Centre (North Toronto) was five kilometres closer to her than MDAC. The basis of this allegation was not provided. I accept Pilot's sworn affidavit evidence that, based on odometer readings, MDAC was 10 kilometres closer to the Applicant's residence than North Toronto.

As regards the allegation of conflict of interest, MDAC's January 29, 2002 Clinical Records Review was filed. It includes reference to the Conflict of Interest provisions of section 53 of the Schedule. Unfortunately, an error seems to have been made in what was provided, since the provisions included are those which apparently came into effect the following year pursuant to O. Reg. 281/03, s. 26.

At the time of MDAC's preliminary file review of Ms. G, as section 53 then read, a DAC had a conflict of interest if, amongst other things, a DAC or a related person had provided services (other than a prior DAC assessment) to the person to be assessed. The term "Related Person" is defined as including, amongst other things, a consultant retained by the DAC. The MDAC letterhead on the MDAC Review notes Dr. J. Mayer, neurosurgeon, as a consultant.

Authorized by section 7 of the Insurance Act, the Minister's Committee on the DAC System has issued various DAC Guidelines. Issued September/October 2000, General Guideline 5 addresses, in part, conflict of interest. The Guideline provides a Statement of Intent that DACs must not only be neutral, but must be perceived as being neutral. Noting as its purpose the promotion of neutrality by fine tuning current practices, Guideline 5 states that when a conflict of interest exists, the DACs "must ensure that it is declared and resolved satisfactorily." However, the "existence of a conflict does not mean that the assessment in question cannot be provided objectively and impartially."

Ms. G argues that MDAC was aware of the conflict of interest; MDAC's records include an undated note which states, "it now appears Mayer did an I.E. We missed it."

The Applicant submits that MDAC failed to disclose the conflict of interest and failed to try to resolve it. Rather, Ms. G argues, MDAC proceeded to further breach the Minister's Guidelines by receiving a telephone call from the adjuster regarding this issue (as revealed in MDAC's notes), a conversation it failed to confirm in writing with the Applicant, contrary to the Minister's General Guideline 4, entitled "Ensuring Neutrality of the Designated Assessment Centre System."

Dr. A. Ameis, MDAC's Medical Director and Director of Functional Evaluations, testified that:

Whether you follow the guideline depends on whether the guideline works for you, but the neutrality is certainly the issue, yes.

He continued:

Well again, I'm not suggesting that we play games with this, but I am suggesting to you that it is a guideline and you deviate it from - you deviate from it if you think you must and then you explain yourself.

Ms. G submits that the 2002 MDAC CAT DAC report did not explain why Guidelines 4 and 5 were not followed. She argues that the MDAC CAT DAC is fundamentally flawed and unreliable, and that little if any weight can be given to its opinions, including that of Dr. Ameis, who was called to testify as a representative of MDAC. Ms. G submits that the "more inclusive and reliable assessment of Dr. H. Becker should take its place." Dr. Becker has been the Clinical Coordinator of the North Toronto Assessment Centre since the latter's inception. Ms. G had argued from early 2002 that North Toronto had been the CAT DAC facility to which she should have been originally referred.

Pilot argues that as Dr. Mayer was never retained by MDAC to assess Ms. G, there was no conflict of interest. Secondly, it argues that the objection to the CAT DAC must be reasonable and not based on "DAC shopping." Thirdly, Pilot submits that Ms. G waived the conflict by attending MDAC.

I find that as MDAC had Dr. Mayer as a named consultant on its letterhead and as Dr. Mayer had performed a prior IME of Ms. G, MDAC had a prima facie conflict of interest both in the spirit and in the letter of the legislation. I find that MDAC failed to declare this conflict and failed to resolve it satisfactorily.

In a May 28, 2004 letter, Dr. Ameis writes that at the time of its assessment, it was MDAC’s protocol where one of its assessors or consultants had prior contact with a claimant, to send out a notice explaining their intention to isolate that practitioner from the assessment process. The notice would indicate that the DAC process would proceed, unless there was an objection within a set period of time. Accepting MDAC's responsibilities and its failure to meet them, Dr. Ameis apologizes in his letter that in this case, for a number of reasons and oversights, the appropriate notice was not sent. I am prepared to accept that this oversight was inadvertent. I am not persuaded that such conduct warrants essentially ignoring the MDAC report and, in lieu, simply adopting Dr. Becker’s evidence.

As noted above, my role, as an adjudicator, is not limited to simply picking, holus-bolus, between competing expert reports; rather, as stated by the Supreme Court of Canada in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9:

Experts, however, must not be permitted to usurp the functions of the trier of fact causing a trial to degenerate to a contest of experts.

I agree with the comments of Senior Arbitrator Rotter in Walker and State Farm Mutual Automobile Insurance Company (FSCO A-009905, February 23, 1996) that:

the evidence of a DAC assessor is and remains opinion evidence, which I must weigh carefully in coming to any conclusion. The weight to be accorded any such evidence must be in the discretion of the adjudicator, based on a careful evaluation of the thoroughness, relevance, neutrality and value of the opinion provided. Such factors as, for example, the familiarity with the details and history of a particular case, the length and thoroughness of the examination, and the particular area of expertise of the evaluator must all be carefully assessed. Ultimately, the arbitrator has the responsibility of considering all the evidence — not just the evidence from the DAC — and making a final determination based on his or her best judgement. It is not sufficient to simply accept or adopt the judgement of the DAC assessor, who does not have the legal responsibility or opportunity to hear and weigh all the available evidence in a particular case.

It is, thus, my intent to endeavour to carefully and critically analyse the evidence regarding each area of alleged impairment; in some areas I accept the evidence of one expert, in others, I reject the evidence of the same expert. In accepting one opinion of an expert, I do not consider myself bound to accept every opinion proffered by that expert. What I am bound to do is to provide reasons for my findings of fact and for my conclusions of law.

I find troubling Pilot's response to the legitimate conflict of interest concerns raised by the Applicant. The Insurer responded that this was "not Pilot Insurance Company's domain," that the DAC had declared that it did not have a conflict of interest. Nothing in writing, however, was produced to support the latter allegation. The most probable basis for Pilot's assertion is a February 22, 2002 telephone call from an adjuster cryptically documented in MDAC's notes.

Beyond the concern regarding one-sided communication with a DAC, Pilot's stand is contrary to the Supreme Court of Canada's declaration in Smith v. Co-operators General Insurance Co. [2002] S.C.R. 129 that "one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance." In meeting its obligation of utmost good faith to its first-party insured, an insurer cannot simply wash its hands over valid conflict of interest concerns, or hide behind an alleged "thumbs-up" from a DAC. Ensuring neutrality in such medical assessments is the insurers' domain.

I am further troubled by aspects of the MDAC assessment in this case. Notwithstanding, as stated in the assessment guidelines, that it "is the CAT DAC's responsibility to ensure that a comprehensive assessment of each claimant's impairment(s) is conducted to determine if the impairment(s) qualifies as catastrophic," MDAC failed to assign all of the necessary medical experts and failed to properly assess all of Ms. G's possible impairments, including her right forearm scar, her dental and dietary concerns and the mental and emotional sequella of this accident. As stated in Walker, this lack of thoroughness weakens the value and weight of the overall MDAC report.

Upon Ms. G's motion, after the close of evidence, I allowed into evidence the medical/ rehabilitation DAC reports of Work Able Centres Inc. (Work Able), completed March 11, 2005. These reports consisted of an orthopaedic assessment, a functional abilities evaluation ("FAE") and, most importantly in my view, a neuropsychological assessment. In exercising my discretion under Rule 81 of the Dispute Resolution Practice Code (the Code), I waived the Rule 39.1 requirement that reports must be served at least thirty days before the first day of the hearing, for the following reasons:

(a) Rule 43 of the Code allows an arbitrator to reopen a hearing at any time before he or she makes a final order disposing of the arbitration; in this case, no final order had been issued and final submissions were yet to be heard;

(b) the Work Able report was completed March 11, 2005, the day after the evidence had initially been completed. The report was received by Ms. G's counsel on March 16, 2005. Ms. G had no control over the timing of the report's release. I find that this evidence could not have been obtained by reasonable diligence by the Applicant prior to the close of evidence;

(c) The Desbiens decision, which was followed by Arbitrator Muir in McMichael and Belair Insurance Company (FSCO A02-001081, March 2, 2005) (the latter now under appeal), held that the determination of whole person impairment under paragraph 2(1)(f) of the Schedule can include mental or behavioural disorders. Dr. Comper's neuropsychological Work Able report was especially relevant in this regard. Further, I was of the view that Dr. Comper's evidence could potentially affect the result in this case;

(d) MDAC failed to address this area of alleged impairment. There was otherwise a scarcity of expert opinion relevant to this issue prepared at least three years after the accident. Subsection 2(2) of the Schedule sets as a prerequisite to catastrophic impairment determination confirmation that one's condition has stabilized or three years having elapsed since the accident. Primarily as a result of MDAC's failure to comply with its own guidelines to assess all of Ms. G's possible impairments, including the mental and emotional sequella of this accident, I found, pursuant to Rule 39.2 of the Code, that extraordinary circumstances existed warranting the late service of the Work Able reports and reopening the evidence;

(e) I found that Pilot's concerns regarding possible prejudice could be met as follows:

• Pilot was allowed the opportunity to cross-examine Dr. Comper;

• Dr. Ameis was allowed to prepare a further report commenting on Dr. Comper's neuropsychological report. Either party was free to call Dr. Ameis to give further evidence under oath regarding Dr. Comper’s report; and,

• Dr. Comper was to forward his data to Dr. W.A. Fulton (a psychologist who had prepared a prior IME psychological report on Ms. G) to allow the latter an opportunity to prepare a further report commenting on Dr. Comper’s report. Either party was at liberty to call Dr. Fulton to give oral evidence under oath;

(f) Pilot submitted that Ms. G could have obtained her own neuropsychological report prior to the start of the hearing. I find that Ms. G acted reasonably in retaining a CAT DAC expert, Dr. Becker, to provide a detailed critique of the MDAC report. I find that Ms. G’s failure to obtain her own neuropsychological report not determinative of the admissibility of the Work Able reports;

(g) the Work Able DAC, Pilot submitted, did not have jurisdiction to conduct its assessment. Tab 4 of Pilot’s brief, however, contains a November 9, 2004 letter from Pilot to the Applicant requiring her to be assessed at the DAC which subsequently followed. Having required Ms. G’s attendance, I am at a loss as to how Pilot can now say the DAC (which supported the Applicant’s position) lacked jurisdiction such that I should not allow the report into evidence.

Before proceeding, I wish to acknowledge and thank both Dr. Ameis and Dr. Becker for their most helpful evidence and their tremendous expertise in this complicated area of CAT DAC assessment. Their somewhat different philosophical approaches helped to better illuminate some of the shortfalls of the Guides as a less than perfect scientific tool. However, one’s enthusiasm for a topic may, on occasion, cloud the sometimes difficult line between neutrality and advocacy.

