Financial Services Commission of Ontario
Neutral Citation: 2007 ONFSCDRS 189
FSCO A06-000209
BETWEEN:
H Applicant
and
LOMBARD GENERAL INSURANCE COMPANY OF CANADA Insurer
REASONS FOR DECISION
Before: William J. Renahan
Heard: March 19, 20, 21, 22, 26, 29 April 2 and April 12, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: David Payne for Ms. H Harry Brown for Lombard General Insurance Company of Canada
Issues:
The Applicant, Ms. H, was injured in a motor vehicle accident on December 31, 2000. She applied for and received statutory accident benefits from Lombard General Insurance Company of Canada, payable under the Schedule.1
In June 2005, Ms. H applied to Lombard pursuant to section 40 of the Schedule for a determination that she suffered a catastrophic impairment. An assessment at a Designated Assessment Centre ("DAC") determined that Ms. H did not suffer a catastrophic impairment.
The parties were unable to resolve their disputes through mediation, and Ms. H applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Did Ms. H suffer a catastrophic impairment within the meaning of section 2(1) of the Schedule?
Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(10) of the Insurance Act?
Result:
Ms. H suffered a catastrophic impairment within the meaning of section 2(1) of the Schedule.
Ms. H is entitled to her expenses of the arbitration proceeding.
EVIDENCE AND ANALYSIS
Background
At the time of the accident, Ms. H was 21 years old and enrolled in the second year of a Bachelor of Arts course at the University of Windsor where she majored in Philosophy. She also worked at two part time jobs to pay for her education. She was close to her family and enjoyed a physically and socially active life.
The accident occurred while Ms. H was a passenger in a vehicle driven by her boyfriend. Her boyfriend turned left into the path of an oncoming vehicle which struck Ms. H's side of the vehicle broadside. Ms. H said it took 30 to 40 minutes to cut and pry the vehicle open so that emergency personnel could remove her from the vehicle and take her to Oakville - Trafalgar Memorial Hospital.
She sustained multiple injuries. Her most significant orthopaedic injuries, which required treatment at the time, were a mandible which was broken into two pieces and 8 pelvic fractures, one of which was slightly displaced. The mandible fracture was reduced and stabilized with two metal plates and 15 screws. The pelvic fractures were treated with boot traction.
Ms. H was hospitalized two weeks in Oakville - Trafalgar Memorial Hospital until she was well enough for transfer to Hotel-Dieu Grace Hospital in Windsor. After another two weeks she was transferred home in a wheelchair. She did not bear weight on her legs for three months. Over the next year she gradually increased weight bearing.
Ms. H returned to university in September 2001 and graduated with an honours degree in English and Philosophy in January 2004.
Ms. H now lives by herself in an apartment in London. Lombard continues to pay income replacement benefits. Under the Schedule, a person is eligible to apply for increased medical and rehabilitation benefits if their impairment falls within the definition of "catastrophic impairment."
On June 14, 2005, Ms. H's physiatrist, Dr. Gail Delaney, completed an Application for Determination of Catastrophic Impairment in which she expressed her opinion that Ms. H had sustained a "catastrophic impairment" within the meaning of the Schedule.
"Catastrophic impairment" is defined in section 2(1) as:
"catastrophic impairment" means,
(a) paraplegia or quadriplegia;
(b) amputation or other impairment causing the total and permanent loss of use of both arms;
(c) amputation or other impairment causing the total and permanent loss of use of both an arm and a leg;
(d) total loss of vision in both eyes;
(e) brain impairment that, in respect of an accident, results in,
(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or
(ii) Glasgow Outcome Scale, as published in Jennett, B. and a score of 2 (vegetative) or 3 (severe disability) on the Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose,
(f) subject to subsections (2) and (3), 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; or
(g) subject to subsections (2) and (3), any impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
In George and State Farm Mutual Automobile Insurance Company (FSCO A03-001062, August 9, 2004), I wrote this concerning the Guides to the Evaluation of Permanent Impairment (the "Guides"):
Separate chapters describe percentage impairments of twelve different body systems. A thirteenth chapter describes mental and behavioural disorders by class, not percentage. Various impairments are described in words, in tables and in examples. Calculations and charts are set out to combine various impairments to calculate a whole person impairment ("WPI") for the first 12 body systems.
Under the Schedule, a WPI of 55 per cent or more is a catastrophic impairment. Mental and behavioural disorders are described by class. Under the Schedule, a mental or behavioural disorder of class 4 or class 5 is a catastrophic impairment. Although the Guides provide calculations for combining different body impairments, they do not provide a means to add a mental or behavioural impairment to a whole body impairment unless the mental impairment is due to structural brain injury. In that case, the impairment is assigned a percentage based on the descriptions and tables in the chapter dealing with the nervous system.
In her report, Dr. Delaney assessed Ms. H's physical impairments at 50% WPI. She combined this with the percentage WPI psychological impairment assessed by Dr. Tony Iezzi, a psychologist. Dr. Iezzi found that Ms. H suffered a moderate impairment in "social and interpersonal daily living functions", 80 per cent of which he attributed to the motor vehicle accident. He calculated this at 23 % WPI which Dr. Delaney combined with her score to arrive at a total WPI of 62%.
Dr. Arthur Ameis is also a physiatrist who evaluated Ms. H. at her request. He found additional ratable traumatic physical impairments that raised Ms. H's WPI to 59%. For the jaw impairment, he referred to the rating of Dr. J. Friedlich, an oral and maxofacial surgeon. Dr. Friedlich also found an impairment based on damage to a nerve in Ms. H's face.
