Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 147

FSCO A08-001413

BETWEEN:

DHANRAJ JAGGERNAUTH

Applicant

and

econoMical mutual insurance company

Insurer

REASONS FOR DECISION

On a

preliminary issue

Before: Richard Feldman

Heard: July 5, 6, 8, 12, 13, 14, 15 and September 3, 2010, in Toronto, Ontario

Appearances: Kelley P. Campbell for Mr. Jaggernauth

Helen D.K. Friedman for Economical Mutual Insurance Company

Issues:

The Applicant, Mr. Dhanraj Jaggernauth, was injured in a motor vehicle accident on August 6, 2005 (the “accident”). He applied for statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Issues arose between the parties concerning the Applicant’s entitlement to certain statutory accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Jaggernauth applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

There are numerous issues in dispute in this proceeding. The parties requested, however, that at this time this hearing be restricted to one preliminary issue and that the hearing of all other issues be postponed until after the determination of the preliminary issue.

At this time, the issue to be determined is:

1. Did the Applicant sustain a catastrophic impairment as a result of the accident within the meaning of clauses 2(1.2)(f) and (g) of the Schedule?

Result:

1. The Applicant did not sustain a catastrophic impairment as a result of the accident within the meaning of clause 2(1.2)(g) of the Schedule. The Applicant did sustain a catastrophic impairment as a result of the accident within the meaning of clause 2(1.2)(f) of the Schedule.

EVIDENCE AND ANALYSIS:

Background

On August 6, 2005, the Applicant was attending a family picnic. He was sitting at a picnic table when a vehicle, driven by the Applicant’s brother, reversed into the Applicant, knocking him from the table and then rolling over him. The Applicant suffered numerous serious injuries including fractures of his cervical spine, right forearm and left shoulder and serious lacerations to his head (requiring 30 staples) and to his right calf. As a result of this accident, the Applicant ultimately had to undergo surgeries to both shoulders and to his right forearm.

At the time of the accident, the Applicant was 37 years of age. He was married with two children. He was energetic and physically and socially active in sports, in leisure activities and at work. He was employed as a machine operator and frequently worked overtime. He has an extremely limited education (up to Grade 8 in Guyana) and is functionally illiterate in English.

Since the accident, the Applicant has been unable to return to any employment. At the time of this hearing, the Applicant was receiving CPP disability benefits and Economical was continuing to pay to the Applicant income replacement benefits.

As a result of the accident, Mr. Jaggernauth suffers from chronic pain and has a reduced range of motion in his neck and shoulders. He has suffered some loss of sensation in his right forearm. He has a number of scars, both from the lacerations to his head and right calf and also from the surgeries to his shoulders and right forearm. He has been diagnosed with numerous psychological conditions and has been receiving psychological treatment for years since the accident. He is taking numerous medications for accident-related conditions, including narcotics for the pain and anti-depressants.

It is undisputed that Mr. Jaggernauth continues to suffer both physical and mental/behavioural impairments as a result of this accident. The issue that I am being asked to decide at this point is whether these impairments, taken individually or together, are sufficiently severe that it can be found that Mr. Jaggernauth has suffered a catastrophic impairment, as that term is defined in clauses (f) and (g) of subsection 2(1.2) of the Schedule.

The Hearing

At the outset of the hearing, each side raised procedural or evidentiary objections. The Insurer moved for an order excluding reports by Dr. Pilowsky dated November 19, 2008 and May 3, 2010 and precluding her from testifying concerning her opinion as to the severity of the Applicant’s psychological impairments. The Applicant moved for an order excluding all evidence from Impairment Resources (i.e., Doctors Brigham and Leclair et al.). Both sides were given an opportunity to make their arguments and respond to those of the other party. After taking time to deliberate, I ultimately denied both motions and indicated that I would permit all of the evidence to come in. I gave my reasons orally, on the record.

During seven days of hearing (not including opening and closing arguments), I heard testimony from the following persons (not necessarily in order): the Applicant, Shameena Jaggernauth (his wife), Dr. Judith Pilowsky (his treating psychologist), Dr. Julian Mathoo (a physiatrist who participated in a catastrophic assessment conducted by Custom Rehab & Assessments Canada Ltd. at the request of the Insurer), Dr. Alan Shievitz (a medical doctor from the Toronto Poly Clinic who has treated the Applicant for his chronic pain), Dr. Harold Becker of Omega Medical Associates (who organized a team and wrote the executive summary for the catastrophic impairment assessment that was prepared to rebut that of Custom Rehab), Dr. Henry Rosenblat (a psychiatrist who participated in the catastrophic impairment assessment conducted by Omega), Dr. Christopher Brigham of Impairment Resources (who, at the request of the Insurer, organized a team to conduct a file review and offer a third opinion with respect to the issue of the Applicant’s level of impairment) and Dr. Steven Leclair (a psychologist who was on the team organized by Dr. Brigham).

The Law – The Relevant Thresholds

Under the Schedule, impairment is defined as a “loss or abnormality of a psychological, physiological or anatomical structure or function”.

For an accident that occurs after September 30, 2003 (as in this case), under clause 2(1.2)(g) of the Schedule, a catastrophic impairment includes an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment,² 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. In assessing the severity of mental or behavioural impairments under the Guides, four aspects of functional abilities are considered: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decompensation in work or worklike settings (sometimes referred to as “adaptation”). Also, independence, appropriateness, and effectiveness of activities must be considered. The appeal level of this Commission has ruled in Pastore³ that a rating of marked or extreme impairment in any one or more of these four areas is sufficient to qualify as a catastrophic impairment; this decision is binding upon me.

