Pilot Insurance Company v. Ms. G, 2007 ONFSCDRS 168

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 168

Appeal P06-00004

OFFICE OF THE DIRECTOR OF ARBITRATIONS

PILOT INSURANCE COMPANY

Appellant

and

MS. G

Respondent

BEFORE:

Nancy Makepeace

REPRESENTATIVES:

William G. Scott for Pilot

M. Steven Rastin for Ms. G

HEARING DATE:

January 5, 2007

APPEAL ORDER

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

1. The appeal is dismissed and the arbitration order dated March 16, 2006 is confirmed.

2. If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

September 4, 2007

Nancy Makepeace Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

The insurer appeals from the arbitrator’s decision that Ms. G is catastrophically impaired as defined in paragraph (f) of subsection 2(1) of the SABS–1996.¹ The insurer submits that the arbitrator erred in law by finding that Multi-Disciplinary Assessment Centre (“MDAC”) was in a conflict of interest which it failed to resolve as required by section 53 of the SABS-1996, and that the arbitrator did not assess the evidence in accordance with the AMA Guides² when he assigned a rating for Ms. G’s psychological impairment and the dietary restrictions resulting from her jaw and dental injuries. If the MDAC report was flawed, the insurer submits the arbitrator erred by rating Ms. G’s impairments based on the evidence at the hearing rather than ordering a new CAT DAC.³

I am not satisfied the arbitrator erred.

II. BACKGROUND

Ms. G was injured in an automobile accident on August 20, 1998. The arbitrator found that she suffered serious injuries, including fractures of her right forearm and right leg and psychological problems, as a result of the accident. At the time of the accident, Ms. G was 22 years old, single, employed and without children. She married after the accident and gave birth to a daughter on April 20, 2004.

Ms. G received income replacement benefits, but a dispute arose and the parties settled that claim by lump sum in November 2002.

In late 2001, Ms. G applied for a catastrophic impairment designation, which would entitle her to an enhanced level of benefits. The insurer disputed the claim, and Ms. G applied for mediation followed by arbitration when mediation failed to resolve the dispute. After a number of preliminary disputes, the arbitration hearing was scheduled for March 2005.

In the meantime, Ms. G claimed rehabilitation benefits under section 15 of the SABS-1996 for nanny services to help her look after the baby. The insurer denied the claim. Ms. G moved for an interim benefits order, and this was granted by Arbitrator Blackman on December 22, 2005. The insurer appealed. On August 28, 2006, I revoked the arbitration order on the basis that nanny services are not a rehabilitation benefit under section 15 of the SABS-1996. Ms. G has applied for judicial review of that decision. As a result, the insurer’s appeal from the arbitrator’s June 21, 2006 decision ordering arbitration expenses and a special award in relation to the nanny services claim was stayed on consent. The parties agreed that the issues in dispute in the present appeal are distinct from the nanny services and related issues.

III. The Arbitration Decision

The catastrophic impairment hearing took place over seven days in March, May and

July 2005. There were five witnesses: Ms. G, her husband, and experts Dr. Harold Becker,

Dr. Paul Comper and Dr. Arthur Ameis. Voluminous documentary exhibits were filed.

Arbitrator Blackman released his order and 63 pages of reasons on March 16, 2006. He was not satisfied Ms. G was catastrophically impaired as defined by paragraph 2(1)(g) of the SABS-1996 (marked impairment or extreme impairment due to mental or behavioural disorder), but found that she did suffer a catastrophic impairment as defined by paragraph 2(1)(f):

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

The SABS-1996 defines “impairment” as “a loss or abnormality of a psychological, physiological or anatomical structure or function.”⁴ As the arbitrator noted at the outset of his analysis, the Guides “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.’”⁵

Ms. G applied for a catastrophic impairment determination based on the August 29, 2001 report of Comprehensive Medical Evaluations & Diagnostics Inc. (CMED), which was retained by her counsel. The assessment was conducted by Dr. A. Taverniti, a chiropractor who is Clinical Director of CMED, and Dr. Gordon Ko, a physiatrist. The assessors concluded Ms. G had sustained a 62% combined WPI based on impairments of the spine (37 per cent WPI), right leg (30 per cent WPI) and right arm (13 per cent WPI).

The insurer did not accept Dr. Taverniti’s conclusion, and arranged a CAT DAC assessment with MDAC, which is authorized to conduct catastrophic impairment DAC assessments. The assessment was conducted by Dr. E. Urovitz, an orthopaedic surgeon, Dr. A. Newall, a physiatrist, and Ms. A. Krochmalnek, a physiotherapist. Dr. A. Ameis, a physiatrist who is MDAC’s Medical Director and Director of Functional Evaluations, authored the MDAC summary report. The MDAC assessors did not accept that Ms. G had any spinal impairment, but assigned 21 per cent WPI for the right leg and 19 per cent WPI for the right arm, which resulted in a combined rating of 36 per cent WPI. Since this was below the 55 per cent WPI threshold set by paragraph 2(1)(f) of the SABS-1996, it followed that Ms. G was not catastrophically impaired.

Dr. Harold Becker, Clinical Coordinator of the North Toronto Assessment Centre (“North Toronto”), which is also an authorized CAT DAC, reviewed the CMED and MDAC reports in August 2002 at the request of Ms. G’s counsel, and conducted a clinical catastrophic impairment assessment in January 2003. Dr. Becker was comfortable with Dr. Ameis’ rating of Ms. G’s right leg and right arm impairments, but would have assigned a rating for spinal impairments (5 per cent WPI for her neck, 5 per cent for her back, and 3 per cent for her headaches). He also would have assigned 10-14 per cent WPI for mental status/emotional impairments, 0-9 per cent WPI for forearm scarring, and 1 per cent WPI for lower lip scarring. His combined WPI rating would have been in the range of 53-55 per cent, which rounded up, in accordance with the Guides, brought Ms. G over the 55 WPI threshold.