In this regard, I note my refusal to allow into evidence a final report of Dr. Ameis, dated June 18, 2005. My April 18, 2005 order specifically restricted Dr. Ameis further written and oral evidence to commenting solely on Dr. Comper’s neuropsychological report. Dr. Ameis report contravened my order, by advancing an argument, based on the other Work Able reports, that MDAC's prior impairment ratings for Ms. G's physical disabilities had been, in fact, too liberal. Dr. Ameis' report was provided to me by Pilot, presumably inadvertently, prior to the resumption of the hearing. Again, in accordance with Walker, advocacy by a DAC can serve to lessen the weight to be given to its reports and oral evidence.

Areas of Disability

1. The Right Lower Extremity

I find that as a result of this accident, Ms. G suffered a significantly comminuted calcaneal fracture. The calcaneus, better known as the heel bone, is the irregular quadrangular bone at the back of the tarsus (where the leg and the foot bones unite). Comminuted means broken or crushed into small pieces.

As a result of her injury, Ms. G underwent open reduction (surgical correction of the fracture after incision) and internal fixation (stabilization of the fractured bony parts with direct fixation to one another) by a surgical plate. An artist's colour rendition of this injury from a prior x-ray shows a "Y" shaped metal plate affixed by multiple screws to Ms. G's right heel bone.

I accept the evidence that in order to address her pain complaints, there is a significant possibility that Ms. G may require an arthrodesis, a surgical procedure fusing the joint surfaces. A treating orthopaedic surgeon, Dr. R. Velazquez, opined following a February 7, 2003 assessment that an arthrodesis is the only option to address Ms. G's pain, the other option being bracing, which had been tried and found wanting. Following his December 1, 2003 assessment of Ms. G, another treating orthopaedic surgeon, Dr. McCall, considered a future arthrodesis as being more than a 50% probability.

I find that Ms. G walks with a mildly antalgic gait, that is, a manner of walking so as to avoid pain. I find that she makes use of a cane for balance, support and to rest on, but that she does not fully rely on it. She may require the assistance of a wheelchair if longer distances are involved, such as at Canada's Wonderland or at the airport. She experiences a burning sensation in the right lower extremity ("RLE"), especially with activity. The lateral border of her foot is extremely sensitive. Standing for a while, walking or any activity or movement that involves the right foot, increases her pain. Her right ankle stiffens when she is lying down or sitting in one position for a long time. The sole of her right foot is sensitive to any rough surface (such as the non-skid strip in the bathtub) and she is unable to walk barefoot except on her toes.

I accept the evidence of Dr. E. Urovitz, orthopaedic surgeon and one of the MDAC assessors, that at the time of his April 2002 assessment Ms. G's most severe problem was her right lower extremity. I accept that it was constantly sore on a daily basis, the pain intensity being 6 out of 10, that the pain was aggravated by prolonged standing and walking and that she then required Percocet, predominantly for pain in this area, usually at a frequency of two to three per day. The more recent Work Able DAC reports indicate that Ms. G takes Tylenol and Advil on an "as needed basis."

I find that Ms. G's RLE symptoms, including pain, and limited standing and walking tolerance, adversely affect her activities of daily living (ADLs). I find that these ADLs include the following, as set out in the September 11, 2004 report of Ms. C.T. Maurice, an occupational therapist:

• meal preparation;

• laundry;

• floor care;

• vacuuming ability;

• bathroom cleaning;

• dusting;

• operating the brake and gas pedals when driving;

• grocery shopping;

• grass cutting; and,

• snow removal.

I find continued confirmation of these impairments in the January 17, 2005 Work Able FAE.

The question, then, is what assessment rating is to be given to Ms. G's RLE impairment?

Dr. A. Ameis, as summary co-ordinator of the MDAC report, was called by Pilot and was qualified as an expert witness to give opinion evidence as to CAT DAC procedures and as to whether Ms. G was catastrophically impaired as defined under the Schedule. In rating Ms. G's RLE injury, the MDAC team ultimately chose an assessment method combining strength and range of motion testing, resulting in a 21% WPI. The MDAC CAT DAC assessment team consisted of Dr. E. Urovitz, (as noted above) orthopaedic surgeon, Dr. A. Newall, physiatrist, and Ms. A. Krochmalnek, physiotherapist.

Dr. Ameis testified that once causal connection is established and the necessary examinations are completed, one looks to the Guides for the method or methods appropriate to score the impairment. In using the Guides, Dr. Ameis testified that one should run a parallel analysis of several methods in order to see if the results agree. If the different methods yield roughly the same score, then one has some confidence that the result is valid. One would then pick the highest of the alternate methods as the applicable WPI rating.

In assessing Ms. G's RLE impairment, the MDAC team turned to Chapter 3 of the Guides, entitled "The Musculoskeletal System." Page 3/75 of the Guides states that "[w]henever possible, the evaluator should use the more specific methods . . . in estimating impairments."

Dr. Ameis testified that it was difficult to find an accurate section to properly rate a comminuted fracture of the calcaneous. Simply looking at intra-articular fracture with displacement of the hind foot under Table 64 of the Guides would give WPIs of 6% for the subtalar bone and 3% for the calcaneocuboid bone. The MDAC CAT DAC assessors were not satisfied that these results accurately reflected the proper measure of the Applicant's impairment.

Therefore, the MDAC team first turned to Table 36, the Gait Derangement Table, in order to get a "quick and dirty" overview of Ms. G's impairment. Under this table, the MDAC team felt that the Applicant's RLE impairment was at the moderate level of severity, requiring the routine use of a cane. This resulted in a 20% WPI rating. Although the MDAC team felt that this was the least appropriate method of rating, they believed that the result was proportionate to the losses of function they believed Ms. G was experiencing from her RLE injury.

Although the MDAC team was of the view that Ms. G’s use of a cane was more part-time than routine for walking distances and that she did not usually use the cane at home (which would lead to a 15% WPI rating), the team concluded that a 20% WPI rating was "a safer score to apply because we knew that she had arthritic disease" in her hind foot, it did not underestimate "where we wanted to go with scoring" and that "it was better to err on the side of a higher score." As well, the 20% WPI "fell in and around" the ratings arising from the other methods.

Under the Gait Derangement Table, the next highest impairment rating is 30% WPI, the additional requirement for this rating being that the person requires the routine use of cane or crutch and the routine use of a short-leg brace. Dr. Ameis testified that testing indicated that Ms. G had Grade 4 power in her anterior calf muscles, which, while not normal, did not medically support a short-leg brace.

Dr. Velazquez had prescribed Ms. G an ankle-foot orthosis (AFO) in August 1999. However, the Applicant testified that the AFO did not assist her in extending the time that she could stand or walk. While it gave her more support, it also caused more pain, squeezed her ankle, cut off blood circulation and created a burning and a pins and needles sensation. Overall, the AFO made her situation worse and she stopped using it.

Page 3/84 of the Guides states that fractures in and about joints with degenerative changes should be rated either by using Diagnosis-based Estimates (or diagnosis-related estimates, i.e., "DRE") (rather than findings on physical examination) combined with the rating for arthritic degeneration or by using the range of motion section. The Guides recommend that the section providing the greater impairment estimate be used.

The difficulty with the DRE approach is that the applicable Table 64 would not properly capture Ms. G's impairment, as Ms. G's injury involves the joint between the calcaneus (the hindfoot) and the talus (the highest of the tarsal bones which articulate with the tibia and fibula to form the ankle joint).

Dr. Ameis testified that the alternate range of motion approach offered by the Guides resulted in something closer to a 10% WPI, which he felt was not reasonably proportionate to the amount of pain Ms. G was experiencing, nor the difficulty she had standing or walking. Dr. Ameis felt that while the range of motion method can provide a very precise score, the score here did not "reflect the fact that this individual cannot climb ladders, cannot do stairs, cannot walk on uneven surfaces." Dr. Ameis stated that it is more important to capture whether the person can walk rather than whether their range of motion is 30 degrees or 20 degrees. Dr. Ameis testified that:

you're constantly running this parallel analysis of different methods, different combinations, breaking rules or stretching rules a little bit if you need to get proportionality because our obligation was to get the highest possible score that was still contextually rational . . . for this individual's injuries and we thought that the 21 percent was . . . not the sort of the middle of the road but probably the highest of the three scores we could get in our approach.

Accordingly, the MDAC assessors decided to look at both weakness and range of motion regarding the lower extremity, as follows. It should be noted that the WPI rating is derived from a percentage rating of lower extremity impairment, which is derived from an initial assessment of impairment of the foot:

WPI

Impairment of the lower extremity (40% WPI)

Impairment of the foot

Weakness (Table 39):

ankle flexion (plantar flexion) - Grade 4

7%

(17)

(24)

ankle extension (dorsiflexion) - Grade 4

5%

(12)

(17)

Hindfoot deformity impairment (Table 44) valgus – mild

5%

(12)

(17)

Range of Motion:

ankle motion impairments: mild (Table 42)

3%

(7)

(10)

hindfoot impairment: moderate/severe (Table 43)

2%

(5)

(7)

Combined Values Chart

21%

One does not simply add impairments. Rather, as set out by Spiegel J. in Desbiens, the mathematical formula A + B(1-A) is applied. This formula is used both within an anatomical area and in combining different anatomical areas. As well, the Guides require that one start with the highest WPI individual rating and combine them by descending severity.

Dr. Ameis testified that this alternate assessment method chosen by the MDAC team, combining weakness and range of motion, departed "a little bit" from the proper Guides' methodology in that normally the results from one assessment method should not be added to the results from other methods. Dr. Ameis testified that Ms. G's RLE injuries, however, could not be "explained neatly using the system."

Dr. Ameis indicated that the MDAC team could not actually measure Ms. G's plantar flexion (Table 39) because of pain, so they gave an estimate based on weakness due to pain tending to be relatively proportionate between muscle groups, in this case, using the ankle, which was not the actual area of injury. Dr. Ameis testified that the MDAC team could have used Table 37 of the Guides which provides impairment ratings for the calf, but chose not to because they did not like the outcome, the score not being high enough for Ms. G. MDAC, however, did not assess every possible muscle on the table (omitting both inversion and eversion); rather, it was of the view that in this case it was a matter "of grabbing the muscles that are most key to your approach."

Table 42, noted in my table above, assesses ankle motion impairment. Dr. Ameis confirmed that while Ms. G did not have an ankle injury, her ankle was inhibited by pain. The team found that Ms. G fell within the mild category. Dr. Ameis testified that clinical information regarding range of motion testing varied from assessor to assessor. The MDAC team could have gone with the most severe finding, or the finding that made the most sense. Dr. Ameis testified that one "can get anomalies in measurement when you re dealing with someone who’s in pain."

Dr. Ameis testified that this methodology gave a score that was reasonably proportionate to Ms. G’s pain and the resultant difficulty she had walking. He further stated that although it was not set out in their report, the MDAC assessors double checked their results by using as a further yardstick, the DRE approach, which lead to the following findings:

WPI

Impairment of the lower extremity(40% WPI)

Impairment of the foot

Table 64 intra-articular fracture with displacement

• subtalar bone

6%

(15)

(21)

• calcaneocuboid bone

3%

(7)

(10)

Table 62 arthritic impairments [estimate: 1 mm cartilage interval]

• subtalar bone

6%

(15)

(21)

• calcaneocuboid bone

4%

(10)

(14)

Combined Values Chart

19%

The choice of a one mm cartilage interval was an educated guess. Dr. Ameis testified that the "calcaneocuboid, for example, you re talking about such a tiny joint that it’s such a refined opinion, is it one millimetre, is it half a millimetre, is it zero millimetres, that you go nuts." One millimetre "means a substantial loss of joint space, but not complete loss of joint space," one millimetre is one-third of the joint space. The difficulty with this table, however, is that it is designed for a joint that is wearing out, where there is uniform loss of cartilage interval on an x-ray. In the case of Ms. G, there is a comminuted fracture, the bone has been shattered, so there are "hills and valleys." Therefore, this method "kind of falls apart."