In summary, Dr. Delaney, Dr. Ameis and Dr. Friedlich, together or individually, found that Ms. H suffered physical impairments in the following areas:
- jaw - pain, permanent restriction in diet, loss of weight;
- trigeminal nerve – excessive sensitivity to pain affecting facial activities such as kissing, eating and talking;
- dyspareunia – painful sexual intercourse;
- cervicogenic headaches;
- lumbosacral pain;
- pelvic pain;
- urinary urgency and frequency;
- left and right ulnar nerve injuries and muscle atrophy;
- sciatica;
- heel injury.
Mental impairment ratings
Since my decision in George, Spiegel J.,of the Ontario Superior Court of Justice, released the decision of Desbiens v. Mordini.2
In that case, he found that an assessor could assign a WPI to a mental impairment and combine it with a physical WPI. He also dealt with the principle of the interpretation where a non-statutory instrument, such as the Guides, is incorporated in a Regulation.
At page 69 he wrote:
The question of whether something is "in accordance" with the Guides also requires an interpretation of the Guides. Non-statutory instruments that have been incorporated into a regulation by reference are considered part of the regulation. In the case of R. v. Collins [(2000) 2000 BCCA 437, 148 C.C.C. (3d) 308] the B.C. Court of Appeal examined the question of the validity of certain guides that had been incorporated by reference into a regulation but had not been published the Gazette. Justice Rowles, in response to questions of the validity of the guides stated:
When material is incorporated by reference into a statue or regulation it becomes an integral part of the incorporating instrument as if reproduced therein.
The Guides deal with the assessment of mental and behavioral impairment in Chapter 14. In general, the assessors looks at four areas or aspect of functioning: activities of daily living, social functioning, concentration and adaptation and assign a class of impairment to each aspect of functioning. Class 1 is no impairment. Class 2, mild impairment, means the impairment levels are compatible with most useful functioning. Class 3, moderate impairment, means impairment levels are compatible with some, but not all, useful functioning. Class 4, marked impairment, means impairment levels significantly impede useful functioning. Class 5, extreme impairment, means impairment levels preclude useful functioning.
I find several references in Chapter 14 which shed light on the issue of converting a mental or behavioral disorder into a percentage of WPI and combining that with the percentage physical WPI.
In the introduction of the explanation of the rating system for mental and behavioral disorders the authors write at page 300:
There is no available empiric evidence to support any method for assigning a percentage of impairment of the whole person, but the following approach to estimating the extent of mental impairments is offered as a guide.
At page 301:
Translating these guidelines for rating individual impairment on ordinal scales into a method for assigning percentages of impairments, as if valid estimates could be made on precisely measured interval scales, cannot be done reliably. One cannot be certain that the difference in impairment between a rating of mild and moderate is of the same magnitude as the difference between moderate and marked. Furthermore, a moderate impairment does not imply a 50% limitation in useful functioning, and an estimate of moderate impairments in all four categories does not imply a 50% impairment of the whole person.
Further on page 301:
The decision not to use percentages for the estimates of the mental impairment in this fourth edition of the Guides was made only after considerable thought and discussion.
. . . unlike the situations with some organ systems, there are no precise measures of impairment in mental disorders. The use of percentages implies a certainty that does not exit, and the 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. Also, because no data exist that show the reliability of the impairment percentages, it would be difficult for Guides users to defend their use in administrative hearings. After considering this difficult matter, the Committee on Disability and Rehabilitation of the American Psychiatric Association advised Guides' contributors against the use of percentages in the chapter on mental or behavioral disorders of the fourth edition.
The authors of the Guides considered that one valid reason for assigning percentage ratings for mental impairments was to make the chapter on mental disorders consistent with the Guides chapters for the other organ systems. They decided against it for the reasons I have described.
The direction in the Guides not to convert a mental or behavioral impairment into a percentage WPI is clear to me. However, in the recent decision of Pilot Insurance Company and Ms. G, (FSCO Appeal P06-00004, September 4, 2007) Director's Delegate Makepeace agreed that it was appropriate to assign a percentage WPI to an impairment based on a mental or behavioral disorder and combine that with a percentage WPI due to a physical impairment.
The DAC Assessment
The assessment at the Designated Assessment Centre was conducted in August 2005. Ms. H was personally assessed or examined by Dr. Scott Garner, a physiatrist, Ms. Moira Hunter, an occupational therapist, Dr. Cheryl Gillin-Garling, a psychologist and Dr. Peter Williamson, a psychiatrist. Dr. Michel Lacerte is a physiatrist and director of the DAC. He did not meet with Ms. H. He conducted a paper review and met with the team members.
The physiatrists expressed the opinion that the December 31, 2000 motor vehicle accident related trauma resulted in a Whole Person Impairment rating of 1%. The occupational therapist thought that Ms. H suffered a class 2, mild impairment, with respect to activities of daily living.
Dr. Gillin-Garling thought that Ms. H suffered a class 4, marked impairment, with respect to social functioning and class 3, moderate impairment, with respect to the other three areas for assessing mental impairment. Dr. Williamson thought that Ms. H's impairments were either class 2, mild, or class 3, moderate.
On December 16, 2005, the DAC issued a "Report Clarification" in which Dr. Williamson, Dr. Gillin-Garling and Dr. Lacerte wrote that "It remains Dr. Gillin-Garling's opinion that Ms. H's social functioning can be associated with a "marked impairment class 4" only in the context of a close relationship, that is, her relationship with her fiancée. In all other social functioning situations, she does not meet "marked impairment" class." They wrote that it was unfortunate that Justice Spiegel did not clarify the context of his statement in Desbiens that it was not disputed that one class 4 marked impairment was sufficient to satisfy the definition of "catastrophic impairment" in clause (g).