At the arbitration hearing, Ms. G challenged the methods and conclusions of the CAT DAC. She testified about her impairments and how they affect her life. Expert evidence revolved around the differing opinions of Dr. Ameis and Dr. Becker, who testified about Ms. G’s impairments and about catastrophic impairment assessments. Dr. Becker and Dr. Ameis disagreed about Ms. G’s psychological impairment and dietary restrictions. Important evidence about her psychological impairment also came from Dr. Paul Comper, a psychologist who assessed Ms. G as part of a Med-Rehab DAC in February 2005.⁶ The arbitrator also considered a great deal of documentary evidence from many experts who have treated or assessed Ms. G.

The arbitrator considered each impairment and assigned WPI ratings as follows.

Right lower extremity (leg and foot): The arbitrator found that Ms. G suffered a 22 per cent WPI due to pain, sensitivity and functional limitations resulting from a comminuted calcaneal (heel) fracture. The fracture was treated by open reduction and internal fixation. The arbitrator found that the residual pain, sensitivity, and stiffness left her with limited standing and walking tolerance, sometimes requiring use of a cane, and interfered with her activities of daily living.⁷

Right upper extremity (forearm): Ms. G also suffered a displaced fracture of both bones of her right forearm that required open reduction and internal fixation. The arbitrator accepted that

Ms. G, who is right-handed, continues to suffer pain, weakness and limited movement in her right wrist, which interferes with her activities of daily living. The arbitrator gave these impairments a 20 per cent WPI rating.⁸

Mental status: Ms. G claimed she suffered a psychological injury and a possible brain injury as a result of the accident and that the impairment should be given a 10-14 pr cent WPI rating, based on Dr. Becker’s assessment. The insurer did not accept this was supported by the evidence and submitted Ms. G’s pain and any resulting psychological impairment had already been accounted for in her orthopaedic ratings. The arbitrator assigned a 14 per cent WPI rating for depression that affected her cognitive abilities and interfered with her activities of daily living.

Forearm scar: In addition to her right upper extremity injuries, Ms. G has a scar on her right forearm as a result of the accident. The arbitrator found that the scar is sensitive to cold and touch, and as a result, Ms. G is unable to wash dishes by hand. As well, the “constant tingling” in the area creates problems when she holds her daughter for any extended period, and she avoids long sleeves. He found that a 5 per cent WPI was appropriate for right forearm scarring, deformation and hypersensitivity.⁹

Dental impairments/dietary restrictions: Ms. G sustained “facial smash” injuries including a fractured upper jaw and multiple lost or damaged teeth requiring root canal, implant and other reconstructive dental surgery. The arbitrator accepted Ms. G’s evidence that the resulting impairments included jaw pain and sensitive teeth such that she has trouble chewing and avoids cold, hard or chewy food. The dental impairment and dietary restriction were given a 10 per cent WPI rating.¹⁰

Neck and headaches: The arbitrator accepted Ms. G’s evidence that she suffers ongoing headaches that make it difficult for her to focus and concentrate, and this interferes with her activities of daily living. However, he was not persuaded that the headaches originate in her neck as a result of the accident, rather than being tension or anxiety headaches, and he was not persuaded the resulting impairment is distinct from the problems focusing and concentrating arising out of the psychological sequelae. Accordingly, the arbitrator gave the combined neck/headache impairment a 0 per cent WPI. He noted, however, that he would assign a 3 per cent WPI if found to have erred in the zero rating.¹¹

Low back: The arbitrator accepted that Ms. G suffers ongoing back pain that worsens with prolonged standing, walking, climbing and bending, and affects child care, gardening, cleaning and meal preparation, amongst other activities of daily living. The parties disagreed on whether Ms. G has a Category I impairment (0 per cent) using the Diagnosis Related Estimate (“DRE”) Model or a Category II impairment (5 per cent WPI). The arbitrator was persuaded that Ms. G’s low back impairment, though “relatively minor,” must be rated. He assigned a 3 per cent WPI, which he noted “may be conservative.”¹²

Lower lip scar: Dr. Becker concluded that Ms. G had a Class 1 facial impairment warranting a

1 per cent WPI rating, and Dr. Ameis testified he found this reasonable, though it had not been rated by MDAC. The arbitrator accepted that a 1 per cent WPI was appropriate.¹³

Combined rating: The arbitrator next determined the combined whole person impairment value, as required by the Guides.¹⁴ He summarized his findings in the following chart at the end of his decision:

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

Accordingly, the arbitrator concluded Ms. G was catastrophically impaired under paragraph 2(1)(f) of the SABS-1996.

IV. ANALYSIS

The insurer submits that the arbitrator erred in finding that MDAC had a conflict of interest, or alternatively in failing to refer Ms. G for another CAT DAC. Turning to the ratings themselves, only two areas of impairment are in dispute. The insurer submits that the arbitrator erred in assigning a 14 per cent WPI for psychological impairment, and in assigning a 10 per cent WPI for dental impairment and dietary restrictions. The insurer submits that an assessment of the medical evidence in accordance with the Guides does not support either rating and a new comprehensive CAT DAC should have been ordered.