Dr. H. Becker was called as an expert witness by the Applicant. He was qualified as an expert in the area of DAC procedures generally and CAT DAC assessments specifically. In his February 5, 2003 report, Dr. Becker agreed with Dr. Ameis' 21% WPI for the RLE. He, however, cautioned, that as Ms. G had been prescribed an AFO, which she was not using due to secondary pain, one questioned whether the appropriate WPI rating should be higher than 21%.

The Applicant argued that the WPI rating for her RLE should be 30%, based on Table 36 (Gait Derangement). I do not agree for the following reasons:

1. the 30% WPI rating has as a prerequisite that the person requires the routine use of an AFO. I find that Ms. G does not require the routine use of an AFO. I find that the AFO was prescribed, as Ms. G testified, to help stabilize her foot and help her walk for longer periods. I find that the AFO failed in this regard. I find that due to resulting pain and discomfort, Ms. G stopped using the AFO;

2. I accept Dr. Becker's testimony that the Guides indicate that one cannot rate a limb impairment higher than would be provided by an amputation at that level. Table 63 provides a 25% WPI rating for a Syme (foot) amputation. In his August 29, 2002 report, Dr. Becker stated that a 30% WPI for the right lower extremity, as found by Dr. A. Taverniti, D.C. (who was earlier retained by Ms. G), "seems rather high considering the fact that a below knee amputation more than 3 inches below the knee represents only 28% whole person impairment"; and,

3. the 30% WPI rating on the Gait Derangement Table is inconsistent with the other two methods applied, methods which Dr. Becker himself found acceptable.

The Work Able DAC report included a January 2005 FAE by Ms. S. Doble, physiotherapist, and Ms. L. Korhonen, O.T. Their report documented Ms. G's continuing RLE complaints, including sensitivity, pins and needles, burning and stabbing sensations and swelling with prolonged standing. Ms. G presented with poor tolerance for standing, walking, crawling, carrying and weight bearing because of her RLE impairment. She demonstrated a "one step pattern ascending and descending" stairs, holding her cane in her left hand and grasping the rail with her right. She was observed not using her cane while in the facility on several occasions. Consistent with prior evidence, when in bare feet, Ms. G stood with only the toes of her right foot touching the ground. The FAE reviewed testing of Ms. G's right ankle, as did Dr. M. Tile, who performed the orthopaedic assessment of the Work Able report, which showed some improved results. I am not persuaded that these more recent reports justify a WPI rating of less than 21% for the following reasons:

1. these reports did not assess Ms. G's WPI impairment, as this was not their purpose;

2. as noted by Dr. Ameis, it is not Ms. G's ankle that is the area of injury;

3. I agree with Dr. Ameis that it is dangerous to rely simply on range of motion testing of the ankle to arrive at a WPI rating, especially when it is not the ankle which is the subject area;

4. I find the functional difficulties continuing to be expressed by the Applicant consistent with the prior reports;

5. I accept Dr. Ameis' evidence that Ms. G's RLE impairment is difficult to accurately assess using the Guides;

6. I accept Dr. Ameis' evidence that it is more important to capture whether a person can walk rather than whether their range of motion is 30 degrees or 20 degrees;

7. I accept that clinical testing can vary from assessment to assessment, especially when one is dealing with one in pain;

8. I accept Dr. Ameis' evidence that a 21% WPI reasonably and properly captures Ms. G's level of impairment;

9. I accept Dr. Ameis' evidence that it is important in this area that one should run a parallel analysis of several methods to see if the results agree. I find that under Table 36, the word "routine" (modifying the words "use of cane") means more than "part-time" (used to describe mild severity) and less than "dependent" (used to describe the most severe level of impairment, i.e. wheelchair dependency). I find that Ms. G requires the routine use of a cane. I find it important that the three different approaches used by MDAC agree;

10. I place far greater weight in this instance on the reports of MDAC and Dr. Becker, which specifically addressed WPI rating under the Guides, than the Work Able orthopaedic and FAE reports, which were focussed on the reasonableness and necessity of a specific treatment plan; and,

11. I accept the recommendation at page 3/84 of the Guides that the section providing the greater impairment should be used.

Accordingly, I accept MDAC's 21% WPI for Ms. G's RLE, with one amendment.

Ms. G testified that she has no feeling in her right little toe, that some shoes can ultimately cause bleeding because she cannot feel if the shoe is pushing against the skin. Dr. J. Maher, neurologist, in his March 2001 letter confirmed numbness and hypersensitivity of the Applicant's right little toe. Dr. Newall in his CAT DAC report noted, on sensory examination, "a decrease to all modalities over the 5^th toe of the right foot." MDAC gave the toe a 0% WPI.

Dr. Becker opined that this impairment rated a 1% WPI pursuant to Table 68, which addresses impairments from nerve deficits. He stated that the lateral plantar covers the little toe and two thirds of the sole. The Guides set a 2% WPI for lateral plantar impairment. As the impairment was only to the toe, Dr. Becker was of the view that a 1% WPI was appropriate.

Dr. Ameis agreed that Table 68 addressed any toe impairment. He testified that because the sensory loss was all around the toe, it was a little confusing as to which nerve was involved, and therefore, difficult to score. He also stated that there was an issue whether there was a functional loss. He noted that those who examined Ms. G decided not to give an impairment rating, but he could understand Dr. Becker’s thinking.

I accept the Applicant’s evidence and find that there is a loss of function regarding her right little toe. I find that a 1% WPI is reasonable. I find that it is reasonable to follow MDAC’s approach in including this impairment assessment in the same discussion as the RLE. Therefore, combining the additional 1% WPI for the right little toe with the MDAC’s 21% WPI for the RLE, results in a total 22% WPI. I find that this rating appropriately captures and is representative of Ms. G’s impairment and the interference in her activities of daily living resulting from her comminuted calcaneal fracture and right foot injury, and the resultant pain, sensitivity and functional limitations.

2. The Right Upper Extremity

I find that as a result of this car accident, Ms. G suffered displaced (removed from their normal position) fractures of her right forearm, involving both the radius (the bone on the outer or thumb side of the forearm) and the ulna (the inner and larger bone of the forearm, opposite the thumb). Open reduction (correction of the fracture after separate incisions into the two sites) and internal fixation (stabilization of the fractured bony parts by direct fixation to one another, in this case with seven-hole compression plates and metallic screws) was required of both bones. I found Ms. G to be a credible witness whose evidence regarding her right arm impairment was essentially unchallenged. Ms. G is right-handed. She testified that she has a full range of motion of her right wrist. However, I accept her evidence that she still has problems with her forearm. I find that her right wrist is weak, that she cannot do things repetitively or for a prolonged period with her right hand, such as using a computer mouse.

I further accept Ms. G’s oral and documentary evidence that she refrains from putting dishes away as she drops a lot of dishes if she relies on her right extremity, that she cannot lift heavy pots or pans, that her husband cooks most meals and that she is restricted in her pre-accident housecleaning tasks such as cleaning the bathtub and vacuuming. I also accept that Ms. G’s biggest concern is lifting her baby and that she has restricted how long she holds her baby as she has almost dropped the child.

Ms. G's oral evidence highlighted the September 11, 2004 In-Home Occupational Therapy Assessment of Ms. Maurice, O.T., who stated that Ms. G continued to suffer from decreased strength in her right hand. I accept Ms. Maurice's unchallenged statements that the following are some of the activities of Ms. G's pre-accident daily living which were interfered with as a result of right forearm pain and decreased strength:

• meal preparation, including lifting of pots and chopping of food;

• scrubbing of dishes;

• changing of bed linens;

• folding of laundry;

• floor care;

• vacuuming;

• bathroom cleaning;

• dusting;

• carrying large or filled grocery bags;

• flower and garden maintenance;

• grass cutting;

• snow removal; and,

• child care.

Dr. Ameis testified that the proper method of assessing right forearm impairment is to find the range of motion limitations imposed by the fractured bones. The MDAC assessors found ratable impairments of wrist inversion (bringing the thumb sideways) and eversion (bringing the little finger sideways), also referred to as radial and ulnar deviation, which resulted in a 1% WPI. The MDAC assessors also found a 1% WPI for pronation (turning the wrist downwards).

Pilot, however, relies on January 2005 physical evaluations performed by the Work Able DAC. Dr. Tile, the assessing orthopaedic surgeon, reported that Ms. G had completely normal supination (turning the wrist upwards) and pronation. The accompanying FAE stated that Ms. G had full active range of motion and functional strength of her wrists. Pilot submits that the range of motion right upper extremity (RUE) impairments should be zero.

I do not agree. Dr. Tile's report only refers to supination and pronation. It does not note his findings, if any, regarding, for example, wrist flexion (bringing the wrist down), wrist extension (bringing the wrist up), wrist inversion or wrist eversion. The FAE report does not note what specific movements were tested.

The questions put to the Work Able medical/rehabilitation DAC were specific to the reasonableness and necessity of a child care provider and whether the Applicant should participate in a pain management or cognitive behavioural program. The DAC recommended both. Work Able did not have before it, nor did it consider, the question of whether Ms. G was catastrophically impaired, as defined in the Guides.

I note Ms. G's oral evidence that she has a "good range of motion . . . full range of motion" of her right wrist. I find that this shows forthright honesty and candour on the part of the Applicant. Ms. G, however, is not a medical expert. I find the MDAC CAT DAC, which found a minimal WPI rating of 2% as a result of their extensive testing regarding range of motion, is the best evidence before me in this regard.

In addition, I again note the requirement of subsection 2(2) of the Schedule that clauses (f) and (g) can only be utilized as a basis for catastrophic determination once an insured's condition has stabilized and is not likely to improve with treatment, or at least three years have elapsed since the accident. I find, therefore, that one must keep in consideration the insured's long-term medical prospects. Dr. R. Velazquez, a treating orthopaedic surgeon, discusses in his April 5, 2003 report the issue "of the hardware as a source of pain" and the argument for and against further surgery to remove the plate on the radius bone, with the risks of infection, neurovascular injury and/or re-fracture. Considering these possible future risks, I find it appropriate to err on the side of caution and the possibility of further deterioration in assigning a WPI rating.

In any event, the Work Able DAC did not undermine the prior assessments as to the extent of the Applicant's overall upper right extremity impairment. The FAE noted cautious and slow use of the right arm with complaints of weakness and discomfort, Ms. G supporting the right arm with the left hand under the elbow, and rubbing and rotating the right wrist. The FAE noted several of the earlier reported impediments of daily living as a result of the right arm impairment, including grocery shopping, vacuuming and mopping.

