Neutral Citation: 2010 ONFSCDRS 136 FSCO A07-001223

BETWEEN:

T.S. Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR INTERIM DECISION

Before: Arbitrator John Wilson Heard: By written submissions

Appearances: T.S. was self-represented Jennifer Griffiths for Allstate Insurance Company of Canada

Issues:

The Applicant, T.S., was injured in a motor vehicle accident on November 21, 2001. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Allstate continued to pay weekly income replacement benefits but resisted T.S.’s claims for further housekeeping and attendant care benefits past the 104 week mark on the basis that she did not meet the definition of catastrophic impairment set out in section 2 of the Schedule.

T.S. filed a claim for designation as catastrophic, together with claims for ongoing attendant care and housekeeping benefits, all of which were rejected by Allstate.

The parties were unable to resolve their disputes through mediation, and T.S. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. While the principal issue in this hearing is catastrophic impairment, this interim decision deals with an issue raised by the arbitrator in deliberations:

Was there a psychological assessment as a component of the catastrophic DAC?
If so, is there a reference to that assessment in the documents filed as part of this hearing?
If there was no psychological assessment as part of the DAC, does this have any consequence for the determination of the issue of catastrophic impairment that is central to this hearing?

Result:

There was no psychological component of the DAC
There was no reference to a psychological assessment.
The DAC assessment should be completed by a properly constituted assessment team, including a psychologist.
T.S. has 14 days to advise whether or not she wishes to proceed with a new DAC assessment, and that she intends that I rely only on the evidence already before me in making my decision on catastrophic entitlement.
Should the new examination proceed as a section 42 examination, it shall, in composition and procedure, follow the protocols set out in the Catastrophic Impairment Designated Assessment Centre Assessment Guidelines as revised by the Financial Services Commission in 2002 (FSCO CAT Guidelines).
Any assessors whether under a DAC procedure or section 42 of the Schedule shall complete a Form 53 (acknowledgement of expert’s duty) under the Rules of Civil Procedure, and that the form be filed with the report.

EVIDENCE AND ANALYSIS:

Statutory Accident Benefits, or “no-fault insurance” forms part of the compensation spectrum for victims of motor vehicle accidents in Ontario. Although not intended to be comprehensive the current scheme offers a basic level of core benefits to an insured following an accident, a level that may be supplemented by other private insurance schemes or compensation in tort where there is an at-fault third party who may be required to address accident-related loss.

Within the current accident benefit scheme there are also gradations. The first would be the option to purchase a higher level of benefits at the time of the issuance of the insurance policy. Typically this would insure the provision of a higher level of income replacement benefits, or a greater range of benefits than included in the standard policy.

Another variation in coverage, that is potentially available to all insureds, is the extended coverage that is granted to those who are deemed to be “catastrophic” as that term is defined in section 2 of the Schedule. For a policy such as the one in force at the time of Ms. T.S.’s motor vehicle accident, a catastrophic impairment designation would permit claims for housekeeping expenses beyond the 104 week period, an increase in the envelope of attendant care expenses from $100,000 to $1,000,000 and the right to claim for the services of a case manager, among others.

It is common ground that, but for a catastrophic designation, T.S.’s claims for ongoing attendant care and housekeeping must fail.

T.S., presumably after consultation with her medical advisors, decided to claim a catastrophic designation to allow her claims to go forward. As noted above, Allstate rejected that position, and indeed, the question of catastrophic impairment was forwarded to a Designated Assessment Centre (DAC) for their determination.

In T.S.’s case, it is understandable that she applied for catastrophic status. Certain benefits that are limited in non-catastrophic cases were reaching the end of the line. T.S.’s ongoing disability had been recognized by assessors and treatment providers alike. Her life was, to judge from her evidence, highly problematic, for reasons that she ascribed to the motor vehicle accident.

The Canadian Oxford Dictionary defines “catastrophe” as follows:

1 a great and sudden disaster. 2 The denouement of a tragedy. 3 A disastrous end: ruin.

Certainly elements of the plain English definition of “catastrophe” could apply to T.S.’s view of her world following the motor vehicle accident in question.

The word “catastrophic” as used in the Schedule however has a technical meaning, quite distinct from its common usage. That definition (set out in section 2(1.1) of the Schedule) reads as follows:

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

(a) paraplegia or quadriplegia;

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

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

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

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

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

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

(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. O. Reg. 281/03, s. 1 (5); O. Reg. 314/05, s. 1 (1, 2).