Position of the parties
Dr. Garner wrote a draft report in which he stated his opinion that Ms. H's physical impairments were close to catastrophic.3 Among other things, Ms. H argued that, based on his draft report and concessions in testimony, Dr. Garner accepted that Ms. H suffered a catastrophic impairment within the meaning of clause (f). Ms. H argued that the DAC process was unfair. She claimed that an "editor" only identified as "Adam" scoured volumes of her medical records looking for other explanations for her physical impairments and that Dr. Lacerte took those explanations to persuade Dr. Garner that only 1 per cent of Ms. H's impairment was caused by the motor vehicle accident. Ms. H also claimed that Dr. Gillin-Garling concluded that Ms. H was not catastrophic before analyzing her assessment. She also claimed that Dr. Gillin Garling changed her report after Desbiens was released, to clarify that Ms. H did not suffer a complete class 4 impairment in the area of social functioning to make sure that Ms. H would not satisfy the definition of catastrophic.
Lombard argued that Ms. H's impairment were caused either by pre-accident or post-accident events.
I heard testimony from Ms. H, her father, her former employer, her best friend, her godfather, her mother and a family friend. The following doctors also testified; Dr. Ameis, Dr. Tamara Biederman, Ms. H's current treating psychologist, Dr. Garner, Dr. Gillin-Garling and Dr. Ronald Kaplan, a psychologist who did another assessment for Ms. H.
I will deal with each of the events or conditions which Lombard claims contributed to Ms. H's impairment when I examine each impairment, however, I will list those events and conditions now.
In the year prior to the accident Ms. H was diagnosed with depression and prescribed an anti-depressant medication, Paxil. She saw a gynecologist who diagnosed dyspareunia. She saw a rheumatologist for life long knee pain and he noted "perhaps an early chronic pain syndrome." Also, in the year prior to the accident, Ms. H was involved in the "rave" culture and used street drugs such as cocaine and ecstasy.
After the accident, Ms. H's younger brother died in a motor vehicle accident. Ms. H was involved in another motor vehicle accident and fell down some stairs. A child hit her in the jaw. She underwent an abortion. She broke up with her fiancée. Her father has suffered significant health problems. He gave evidence by cell phone on his way to the hospital for cancer surgery.
Impairment due to mental or behavioural disorder
I dealt with Ms. H's psychological condition and behavioural disorder first, because her change of personality is what she and many of the lay witnesses described as her primary impairment. As well, it is the only impairment for which she is still receiving ongoing treatment. She sees Dr. Biederman at least twice a month and sometimes weekly and pays her from her own resources.
Under paragraph 2(1) (g) of the Schedule a person also satisfies the definition of "catastrophic impairment" if they suffer a class 4 impairment (marked impairment) as defined in the Guides. A marked impairment is "Impairment levels significantly impede useful functioning." To put the definition into context, a class 3 moderate impairment is "Impairment levels are compatible with some, but not all, useful functioning." A class 5 extreme impairment is defined as "Impairment levels preclude useful functioning."
Dr. Iezzi, in his report in support of Ms. H's Application for Determination of Catastrophic Impairment, said that the two motor vehicle accidents resulted in a 29% WPI (moderate limitation of some but not all social and interpersonal daily living functions). In subsequent correspondence he explained that 80 per cent of the impairment was due to the accident of December 31, 2000 and 20 % was due to the accident of December 11, 2001.
At the time of the accident, Ms. H was 21 years old and enrolled full time at the University of Windsor majoring in Philosophy and English. She lived at home with her parents and paid for her education herself. She worked about 20 hours a week as a waitress in a restaurant carrying trays of food and clearing the tables. She also delivered 200 copies of a daily newspaper with her mother in the morning. Each did one side of the street.
Ms. H was an athlete in high school and at the time of the accident she performed break dancing. Her best friend described break dancing as an athletic way of dancing. Her mother saw Ms. H spin on her head.
Ms. H was involved in an "open" relationship with a bi-sexual man. She used cocaine and ecstasy.
Nine months before the accident, her family doctor, Dr. Sharon Doyle, used the Beck Depression Inventory scale to measure depression and noted a score of 36, which is very high. She diagnosed Ms. H with depression and prescribed Paxil.
Ms. H testified that she was very happy before the accident. She also said that she was depressed because of the relationship with her boyfriend which affected her self-esteem. She testified that she stopped using drugs shortly before the accident. Her parents were not aware of her drug use.
Dr. Doyle noted that Ms. H took herself off Paxil after about two months because it made her aggressive. The mother was the only lay witness who knew that Ms. H was taking Paxil. She thought that Ms. H was depressed because of her relationship with her boyfriend. She disagreed with Dr. Doyle's note that Ms. H was sad and depressed in the weeks prior to the accident. The best friend was not surprised that Ms. H took Paxil because she had tried it as well. Dr. Biederman testified that the 10 mg. dose was incredibly low.
A few weeks before the accident Dr. Doyle noted "always tired - not very happy - sad/tired - no reason."
Ms. H testified that since the accident she is not the same person. Before the accident she was "the life of the party." Now, she is paranoid and fearful. She is easily confused and overwhelmed. She feels that she is a burden on her family. She described an incident in the week prior to the hearing when she went to the hospital with a kidney infection and because she had to wait, she went outside and laid on the ground and cried.