More fundamentally, Dr. Ameis testified that the MDAC assessors did not feel that the range of motion scores "were in any way representative or sufficiently representative of what [Ms. G] complained of, or reported in terms of her difficulty in daily life." Accordingly, the assessors used grip testing and strength to supplement their score, notwithstanding Dr. Ameis' expert view that this is a very poor method of scoring which is strongly discouraged because it is dominated by subjective factors, such as inhibition of pain, which are difficult to control and "you can get differences in findings from day to day by the same examiner." Hence, when the CAT DAC reported that the right hand grip test results were not reliable, those remarks were not specific to Ms. G, but rather general to the nature of the testing.

Nonetheless, Dr. Ameis testified that the Guides indicate that "if the examiner believes the patient's loss of strength represents an impairing factor that has not been considered adequately, the loss of strength may be rated separately."

MDAC's Evaluation Summary Report noted that Ms. G's right forearm muscles are smaller in comparison to the left. MDAC found that Ms. G's loss of strength in her right upper extremity was 63%, which translates into a 30% upper extremity impairment, which represents an 18% WPI. Dr. Ameis testified that when added to the two 1% WPIs resulting from the range of motion testing, a 19% WPI results. Ms. G's expert, Dr. Becker, indicated in his report of February 3, 2003 that he was comfortable with the 19% WPI rating.

I agree with MDAC's analysis regarding the RUE, except that I find that, using the Combined Values Chart on pages 322 to 323 of the Guides, that the combined:

• 18% WPI for Table 34 Upper Extremity Impairment for Loss of Strength,

• the 1% WPI for Figure 35 Upper Extremity Impairment due to lack of pronation, and

• the 1% WPI for Figure 29 Upper Extremity Impairment due to abnormal radial and ulnar deviations of the wrist joint

result in a 20% WPI. I find that this rating appropriately captures and is representative of Ms. G’s impairment, that is the interference in her activities of daily living resulting from the pain, weakness and limitation of movement resulting from her right ulna and radius fractures.

3. Mental Status

Ms. G states that as result of this car accident she has suffered psychological injury as well as a possible brain injury. She maintains that an impairment rating should be assigned to this injury. She relies, in part, on the opinion of Dr. Becker. Dr. Becker's February 5, 2003 report provided an impairment rating of 10 to 14%, upon his consideration of the mental status and emotional or behavioural impairment tables listed in Chapter 4 (which deals with the Nervous System) and the Mental and Behavioural Disorders addressed in Chapter 14 of the Guides.

Pilot submits that the evidence does not support the impairment rating advanced by Dr. Becker, and that, in any event, the impairment has already been accounted for in the orthopaedic scoring provided by the CAT DAC.

Ms. G testified that she has problems focussing and concentrating. Reading takes much longer as she forgets information and has to repeatedly return to the same paragraph. Her husband leaves notes around the house to remind her of things. She was unable to follow through with a business correspondence course. She was unable to complete a workplace assessment. She angers easily, she gets withdrawn, some days it is hard to get out of bed. Ms. G denied having similar problems before this car accident. I found the Applicant a sincere, credible, well-spoken witness. She was neither histrionic nor inclined to exaggeration in her oral evidence; rather, I found her rather impressively stoical considering the extent of her documented, objective and accepted injuries and impairments. I accept her evidence.

Ms. G started seeing a psychotherapist, Ms. L. Nichols, a few months after the accident and was continuing to see her in 2005. Ms. G also testified that she tries hard not to get depressed to the point that she cannot function. She testified that she gets angry very easily, that she is frustrated, especially with her new baby. She stated that she has not formed a better bond with her daughter "because everything we do I have to have somebody there with me for safety, as well as support."

The emotional, behavioural and mental difficulties enumerated by Ms. G are well documented.

Ms. Nichols' January 31, 1999 psychometric evaluation reported Ms. G meeting the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV) criteria for post-traumatic stress, the impairment level being in the severe range. Ms. Nichols' February 28, 2000 report concluded that test results clearly showed the Applicant as one who felt hopeless, depressed and guilty about her physical and emotional dependency needs.

Concurrently, at Pilot's request, Ms. G saw Dr. A. MacLeod, a psychologist, for a September 9, 1999 IME. Dr. MacLeod notes that Ms. G continued to report symptoms consistent with a post-traumatic stress disorder, including intrusive thoughts, intense fear, diminished participation with and feelings of estrangement from other people, diminished interest in significant activities, irritability and difficulty concentrating. Ms. G also reported memory problems as well as depression and anxiety. She had been overwhelmed by the accident, which occurred, in Dr. MacLeod's words, "at a time when her life was just coming together in the sense that she had found her first satisfying full time employment and was about to marry and purchase a home. All of this has now had to be put on hold."

Dr. MacLeod was of the view that his validity scale results did not suggest that the Applicant was malingering. He concluded that "[c]ertainly her psychological depression and anxiety would on their own impair her ability to be reintegrated vocationally or cope with her regular activities of daily living, let alone coping with the high levels of pain she must endure."

The report a few months later, dated January 6, 2000, of Dr. K. Wilkins, physiatrist and Chief of Rehabilitation Medicine at the Royal Victoria Hospital in Barrie, included in the diagnosis a "significant possibility" that Ms. G had suffered a mild brain injury. Dr. Wilkins, who saw the Applicant at the request of her counsel, endorsed the need for ongoing support for Ms. G's psychological trauma as well as recommending a neuropsychological evaluation.

The latter evaluation was subsequently conducted by Dr. Fulton, a psychologist, as part of a further IME arranged by Pilot. The purpose of the January 12, 2000 assessment was to comprehensively evaluate Ms. G's neuropsychological and emotional status and to determine whether she was suffering from any residual symptoms of a possible head injury. Dr. Fulton's review of the pre-accident notes of the Applicant's family doctor from April 1991 concluded that there was "no indication of any psychological/psychiatric difficulty or cognitive disorder." Post-accident records noted a diagnosis of depression by Ms. G's family doctor, as well as irritability, and recommendations of counselling for depression.

Dr. Fulton was of the view that the evidence for significant or serious head injury was minimal. He was of the view that at the very worst, Ms. G had suffered a mild traumatic brain injury, i.e., a concussion. She was not sleeping well, but there was no change in her sense of smell or taste. She reported that her mood had changed dramatically, that she was highly irritable, hypersensitive and susceptible to emotional outbursts.

Dr. Fulton noted that Ms. G had completed high school, achieving mostly A's and B's. She had subsequently attended Georgian College for arts and sciences.

Testing, according to Dr. Fulton, revealed subtle impairment involving losses in mental tracking ability, decreased mental energy and loss of capacity to sustain focussed attention. Dr. Fulton noted that the test results were considered to be valid. Although testing suggested at least the possibility of a mild traumatic brain injury, Dr. Fulton was of the view that Ms. G's neurocognitive deficit was mild and would not result in any significant disability regarding return to work efforts. Nonetheless, Dr. Fulton stated that the Applicant "will be easily overloaded in busy, noisy, hectic, or cognitively demanding environments, will be highly prone to mental fatigue, and once exhausted, is highly prone to making errors."

Dr. Fulton thought that Ms. G's difficulties were not, "strictly speaking, of a 'cognitive nature, but rather are more psychological/emotional, taking the form of a post-traumatic stress disorder and a personality change due to a general medical condition." Dr. Fulton was of the view that these difficulties were moderate to severe and prevented her "from adequately accessing and applying her cognitive abilities to day-to-day situations" and required ongoing treatment.

Ms. G was seen by the MDAC assessors in March 2002. As noted above, the Guidelines to conducting CAT DAC assessments, dated October 2001, state that it is "the CAT DAC's responsibility to ensure that a comprehensive assessment of each claimant's impairments(s) is conducted to determine if the impairment(s) qualifies as catastrophic."

MDAC did not assess Ms. G from a psychological or neurological perspective. Dr. Ameis testified that based on Dr. Fulton's report two years prior, there was abundant clinical examination already done and it was not necessary to put Ms. G through further neurological or neuropsychological testing. Yet Dr. Ameis agreed on cross-examination that the MDAC report did not "mention, discuss, touch on or rate the issue of head injury at all." Dr. Ameis testified that the reason it was not mentioned was because the impairment rating was zero, that there was no neurological impairment score to be had.

Dr. Ameis further stated that MDAC did not assess Ms. G’s psychological impairment given its understanding of the law before Desbiens that mental or behavioural impairments could not be added to physical impairments and given that Ms. G clearly did not meet the Class 4 or 5 impairment required by paragraph 2(1)(g) of the Schedule. Dr. Ameis, however, conceded on cross-examination that he was not saying that Ms. G had a zero emotional or behavioural impairment under Table 3 of Chapter 4 of the Guides (pertaining to the Nervous System); rather, he would not know what the score would be; it would not be "as simple as a quick look-up." What he first required was additional information, including a neuropsychiatric inventory.

Given the failure of MDAC to assess Ms. G’s neurological or psychological impairment, is there a proper basis upon which I can make an assessment?

Dr. Fulton conducted a paper review in 2005. His April 27, 2005 report states that he remains of the view that Ms. G’s difficulties are primarily psychological and emotional in nature and that they prevent her from adequately accessing and applying her cognitive abilities in day-to-day situations. Dr. Fulton indicated he was no longer optimistic regarding improvement. He was now of the view that the difficulties had become chronic, that "nonproductive/maladaptive behaviour patterns have become increasingly well entrenched." He concluded that "[r]ehabilitation efforts were simply unsuccessful with this unfortunate woman."

Dr. Fulton's most recent IME opinion was fairly consistent with the opinion of Dr. P.J. Muller, neurosurgeon. Writing to Ms. G’s counsel following an office consultation, Dr. Muller’s March 1, 2001 report opines that, although Ms. G sustained a minor closed head injury, in association with post-traumatic stress the result had been significant impairment. The April 26, 2000 report of Dr. D. Scher, a psychologist retained by Pilot, notes Ms. G's memory and concentration concerns, as well as tension, frustration, moderate depressive symptoms and heightened anxiety.

As noted above, Ms. G was more recently seen by the multi-disciplinary Work Able DAC. Dr. Comper, psychologist, in his March 11, 2005 report, noted Ms. G describing herself as moody, angry, tearful, emotionally withdrawn, frequently sad and hopeless, forgetful, unable to maintain her focus, losing her train of thought easily and finding it difficult to read and retain information. These difficulties echo earlier concerns. Ms. G further indicated, however, that she was now easily irritated and moved to anger when her ten-month old baby did such things as spitting out food or crying because the child was teething.

Importantly, Dr. Comper noted, unlike the doctors noted above, that validity testing for Ms. G indicated possible exaggeration of genuine cognitive difficulties, or possibly, may have been a "cry for help." I agree with Dr. Comper's warning that Ms. G's neurocognitive test results must be interpreted with caution.

Dr. Comper concludes that "there is simply no compelling evidence at this point that Ms. G has any residual significant cognitive dysfunction related to an acquired brain injury" [emphasis added]. Dr. Comper specified that there is no current data indicating poor judgment or reasoning ability, intellectual decline or memory impairment due to brain injury. This appears to be the reasoned consensus of specialists having expertise in this area, and I accept this opinion.