In T.S.’s case, the DAC, which consisted of a psychiatrist², physical medicine specialist, and an occupational therapist decided that she did not meet the definition of catastrophic impairment as defined in the Schedule.

T.S. claims either under “a 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 an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (AMA Guides), results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

These are complex criteria, involving the application of a system devised in the context of worker’s compensation system in another jurisdiction to the statutory environment surrounding the accident benefit system in Ontario.

To confuse matters further, the test for catastrophic impairment is only one of many tests for disability in the Schedule, although it is the only one that mandates the use of the AMA Guides.

In T.S.’s case, she is also faced with the post-104 week test for entitlement to income replacement benefits as well as the tests for the provision of attendant care and housekeeping services.

It is noteworthy that, as of the commencement of this arbitration, Allstate considered that T.S. was suffering “a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience” and continued to pay income replacement benefits. It did not, however, consider that she suffered a class 4 or class 5 impairment due to a mental or behavioural disorder or suffered from a 55 per cent or more whole person impairment.

T.S. was not represented by a lawyer during her dispute with Allstate concerning her claim for a catastrophic impairment designation. T.S., who had taken a paralegal training course offered by a vocational college, rather bravely undertook all the tasks of a lawyer in advancing her cause.

While it is every litigant’s right to proceed to arbitration without legal representation, one of the consequences of so doing is the absence of considered legal advice as to the appropriate meaning to be given to technical words, and the consequent challenge of presenting appropriate evidence to support a contention that an insured indeed met such a technical definition.

While T.S. did not conduct this hearing up to the standards of a competent lawyer, she did her best as an unrepresented party. At times it was apparent that her best was not enough.

Epstein, J.A. in Hylton commented on the participation of self-represented parties in the judicial system:

Once again, the fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a “pass”. However, as part of the court’s obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities. Linhares de Sousa J. provided a helpful list of ways to assist self-represented litigants in Kainz v. Potter (2006), 2006 CanLII 20532 (ON SC), 33 R.F.L. (6th) 62 ( Ont. S.C.), at para. 65:

[N]umerous Court decisions have reiterated the principle again and again, that self-represented parties are entitled to receive assistance from an adjudicator to permit them to fairly present their case on the issues in question. This may include directions on procedure, the nature of the evidence that can be presented, the calling of witnesses, the form of questioning, requests for adjournments and even the raising of substantive and evidentiary issues. [Emphasis added.]³

As part of the accommodation of an unrepresented party in this matter, all the documentary evidence presented at the outset of the hearing was admitted as an exhibit provided only that it related in some way to the time-frame and the issues in this hearing.

As I indicated at the hearing, it was my intention to review this documentary evidence, including expert reports, following the viva voce hearing, prior to making any determination of the issues in dispute. This approach however was not without its drawbacks since, in the case of expert witnesses, with a few exceptions only the reports were entered in evidence, and the makers did not testify or otherwise appear before the tribunal.

While this approach to documentary and expert evidence is sanctioned by the Dispute Resolution Practice Code, it is less than desirable when complex issues are at stake, and the reports contain information that may be highly controversial.

In a conventional case, one can count on counsel to make appropriate decisions as to requiring the authors of reports to be available for cross-examination. The same cannot always be said for cases which proceed in the absence of counsel.

This would appear to be one of the exceptional situations outlined by de Sousa J. where “even the raising of substantive and evidentiary issues” must be contemplated by a presiding adjudicator.⁴

Although both T.S. and Allstate filed a significant volume of documents relating to the history and background of this dispute, for this arbitration the most important ones are Dr. Hoff’s initial report assessing T.S.’s status in the context of catastrophic impairment, and the reports issued by the Designated Assessment Centre charged with determining whether T.S. met the criteria for catastrophic impairment.

Both Dr. Hoff, T.S.’s treating psychologist and two of the DAC assessors, Ms. Nguyen, the Occupational Therapist, and Dr. Gnam, the psychiatrist, also testified at the hearing. In addition, T.S.’s testimony and cross-examination were also important in considering the evidentiary context of T.S.’s claim that she met the criteria for catastrophic impairment.