The father described Ms. H as extroverted, gregarious and involved before the accident. He was not aware of the drug use. He testified that she has changed from a confident, aggressive person to someone who is easily disturbed and unable to cope. He and the mother testifed about a family trip where Ms. H broke down crying at the airport because she had forgot something.
Her former employer described her as a great personality, funny and always hustling. He said people loved her. He testified that when he saw her after the accident she was not the same person. She walked slowly like an old lady.
Her best friend described her as very outgoing and into everything. At high school she was active in track and field and drama. She was not aware that her boyfriend was having sexual relationships outside of their relationship. She testified that she has completely changed. She used to be outgoing and not scared of anyone. Now she is more timid and tends to "freak out" and lose control for no reason.
The godfather described Ms. H as alive, bright and bubbly before the accident and very active and very happy. He found it hard to believe she was depressed and on Paxil. He testified that Ms. H is two different people, physically and psychologically. He has seen her break down in tears and leave the room for no reason.
The mother described Ms. H as extremely outgoing and athletic and fully functional before the accident. She now talks to Ms. H on the telephone about four times a week and about half the time Ms. H is hysterical.
The lay witnesses were consistent and persuasive in their testimony that Ms. H was a happy, healthy and positive person in the year before the accident. She was vibrant, extroverted and engaging. Since the accident she is depressed, withdrawn and unable to cope.
In contrast, the medical records indicate that Ms. H was diagnosed with depression, dyspareunia and chronic pain before the accident. The psychologists provide some insight into this contrast.
Dr. Biederman, who has treated Ms. H for two years, testified that Ms. H presents as a person who minimizes their problems, a person who is almost detached from her situation. She avoids playing the sick role. She said it takes a while to see that something is missing.
Dr. Kaplan testified that Ms. H has a pleasant engaging personality but that she has a tendency to minimize so that people will not see what's wrong with her. She separates herself from her emotion and is mistrustful and almost paranoid.
In a letter to the university seeking some indulgences for Ms. H's return to school, Dr. Morrie Klienplatz, a former treating psychologist, stressed that Ms. H:
never malingered or tried to take advantage of her physical problems to cut corners at school. On the contrary, she has refused to regard herself as requiring any special treatment, and has taken pride in her ability to respond to adversity.
Dr. John McGrory is a psychologist who assessed Ms. H for her family doctor after seeing her three times in early 2001. He wrote that she was quite a complex young person. Although she scored high on the Beck Depression Inventory, she did not clinically manifest depression. She appeared outgoing, engaging and readily disclosive.
Ms. H testified as if she was talking about someone else.
I find that Ms. H tends to disassociate and minimize her problems. I find that Ms. H is not a complainer by nature. I find that she was depressed before the accident on account of the relationship with her boyfriend and that her depression did not effect her function. Nor did the drugs she took effect her function. She worked at two jobs, went to school and interacted in a happy manner with her friends and family. She appeared to everyone as happy, outgoing, energetic and engaged. In her own words, her aches, pains and depression did not prevent her from living life to the fullest. Although she had her moments, she was the life of the party and had fun all the time.
I heard evidence on how Ms. H now spends her time.
Ms. H lived with her fiancée when she returned to university. He did all the work around the apartment so she could concentrate on her studies. Ms. H did not engage in extra-curricular activities. She found classes stressful. She said that she should have got so much more out of university.
Ms. H now lives by herself in an apartment in London. She shops, banks and cleans on her own. She cooks vegetarian meals, partly because they are easier on her jaw and partly because she thinks they are healthier. She shops frequently for groceries because she cannot carry heavy loads.
She sees her parents once a month. She visits and communicates with a smaller group of friends.
She drives between London and Windsor and between London and Toronto. She has taken trips to Los Angeles and Vancouver to visit her sisters and to Boston to visit a friend. Sometimes she travels by herself and sometimes with family. She traveled to Costa Rica with a sister and to the Dominican Republic and Jamaica with her former fiancée. She travels with seat, neck and back supports.
She reads to a blind man for the CNIB about one hour a week. She likes it because he cannot see her. She pets kittens two hours a week to socialize them for the Humane Society. She does volunteer work at a hospice.
She has taken yoga and now studies Ayurvada, an Indian science which deals with health care. She testified that it helps with anxiety.
Professional assessments
Dr. Iezzi found a "29% WPI (moderate limitation of some but not all social and interpersonal daily living)." The first two areas or aspect of functioning in Chapter 14 of the Guides are "Activities of daily living" and "Social functioning." It is not clear to me what aspect or aspects Dr. Iezzi is referring to.
Both Dr. Biederman and Dr. Kaplan found that Ms. H had a "marked impairment" in all four areas of functioning, activities of daily living, social functioning, concentration and adaptation.
I found the following passage from page 300 of the Guides also useful in putting the term "marked impairment" into context:
Marked limitation in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment.
Although Ms. H has psychological problems, she is far from requiring special support as required in a sheltered environment. I therefore do not accept Dr. Biederman's and Dr. Kaplan's opinion that she suffers a marked impairment in all four areas.
I found the insights Dr. Iezzi, Dr. Biederman and Dr. Kaplan provided in their reports and testimony useful. Dr. Williamson, the DAC assessor, on the other hand, did not demonstrate much insight into Ms. H's personality or psychological problems and I do not attach much weight to his opinion that her mental and behavioural impairments were moderate or mild.