Dr. Comper was also of the view that Ms. G's current symptoms did not warrant a diagnosis of Post-traumatic Stress Disorder. It was, however, his opinion that Ms. G's behaviour, demeanour, her description of her symptoms and her responses to questionnaires all pointed to a significant chronic mood disturbance, probably a Major Depressive Disorder or possibly a Pain Disorder Associated with Psychological Factors and a General Medical Condition. I accept Dr. Comper's conclusion (consistent with the opinions of the various experts noted above, especially the IME expert, Dr. Fulton) that Ms. G is suffering significant problems from a psychological and emotional standpoint. I accept Dr. Comper's opinion that the lower validity testing scores, which pertain to cognitive impairment, do not detract from this conclusion. I accept and agree with Dr. Comper's oral evidence that Ms. G's lower scores were a "cry for help" scenario.

Towards the end of his oral evidence, Dr. Comper noted concern that Ms. G was "not well-equipped to deal with the energy and volatility of a two-year old to the point where there was some concern on her part expressed for acting out towards the child." At page seven of his report, Dr. Comper notes he specifically asked the Applicant, in the context of her irritability and anger, whether she had "ever been afraid that she might harm her child." The Applicant responded that she was able to control her anger by "walking away."

Nonetheless, opining that Ms. G's mood problems, irritability, anger and pervasive sadness would likely be exacerbated by "any sort of oppositional behaviour posed by a child just now entering the 'terrible two's, '" Dr. Comper recommended fifty hours per week of child care as reasonable and necessary "to ensure the safe care of the child." Dr. Comper also recommended counselling. Dr. Comper specifically stated that the Applicant's restricted physical mobility was beyond his expertise. Hence, I conclude, that when talking about "safe care," Dr. Comper was not talking about Ms. G inadvertently dropping her child because of right upper extremity weakness.

Chapter 14 of the Guides addresses mental and behavioural disorders.

It may be argued that Chapter 14 should not be included in WPI ratings for the following reasons:

4. Paragraph 2(1)(f) of the Schedule [55% WPI] is separated from paragraph 2(1)(g) [mental and behavioural disorders of Class 4 (marked impairment) or Class 5 (extreme impairment)] ratings by the word "or." It may be argued that the word "or" means that one cannot include impairments due to mental or behavioural disorders within paragraph "f."

I would not agree.

In my view, the word "or" serves to separate not merely "f" from "g," but also each of the seven listed alternative meanings of catastrophic impairment from each other. To accept the "f" versus "g" argument, one must equally accept that since paragraph 2(1)(d) of the Schedule provides that one is catastrophically impaired if one suffers the total loss of vision in both eyes, the total loss of vision in one eye, while insufficient to meet the requirement of "d," could not be included in "f." Likewise, paragraph 2(1)(b) states that one is catastrophically impaired if one has suffered the amputation causing the total and permanent loss of both arms. Accepting the same argument, the loss of only one arm, while insufficient to meet the definition in "b," could not be counted in "f." I am not persuaded that this was the intent of the drafters of this legislation, either in terms of plausibility, efficacy or acceptability, as those terms are understood in Driedger. I further find such an argument at odds with the reasoning in Desbiens, noted above, which was accepted by Arbitrator Muir in McMichael. While neither decision may be binding on me, I find the reasoning persuasive and follow those decisions.

I also note that the Catastrophic Impairment Designated Assessment Centre Assessment Guidelines, October 2001, while not binding on me, also, as noted above, confirms the CAT DAC's responsibility to ensure a comprehensive assessment of each claimant's impairments. This corresponds with what I find is the general intent of paragraph 2(1)(f) and subsection 2(3) of the Schedule, as set out in Desbiens and McMichael, that the determination of WPI requires the inclusion of all impairments arising from the motor vehicle accident.

2. That a percentage rating is not provided in paragraph 2(1)(g) of the Schedule.

The Guides note a concern that "percentages are likely to be used inflexibly by adjudicators, who then are less likely to take into account the many factors that influence mental and behavioural impairment." Even if that is true, insured persons should not be penalized by excluding an impairment rating because medical science lacks a more objective, scientific means of rating psychological, mental or behavioural impairment.

I again agree with Arbitrator Muir in McMichael that:

practical difficulties aside, the Schedule requires the addition of all impairments, however caused, together in arriving at the appropriate WPI.

I further again note paragraph 1(3) of the Schedule which states that an "impairment that is sustained by an insured person but is not listed in the [Guides] shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person."

The Guides state, at page 14/292, that an individual may have a mental or behavioural impairment without meeting the criteria specified in the DSM-III (Diagnostic and Statistical Manual of Mental Disorders, Revised Third Edition)^3, or in the ICD (Manual of the International Statistical Classification of Diseases, Injuries, and Causes of Death).⁴

While the Guides require that the presence of a mental disorder must be documented primarily on the basis of reports from accepted professional sources such as psychiatrists, psychologists and health professionals in hospitals and clinics, information from non-medical sources, such as family members who have knowledge of the patient may be useful in determining the severity of the impairment. An individual’s own description of their functioning and limitation is acknowledged as an important source of information.

In assessing the severity of an impairment in this area, the Guides refer to four criteria:

• activities of daily living, such as cleaning, shopping, cooking etc.;

• social functioning;

• concentration, persistence and pace; and,

• deterioration or decompensation in work like settings.

The Guides state that a deliberate decision was made not to use percentages to estimate mental impairment. Nonetheless, paragraph 2(1)(f) requires a percentage analysis. As noted above, subsection 1(3) of the Schedule provides that if an impairment, or by implication an impairment rating, is not provided, one must look to a listed impairment most analogous to the impairment sustained.

The Guides provide five classes of impairment due to mental or behavioural disorders, ranging from no impairment to Extreme Impairment. Classes 4 and 5, by themselves, constitute catastrophic impairment pursuant to paragraph 2(1)(g) of the Schedule.

Perhaps fortuitously, the Guides refer to the earlier (1984) Edition which also provides five classes of impairment from normal and self-sufficient (0% to 5% impairment) to severe impairment and "quite helpless" (more than 75% impairment). The concern with percentage ratings was that they were highly subjective, that unlike the situations with some organ systems, there are no precise measures of impairment in mental disorders, that the use of percentages implies a certainty that does not exist. It could be argued that the same concerns apply to physical impairments such as the RLE, dealt with above.

Dr. Ameis' September 10, 2004 report states at page 14 that Ms. G was properly placed in the "mild" category of Class 2 under Chapter 14's mental and behavioural disorders. This level of impairment is compatible with "most" useful functioning. There is little, if any, disagreement that Ms. G does not meet the criteria of "Marked Impairment" (useful functioning is significantly impeded) or "Extreme Impairment" (impairment levels preclude useful functioning) under Chapter 14. I am not persuaded that the evidence supports either of these measurements. Accordingly, I find that Ms. G does not meet the paragraph 2(1)(g) definition of catastrophic impairment under the Schedule.

However, Dr. Ameis' opinion of "mild" impairment would lead to an impairment rating of 10% to 20%, should the 1984 Guides be followed. I accept Dr. Comper's diagnosis of Major Depressive Disorder. I accept that Ms. G's psychological disorder has materially interfered with her activities of daily living, most significantly the care of her young daughter, that it has impaired her social functioning, her concentration and ability to maintain focussed attention and has contributed to difficulties in adapting to work or other settings.

I accept Dr. Ameis' evidence that it is important, where possible and practical such as in the RLE analysis, to double check one's rating with other appropriate methods of analysis.

Dr. Becker proposed, as an alternative, looking at Chapter 4 of the Guides, on the basis that Ms. G may have suffered a head injury which led to impairments. Chapter 4 provides criteria for evaluating permanent impairments resulting from a dysfunction of the brain and the nervous system. The emphasis in this chapter is on impairments that may be identified during a neurological evaluation.

Chapter 4 includes, starting at page 4/141, a subsection for emotional or behavioural disturbances. The Guides note that the disturbances may be the result of neurological impairments, but may have psychiatric features as well, including depression and emotional fluctuations. The Guides further state that Table 3, entitled Emotional or Behavioural Impairments, relate to the criteria set out in Chapter 14, noted above.

Table 3 consists of four classes of Emotional or Behavioural Impairments. The least severe of the four classes rated therein provides a 0% to 14% WPI where there is "mild limitation of daily social and interpersonal functioning." The next level of impairment (15% to 29% WPI) requires moderate limitation of some but not all social and interpersonal daily living functions. I find that Ms. G would fall, even on a conservative analysis, at the dividing point between these two levels of impairment.

Dr. Becker also referred to Table 2 in Chapter 4, which assesses mental status impairment. Table 2 also consists of four classes, the least severe having a rating of 1% to 14% WPI. This class encompasses situations where "impairment exists, but ability remains to perform satisfactorily most activities of daily living." For the next level (15% to 29% WPI), the impairment is such that the insured requires direction and supervision of daily living activities. I find that is not the situation here. I would place Ms. G at the higher end of Class 1.

In looking at these alternate measures of rating impairment, I find that there is overlap at a 14% WPI, which I find appropriately captures Ms. G's mental, psychological, emotional and behavioural impairments resulting from her accident.

There is an important concern that impairments not be "double counted." Dr. Ameis testified that in rating Ms. G's RLE and RUE impairments, MDAC had captured her objective physical scores as well as her pain and her psychological impairment.

I do not agree that MDAC captured the Applicant's psychological impairment.

Firstly, MDAC retained no psychiatrist, psychologist or related expert to assess Ms. G's psychological impairment. It would not be within the expertise of the orthopaedic surgeon, the physiatrist or the physiotherapist who made up the MDAC assessment team to provide such an opinion, nor can I see that any such opinion was provided.

Further my findings, for example, regarding the RLE provide a WPI rating based on pain, limited standing and walking tolerance and their effect on Ms. G's activities of daily living. My RUL rating is based on pain and decreased strength and their effect on activities of daily living. These discussions did not include any consideration of depression, anger, anxiety, problems focussing and concentrating, hopelessness, guilt, diminished interest or feelings of estrangement from other people for the simple reason that those criteria were not relevant to range of motion testing, weakness testing, diagnosis-related estimates (DRE) or gait derangement.

My findings on the right forearm scarring, dealt with below, specifically exclude any consideration of the mental and/or behavioural consequences of the impairment.

I accept Dr. Comper’s oral evidence that "not everybody that has orthopaedic injuries gets psychological problems." I find that rating orthopaedic injuries does not automatically include emotional or psychological impairments. I find that as important as it is to avoid "double counting," it is equally important to ensure that all impairments are accurately and appropriately rated.

4. Forearm Scar

In addition to her RUE injuries noted above, Ms. G has a mid anterior longitudinal scar over her right forearm as a result of the accident. Ms. G testified, and I find, that the scar is sensitive to cold and to the touch of anything with which it comes into contact. I accept her evidence that she prefers to keep her sleeves raised. Dr. Becker described the injury as follows:

[a] 15 centimetre scar over the right volar forearm with 32 'needle tracks' and a 14 centimetre scar over the ulnar aspect of the forearm with again, 34 'needle tracks'. The area particularly over the volar forearm, was extremely hypersensitive. The hypersensitivity extended to the base and middle aspect of the thumb.

Chapter 13 of the Guides, entitled "The Skin," "provides criteria for evaluating the effects of permanent impairments of the skin and its appendages. These are considered especially in terms of the effects they may have on an individual’s ability to carry out daily activities, including those related to employment."