As is evident from the definition of catastrophic impairment cited earlier, and a perusal of the AMA Guides referred to therein, the definition of catastrophic impairment is highly technical, and involves an assessment giving a numerical rating to the effect of certain disabilities.

Dr. Hoff’s report (form OCF19), which essentially set the catastrophic assessment procedure in motion, is dated December 9, 2005. Dr. Hoff stated:

[T.S.] meets Class 4 criteria in social functioning and adaptation and activities of daily living, Class 3 criteria in concentration. Overall, marked impairments severely limit useful functioning.

Dr. Hoff elaborated:

[T.S.] suffers serious & prolonged depression & anxiety, chronic pain & fatigue, cognitive impairments, & psychobehavioural aspects of post traumatic fibromyalgia that has resulted from her MVA. Although her attitude about her condition has improved, her psychological condition has not significantly changed in last year & is thus stable despite treatment.

Without analyzing at this point the manner in which Dr. Hoff translates observed impairments into a disability rating, it is important to note that his opinion that T.S. suffers significant psychological impairments is not an isolated observation.

In the context of a DAC assessment related to T.S.’s claim for ongoing psychological treatment, which occurred on April 13, 2006, scarcely six months after Dr. Hoff’s OCF 19, Dr. Michael Gadon, psychologist, concluded that:

[T.S.] suffers from a chronic Adjustment Disorder and a Somatoform Disorder, as a result of her November 25, 2001 motor vehicle accident. Borderline personality features, pre-accident chronic pain (fibromyalgia) as well as dissatisfaction, anger and preoccupation with medical-legal-insurance issues, are also contributors to her psychological symptoms. Her psychological impairments are considered to be of moderate-severe intensity.

Dr. Gadon also commented:

[T.S.] will likely require psychological treatment beyond that recommended in Dr. Hoff’s December 23, 2005 Treatment Plan (OCF-18).

Likewise, even the CAT DAC summary consensus report noted that that “(T)here is documented Presentation Anxiety, Depression, and Initial Posttraumatic Stress Disorder.” Significantly, Dr. Gnam, the DAC psychiatric assessor, found the following DSM-IV⁵ diagnoses:

Axis I

Pain Disorder associated with both psychological factors and a general medical condition

Major Depressive Disorder, single episode, chronic

Anxiety Disorder Not Otherwise Specified, with features of PTSD

Axis II

Deferred

Axis III

Numerous soft tissue injuries

Cervical injury

Posttraumatic fibromyalgia

Axis IV

Financial strain

Marital separation

Axis V

Current GAF = 50

Furthermore, Dr. Gnam concluded:

Given the close temporal relationship between the 2001 motor vehicle accident and the onset of more intrusive pain and psychological symptoms, it is my opinion that the motor vehicle accident of November 25 2001 made a material contribution to [T.S.'s] current psychiatry disorders and related mental impairments. While [T.S.] may have had chronic pain before the 2001 MVA, there is no evidence indicating that such pain was substantially disabling.

In the end, however, Dr. Gnam found in each of the four domains related to be considered under the (g) criterion of section 2 (1.1) of the Schedule that he would rate T.S.’s impairments as moderate or class 3. Indeed, his conclusion was clear:

In light of these mental impairment ratings, in my opinion [T.S.] does not attain the threshold for Catastrophic Impairment as defined by Criterion (g) of Section 2.1 of the Statutory Accidents Benefits Schedule.

Unlike the consensus DAC report signed by Dr. Oshidari, Dr. Gnam did not address the category (f) criterion, which looks at whole person impairment, even though, under the Desbiens approach a mental impairment rating could be a substantial element in scoring whole body impairment.

The consensus report, however, found that:

With respect to the (f) criterion, “any impairment or combination of impairments that, in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, results in a 55% or more impairment of the whole person”:

Dr. Oshidari, physiatrist, opined that due to numerous inconsistencies and non-organic findings during [T.S.’s] examination, her impairment is not ratable.

Dr. Oshidari’s comment that T.S.’s impairments are not “ratable” is given some context by further comments in his report. He cites two situations which gave rise to his opinion of non-ratability:

There is a diagnosis of Fibromyalgia. [T.S.] believes that all of her symptoms are caused by Fibromyalgia and that any time she has a flare-up of Fibromyalgia her function deteriorates. Unfortunately, based on the American Medical Association’s Guidelines I am not able to provide any impairment based on Fibromyalgia. There is no proven structural abnormality in those suffering from Fibromyalgia, therefore, the AMA Guidelines provide zero impairment for Fibromyalgia.