In her first assessment, Dr. Gillin-Garling found that Ms. H suffered a marked impairment in the area of social functioning. Dr. Gillin-Garling noted that Ms. H said her pre-accident depression was nothing like the depression she now suffers. She reported her current activities as getting up and laying down and that she is completely the opposite to what she used to be and that she didn't like the person she had become. Like other assessors, Dr. Gillin-Garling noted that Ms. H appeared straight-forward and cooperative with no signs of defensiveness and that she spoke with a resigned sense of hopelessness. In her report clarification, three months later, Dr. Gillin-Garling wrote that Ms. H's impairment in social functioning was only a marked impairment with respect to social functioning in the context of close relationships, such as the relationship with her fiancée.
I found Ms. H's impairment with respect to social functioning affects all but the most simple social functions. She can shop on her own. Otherwise, all the evidence I heard dealt with impaired social functioning. I heard evidence of crying at the airport and the hospital parking lot and social engagements with family and friends. Other than shopping, the only evidence I heard of Ms. H's social functioning dealt with therapeutic activities, reading to the blind, petting cats, yoga and averyuda.
Dr. Biederman, Dr. Kaplan and Dr. Iezzi all found that Ms. H was a minimizer. She tended to disassociate herself from her emotions and present herself as almost detached. She avoided new social situations and withdrew from difficult social situations. I agree with all the witnesses who said that Ms. H is not the person she used to be. The severity of the impairment is "marked" because it is a level of impairment which "significantly impedes useful functioning."
Although Ms. H suffered depression prior to the accident, I heard no evidence that it affected her function. She was gregarious and socially outgoing despite her depression. Dr. Iezzi noted that her pre-existing depression may have made her more vulnerable to the significant depression she now experiences and which affects her social functioning.
Similarly, if Ms. H had chronic pain before the accident, as diagnosed by the rheumatologist, it did not affect her function.
I therefore find that Ms. H's current level of depression and behavioural impairment is much worse than it was prior to the accident and that the pain she suffers is much worse than it was before the accident.
Ms. H underwent several emotionally stressful experiences after the motor vehicle accident. She underwent an abortion, her brother was killed in a motor vehicle accident and her father has suffered health problems. I heard no evidence that these events significantly contributed to Ms. H's psychological impairment.
As well, she was involved in a second motor vehicle accident. Dr. Iezzi stated that the second motor vehicle accident contributed about 20 per cent to Ms. H's psychological impairment.
Ms. H's evidence was that she was very angry and distraught after the second motor vehicle accident. She suffered rib injuries which did not require treatment. The accident and injuries were much less severe than the first motor vehicle accident.
I find that the motor vehicle accident of December 31, 2000 significantly contributed to the psychological impairment that Ms. H now suffers from.
Since she satisfies a marked impairment under one of the aspects of functioning described in the chapter in the Guides dealing with mental and behavioural disorders, she has suffered a catastrophic impairment with the meaning of section 2(1) (g) of the Schedule.
Physical Whole Person Impairment
Pre-accident physical condition
Ms. H's physical complaints before the accident are also relevant in so far as she had similar complaints after the accident which she said were caused or aggravated by the accident.
Ms. H saw a rheumatologist twice in the year before the accident. On the first visit he noted knee pains for as long as Ms. H could remember, consistent with chondomalacia patella, occasional low back pain and right lower quadrant pelvic pain. At the next visit he noted bloating, decreased appetite, milk sensitivity, reduced interval between periods and ongoing pain in the wrists, lateral hips, knees and lower legs and occasional low back pain. He wrote: "Clinically she has a chronic pain syndrome."
Six months before the accident, Ms. H asked Dr. Doyle for a referral to a gynecologist for the pain she experienced with sexual intercourse. Three months before the accident the gynecologist reported back to Dr. Doyle "Ms. H is a 21 year old presenting with pelvic pain for six months. It is right sided. She has dyspareunia." He questioned whether she had endometriosis and Ms. H agreed to bowel x-ray studies.
Although Ms. H claimed that her dyspareunia was much worse after the accident, none of the assessors asked her about her pre-accident dyspareunia. The only other information I have on this issue is her answer on a brief cross-examination on this point that she believed her dyspareunia before the accident was due to the size of her partner at that time.
I will first assess the physical impairments in the order in which Dr. Delaney addressed them in her Application for Determination of Catastrophic Impairment and then the additional impairments identified by Dr. Ameis.
Jaw injury
The two plates and all but one of the 15 screws were removed in July 2002. Ms. H said that the joint near the ear hurts all the time and gives her headaches every day. She had arthroscopic surgery in September 2004 to deal with what her surgeon at that time described as severe right and left TMJ capsulitis [inflammation of a capsule] with myofacial pain dysfunction.
Ms. H said that she cannot chew solid food such as meat, carrots, celery and chewy bread, because of the pain and headaches it causes. She also described her jaw as hypersensitive and numb. The godfather testified that Ms. H became a vegetarian and that when he ate with her he did not see anything but pureed and processed foods. The mother testified that Ms. H backs away from kisses and hugs because of her jaw sensitivity and that she lost 20 pounds after the accident and has gained back 10 pounds. The family friend testified that when he had Ms. H over for a family dinner, he had to cook vegetarian lasagna for everyone so that she could enjoy the meal.
Dr. Delaney deferred to Dr. Friedlich, the Oral and Maxillofacial Surgeon with respect to assessing the jaw injury. Dr. Friedlich found the jaw injury represented a 27% whole person impairment.
He found, that although the joint component of pain had likely resolved, Ms. H suffered significant myofacial pain and was permanently restricted in the type of food she could eat.
He found that she lost 15 to 20 pounds.