Section 13.4, entitled "Disfigurement," states that:

Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these . . . With disfigurement there is usually no loss of body function and little or no effect on the activities of daily living. Nevertheless, disfigurement may impair by causing social rejection or an unfavourable self-image with self-imposed isolation, life-style alteration, or other behavioural changes. If impairment due to disfigurement does exist, it is usually manifested by a change in behaviour, such as withdrawal from social contacts, in which case it would be evaluated in accordance with the criteria in the Guides chapter on mental and behavioural conditions.

Impairments related to disfigurement or altered pigmentation should be evaluated in accordance with the criteria given in Table 2 . . . Descriptions of disfigurement are enhanced by good color photographs showing multiple views of the defects. The probable duration and the permanency of the disfigurement should be estimated.

Table 2 of Chapter 13 provides different classes regarding Skin Disorder Impairments. The lowest range of impairment comes under Class 1, which has an impairment range of 0% to 9%.

The requirements under Class 1 are:

1. Signs and symptoms of skin disorder are present or only intermittently present;

and

2. There is no limitation or limitation in the performance offew activities of daily living, although exposure to certain chemical or physical agents might increase limitation temporarily;

and

3. No treatment or intermittent treatment is required. [emphasis in original]

Class 2, which has an impairment rating of 10 to 24%, has the following requirements:

1. Signs and symptoms of skin disorder are present or intermittently present;

and

2. There is limitation in the performance of some of the activities of daily living,

and

3. intermittent to constant treatment may be required. [emphasis in original]

The Guides state 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 was of the view that Ms. G had suffered a Class 1 impairment, if not a Class 2 impairment and would give a 9 or 10% impairment rating.

This impairment was not initially rated by the MDAC CAT DAC.

Dr. Ameis testified that there was nothing improper in Dr. Becker's analysis, assuming that the impairment had not already been elsewhere captured. He further testified that Dr. Becker presented a strong argument that Ms. G's hypersensitivity was a separate issue and that MDAC had not given enough weight to the Applicant's neuropathic pain. Dr. Ameis was of the view that Table 2 in Chapter 13 provided a "gun shot" approach. He opined that a more precise evaluation was available, citing page 280 of the Guides which state that:

When the impairment resulting from a burn or scar is based on peripheral nerve dysfunction or loss of range of motion, it may be evaluated according to the criteria in Guides Chapters 3 and 4, provided appropriate guidelines exist in those chapters.

[emphasis added]

The Guides continue:

If other chapters also were used to estimate the impairment from a patient's skin disorder, the skin disorder evaluation would exclude consideration of the components evaluated with those chapters.

[emphasis in the original]

Dr. Ameis testified that the nerve that is causing Ms. G’s hypersensitivity is the medial antebrachial cutaneous nerve. Under Table 15 in Chapter 3, the maximum rating due to sensory deficit or pain for the medial antebrachial cutaneous nerve is a 5% upper extremity impairment. As there is neither a complete loss of sensation nor is the entire nerve affected, Dr. Ameis was of the view that Ms. G should be given 3 or 4% upper extremity impairment, which translates, in accordance with Table 3 at page 3/20, to a WPI of 2%.

I make the following findings:

1. Ms. G has signs and symptoms of a skin disorder as required by Class 1 in Table 2 of Chapter 13. Neither Dr. Becker, nor Dr. Ameis, nor any member of the MDAC assessment team have apparent expertise in neurology or disorders of the skin. I accept the evidence of Dr. J. Maher, treating neurologist and clinical neurophysiologist, set out in his letter dated March 20, 2001, that examination found hypersensitivity over both medial and lateral aspects of the volar scar. I prefer his evidence to that of Dr. Ameis when Dr. Maher states that:

Although nerve conduction studies and EMG failed to show injury to a specific major nerve in the forearm, my clinical impression is that [Ms. G] has neuropathic discomfort around the right forearm volar scar, presumably from disruption of normal cutaneous [pertaining to the skin] sensory fiber function in the region of the scar.

2. I find that these are significant scars. I accept Dr. Maher’s description of the two scars as "large."

3. I further accept Dr. Maher’s evidence that in his experience "typically this type of neuropathic injury tends to persist," with pharmacotherapy such as "the use of Lidocaine gel at the site of the hypersensitivity, along with oral medications such as Elavil or Tegretol" "simply alleviating discomfort." Under Class 1 of Table 2 in Chapter 13, I find that this would constitute "intermittent treatment."

4. I find that there is limitation in at least a few activities of daily living, as again required by Class 1 of Table 2 in Chapter 13. I accept the evidence set out in the September 11, 2004 report of Ms. Maurice, O.T., who notes that Ms. G was unable to wash dishes by hand due to her right hand/arm skin sensitivity, as well as poor hand control. Ms. Maurice also notes a "constant tingling" sensation of the right forearm that intensifies with any form of touch to this area, which created problems when holding her baby for any extended period. I find this to be a distinct area of impairment not covered by the RUE discussion above.

5. Given that Table 2 allows, under Class 1, an impairment rating notwithstanding the possibility that there may be no limitation in the performance of activities of daily living, it is implicit that a rating may be given for the unsightliness of the disfigurement itself; the additional emotional results of such disfigurement, however, would be evaluated in Chapter 14 of the Guides, which addresses mental and behavioural conditions;

6. As Dr. Ameis agreed that Dr. Becker had provided a reasonable basis for considering a 1% WPI for Ms. G's lower lip scar (which was far less unsightly and did not have the same functional consequences), a 2% WPI for the far more serious right forearm scaring and sensitivity appears inappropriate;

7. Page 280 of the Guides states that "[w]hen the impairment resulting from a burn or scar is based on peripheral nerve dysfunction or loss of range of motion, it may be evaluated according to the criteria in Guides Chapters 3 and 4, provided appropriate guidelines exist in those chapters." I find that the appropriate guidelines do not fully exist in those chapters. I find that Table 2 of Chapter 13 better captures the breadth and extent of this particular impairment.

8. Chapter 13 of the Guides provides examples of evaluating impairment of the skin. Several examples are given of individuals who initially had perhaps more extensive skin problems, but with intermittent treatment (such as sun screens) had little, if any effect on their activities of daily living. Such individuals were rated as having a 5% WPI.

9. Considering the unsightliness, the duration, the permanence, the limitation on at least a "few" activities of daily living (using the wording of Class 1 of Table), I find a 5% WPI for right forearm scaring, deformation and sensitivity appropriate. Such a WPI rating does not include any consideration of the mental or behavioural consequences of the scarring, nor does it include a consideration of pain and weakness already captured by the RUE discussion.

5. Dental Impairments / Dietary Restrictions

Ms. G testified, and I accept that she sustained a fractured upper jaw as a result of this accident. Three of her top teeth were left sticking out of her mouth and had to be pulled back and wired. Two of her bottom teeth were loosened as a result of the accident and had to be replaced.

Seeing the Applicant for an IME in August 1999, Dr. J.A. Finklestein, an orthopaedic surgeon, noted that Ms. G was having continuing difficulty with her jaw and teeth, finding it difficult to bite into certain foods due to pain and sensitivity in her jaw. He observed that the Applicant had required root canal, had implants placed in her jaw and that further surgery was required. Dr. McCall, an orthopaedic surgeon, earlier that month noted Ms. G's complaints regarding having trouble chewing, although he was of the view the problem could be improved. However, notwithstanding further treatment, I find that a significant problem remains in this regard.

Dr. P. Muller, a neurosurgeon, notes in his March 1, 2001 report Ms. G's facial and dental injuries (including a fracture of the anterior alveolar process of the maxillary bone with multiple loose teeth), which required reconstructive dental surgery. He noted that Ms. G continued to have oral sensitivity and pain. Dr. Becker's February 5, 2003 report enumerated Ms. G's extensive dental injuries with reconstruction required for teeth 1,2, 1,3 and 1,4 (implants) and root canals of several lower incisors.

Dr. E. Urovitz, orthopaedic surgeon, in his April 12, 2002 MDAC report, notes that "[n]on-orthopaedically [Ms. G] continues to have difficulty with her jaw and her teeth in biting into certain foods." Unfortunately, MDAC did not have this area of injury assessed or rated. Ms. Maurice, an occupational therapist retained by the Applicant to address attendant care needs, advised in her September 11, 2004 assessment that Ms. G reported that her upper front teeth continued to be extremely sensitive and that she was unable to bite into food items such as apples and corn-on-the-cob, which now had to be routinely cut up prior to ingesting. The 2005 Work Able DAC report notes Ms. G complaining of top front teeth pain aggravated when biting hard foods, and that they are sensitive to cold.

Ms. G testified that she cannot eat hard food such as apples, corn-on-the-cob, hard candies, tacos, potato chips, and raw vegetables. Rice and meat have to be overcooked, meat almost to a mushy stage. She is limited to foods that are soft and that are at room temperature or warmer. Drinks, fruit and yogurt cannot be eaten right out of the refrigerator; they have to be left out on the counter to warm. Ms. G's testimony was not challenged on cross-examination.

Pilot, however, highlighted a notation by Dr. G. Ko, a specialist in Physical Medicine and Rehabilitation, who saw Ms. G in September 2001. On a page which lists, amongst other things, tobacco, alcohol and caffeine use, if any, under a category marked "Nutrition," there is an entry that states "regular diet. Mostly vegetarian." The source or significance of this information is not noted by Dr. Ko. Pilot also referred to the recent report of Dr. M. Tile, orthopaedic surgeon, who conducted a medical/rehabilitation DAC assessment in January 2005. The report states that Ms. G "had an excellent bite on her teeth."

I have no evidence that either Dr. Ko or Dr. Tile have any expertise regarding dental injuries. Their reports were not put to the Applicant, specifically as to what, if any, examination in this area was conducted by the doctors or what, if any, questions were put to her. Accordingly, I can give little, if any, weight to their comments.

On the other hand, I have continuing references in reports to ongoing dental problems, as well as the unchallenged testimony of the Applicant. The CAT DAC report, itself, notes continuing complaints in this regard, but as Dr. Ameis conceded, "all of us may have missed the dietary problems arising from the facial smash." Dr. Ameis was of the view, however, that there was insufficient information to presently make a rating; he recommended repeating the CAT DAC. He was of the view that a nutritionist, a dentist or a dental specialist was required.

The search for the truth is crucially important. Finality and cost effectiveness is also important. Having had a chance to review the medical documentation and to examine Ms. G, and having failed to properly assess all of her impairments, the present applicable remedy in this particular case is not a "do over" by the CAT DAC, which may then require assessments by other practitioners, followed by recalling witnesses or calling new experts. Rather, in my view, the proper course is for an adjudicative assessment to be made as best one can on the basis of the available evidence. I am strengthened in this decision by a concern in this specific case as to whether the open minded neutrality expected of a CAT DAC may be somewhat clouded by, perhaps subconsciously, a very human impulse to sometimes endeavour to justify one’s prior conclusion.

Chapter 9 of the Guides states that its purpose is to provide criteria for evaluating permanent impairments resulting from the principal dysfunctions of the ear, nose, throat and related structures. Section 9.3b pertains to mastication (the process of chewing food) and deglutition (swallowing).