Dr. Oshidari also concluded that: “(A)gain, based on the AMA Guidelines due to numerous inconsistencies and non-organic findings her impairment is not ratable.”

It should be recalled however that section 2 (3) of the Schedule also provides:

For the purpose of clauses (1.1) (f) and (g) and (1.2) (f) and (g) of the definition of “catastrophic impairment” in subsection (1), an impairment that is sustained by an insured person but is not listed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 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.

Given the clear legislative direction granted to the DAC as identified above, it is regrettable that Dr. Oshidari felt unable to provide an assessment rating for the fibromyalgia related disorders. I note that although he was listed as a witness by Economical, he was not produced, and consequently had no opportunity to elaborate on any reasons he had for according no weight to a condition that comprised a significant portion of T.S.’s complaint.

Although the DAC rendered a decision on the question of full body impairment (f criterion), the process leading up to its conclusion is less than transparent. The DAC report has inserted amongst its pages (at the end of Dr. Oshidari’s report) a hand-written addendum noting as follows:

Whole person impairment

fibromyalgia

= 0

Tailbone Dislocation

= 5% - 10%

Psychological

= not given a score.

Whatever Dr. Oshidari’s personal opinion as to the attribution of ratings to psychological impairments and to conditions such as fibromyalgia which do not involve “structural abnormality”, he should have been aware by May 5 2006⁶, the date when the CAT assessments began, of an emerging consensus to include such ratings in an evaluation of a whole person impairment.

Although there has been significant controversy over the practice of combining mental and behavioural whole persons impairments, there has been considerable jurisprudence in favour of so doing, both in the courts and amongst arbitrators.⁷ There are as the Director’s Delegate noted in Augello, strong reasons for this position:

It would be even more unacceptable to restrict clause 2(1.1)(f) of the Schedule to physical impairments simply to satisfy the concerns of some of the authors of the Guides [footnote omitted] that a higher onus of certainty is required to prevent judges and arbitrators (the latter having the statutory duty under subsection 282(3) of the Insurance Act to “determine all issues in dispute”) from erring in applying percentages to mental, emotional or behavioural impairments.⁸

The Director’s Delegate further stated:

I agree with Arts that the Guides do not “prohibit” including mental or behavioural WPI percentage ratings. Rather, I find that whatever the advice of the authors of Chapter 14 of the Guides, the paramountcy of clause 2(1.1)(f) of the Schedule makes such WPI ratings not merely essential but mandatory, and that the ratings on page 301 of Chapter 14 and Table 3 on page 4/142 provide avenues for attaining requisite percentage ratings.

In Ms. G, I stated that:

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

The unexplained failure of the DAC assessors to consistently assign impairment numbers to all causally related impairments has, at the very least, made determination of this issue much more difficult.

It should be remembered that the catastrophic assessment in question was undertaken as part of the scheme of designated assessment centres set up under an earlier SABS scheme. Although the DAC was set up by a referral from Allstate, there would appear to be no correspondence to the DAC in evidence setting out the context of its appointment or explaining why there was a deviation from the FSCO CAT Guidelines.

While FSCO CAT Guidelines may not be binding on an arbitrator or judge, they are set up to provide clear direction to assessors. Unexplained deviation from the protocol is thus a serious matter.⁹

Designated Assessment Centres were meant from their inception, to be independent and capable of making determinations based solely on the evidence before them whether through documentary review or the direct examination of the insured.

In Campeau and Liberty Mutual Insurance Company,¹⁰ Arbitrator Blackman had this to say about examinations under the Schedule, including DACs:

IME (independent medical examinations) and DAC (Designated Assessment Centre) examinations are not defence medical examinations. They do not arise because the physical or mental condition of an adverse party in an existing legal proceeding is in question. They are legislatively mandated as part of a statutory scheme of first-party contractual rights and obligations, to clarify, as part of the normal adjusting process, whether an applicant has met the applicable entitlement requirements.