A. Problems with the CAT DAC

1. The Arbitration Decision

The arbitrator rejected Ms. G’s submission that the insurer should have arranged her CAT DAC at North Toronto rather than MDAC pursuant to paragraph 53(3)(b) of the SABS-1996. He accepted Pilot’s evidence that MDAC was 10 kilometers closer to Ms. G’s home, based on odometer readings, and accordingly it was the appropriate DAC for the assessment.¹⁵

However, the arbitrator identified three problems with the CAT DAC assessment. He found that MDAC was in a conflict of interest with respect to the assessment because Dr. Jack Mayer, a neurosurgeon and a consultant listed on MDAC’s letterhead, had examined Ms. G for the insurer on May 29, 2000 (an insurer examination under section 42), and that MDAC failed to resolve the conflict as required by the SABS and the Minister’s General Guideline # 5 (“Conflict of Interest and Nearest DAC Guideline”).¹⁶ The arbitrator also accepted that MDAC breached the Minister’s General Guideline # 4 (“Ensuring Neutrality of the Designated Assessment Centre System”) by discussing the conflict with the insurer’s adjuster and failing to confirm the conversation in writing to Ms. G. Finally, the arbitrator found that MDAC failed to assign all the necessary experts and failed to conduct a comprehensive assessment of Ms. G’s impairments, including those related to her right forearm scar, her jaw and dental injuries and her complaints of cognitive and emotional problems, as required by the CAT DAC Assessment Guideline.¹⁷

2. The Appeal

On appeal, the insurer concedes the MDAC assessment was not comprehensive, but submits the arbitrator erred in finding that MDAC had a conflict of interest and that the insurer was responsible for resolving it. In any event, the insurer submits the arbitrator erred by assigning a rating to Ms. G’s impairments in the absence of a properly conducted CAT DAC.

(a) Conflict of Interest

I find no error in the arbitrator’s conclusion that MDAC had a conflict of interest which it failed to resolve in accordance with the SABS and the DAC Guidelines.

At the outset of the CAT DAC process, MDAC sent Ms. G and the insurer its proposal for a clinical records review, dated January 29, 2002, listing Dr. Mayer and Dr. Ameis as the assessors. On receipt of this report, Ms. G objected that MDAC had a conflict of interest because Dr. Mayer had previously examined her at the insurer’s request. The insurer relied on his report of May 27, 2000 in terminating her housekeeping and home maintenance benefits. In response, the insurer’s adjuster called MDAC about the conflict, and MDAC made a note that Dr. Mayer could not be involved in the assessment. A revised proposal was sent out in late February indicating only Dr. Ameis as the assessor. Ms. G restated her objection but participated in the assessment over five days in March and April 2002 because the insurer threatened to terminate her benefits if she did not. The assessment was conducted by a physiatrist, an orthopaedic surgeon and a physiotherapist.

Ms. G was not satisfied that the conflict was resolved. She testified that while Dr. Mayer did not assess her at MDAC, she saw him at the facility while she was there. She claimed MDAC’s report was fatally undermined by its failure to disclose the conflict and give her an opportunity to be assessed at another CAT DAC as required by the SABS.

Subsection 53(2) of the SABS-1996 requires the DAC to identify and disclose any conflict before conducting the assessment. The file is reviewed for conflicts upon receipt of the referral.¹⁸ If a conflict is identified, the DAC must disclose it in writing to the insured person and the insurer. The insured person and insurer may agree that the assessment may be conducted by the same DAC, despite the declared conflict, or, if they do not agree, the assessment must be conducted at the next closest DAC that is authorized to conduct that type of assessment. These rules are explicit and mandatory.

What is a conflict? Subsection 53(9) says that a DAC has a conflict of interest relating to an assessment if, amongst other things, the DAC or “a related person” has assessed the person previously other than in a DAC assessment. The definition of “related person” has been amended since the events that gave rise to this dispute. In January 2002, when Ms. G’s DAC assessment was arranged, and in March and April 2002, when it was conducted, “related person” was defined to mean, amongst other things, a “consultant retained by the designated assessment centre.” The reference to consultants was deleted when the definition was amended by Ontario Regulation 281/03, and Dr. Becker testified that the new rules allowed the DAC to remedy the conflict by simply ensuring the conflicted assessor was not involved in the assessment. However, the amendment did not take effect until October 1, 2003, well after Ms. G’s CAT DAC assessment was completed.

As noted by the arbitrator, the Minister’s DAC General Guideline # 5 includes a statement of intent: the conflict of interest rules were intended to ensure that DACs were neutral and perceived to be neutral. The Commission’s decisions have repeatedly stressed the key importance of DAC neutrality. As Director Draper stated in M.D. and Halifax Insurance Company, the function of the DACs was “to take the dispute out of the back-and-forth of competing partisan reports by providing an impartial assessment.”¹⁹ The credibility of the DACs required close adherence to conflict of interest rules. I agree that MDAC had a conflict of interest and that it failed to disclose the conflict or offer Ms. G an opportunity to be assessed at the next closest CAT DAC, as required by the SABS. Whatever the reason for the omission, this was a serious error.

(b) Remedy

The next question was how to remedy the problems with the CAT DAC assessment. Ms. G submitted the MDAC report should be given little if any weight and Dr. Becker’s assessment accepted instead. The insurer submitted another CAT DAC should be conducted. The arbitrator stated that his role as an adjudicator “is not limited to simply picking, holus-bolus, between competing expert reports.” Rather, he would examine the evidence of impairment in detail, and this might include accepting an expert’s opinion on one point but not on another.²⁰ He considered the MDAC report in detail and weighed it along with the other evidence of impairment, though MDAC’s “lack of thoroughness weakens the value and weight of the overall . . . report.”²¹

On appeal, the insurer submits that the arbitrator erred by not ordered a new CAT DAC assessment. It argues that paragraph (c) of subsection 40(2) of the SABS-1996 entitles the insurer to a properly conducted DAC assessment,²² and the insurer should not be deprived of this right because of MDAC’s failure to follow the rules. The insurer relies on Villers and Pilot Insurance Company²³ for the proposition that serious DAC deficiencies may justify a new DAC. The insurer claims a new DAC was mandatory in this case because there was insufficient evidence from other sources to support a WPI rating under the Guides and because the insurer is otherwise deprived of the opportunity the insured person has to obtain expert evidence.