Table 6 of Chapter 9 provides ranges of impairment, as follows:

Type of restriction

% WPI

Diet is limited to semisolid or soft foods

5 - 19

Diet is limited to liquid foods

20 - 39

Ingestion of food requires tube feeding or gastrostomy

40 - 60

Dr. Becker was of the view that some rating had to be given for this impairment. He did not have enough information to say what the precise rating was, other than it was within the 5% to 19% rating, and probably a 10% WPI. Dr. Becker stated that it was not clear whether one must be completely limited to semisolid or soft foods in order to rate the minimum 5% rating, but would probably say so.

Dr. Ameis testified that the words "limited to" in Table 6 means that a person "cannot do otherwise than to eat from those groups." He argued that the higher score encompasses those who are restricted to semisolid foods such as rice pudding and mayonnaise, while the lower scores are applicable to those on soft food diets, which would include omelets and jello. He criticized Ms. G for not raising the issue with MDAC, although he conceded that it was perhaps not pursued "aggressively" by his team. Dr. Ameis critiqued Dr. Becker's lack of information and appeared to be more concerned that there not be double counting of an impairment than there be no rating at all of the impairment. Dr. Ameis indicated, however, that MDAC may have already "unintentionally" anticipated the dental problems by scoring Ms. G's right forearm for the "fact that she has to have someone else help prepare her food." On the other hand, Dr. Ameis opined that he may not have scored the RUE impairment high enough.

Dr. Ameis conceded that he is not a lawyer, he is a practitioner, and that it is the general expectation of the Minister's DAC Committee that the team functions primarily as clinicians, not as lawyers.

I make the following findings:

• the CAT DAC should have assessed Ms. G's dental and dietary difficulties. The consequences of its failure to do so should not be visited upon the Applicant;

• it is my responsibility to make findings on impairment ratings as best as I can on the evidence before me;

• the purpose of this arbitration is to rate whole person impairment. The Guides define impairment as "a deviation from normal in a body part or organ system and its functioning." The Guides "recognize that 'normal' is not a fine point or an absolute in terms of physical and mental functioning and good health. More often, normality is a range or a zone, as with vision and hearing. The normal can vary with age, sex, and other factors." I do not accept that a 0% WPI rating appropriately captures Ms. G's dietary restrictions, especially considering this is a young woman who was in her early twenties at the time of this accident; and,

• Table 6, by providing a significant range of impairment, implicitly provides that one does not have to be totally restricted to semisolid or soft foods in order to meet the minimum WPI impairment; such an interpretation would seem to make this particular range irrelevant. Further, considering the importance of eating as an activity of daily living, a prerequisite of total restriction to semisolid or soft foods to merit a 5% WPI seems inconsistent with other impairment ratings.

Section 9.3b of the Guides provides that "the ability to eat should be stable and maximal rehabilitation should have been achieved." Given that it is now seven years since this 1998 accident and Ms. G continues to experience problems eating, I am persuaded that the condition is stable. Given that I have no evidence that material improvement in the Applicant's sensitivity is reasonably possible, I am persuaded that maximal rehabilitation has been achieved.

Section 9.3b further states that "[w]hen mastication or deglutition is impaired, the imposition of dietary restrictions usually results. Such restrictions are the most objective criteria by which to evaluate permanent impairment of these functions." The best evidence that I have in this regard is that of Ms. G, under oath, which is consistent with what was stated to numerous practitioners over the course of many years.

I find that Ms. G's diet is limited; that she cannot eat hard foods or cannot eat them in a normal manner. Accordingly, at the very least, she is limited to softer foods. In addition, I find that she has a restriction regarding the temperature of the food she eats. Accordingly, she has a deviation from normal regarding what she can eat and how she can eat it. I find that there is a significant interference with a key, central activity of daily living, especially for a young person with a life time ahead of her. I find that this impairment must be rated. I find that this impairment has not been captured elsewhere. Unfortunately, the Guides provide no further assistance as to how to fine-tune the rating of the impairment, if that is indeed possible.

Ms. G submitted that a range of 5 to 10% WPI is appropriate. In my view, this seems somewhat low, although I would agree that a rating at the higher end of the 5% to 19% range is not supported. I am persuaded that a WPI rating of 10% for dental impairment and dietary restrictions is certainly justified.

6. the Neck/ Headaches

Ms. G testified, and I accept, that she first noticed problems with her neck shortly after this accident, but did not focus on them because of her more serious ankle and forearm injuries. She received cranio-sacral therapy, but this was not effective in lessening her upper back and neck pain. Ms. G relates ongoing neck pain and headaches which affect her attention span and concentration; she is unable to do much detailed reading and finds it hard to retain information.

Dr. P. Kizoff, Ms. G’s family doctor, notes almost daily headaches in October 1998 (two months post-accident) and chronic neck pain later in the year. Ms. S. Cook, an occupational therapist apparently retained by Pilot, notes in her October 2002 report that the Applicant reported difficulty concentrating - taking extra time to read articles and forgetting what she had read. Ms. G was unable to concentrate if it was noisy and, therefore, she ensured that any activity she completed at home was done in a quiet, distraction-free environment.

Neck and upper back impairment is addressed in Chapter 3 of the Guides, which is entitled "The Musculoskeletal System." Section 3.3h therein addresses Cervical Spine Impairment. This section consists of a number of DRE (Diagnosis-Related Estimates or Diagnosis-Based Estimates, as opposed to the Range of Motion or Functional Model) categories. The ones possibly applicable to Ms. G are:

Category I: Complaints or Symptoms

• the patient has no significant clinical findings, no muscular guarding or history of guarding, no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness;

0% WPI

Category II: Minor Impairment

• the history and findings are compatible with a specific injury;

• findings include intermittent or continuous muscle guarding observed by a physician, nonuniform loss of range of motion or nonverifiable radicular complaints; there is no objective evidence of radiculopathy or loss of structural integrity;

5% WPI.

These categories are essentially repeated at Table 73, where Category I is defined as merely complaints or symptoms, while Category II is defined as a "minor impairment: clinical signs of neck injury are present without radiculopathy [disease of the nerve roots] or loss of motion segment integrity."

In his August 3, 1999 report, Dr. McCall, an orthopaedic surgeon, states that it "is likely that [Ms. G] did suffer a mild to moderate soft tissue injury to the head and neck area and that is the explanation for her complaints of headaches and neck pain and it certainly would be unusual in my experience for patients who suffer facial smashes in car accidents not to have associated neck trauma. Again, I think her head and neck symptoms will subside with time but it is a bit early yet to provide a prognosis in that regard."

Dr. D.J. Ogilvie-Harris, also an orthopaedic surgeon, states in his August 19, 1999 report that Ms. G continued to have headaches, which develop in her paracervical areas and go down into her supraspinatus area and into her shoulder blades, but not into her fingers or hands. He was of the view that the pain and discomfort in her cervical and lumbar spine resulted from damage at the time of the accident to her soft tissues and ligaments, and limited Ms. G's ability to bend or lift on a repetitive basis, carry things and do overhead activities.

The neurosurgeon, Dr. P.J. Muller, states in his report dated March 1, 2001 that Ms. G had suffered a lumbar and cervical strain which resulted in back pain and neck pain but without radicular [nerve root] compression. These symptoms, in the view of Dr. Muller, resolved spontaneously and with conservative therapy after several months.

Ms. G submits, based on the evidence of Dr. Becker, that the DRE Category II is "a throw-away category," applicable where there are minimal symptoms and there is an acknowledgement that these are the kind of injuries that result in degenerative changes in the future. The Applicant cites Desbiens as support for this proposition. I fail to see support for such an interpretation of DRE Category II in Desbiens.

In the alternative, Ms. G concedes that the cervical spine (neck) impairment and the headaches are probably related. The Applicant submits that although there is a section addressing headaches contained within Chapter 15 of the Guides (entitled "Pain"), there is no WPI rating provided for either headaches or for pain in this Edition of the Guides. Ms. G thus notes subsection 2(4) of the Schedule which states that an impairment that is sustained, but is not listed in the Guides, shall be deemed to be the impairment that is listed which is most analogous to the impairment sustained by the insured person.

In his evidence, Dr. Becker referred to Table 23 of Chapter 4 (the Nervous System) as being analogous. Table 23 refers to impairments of the spinal nerves in the head and neck region due to sensory deficit, pain or discomfort. A WPI of 3% is given for sensory deficit, pain or discomfort of the lesser occipital (the occiput being the posterior or back part of the head) nerve. In the alternative, Dr. Becker used as an analogy Table 5 of Chapter 4. The latter rates impairments related to epilepsy, seizures and convulsive disorders. Paroxysmal (spasm or seizure) disorders with predictable characteristics and uncharacteristic occurrences that do not limit usual activities but are a risk to the person or limit performance of daily activities, are rated at a 0 to 14% WPI.

Dr. Ameis testified that his team was of the view that Ms. G fell within the DRE Category I (and, hence, a 0% WPI rating) for the following reasons:

• the MDAC assessors noted the absence of objective, consistent findings;

• he could not find any detailed description of losses of functional capacity associated with neck symptoms; the headaches had recently worsened owing to stress and presumably the neck pain and stiffness had fluctuated accordingly;

• no specific injury was identifiable; and,

• none of the other inclusionary criteria applied, i.e. muscle guarding, non-uniform loss of range of motion, loss of radiological integrity or radiculopathic features.

Pilot noted that Chapter 15, dealing with determining headache impairment, states at page 312 that the vast majority of patients with headache will not have permanent impairments. At page 309, the Guides state that the complaint of pain alone is not an impairment. Rather, an impairment consists of "objectively validated limitations in daily activity." The test is not "Does this daily activity cause pain?" Rather, the test is "Can the patient perform this daily activity?" The Guides continue, at page 310, to state that evaluating functional capacity is the process of assessing the patient's ability to carry out the activities necessary for daily living.

The Guides further state that there is:

no universally accepted standard, method, or instrument for evaluating capacity. Rather, functional capacity evaluation depends on medical experience and judgment. The process is a comprehensive, multidimensional assessment of the individual's capabilities, considering biologic, psychological, and social aspects of the individual's condition. This type of evaluation is more complex and difficult than estimating an impairment using anatomic or physiologic measures . . .

The physician's judgment must be based on reasonable certainty. The goal should be to achieve precision, replicability, and interobserver agreement, not necessarily absolute accuracy.

Pilot noted that Dr. Becker testified that he did not measure any "objectively validated limitations in daily activities suffered by Ms. G because of these headaches." Pilot also noted that unlike the MDAC physiotherapist in 2002 and the team assembled by Dr. Taverniti in 2001 who found a deficit in cervical extension and flexion (Dr. Taverniti assigning an 11% cervical WPI), Dr. Tile, the orthopaedic surgeon with the Work Able medical/rehabilitation DAC, found a full range of neck movement with no significant abnormalities in January 2005.

Dr. Becker also states, in his February 5, 2003 report at page eight, that there "was full range of movement in the neck and back regions" on clinical examination. Ms. A. Krochmalnek, the MDAC physiotherapist, in fact notes at page three of her March 2002 CAT DAC report "[r]ange of motion of the neck, scapulae, and shoulders was observed to be full."

Ms. G testified that her ongoing problems relating to her neck are her headaches. She testified that her headaches start right in the middle of her forehead and move down to her neck and shoulder area. She testified that the headaches shorten her attention span and her ability to concentrate. Ms. G testified that she could not presently think of any other neck or head complaints.