He also found that she suffered injury to the left third division of the trigeminal nerve which caused excessive sensitivity to pain and which could aggravate kissing, eating, talking and touching.
Based on a change to a soft diet and a weight loss of 10%, he used Chapter 9 of the Guides, table 6 to assess a 19% WPI. For the damage to the nerve, he used Chapter 4 to assess a 10% WPI, which combined resulted in a 27% WPI.
In his draft report, Dr. Garner wrote that the jaw impairment could be up to 19% and the nerve impairment could be up to 10%.
In its final report, the DAC allowed nothing for jaw or nerve impairment. In summary, it wrote:
Overall, considering the multiple jaw traumas, the lack of significant weight loss, a documented non-restricted jaw opening, no evidence of trigeminal nerve injury during this evaluation and no missing teeth, it is our opinion that Ms. H's WPI rating for jaw related impairments due to the December 31, 2000, MVA-related trauma is 0%.
The Guides attempt to measure impairment scientifically, and with respect to jaw injuries, one scientific measurement is change of diet and weight loss. The testimony was clear that Ms. H has changed to a softer diet because of her injury. When Dr. Garner weighted her she was 122 pounds. In July 2002, when she had the hardware removed from her jaw, she put her weight at 130. On August 16, 2001, an orthopaedic surgeon who performed an independent examination for Lombard put Ms. H's weight at 130 pounds. In November 1999, one year before the motor vehicle accident, Dr. Doyle recorded Ms. H's weight as 135 pounds. In March 2000, Dr. Doyle noted that Ms. H's weight was down 7 pounds in the last month due to depression. In February 2001, Dr. Doyle noted Ms. H's weight was down 10 pounds. I find it likely that Ms. H lost a few pounds less than 10 pounds as a result of her jaw impairment.
I agree that the correct table for assessing impairment caused by a jaw injury is table 6 of Chapter 9 of the Guides. Where "diet is limited to semisolid or soft foods", the percentage WPI is between 5 – 19. The next level of restriction is where the "diet is limited to liquid foods" where the percentage WPI is between 20 and 39.
A percentage rating of 19 puts Ms. H close to a diet which is limited to liquid foods. Her diet is far from that. She can eat bread, but not chewy bread. She can eat meat but not chewy meat like steak. I find that Ms. H's restriction to soft foods is permanent and affects her every time she eats. I find that her TM joints always hurt to some degree. The half-way point between 5 and 19 is 12 and the half-way point between 12 and 19 is 15 to 16. I assess Ms. H's impairment due to her jaw injury at 15 percent WPI.
Dr. Friedlich assessed 10 per cent WPI for impairment due to injury to the trigeminal nerve. Chapter 4 allows 0 – 14 % WPI for "mild impairment due to uncontrolled facial neuralgic pain." The witnesses explained a sensation test used to assess injury to this nerve. In his draft report, Dr. Garner wrote that the rating could be up to 10%. In his testimony, he said he didn't notice the same numbness that others had noticed. He did not explain the discrepancy between his draft report and testimony.
I accept Dr. Friedlich's assessment and Dr. Garner's initial assessment that the WPI for damage to the trigeminal nerve is 10 per cent.
Jaw impairment and causation
The causation test is whether the motor vehicle accident of December 31, 2000 significantly contributed to the impairment due to the jaw and nerve injury. I find that the most serious injury sustained in the second motor vehicle accident was pain in two ribs caused by the seat belt. The other trauma, including the fall down the stairs and the hit in the jaw by the child did not cause nearly as much damage to her jaw as the motor vehicle accident of December 31, 2000, which broke the jaw bone into two pieces and required surgery to repair. I therefore find that the impairment to the jaw and nerve were caused by the motor vehicle accident.
Ulnar Nerve Injuries
A cranial nerve in the neck, eventually becomes the ulnar nerve where it runs into the elbow, where it is most vulnerable, and then into the hand. Ms. H testified that her hands get tired and painful as if she had hot coat hangers in her arms. She cannot carry heavy things, or lighter things for long periods. Her handwriting is not good now and she has to type. She had assistance at university with note taking.
The first documented complaint of ulnar nerve injury is Dr. Delaney's note of August 23, 2001, where she records that Ms. H had numbness in both hands. She referred Ms. H to Dr. Howard Adams, a plastic surgeon specializing in reconstructive and hand surgery. He found ulnar nerve compression in both elbows and significant muscle atrophy in the ulnar enervated muscles of the hand. He performed two separate operations in which the nerve was moved deeper into the arm. Ms. H testified that the operation left a nine inch scar. Dr. Ameis explained that the operation is performed to move the nerve to an area where it is better protected and less vulnerable to mechanical stress.
Dr. Adams reported that Ms. H had less aching and some improvement of the numbness following the first operation and that she was anxious to proceed with the second operation.
Following the operations he concluded that Ms. H would be left with continued muscular wasting of the hands because the muscle was atrophied for a long period of time and that this would result in some loss of strength in the hands. Dr. Delaney assessed the right ulnar nerve at 10% WPI and the left ulnar nerve at 10% WPI. In his draft report, Dr.Garner assessed the impairment at 7% WPI.
Lombard did not take issue with Dr. Delaney's rating of 10% WPI for each arm and in view of the clear evidence of impairment I see no reason not to accept that rating. Lombard argued that any ulnar nerve impairment was not caused by the accident.