Similarily, the Courts have observed:

Under the SABS, a DAC assessment serves a dual function. First, depending on whether either party decides to dispute the DAC opinion, the assessment determines the insured’s entitlement to benefits, either permanently or on an interim basis. Second, if (and only if) one of the parties disputes the determination of entitlement, it can serve as expert evidence in the continuing dispute resolution process.¹¹

While the power of “determination” granted to an individual or an office by statute is often categorized as a “statutory power of decision” triggering a plethora of responsibilities with regard to natural justice and fairness, it is not necessary to go as far as that to find that a DAC has a responsibility to fairly address the issue referred to it in a non-partisan manner.

In a case that analyzed the function of DACs, (albeit from the point of view of liability in tort for their actions), J.M. Simmons J.A. observed:

In my view their legislatively created decision-making function distinguishes DACs from expert witnesses, court-appointed assessors, and types of investigators considered by the motion judge, and creates a close and direct relationship to the persons they assess.

She continued:

Further, the legislative directives relating to conflict of interest and the administrative guidelines relating to professional experience underline the importance the legislature ascribes to neutrality and competence in conducting DAC assessments.

While agreeing with the judge of first instance that “DAC assessors are experts, not to be equated with judges, arbitrators or quasi-judicial decision-makers who decide issues based on discretionary factors, after hearing submissions, and in accordance with principles of natural justice”, she found that “a common and significant feature of their respective roles is the duty of neutrality.”¹²

A multidisciplinary DAC is more than a collection of individual reports by experts in various fields. It is a collective determination which owes its outcome to the opinions of all assessors working in concert.

In essence, the DACs were able to conduct an inquisition, or enquiry into the issue referred to them. Such an enquiry however did not take place in a vacuum.

Among the legislative directives and administrative guidelines referred to by Simmons J.A. is the Catastrophic Impairment Designated Assessment Centre Assessment Guidelines issued by the Financial Services Commission, and revised April, 2002.

As its title indicates, this document sets out appropriate procedures for intake and performance of a catastrophic assessment. It also sets out the professional requirements for assessors. As a road map to the assessment process, it charts the flow of the procedure from start to finish and notes watersheds in the assessment process.

The FSCP CAT Guidelines relating to the choice of assessment team in a catastrophic impairment assessment involving psychological impairment note the following at subsection 2.2.2, Core Team, p.2-4:

SABS Criteria

Role/Expertise

Disciplines

e) ii) GOS

Each discipline may be required to complete a full assessment in order to determine status related to brain impairments in the application of the Glasgow Outcome Scale.
GOS assessment is staged to avoid unnecessary over-assessment. Once catastrophic status is met, the assessment may be concluded.

Must be:

occupational therapist or physiotherapist*

and

physician⁶

and one (1) of:

neuropsychologist or
neuropsychiatrist or
neurologist or
neurosurgeon.

⁵All disciplines marked with an asterisk (*) must have ‘focus of practice’ (minimum three years’ experience assessing) with this impairment type. [footnote in original]

⁶ The physician requirement is met if a neurologist or neurosurgeon is used, therefore limiting the team to two (2) assessors. [footnote in original]

Dr. Hoff’s referral for the catastrophic assessment made it clear that he believed that T.S. met the catastrophic impairment criteria on the basis of psychological and behavioural impairment.

It is clear from even the title page of the North Toronto Assessment Centre report that the assessment team did not contain a psychologist, for whatever reason, notwithstanding that the FSCO CAT Guidelines mandates the presence of a psychological assessor.¹³

Given the presence of a psychiatrist why would a psychologist be needed? Quite simply, psychologists and the related discipline of psychometrists are the profession principally charged with the administration of psychological tests. As the AMA Guides states at p.14/293:

The results of well-standardized psychological tests, such as the Wechsler Adult Intelligence Scale, the Minnesota Multiphasic Personality Inventory-2, the Rorschach Psychodiagnostic Inkblot Test, and Thematic Apperception Test, may be useful in establishing the existence of a mental disorder….

In his testimony, Dr. Gnam, the DAC psychiatrist, stated:

Psychiatrists are physicians first. so we usually use the traditional medical paradigm of assessing patients predominately by a clinical interview and the equivalent in mental health of a physical examination, which in psychiatry is called a mental status examination.

Dr. Gnam continued:

The fourth way that psychiatrists are different from psychologists is that psychologists are better trained and more experienced in the use of pencil and paper tests, psychometric, as they call it.