I do not agree.

In October 2004, in response to Dr. Becker’s third report, MDAC insisted on conducting a new assessment rather than preparing a written response. Ms. G consented to a written review but refused to attend another CAT DAC assessment. The insurer brought a motion before Arbitrator Rogers for an order requiring her to attend. The motion was dismissed. The arbitrator found he had no authority to order MDAC to conduct a written review of Dr. Becker’s report or to order Ms. G to attend a second CAT DAC assessment.²⁴

Based on Arbitrator Rogers’ order, which was not appealed, Ms. G submits the issue is res judicata. I reject this, because the order was not a final order and the issues have changed. However, I find no error in Arbitrator Rogers’ disposition of the motion. Though I held in Villers that the arbitrator had authority to adjourn a hearing to allow a CAT DAC to be completed in accordance with the SABS and the Guidelines, the insurer concedes I concluded this was not required. I held that the arbitrator was not bound to accept a DAC report or any one report filed by either party, but was required to consider all the evidence to decide whether the accident significantly contributed to Mr. Villers’ catastrophic impairment.²⁵ The arbitrator took the same approach in this case, referring to Walker and State Farm Mutual Automobile Insurance Company, the leading case on point.²⁶ As in Villers, I can find no basis to interfere. Indeed, Villers presented a stronger case on appeal because the arbitrator had placed some reliance on the MDAC report despite serious departures from the DAC Guidelines, all of which benefited the insurer, and Mr. Villers, not Pilot, wanted the new DAC. In this case, the arbitrator found that Ms. G is catastrophically impaired despite the unfavourable and non-compliant DAC report on which the insurer relied, and Pilot, which benefited from MDAC’s non-compliance, wants another DAC assessment.

The insurer, however, submits that the arbitrator erred when he said: “[e]nsuring neutrality in such medical assessments is the insurers’ domain.”²⁷ The insurer says the DAC, not the insurer, is responsible for making sure it follows the rules.

There is no question that DACs bear the burden of complying with the rules set out in the SABS and the DAC Guidelines. Section 53 of the SABS-1996 expressly requires a DAC to take steps to avoid and resolve any conflict on receiving a DAC referral, and the Guidelines are equally explicit. For example, General Guideline # 5 states: “The DAC is responsible for establishing whether or not there is a conflict of interest.” The Guideline also confirms what is clear from the SABS: it is the DAC’s responsibility to advise the parties about any conflict and give them the option of proceeding on agreement or referring the matter to the next closest DAC. The Guideline states in emphatic italicized capitals: “ALL DACS ARE EXPECTED TO FOLLOW THIS AND ALL OTHER DAC GUIDELINES. FAILURE TO DO SO WILL BE CONSIDERED NON-COMPLIANCE ON THE PART OF THE DAC.” A DAC’s failure to comply with conflict of interest or other rules could lead to disciplinary measures including removing the DAC from the roster of DACs authorized under section 52 of the SABS-1996.²⁸

I am satisfied the arbitrator understood that MDAC was responsible to conduct the DAC in accordance with the SABS and the Guidelines. For example, he found that MDAC had a conflict of interest and that MDAC failed to declare this conflict and failed to resolve it satisfactorily.”²⁹ He also found that MDAC failed to assign the necessary medical experts and failed to properly assess all Ms. G’s impairments, explicitly noting that this is the responsibility of the CAT DAC.³⁰

However, the issue before the arbitrator was how MDAC’s non-compliance affected the catastrophic impairment dispute between Ms. G and Pilot. It was Pilot that required a CAT DAC under paragraph 40(2)(c), it was Pilot that required Ms. G to attend under protest, despite MDAC’s failure to deal with the conflict as required under subsection 53(2), and it was Pilot that relied on the MDAC report to refuse her catastrophic impairment claim. Having staked its position on the MDAC report, Pilot was not in a good position to require another assessment when other evidence supported Ms. G’s catastrophic impairment claim.

There is a practical reason, too, for not arranging another CAT DAC in this case. Effective March 1, 2006, DACs were eliminated by Ontario Regulation 546/05. Subsection 40(2) was revoked and replaced with a provision allowing an insurer to require an insurer examination under section 42 “to assist the insurer in determining if the impairment is a catastrophic impairment.” Under the transitional rules, the pre-amendment rules continue to apply if, as in this case, the insurer gave or was required to give a CAT DAC notice before March 1, 2006.³¹ However, few if any DACs continued to operate as DACs after the transition. Where no DAC is available, subsection 41.1(10) allows the insurer to require an insurer examination instead. Apart from the usual concerns about assessments requested in the late stages of the arbitration process,³² I agree with the arbitrator that finality was the paramount concern in this case:

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.³³

The same considerations work against an assessment by another DAC or an insurer examination, in my view, as any further assessment at this point is likely to be regarded as partisan. In any event, for the reasons that follow, I find the arbitrator had sufficient evidence to support his findings on the disputed impairments.

B. Psychological Impairment

1. The Arbitration Decision

This dispute was an important focus of the arbitration hearing, and involved several sub-issues.