Ulnar nerve impairment and causation
The first documented complaint of injury to the ulnar nerves is nine months after the motor vehicle accident. Dr. Garner testified that direct compression on both elbows or fracture of both arms could cause these injuries. He was not concerned with causation when he assessed Ms. H and did not ask her any questions about the cause of these injuries. It was not until he discussed the matter with Dr. Lacerte, that he thought causation was an issue.
I heard no evidence concerning the forces involved in the first motor vehicle accident, Ms. H's efforts to extricate herself from the vehicle or the forces used by the rescue personnel to remove Ms. H to explain how the motor vehicle accident significantly contributed to the ulnar nerve impairment. Nor did I hear any evidence of any other cause in the nine month period from the time of the accident to the first recorded complaint. The father testified that writing caused Ms. H pain from the time of the first motor vehicle accident.
For the first few months after the accident, it is reasonable to conclude that Ms. H was consumed by her jaw injury and the healing of her pelvic injuries. It was one year before she was fully weight bearing. I agree with Mr. Payne's submission that her preoccupation with her jaw and pelvis is one reason she may have delayed complaining about her arms and hands. I also note that Ms. H's complaints are recorded one week before she returned to university, a time when she would expect to make notes and carry books.
I also consider Ms. H's tendency not to complain. The lay witnesses were consistent and persuasive in their testimony that Ms. H was a happy, healthy and positive person in the year before the accident. Yet the medical records indicate that she was diagnosed with depression, dyspareunia and chronic pain.
In view of my acceptance of the expert psychological opinions that Ms. H is a minimizer who avoids playing the sick role and in the absence of any other evidence of how the damage to the ulnar nerves were damaged, I find it likely that they were damaged in the motor vehicle accident and that Ms. H did not complain about them until her jaw and pelvic problems had receded somewhat and she was preparing to return to university where she would have to use her hands and arms.
Pelvic and related injuries
In her Application for Determination of Catastrophic Impairment, Dr. Delaney rated Ms. H's pelvic injury for her pelvic fractures extending into the sacrum as 5% WPI under page 131 of the Guides which provides for a 5% WPI for a healed fracture with displacement and without residual signs involving the sacrum.
In a supplemental report, Dr. Ameis found four other ratable traumatic impairments related to the pelvis. For urinary urgency and frequency he referred to page 254 of the Guides for impairments of the bladder. A Class I impairment is scored from 0 – 15%. He rated Ms. H's bladder impairment at 8% WPI.
For the impairment of dyspareunia he referred to page 260 of the Guides where an WPI rating of 15 -25% is given where sexual intercourse is possible only with some degree of difficulty. He rated the impairment at 20% WPI.
As a result of Ms. H's pelvic fractures, she may require a Caesarian section with pregnancy. The doctor who performed the abortion recorded that the pregnancy would have been painful and difficult. Dr. Ameis referred to page 9 of the Guides which allows the physician to increase the impairment estimate by 1% – 3% to allow for treatment of an impairment. He found an additional 3% WPI was reasonable to reflect Ms. H's potential need for a Caesarian section as a result of her pelvic fractures.
Finally, Dr. Ameis allowed 3% WPI to account for the potential of post-traumatic hip joint arthritis.
In his draft report, Dr. Garner wrote that Ms. H should be given at least 5% for pelvic fractures with residual findings and pelvic asymmetry deformity. For urinary dysfunction he thought midway through Class 1 on page 254, or 8% WPI was appropriate. He chose the midway point for painful intercourse on page 259 at another 8%.
In the final DAC report, Dr. Garner and Dr. Lacerte assessed the pelvic injury at 0 because the fractures had healed without displacement or malalignment. They allowed nothing for urinary difficulties and nothing for dyspareunia because they did not think they were caused by the motor vehicle accident. At the hearing, Dr. Garner testified that the minor asymmetry he saw was normal and that the inability to have a normal delivery was speculation. He did not explain the difference in his opinions regarding impairment due to pelvic injuries other than saying there were causation problems and the 5% he wrote in the draft may have been a mistake. Dr. Garner and Dr. Lacerte did not address the issue of post-traumatic hip joint arthritis.
Ms. H had an undisplaced fracture which ran thought the right sacrum and sacroiliac joint with mild widening of the right sacroiliac joint. She had an undisplaced fracture of the left acetabulum and a slightly displaced fracture of the right anterior column of the pelvis and the inferior pubic ramus. The relatively unstable fractures were treated by traction, bed rest and gradual weight bearing over a one year period. After healing, x-rays showed satisfactory alignment of the pelvis and no significant abnormality in the sacrum.
Ms. H takes a special seat pad with her for sitting and when traveling she takes her own mattress foam pad. She experiences urinary frequency night and day and, although an urologist found she does not suffer from urinary retention, Ms. H feels that her bladder does not empty completely. She said that she cannot enjoy sex anymore because it is painful and she cannot have orgasms. She said that exploratory surgery through her belly button was inconclusive.
Dr. Ameis thought that Ms. H has pyriformis syndrome. The pyriformis nerve comes out under the pelvis and passes through muscle down the back of the leg to the calf and foot. Sufferers sit on a special cushion to relieve the pain.
In August 2001, an orthopaedic specialist examined Ms. H for Lombard. He reported that she had a significant risk of osteoarthritis in the right hip and a significant risk of hip replacement in 20 years. Because of her youth, the hip replacement would likely fail before she became elderly. In February 2003, a physiatrist examined Ms. H on behalf of Lombard. He reported that Ms. H may have chronic pain in the pubic area related to the separation of the symphysis pubis and that she was limited in prolonged sitting, bending and lifting. He reported that it was possible that the left hip would deteriorate.