Despite Dr. Gnam’s position minimizing the role of psychologists in the analysis on mental impairment, I accept that the authors of the FSCO CAT Guidelines had good reason for insisting that both disciplines take part in an assessment. It is not a question of whether one discipline is better or superior to another, but whether each can contribute valuable insight into disability.

Although there was an earlier psychological report done on April 26, 2006 by Michael Gadon, which was available to the catastrophic DAC assessors, he patently was not part of the multidisciplinary team that decided that T.S. was not catastrophically impaired. It should be noted again that the catastrophic DAC is intended to be a collaborative assessment. A multidisciplinary DAC is more than a collection of individual reports by experts in various fields. It is a collective determination which owes its outcome to the opinions of all assessors working in concert.

Notwithstanding the lack of a psychologist in the examining team Dr. Oshidari’s assessment group proceeded to evaluate T.S. on the basis of all elements of the section 2 (1.1) definition. The FSCO CAT Guidelines deals with such situations.

The AMA’s Guides are comprehensive in their analysis of impairment ratings. Many CAT DAC assessments will relate to the musculoskeletal system (Chapter 3 - pages 13 to 138). However, other body systems may be involved, and the DAC should ensure it evaluates the whole person.

The process of analyzing a whole person impairment is set out succinctly in the FSCO CAT Guidelines:

It is understood that the multidisciplinary decision-making process will involve a ‘score’ which will be calculated by one or more assessors, with final opinion provided as a consensus opinion with respect to catastrophic status.¹⁴

Given that the psychologist, Dr. Gadon had found that T.S.’s “psychological impairments are considered to be of moderate-severe intensity” it is quite possible that the participation of a psychologist in arriving at a consensus for a catastrophic DAC may have had some significant importance.

In this matter, the ultimate Whole Person Impairment calculation was significantly weakened by the absence of necessary numerical ratings or score, making it difficult to understand whether the assessment team appropriately evaluated the whole person impairment.

Putting aside whether one agrees or not with the outcome of the DAC report, the CAT DAC which made a determination that T.S. was not catastrophically impaired suffered then from at least two problems.

The first was that it was irregularly constituted, not having the mandatory psychologist on the team. Secondly, the lack of an attempt to assign meaningful scores to all of T.S.’s impairments made its decision that T.S. did not meet the whole person impairment criteria somewhat murky at best. In addition, the DAC failed to provide any reasons for departing from the norm in either of these cases.

Although the DAC system has for all intents and purposes been dismantled now, as has already been noted, it formed an important step in the resolution of insurance entitlement disputes. Even though Allstate relied upon the DAC reports and conclusions in resisting T.S.’s claim, the DAC is more than a simple expert report. Its neutrality, and the fact that it is selected by proximity and qualification, not to mention its ability to bind the parties to a result pending adjudication, made it an important step in resolving entitlement disputes.

A properly constituted DAC, working transparently and independently, can provide a credible and realistic determination of entitlement issues that should be highly persuasive, obviating the need for litigation in many cases.

Unfortunately, a DAC containing all the requisite professional assessors never took place at all.

There are at least two bodies of arbitral opinion on the appropriate response at a hearing to a seriously flawed CAT DAC. One, as put forward by Arbitrator Blackman in Ms. G., is to make the best of the available evidence and to proceed to make a determination on the issue of catastrophic impairment.

The search for the truth is crucially important. Finality and cost effectiveness is also important. Having 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 as one can on the basis of the available evidence.¹⁵

A very different approach to flawed DACs was suggested by Director’s Delegate Makepeace in Villers:

Given his recognition of “the flaws in the DAC process,” did the arbitrator have authority to order a new CAT DAC? Even if arbitrators and appeals adjudicators have no power to make orders against DACs directly, they certainly have authority to order claimants and insurers to comply with SABS procedures, including arranging appropriate DAC assessments. Moreover, arbitrators have authority to adjourn a hearing pending completion of an assessment that is required for a fair hearing. Indeed, arbitrators have taken this step in a number of cases, deferring final adjudication pending a properly completed DAC assessment, with or without an interim benefits order.¹⁶

While I accept that both Dr. Manohar’s and Dr. Hoff’s reports on catastrophic impairment, filed on behalf of T.S., provide significant support for her contention that she meets the criteria for catastrophic impairment, I am not at all convinced that, in the absence of a useful or appropriate CAT DAC, I am in the best position to make a fair “adjudicative assessment” on the issue of catastrophic impairment.