The first issue was whether Ms. G suffered a brain injury and whether she suffered a psychological impairment as a result of the accident. The arbitrator found there was no evidence of traumatic brain injury, but accepted Dr. Comper’s opinion that Ms. G suffered a major depression that impaired her activities of daily living because of sadness, anger and irritability, withdrawal, and difficulty with focusing, concentrating, and getting things done.

Secondly, the arbitrator rejected the insurer’s submission that MDAC captured Ms. G’s psychological impairment by rating her orthopaedic impairments; one need not follow from the other, and MDAC’s report did not refer to psychological issues at all. The arbitrator’s ratings distinguished physical and psychological problems. The right leg rating was based on “pain, limited standing and walking tolerance and their effect on Ms. G’s activities of daily living,” and the right arm rating was based on “pain and decreased strength and their effect on activities of daily living.” Neither included “any consideration of depression, anger, anxiety, problems focusing 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.” His findings on the right forearm scarring “specifically exclude[d] any consideration of the mental and/or behavioural consequences of the impairment.”³⁴

The next question was how to assign a rating to the psychological impairment. The arbitrator found that Ms. G did not suffer a Class 4 (marked) or Class 5 (extreme) impairment³⁵ as defined in Chapter 14 of the Guides (“Mental and Behavioural Disorders”) so as to meet the definition of “catastrophic impairment” in paragraph 2(1)(g) of the SABS-1996. However, he found that ratings for psychological impairment can be combined with ratings for physical impairment to determine a total WPI rating under paragraph 2(1)(f), as held in Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 (Ont. S.C.J.), and followed in McMichael and Belair Insurance Company Inc., (FSCO A02-001081).³⁶

The 4th edition of the Guides does not give percentage ratings for psychological impairments because of a concern that this would produce a false precision, given the subjective nature of these impairments and the difficulty of measuring them. However, percentage ratings for mental and behavioural disorders were provided in the 2nd edition of the Guides (1984), and the ratings are included in the 4th edition for reference (p. 301): normal (0 to 5 per cent WPI), mild (10-20 per cent), moderate (25 to 50 per cent), moderately severe (55 to 75 per cent) and severe (more than 75 per cent impairment). The arbitrator concluded that Ms. G would fall within the “mild impairment” category (10 – 20 per cent WPI) in that rating scheme.

The arbitrator also considered how Ms. G would be rated under Chapter 4 of the Guides (4th edition), which deals with brain and neurological impairments. Under Table 3, which classifies emotional or behavioural impairments into four categories, the arbitrator found that Ms. G’s impairment, “even on a conservative analysis,” would fall “at the dividing point between” the least severe category (0 – 14 per cent WPI where there is “mild limitation of daily social and interpersonal functioning”) and the next category (15 – 29 per cent for “moderate limitation of some but not all social and interpersonal daily living functions”). Under Table 2, which classifies mental status impairment, the arbitrator would place Ms. G at the higher end of the least severe category (1 – 14 per cent WPI, where “impairment exists, but ability remains to perform satisfactorily most activities of daily living”) but she would not qualify for the next level (15 – 29 per cent WPI, where the impaired person “requires direction and supervision in daily living activities”).

The arbitrator’s approach was consistent with subsection 2(3) of the SABS-1996 – an impairment that 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.”³⁷ Like Justice Spiegel, the arbitrator considered the percentage ratings for mental and behavioural impairments (Chapter 14) in the 2nd edition of the Guides alongside the percentage ratings for neurological impairments in Chapter 4 of the 4th edition. This avoids treating similar impairments differently depending only on the cause of impairment, which would be inconsistent with the underlying principles of the Guides and the SABS, and recognizes the overlap between neurological and psychiatric/psychological disorders.³⁸ By comparing Ms. G’s impairment to the impairments described in two neurological tables (Table 2, mental status impairments, and Table 3, emotional or behavioural impairments), the arbitrator added to the reliability of his assessment.

Considering these three measures of impairment, the arbitrator found there was an overlap at 14 per cent WPI, which he found “appropriately captures Ms. G’s mental, psychological, emotional and behavioural impairments resulting from her accident.”³⁹

2. The Appeal

On appeal, the insurer submits that the arbitrator did not rate Ms. G’s psychological impairment “in accordance with” the Guides. The insurer submits that the expert evidence did not support a rating for psychological impairment, and the arbitrator erred by relying on Ms. G’s evidence.

I am not satisfied the arbitrator erred.

(a) “In accordance with” the Guides

Paragraph 2(1)(f) of the SABS-1996 defines a catastrophic impairment as an impairment or combination of impairments that “in accordance with” the 4th edition of the Guides results in a 55 per cent or more WPI. The insurer submits the arbitrator was required to assess Ms. G’s psychological impairments using the three-step process set out in the Guides. The first step is obtaining a medical history and carrying out a medical evaluation supported by appropriate tests and diagnostic procedures. Step two is analyzing the findings to determine the nature and extent of the impairment. The third step is comparing the results with the criteria specified in the Guides.