The x-rays show that the pelvis and sacrum healed without displacement. The table on page 131 of the Guides provides a 0% WPI rating for fractures that heal without displacement. I find this rating is consistent with the evidence.
For dysperunia, Dr. Garner, in his draft report, rated Ms. H under Class 1 on page 259 which allows for a rating of 0% to 15%. Dr. Ameis rated Ms. H under Class 2 which allows for a rating between 15% and 25%. Criteria 2 and 3 for Class 1 are:
(2) sexual intercourse is possible, and (3) the vagina is adequate for childbirth . .
Criteria 2 and 3 for Class 2 are:
(2) sexual intercourse is possible only with some degree of difficulty; and (3) the premenopausal patient has limited potential for vaginal delivery.
I accept Ms. H's evidence concerning the pain she experiences on sexual intercourse. In view of the pelvic pain Ms. H normally endures, Dr. Ameis' opinion that she would likely require a Caesarian section is reasonable. Therefore, I find that Class 2 criteria is appropriate for Ms. H. Dr. Ameis assessed the impairment at 20%, the mid-way point, and that too appears reasonable.
I would not increase this to allow for the probability of a Caesarian section, because that is already taken into account in the criteria for the Class.
I would allow the increase of 3% WPI proposed by Dr. Ameis for treatment in view of the evidence of the significant risk of post-traumatic arthritic changes requiring hip replacement.
Causation and pelvic injuries
Other trauma, such as the second motor vehicle accident, did not require hospitalization. The traumas she suffered to her pelvis after the motor vehicle accident were extremely minor in comparison to the trauma to her pelvis she suffered on December 31, 2000.
None of the assessors asked Ms. H about the dyspareunia she complained about in the year before the accident. Her only explanation was during a brief cross-examination at this hearing when she said she believed her pre-accident dyspareunia was due to the size of her partner at that time. In view of her overall credibility, and the findings of all assessors that she did not exaggerate, and in fact, tended to minimize her problems, I accept her explanation that her dyspareunia was much worse after the accident. I therefore find that the accident significantly contributed to her current dyspareunia.
I find that all the impairments related to the pelvic injury were caused by the motor vehicle accident.
Cervical spine injury and low back injury
Dr. Delaney rated Ms. H's cervical spine injury and low back injury each at 5% WPI using the Diagnosis-Related Estimates ("DRE") method. In his draft report, Dr. Garner wrote that her impairment in both areas was Category II and therefore her WPI rating was 5% for each. In the final DAC report, Dr. Garner and Dr. Lacerte assessed the cervical spine injury at 0% WPI.
Ms. H testified that her neck pain is like ropes in the neck. A disc pops out and she has to get it adjusted. She said she cannot sleep at night and she has tried ten different neck pillows. Her back is sensitive and she feels pressure in her lower back when standing.
Dr. Garner testified the persistence of neck and back pain where there is complete range of motion and no evidence of fracture places the patient in DRE category I with 0% WPI.
For both cervical and lumbosacral Category II ratings, the Guides require as one of the criteria "posterior element fracture without dislocation." I have no evidence that satisfies this criteria. Therefore, at best, Ms. H is Category I for cervical and lumbosacral WPI ratings which are 0%.
Ankle and foot
Ms. H did not claim an ankle or foot impairment in her Application for Determination of Catastrophic Impairment that she suffered a catastrophic impairment. However, the only WPI the DAC found was an impairment to the right great toe. The assessors noted that Ms. H's right great toe flexion was decreased and that a June 26, 2001 x-ray of the foot showed an old ossification over the right great toe. The WPI for this impairment was 1%.
Ms. H testified that her right heel was bruised and swollen as a result of the accident and that her ankle was very tender. Since Ms. H did not claim any impairment rating for her right ankle or foot, I find that the 1% WPI assessed by the DAC is reasonable.
Combined WPI ratings
According to the Combined Values Chart in the Guides, the combined value of the physical impairment ratings of 20, 15, 10, 10, 10, 3 and 1 is 52% WPI. This does not meet the threshold of 55% WPI specified in section 2(1)(g) of the Schedule which is required to satisfy the definition of "catastrophic impairment" under that paragraph.
If I had to rate Ms. H's impairment rating based on mental or behavioural disorder, I would take into account my finding that her psychological impairment is more severe than her physical impairment. As well, her psychological impairment, based on a marked impairment in social functioning, amounts to a catastrophic impairment. It follows, even without taking into consideration her mild and moderate impairments caused by the motor vehicle accident in the other three areas of functioning, that her WPI rating for mental and behavioural disorders would be at least 55%. This combined with the physical impairment rating of 52% would result in a WPI of 79%.
EXPENSES:
Having regard to the criteria in the Expense Regulation, Ms. H is entitled to her expenses of the arbitration proceeding after agreement or assessment.
October 4, 2007
William J. Renahan Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2007 ONFSCDRS 189
FSCO A06-000209
BETWEEN:
H Applicant
and
LOMBARD GENERAL INSURANCE COMPANY OF CANADA Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. H suffered a catastrophic impairment within the meaning of section 2(1) of the Schedule.
Lombard shall pay Ms. H her expenses of the arbitration proceeding after agreement or assessment.
October 4, 2007
William J. Renahan Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735.
- One week prior to this hearing, Mr. Payne sought a date to bring a motion for production of Dr. Garner's draft report. The pre-hearing arbitrator replied that he did not have time. At the hearing, Mr. Payne asked for production of the report and I ordered production on the basis that it might be relevant and Dr. Garner produced the draft report at the hearing.