Given the panoply of problems with the DAC, and the failure to have a psychologist participate in the DAC’s deliberations, merely referring this matter back to the original assessors, with the addition of a psychological component is inadequate.

A proper multidisciplinary DAC assessment was ordered. None was completed in accordance with the FSCO CAT Guidelines, so a new DAC assessment should take place.

Consequently, I will reluctantly exercise my discretion to, in the words of Director’s Delegate Makepeace, “adjourn a hearing pending completion of an assessment that is required for a fair hearing.”

That is, however, no longer as simple as conceived by the Director’s Delegate. While the legislative framework for DAC assessments remains in place¹⁷, where an assessment was requested prior to the change in legislation, I recognize that, in fact, many of the DAC organizations may well have faded into the twilight, in the absence of new references.

Section 41.1(10) of the Schedule provides a possible solution if it turns out to be impossible to retain an accredited DAC team for this assessment. The same multidisciplinary assessment that is anticipated by the FSCO CAT Guidelines can still be held as a section 42 assessment rather than a DAC.¹⁸

While a new assessment under section 42 will not bind the parties as would a DAC, that is immaterial in this case since the proceeding has already reached arbitration, where the arbitrator is mandated to determine this issue on all the evidence, including the results of any new DAC or section 42 examination.

I note that I have no request before me that any failures in the DAC process should translate directly into a finding of catastrophic impairment, and indeed my understanding of the jurisprudence would not support any such conclusion.

Since, whatever the conduct of the DAC, T.S. retains the onus of demonstrating her entitlement to a catastrophic determination, it is up to her to decide what evidence she requires to complete her case. Since the neutral DAC assessments formed part of the consumer protection mandate of the statutory accident benefits scheme, it follows that a knowledgeable consumer can make an informed decision to waive the benefit of that provision.

Therefore, I give T.S. 14 days to advise whether or not she wishes to proceed with a new DAC assessment, or that she intends that I rely only on the evidence already before me in making my decision on catastrophic entitlement.

In the event that further assessments are necessary, I set the following conditions:

Although it may be unusual for an arbitrator to go into detail as to the nature of an assessment that is to take place, given the duration and the complexity of this claim, combined with the failure of the previous DAC, I feel it is necessary in this particular case to provide some guidance.

The conditions on assessment may be unusual, but there is jurisdiction provided in section 22(1) of the Insurance Act, which grants an arbitrator all the powers of a superior court judge with regard to witnesses, and all evidence whether documentary or otherwise. I find that in this extraordinary situation, a judge of the superior court would have the jurisdiction to order just such a report and to provide the parameters for its admission as evidence.¹⁹

Should the new examination proceed as a section 42 examination, it shall, in composition and procedure, follow the protocols set out in the Catastrophic Impairment Designated Assessment Centre Assessment Guidelines as revised by the Financial Services Commission in 2002.

In order to avoid needless duplication and delay, given the current controversy over the calculation of whole body impairment ratings, which has re-emerged since Kusnierz,²⁰ any assessment should calculate whole body impairment using both the Desbiens and the Kusnierz approach and provide an alternative overall impairment rating under both rationales.

I would also require that any assessors, whether under a DAC procedure or Section 42 of the Schedule, complete a Form 53 (acknowledgement of expert’s duty) under the Rules of Civil Procedure, and that the form be filed with the report.

Such assessments must be done at the earliest possible date.

As noted above, T.S. may waive the right to a further assessment or decide not to co-operate or participate in any further assessments. In such a case, or if there is undue delay, at the written request of either party, I may proceed to issue the final decision based only on the evidence admitted to date.

Once any further assessment is complete the parties will have an opportunity to address any issues raised therein. A case conference may be necessary to decide the manner in which this should be dealt with.

I note as well that Director Delegate Makepeace suggested in Villers that an order for a new assessment may be accompanied by an order for interim benefits.

Although the interim benefit order made early in this process has now expired, in the absence of a request from the parties to deal with this issue, I make no order at this time. If the order for a new assessment engenders serious further delays in this already lengthy process, then a reconsideration of this issue may be necessary.

EXPENSES:

I leave the issue of expenses to the end of the hearing process.

December 3, 2010

John Wilson Arbitrator

Date

Financial Services Commission of Ontario