The insurer submits that the Guides require the first two steps to be completed by medical experts, and that only the third step belongs to the arbitrator. About the third step, the Guides say:

This comparison is distinct from the preceding clinical evaluation and need not be performed by the physician who did that evaluation; rather, any knowledgeable person can compare the clinical findings with the Guides criteria and determine whether or not the impairment estimates reflect those criteria.⁴⁰

The need for a medical assessment is reaffirmed in the Guides’ approach to assessing mental impairment:

The methodology of the Guides requires that the presence of a mental disorder be documented primarily on the basis of reports from accepted professional sources, such as psychiatrists, psychologists, psychiatric nurses, psychiatric social workers, and health professionals in hospitals and clinics. Adequate description of functional limitations should be obtained from these sources and, if possible, from programs in which the individual has been observed over a period of time. Data gathered during a period of years are particularly useful.⁴¹

However, in the immediately following passage, the Guides endorse reliance on information provided by the impaired person and other non-experts:

The individual’s own description of his or her functioning and limitations is an important source of information. The presence of mental disorder does not automatically rule out the individual as a reliable source of information. Information from nonmedical sources, such as family members and others who have knowledge of the patient, may be useful in indicating the level of functioning and the severity of the impairment.⁴²

The Guides do not purport to provide a formula that replaces judicial or quasi-judicial fact-finding. I agree with the arbitrator’s analysis set out in the following passage:

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.” ⁴³

Moreover, the Guides were not intended to determine entitlement to benefits, a task the SABS and the Insurance Act reserves to adjudicators:

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 interpretation⁴⁴that can be justified, as stated in Ruth Sullivan ed., Driedger on the Construction of Statutes, 3rd 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.⁴⁵

I agree with the arbitrator’s analysis, which is consistent with Justice Spiegel’s treatment of the issue in Desbiens v. Mordini.⁴⁶ The Guides establish methods and benchmarks to facilitate reasoned and consistent impairment ratings, but they do not relieve the arbitrator of his responsibility under the Insurance Act to assess the evidence and decide the catastrophic impairment issue in accordance with the SABS.

(b) The Evidence

The arbitrator accepted Ms. G’s evidence:

Ms. G testified that she has problems focusing 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.⁴⁷

I have no basis for second-guessing the arbitrator’s credibility assessment, and I find no error in his finding that “[t]he emotional, behavioural and mental difficulties enumerated by Ms. G are well documented.”⁴⁸

The insurer notes that Dr. Becker did not think Ms. G had suffered traumatic brain injury, although he noted that “the latter has been identified and supported by Dr. Fulton.” The insurer submits that Dr. Fulton viewed emotional problems as Ms. G’s primary impairment, and described her cognitive impairments as “relatively mild” and not disabling in themselves.

Dr. Becker did not conclude that Ms. G had suffered a traumatic brain injury. He believed her memory and concentration problems were “probably more related to medication intake and psychoemotional stress.” Dr. Comper also concluded there was “no compelling evidence” of “any residual significant cognitive dysfunction related to an acquired brain injury.” The arbitrator stated: “This appears to be the reasoned consensus of specialists having expertise in this area, and I accept this opinion.”⁴⁹

Ms. G did not have to prove she had a traumatic brain injury to prove she had a ratable psychological impairment. The insurer concedes that Dr. Becker’s report provides some evidence that Ms. G is having emotional problems as a result of the accident, but argues there was no expert evidence of any impairment or how it should be rated. Dr. Becker was the only expert to assign a WPI rating to Ms. G’s psychological impairment, but the insurer submits he is not qualified to assess psychological impairment under the Guides because he is not a psychiatrist or psychologist.

Dr. Becker was qualified as an expert in CAT DAC assessments, and his testimony about methods for rating psychological impairments was within his expertise. Dr. Ameis, a physiatrist, gave differing opinion evidence on the same issues. For the reasons given earlier, I do not accept

that Ms. G should be prejudiced by MDAC’s failure to assess Ms. G’s psychological impairment. The arbitrator’s responsibility was to decide the case based on the evidence presented, and I am not persuaded he erred in doing so.

The arbitrator’s findings about Ms. G’s psychological impairment did not rely exclusively on Dr. Becker. They were also supported by evidence from psychologists and other mental health professionals,⁵⁰ including Lynn Nichols, a psychotherapist who began treating Ms. G shortly after the accident and continued to treat her at the time of the arbitration hearing, Dr. P.J. Muller, a neurosurgeon who examined Ms. G at her counsel’s request in 2001, Dr. Comper, the psychologist who assessed her prepared a Med-Rehab DAC report in February 2005, and Drs. MacLeod, Scher and Fulton, psychologists who examined Ms. G at the insurer’s request.

Nor do I accept that the arbitrator erred by considering expert reports prepared prior to the three-year point described in paragraph 2(2)(b) of the SABS-1996. He also considered recent evidence of Ms. G’s ongoing psychological problems and gave the greatest weight to the evidence of

Dr. Becker, who assessed her in February 2003 and testified based on his review of her ongoing file, and Dr. Comper, who assessed her in February 2005. Dr. Fulton, reviewing Ms. G’s file again in early 2005, remained of the opinion that moderate-to-severe emotional difficulties prevented her from making use of her cognitive abilities and he was no longer optimistic that she would improve.

I can see no reason to interfere with the arbitrator’s conclusion that Ms. G suffers a psychological impairment because of depression. This was a finding of fact for which there was ample evidence. Rating the impairment was more difficult, but the arbitrator heard considerable evidence from Dr. Becker and Dr. Ameis on point, and gave a clear explanation for assigning a 14 per cent WPI rating based on the three pertinent rating tables in the Guides. I am not persuaded he erred.

C. Dental Impairment and Dietary Restrictions

Impairments of chewing and swallowing are classified in Table 6 of Chapter 9 of the Guides (“Ear, Nose, Throat and Related Structures”), which sets out three “types of restriction.” Where diet is “limited to semisolid or soft foods,” a 5-19 per cent WPI is assessed. A rating of 20-39 per cent WPI is provided where diet is “limited to liquid foods,” and 40-60 per cent WPI where “ingestion of food requires tube feeding or gastrostomy.”

The arbitrator assessed a 10 per cent WPI rating for Ms. G’s dental impairments and dietary restrictions.