The 2005 Work Able DAC notes complaints of headaches starting from the frontal area, then moving to the Applicant’s temples and then to the back of her head. Work Able reports Ms. G ending testing early because her "head [was] ready to split."

The present pattern of headache is very different from the pattern described by Dr. Ogilvie-Harris. Unfortunately, the MDAC assessment team did not include a neurologist or any other apparent expert in headaches. Nor did the assessment team approach this area of possible impairment with the "comprehensive, multidimensional assessment of the individual’s capabilities, considering biologic, psychological, and social aspects of the individual’s condition," which, in my view, was the team’s mandate.

Hence, I am left with an impairment that has not been properly assessed by those charged with this duty. On the evidence before me, I am persuaded that Ms. G has a continuing problem with headaches. I am not sure whether the present origin is cervical in nature and whether it is compatible with a specific injury to the neck as a result of this accident.

Nonetheless, I am persuaded that there is an impairment. I accept Ms. G’s evidence that her headaches impede activities of daily living. I am persuaded that such an impairment must be rated. I am cognizant that "double counting" must be avoided. Ms. G has not persuaded me that the source of this impairment is distinct from the problems focussing and concentrating arising out of the emotional and psychological sequella of this accident, noted under Mental Status above.

As stated above, I find that interference with a specific activity of daily living can arise from distinct impairments, and each impairment must be individually rated. Individual foot, arm, neck and back impairments may each impair, for example, snow shovelling. That does not mean that rating each impairment constitutes "double counting." It is the bodily or emotional impairment that impedes activities of daily living that is rated, not the activity itself.

In this case, Ms. G has failed to persuade me that her continuing headaches are distinct from tension and/or anxiety headaches and, more importantly, that they are distinct from the mental, psychological, emotional or behavioural impairment which I have already rated. I, therefore, find a 0% WPI for the area of combined cervical/headache impairment. However, the zero WPI rating I have given for this specific area further highlights, in my view, the need for an appropriate rating for (in my view, the far broader and more significant) mental and behavioural impairments noted above.

If, however, I have been overly conservative in my approach and have incorrectly failed to rate the neck/headache impairment, I would assign a 3% WPI rating on the basis of Dr. Becker's Table 23 analogy argument.

7. Low Back

Ms. G testified, and I accept, that she first noticed back pain when she started to walk with crutches about five and a half months after this accident. I further find that her continuing back pain worsens with prolonged standing and walking and that her back pain affects such activities of daily living as gardening, cleaning and meal preparation.

Impairments of the back are included in Chapter 3: The Musculoskeletal System. It was the evidence of Dr. Ameis that the Guides instruct that for evaluating injury to the spine, the assessor must use the Diagnosis Related Estimate ("DRE") Model rather than the Range of Motion Model.

For the lumbosacral spine, there are eight DRE categories. The parties dispute whether Ms. G falls within Category I (with a 0% WPI) or Category II (5% WPI). The Categories list the following criteria:

Category I: Complaints or Symptoms

• The patient has no significant clinical findings, no muscle guarding or history of guarding, no documentable neurologic impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness;

Category II: Minor Impairment

• the clinical history and examination findings are compatible with a specific injury or illness;

• the findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, nonuniform loss of range of motion . . . or nonverifiable radicular complaints; and,

• there is no objective sign of radiculopathy and no loss of structural integrity.

This is repeated in Table 72, where Category I covers complaints or symptoms, whereas Category II requires a "minor impairment: clinical signs of lumbar injury are present without radiculopathy [disease of the nerve roots] or loss of motion segment integrity."

Dr. D.J. Ogilvie-Harris saw Ms. G on August 12, 1999 in an orthopaedic consultation, which may mean at the request of Ms. G's counsel. He states in his subsequent report that:

She continues to have low back pain. It goes into her paralumbar areas and sacroliac joints. She gets the pain everyday. She has difficulty with bending and lifting. This tends to increase her pain. It does not go down to her feet or toes.

He continues some pages later:

She also has pain and discomfort in the cervical and lumbar spine. It will be reasonable for her to have soft tissue injuries in these areas at the time of the accident. I feel that these injuries would be damage to the soft tissues and ligaments. This accounts for her ongoing pain and discomfort in these areas. This limits her ability to bend or lift on a repetitive basis. It limits her ability to do overhead activities or carry things.

Dr. Becker, in his February 5, 2003 report, rated the lumbar injuries and Ms. G's intolerance to prolonged standing consistent with a 5% WPI "minimal rating." Dr. Taverniti rated the lumbosacral region WPI at 21%.

There is significant confirmation in the medical evidence that Ms. G reports back pain upon attempting various activities of daily living. Ms. Maurice, O.T., in her September 11, 2004 report, notes that low back pain:

has been more constant in nature and has intensified as the baby's weight has been increasing. [Ms. G] reports experiencing pain that is described to be an 'achy to throbbing' sensation, depending on the amount of standing and walking, as well as lifting of the baby, that she is required to do.

MDAC reported low back pain for sustained standing, carrying, walking, climbing, bending and lifting. Ms. Krochmalnek, the MDAC physiotherapist, noted slight restrictions of the lumbar spine in all directions, especially extension and left lateral flexion. Page 12 of the MDAC report states that Ms. G:

reports lower back pain, which occurs each day. It is located centrally and on the right side of the lumbar spine. She states that this pain increases if she stands or walks for a while, or if she attempts to bend or squat. This pain is relieved by resting and especially by lying down. She stated that this pain has worsened over the past six months, as it comes on with less activity. She stated that she did not have any lower back pain at the time of the interview.

Dr. Ameis testified that although he had not seen the Applicant, his team was of the view that Ms. G fell within Category I for the following reasons:

• Ms. G had no documented injury to her back. Dr. Ameis notes Dr. Becker's comment that "the low back (was) not clearly documented as having sustained injury." However, Dr. Becker had continued to state that the pain was not inconsistent with a soft tissue strain;

• there was no significant traumatic impairment of function. Dr. Ameis, himself, could not find any detailed description of loss of functional capacity associated with back symptoms, notwithstanding the comments of his own MDAC assessors, who state that Ms. G did not have the "ability to meet daily living demands" of, amongst other things, bending "due to anticipated increased lower back pain," walking due to both right ankle and ongoing low back pain and carrying, in part, due to ongoing low back pain;

• the MDAC assessors noted the absence of objective, consistent findings. Dr. Ameis noted that Dr. Becker had recorded only "there was full range of movement in the neck and back regions."

• Ms. G did not have muscle guarding, nonuniform loss of range of motion, loss of radiological integrity or radiculopathic features; and,

• because there was no injury to the back which was found, the back pain is related to the foot injury and the impairment rating is captured there; the WPI score given to the foot was sufficiently comprehensive to capture any problems with Ms. G’s back. Dr. Ameis notes that a WPI score of 21% would "inevitably involve substantially diminished standing tolerance and duration." He further states that Dr. Becker noted a reported association between the back, right knee and right ankle conditions.

I do note that the Work Able DAC orthopaedic report of Dr. Tile states that Ms. G's lumbar spine revealed no significant abnormality and that she had a full range of painless movement. I do, however, remain cognizant of Dr. Ameis' caution that range of motion testing may vary from assessor to assessor and one can get anomalies in measurement. I do note the comment of the Work Able FAE assessors of, amongst other things, left-sided low back pain with standing.

I am persuaded, given that there are indications of impairment related to low back pain and that the injury is compatible with a low back strain sustained in this accident, that the DRE Lumbrosacral Category I is not appropriate for this Applicant, that the category fails to properly measure an ongoing impairment separate from and not encompassed in the RLE impairment rating. Although the low back impairment, compared to Ms. G’s other injuries, may be relatively minor, it must still be rated.

I am not persuaded that Category II is simply a "throw-away" provision. Nonetheless, if my choices are simply choosing between Category I and Category II, I would choose the latter. However, given that the Guides repeatedly stress that their percentages are simply estimates, and I feel a need to fine-tune my estimates as best as I can, I would assign a 3% WPI for the low back impairment, which again, may be conservative.

8. Lower Lip Scar

As a result of this accident, Ms. G sustained a scar under the lower lip.

Dr. Becker opined in his February 3, 2003 report that Ms. G's lower lip scar constituted a Class 1 facial impairment. Class 1, with a WPI range of 0% to 5%, includes those persons whose facial abnormality is limited to a disorder of the cutaneous (pertaining to the skin) structures, such as visible scars or abnormal pigmentation. Dr. Becker was of the view that the scar was minimal, and was comfortable with a 1% WPI rating.

Dr. Ameis testified that a 1% WPI of the lower lip scar was a reasonable proposition. He was of the view that the face was the most important body part in this regard. He was uncertain as to why his assessors missed this impairment.

I am persuaded that a 1% WPI for the lower lip scar is appropriate. Under the Combined Values Chart of the Guides, an additional 1% WPI has no effect after one reaches a 50% WPI.

9. Combined Values

To conclude, I find that the combined WPI for Ms. G, in descending order of percentage as required by the Guides, is as follows:

Individual WPI%

Combined WPI%

right lower extremity

22

22

right upper extremity

20

38

mental status

14

47

dental impairments/dietary restrictions

10

52

forearm scar

5

54

lower back

3

55

lower lip scar

1

55

neck/headaches

0

55

Chapter 2.2 of the Guides is entitled "Rules for Evaluations." Under this provision, the Guides indicate that:

A final estimated whole-person impairment percent, whether it is based on the evaluation of one organ system or several organ systems, may be rounded to the nearer of the two nearest values ending in 0 or 5.

If I was required to exercise my discretion under this provision, in that the Applicant's WPI rating was 53% or 54%, being persuaded that the extent and diversity of her significant permanent impairments warrant a finding of catastrophic impairment pursuant to the Guides, I would round the rating to 55% WPI. That, however, is not necessary in this case, having found the Applicant to have a 55% WPI.

In again recalling what I find to be the most compelling evidence before me, Dr. J. McCall's words that "it is important to deal with the person as a whole and not just focus on the individual injuries," I conclude that this young woman has, as a result of the August 1998 accident, unfortunately indeed sustained a catastrophic impairment as defined by paragraph 2(1)(f) of the Schedule. As set out on page 38 above, I am not persuaded that Ms. G meets the paragraph 2(1)(g) definition of catastrophic impairment.

EXPENSES:

Having now determined the preliminary issues in dispute, except that of legal expenses, the parties may now address the issue of the legal expenses of this preliminary arbitration proceeding, in accordance with the provisions of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003). I do, however, wish to commend both counsel on their preparation, their professionalism, their advocacy, their courtesy and their much appreciated assistance in determining this somewhat complex issue.

March 16, 2006

Lawrence Blackman Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 44

FSCO A04-000446

BETWEEN:

MS. G

Applicant

and

PILOT INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Ms. G has suffered a catastrophic impairment as defined by paragraph 2(1)(f) of the Schedule.

2. 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).

March 16, 2006

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2see, for example, Ajzenstadt and CAA Insurance Company (Ontario) (OIC P-000185, July 13, 1992).
3. 3Washington, D.C.: American Psychiatric Association; 1987.
4. 4World Health Organization. Geneva, Switzerland: World Health Organization; 1978.