There was no dispute that Ms. G sustained a fractured upper jaw as well as dental injuries in the 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.”⁵¹ Ms. G’s initial injuries and treatment were well-documented. The dispute was about the existence and severity of any impairment three years after the accident, when Ms. G became eligible to ask for a catastrophic impairment assessment.

The arbitrator accepted Ms. G’s testimony about her dietary restrictions:

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.⁵²

He concluded:

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.⁵³

The insurer claims Ms. G’s testimony about her eating problems was uncorroborated and went beyond what she had told various experts. According to the insurer, there was no medical evidence that Ms. G’s diet was limited to semisolid or soft foods, so as to qualify her for a 5-19 per cent WPI rating under the Guides for the mildest dietary restrictions.

Ms. G’s ongoing complaints about her jaw and teeth and the resulting dietary restrictions were noted by several of the doctors who assessed her well after the accident. The arbitrator mentioned Dr. J.A. Finklestein, an orthopaedic surgeon who examined Ms. G for the insurer in August 1999, a year after the accident, Dr. P. Muller, a neurosurgeon who examined Ms. G at her counsel’s request in March 2001, Ms. Claudia Maurice, an occupational therapist who assessed Ms. G’s attendant care needs at her counsel’s request in September 2004, and the Work Able assessors, who noted jaw and dental pain and hypersensitivity and difficulty chewing in their reports of early 2005. In her appeal submissions, Ms. G also points to Concentra’s April 22, 2002 sign-back letter to her dentist, Dr. Randy Taylor, confirming that Ms. G had root canal treatment in October 2001 because of the accident three years earlier, and the treated tooth remained sensitive to pressure and heat three months after treatment.⁵⁴ The arbitrator found Ms. G continued to have “a significant problem,” despite the treatment she had received.

Indeed, Dr. Urovitz, the orthopaedic surgeon who examined Ms. G for MDAC in April 2002, noted that she continued to have difficulty with her jaw and teeth while biting into certain foods.⁵⁵ However, MDAC did not have the impairment assessed or rated, and the CAT DAC summary report does not refer to it. Dr. Becker and Dr. Ameis disagreed about whether Ms. G has a ratable impairment because of the injuries to her teeth and jaw.

According to the arbitrator, Dr. Ameis conceded the assessors “may have missed the dietary problems arising from the facial smash,” and suggested Ms. G should have raised it herself at the assessment. It was his view that there was insufficient information to rate this impairment and the CAT DAC should be repeated with the involvement of a nutritionist, dentist or dental specialist. ⁵⁶

Dr. Becker did not discuss the issue in his initial report of August 29, 2002, which was based on his review of the CMED and MDAC reports without a clinical assessment. Based on a subsequent clinical assessment, Dr. Becker described Ms. G’s dental injuries as “significant and requiring ongoing treatment” in his report of February 5, 2003, but he stated they did not warrant a rating under the Guides because she is not limited to a soft or liquid diet. In his final report, dated October 15, 2004, he stated that both he and MDAC had overlooked the dental injuries and dietary impairment, which could be rated within the 5-19 per cent range. At the arbitration hearing, he testified he would assign a rating in the lower half of that range, likely 10 per cent WPI. On appeal, the insurer submits that Dr. Becker did not actually rate Ms. G for these injuries, but only suggested a possible rating.

For the reasons stated earlier in this decision, I agree with the arbitrator it would have been inappropriate to require Ms. G to attend another DAC assessment or insurer examination at that late stage of the arbitration process. In any event, though there was less evidence about the severity of Ms. G’s jaw and dental impairment than her other impairments, I conclude there was sufficient evidence for the arbitrator to assign a 10 per cent WPI rating. The arbitrator believed Ms. G’s testimony about her eating problems, and I have no reason to second-guess his credibility assessment or his findings of fact. The doctors who assessed Ms. G seem to have focused on her orthopaedic injuries and paid little attention to her jaw and dental injuries, possibly because these are normally assessed by dentists. MDAC should have retained a dentist or related specialist to participate in the CAT DAC assessment in 2002. The consequences of its failure to do so should not be visited upon Ms. G.

I accept it is not obvious where Ms. G’s impairment fits in Table 6, and the accompanying commentary does not explain how to assign a rating within any of the three broad ranges described. Ms. G is restricted not only in the consistency of her food but also its temperature, an issue not referenced in the Table. I agree with the arbitrator’s approach to the question:

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.⁵⁷

The Guides do not say an impairment cannot be rated unless it completely prevents the person from eating solid food. This would be absurd considering the effect of dietary impairments on health and daily functioning. It would also be inconsistent with the Guides’ underlying principles, which were described by the arbitrator at the beginning of the decision:

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.⁵⁸

Finally, the arbitrator’s reasoning is consistent with paragraph 2(3) of the SABS-1996, which states that an impairment that is not listed in the Guides shall be deemed to be the most analogous impairment that is listed.⁵⁹

The arbitrator did not accept that a 0 per cent WPI rating appropriately captures Ms. G’s dietary restrictions. Given the evidence of her ongoing problems, there is no reason to interfere with that finding. Whether Ms. G’s dietary restrictions should have been rated at 10 per cent or some other number within the 5-19 per cent range is largely a question of fact, and I have no specific reason to question the arbitrator’s assignment of a 10 per cent rating, which is on the lower half of the mild impairment range. I am not persuaded the arbitrator erred.

D. Neck and Headache Impairment

Ms. G did not bring a cross-appeal, but she submits, in the event that I allow the insurer’s appeal on any point, that the arbitrator erred in assigning a 0 per cent WPI for her combined neck pain and headaches. The arbitrator concluded his reasons on this issue by stating:

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 . . . .⁶⁰

Given my finding that the arbitrator did not err by finding Ms. G is catastrophically impaired, there is no need for me to consider this submission.

V. EXPENSES

If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

September 4, 2007

Nancy Makepeace Director’s Delegate

Date

(a) determine that the impairment is a catastrophic impairment and give the insured person notice of the determination;

(b) determine that the impairment is not a catastrophic impairment and give the insured person notice of the determination, including the reasons for the determination; or

(c) give the insured person notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43.

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended. The definitions of catastrophic impairment were amended by Ontario Regulation 281/03, but the changes do not affect the issues in dispute. Paragraphs (f) and (g) of subsection 2(1.1) of the amended SABS-1996 retain the same definitions as paragraphs (f) and (g) of subsection 2(1) for accidents before October 1, 2003. I will follow the arbitrator’s lead and use the pre-amendment citations throughout, since it makes no difference to my analysis.
2. 2The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, referred to in paragraph (f) of subsection 2(1) of the SABS-1996.
3. 3A catastrophic impairment assessment conducted by a designated assessment centre (“DAC”) authorized to conduct the assessment.
4. 4Subsection 2(1), “impairment.”
5. 5Arbitration decision, p. 4.
6. 6The Med-Rehab DAC, conducted by Work Able Centres Inc. (Work Able), also included an assessment by D. M. Tile, an orthopaedic surgeon, as well as a functional abilities evaluation (“FAE”) by Ms. S. Doble, a physiotherapist, and Ms. L. Korhonen, an occupational therapist.
7. 7Arbitration decision, pp. 14-24.
8. 8Arbitration decision, pp. 24-28.
9. 9Arbitration decision, pp. 41-46.
10. 10Arbitration decision, pp. 46-51.
11. 11Arbitration decision, pp. 51-57.
12. 12Arbitration decision, pp. 57-61.
13. 13Arbitration decision, p. 61.
14. 14Arbitration decision, p. 62.
15. 15Arbitration decision, p. 7.
16. 16Arbitration decision, pp. 7-9.
17. 17Arbitration decision, p. 11.
18. 18General Guideline # 5.
19. 19(FSCO P00-00049, May 16, 2001). See also Villers and Pilot Insurance Company, (FSCO 05-00010, January 20, 2006), and the cases cited therein.
20. 20Arbitration decision, p. 10.
21. 21Arbitration decision, p. 11.
22. 22At the time of Ms. G’s CAT DAC assessment, subsection 40(2) gave an insurer three options on receipt of a catastrophic impairment application. It could:
23. 23(FSCO P05-00010, January 30, 2006).
24. 24(FSCO A04-000446, January 25, 2005).
25. 25See also Driver and Traders General Insurance Company, (FSCO P03-00006, November 18, 2003), at p. 16: “Like all expert reports, the DAC report is assessed for its accuracy, completeness, relevance, expertise and impartiality.” The cases are discussed in Villers and Pilot Insurance Company, (FSCO P05-00010, January 30, 2006), at pp. 25-28.
26. 26(OIC P96-000036, December 3, 1996).
27. 27Arbitration decision, p. 11.
28. 28See the “Designated Assessment Centre Complaint Management and Discipline Protocol” (October 2001), and the Fact Sheet, “Complaint and Discipline Protocol” (February 2002), both available at www.fsco.gov.on.ca.
29. 29Arbitration decision, p. 9.
30. 30Arbitration decision, p. 11.
31. 31See subsections 41.1(9) and (10) of the amended SABS-1996.
32. 32I discussed the issues recently in Ramalingam and State Farm Mutual Automobile Insurance Company, (FSCO P05-00026, August 13, 2007).
33. 33Arbitration decision, p. 48.
34. 34Arbitration decision, p. 40.
35. 35“Marked impairment” is impairment that “significantly impede[s] useful functioning.” “Extreme impairment” is impairment that “preclude[s] useful functioning.”
36. 36Confirmed on appeal (FSCO P05-00006, March 14, 2006), application for judicial review dismissed [2007] CanLII 17630 (Ont. Div. Court).
37. 37Arbitration decision, p. 4.
38. 38The overlap is explicitly recognized by the Guides at 4/141-142.
39. 39Arbitration decision, p. 39.
40. 40Guides, Chapter 2, Section 2.1, “Medical Assessment of Impairment,” Tab 8 of Appellant’s Compendium.
41. 41Guides, Chapter 14, Section 14.2, “Evidence of Mental Impairment,” Tab 9 of Appellant’s Compendium.
42. 42Guides, 14/293.
43. 43Arbitration decision, p. 4.
44. 44see, for example, Ajzenstadt and CAA Insurance Company (Ontario) (OIC P-000185, July 13, 1992). [footnote in original]
45. 45Arbitration decision, pp. 4-6.
46. 462004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 at para. 243-264.
47. 47Arbitration decision, p. 29.
48. 48Arbitration decision, p. 29.
49. 49Arbitration decision, p. 34.
50. 50Discussed at pp. 28-40 of the arbitration decision.
51. 51Arbitration decision, p. 46.
52. 52Arbitration decision, pp. 47 and 51.
53. 53Arbitration decision, p. 51.
54. 54Arbitration exhibit 3, tab 4 (jj), Respondent’s Appeal Submissions, Tab 37.
55. 55Arbitration decision, p. 46.
56. 56Arbitration decision, p. 48.
57. 57Arbitration decision, p. 50.
58. 58Arbitration decision, p. 3.
59. 59Arbitration decision, p. 4.
60. 60Arbitration decision, p. 57.