For an accident that occurs after September 30, 2003 (as in this case), under clause 2(1.2)(f) of the Schedule, a catastrophic impairment also includes an impairment that, in accordance with the AMA Guides (4th ed.), results in 55 per cent or more impairment of the whole person. There has been some debate amongst experts, stakeholders and decision-makers (i.e., judges and arbitrators) as to whether some measure of mental/behavioural impairment can be included as part of this assessment and, if so, the methodology for calculating a percentage whole person impairment rating based on mental or behavioural impairment. I shall explore these issues later in this decision.

Summary of Relevant “CAT” Assessments

There are essentially four experts or group of experts whose opinions are competing in this case.

Custom Rehab & Assessments Canada Ltd.⁴ performed the first catastrophic (“CAT”) assessment in this case. It was completed in late 2007. It was found by this group that Mr. Jaggernauth did not qualify under clause 2(1.2)(g) of the Schedule as being catastrophically impaired as he was found only to have suffered mild to moderate mental or behavioural impairments (i.e., no marked or extreme mental or behaviour impairments). From the perspective of physical impairments, Custom Rehab concluded that the Applicant had a 30% whole person impairment (WPI) rating.⁵ Custom Rehab concluded that the Applicant’s mental or behaviour impairments would rate 24 – 34% WPI (which Custom Rehab, in its executive summary, translated to 29% WPI for mental/behavioural impairments). This resulted in an overall WPI rating (for both physical and psychological impairments) of 50%, which is below the threshold (55%) for catastrophic impairment under clause 2(1.2)(f) of the Schedule.

In early 2008, the Applicant obtained a rebuttal to this opinion from Omega Medical Associates.⁶ It was also found by this group that Mr. Jaggernauth did not qualify under clause 2(1.2)(g) of the Schedule as being catastrophically impaired as he was found, overall, only to have suffered moderate mental or behavioural impairments.⁷ From the perspective of physical impairments, Omega concluded that the Applicant had a 39% WPI rating. Omega concluded that the Applicant’s mental or behaviour impairments would rate 35-40% WPI.⁸ This resulted in an overall WPI rating (for both physical and psychological impairments) of 60-64%, which surpasses the threshold (55%) for catastrophic impairment. Therefore, on the basis of clause 2(1.2)(f) of the Schedule, Omega concluded that the Applicant is catastrophically impaired.

Custom Rehab was provided with a copy of the Omega report and was asked to comment thereon. As a consequence, Custom Rehab did reconsider its assessment. Economical relies upon the June 5, 2008 report of Dr. Mathoo. Dr. Mathoo restricts his comments to the physical assessment provided by Dr. Lisa Becker. After reviewing the report of Dr. Lisa Becker, Dr. Mathoo revises his WPI rating for physical impairments to 33% (up from the original total of 30%). Dr. Mathoo then goes on to add this rating to 29% WPI for mental or behavioural impairments which he attributes to Dr. Gnam. According to Dr. Mathoo, this results in a revised overall WPI rating (for both physical and psychological impairments) of 52%, which is very close to, but does not meet, the threshold for a finding of catastrophic impairment under clause 2(1.2)(f) of the Schedule.

It is worth noting, however, that Dr. Mathoo in his June 5, 2008 letter specifically defers to his colleague’s comments (presumably, those of Dr. Gnam) regarding the psychological assessment of Dr. Rosenblat. It is also important to note that Dr. Mathoo’s letter is written about one week before Dr. Gnam issues his revised opinion. In a letter dated June 13, 2008, Dr. Gnam indicates that he accepts that Mr. Jaggernauth’s depression had significantly worsened since Dr. Gnam met with him and that, given the worsening of Mr. Jaggernauth’s symptoms, Dr. Rosenblat’s higher impairment ratings are reasonable. Dr. Gnam questioned, however, whether it was appropriate to be providing any opinion as to Mr. Jaggernauth’s permanent level of impairment given that Mr. Jaggernauth’s psychological condition had still not stabilized and that, in the opinion of Dr. Gnam, all treatment options (including much more aggressive pharmacological treatment, especially for his psychotic depression) had not yet been exhausted. Dr. Gnam suggested postponing giving a final opinion as to Mr. Jaggernauth’s catastrophic impairment status until some later date and, during the intervening period, “Mr. Jaggernauth hopefully receives appropriate treatment supervised by a psychiatrist”.

Mr. Jaggernauth’s treating psychologist, Dr. Judith Pilowsky, also provided an opinion as to the severity of his mental/behavioural impairments. She authored two reports (November 19, 2008 and May 3, 2010) in which she concludes that the Applicant suffers from marked or extreme impairments in all aspects of his psychological functioning. On the basis of psychological impairment alone, she concludes that Mr. Jaggernauth has suffered a catastrophic impairment.

In early 2010, the Insurer retained the services of Impairment Resources⁹ to review the relevant medical records and previous opinions concerning the issue of whether the Applicant has suffered a catastrophic impairment. Members of this team did not meet with or examine the Applicant. They did have access to surveillance evidence. They disagree with the manner in which the two Canadian assessment teams have interpreted and applied the AMA Guides (4th ed.). According to Impairment Resources, both previous teams (Custom Rehab and Omega) have overestimated the severity of Mr. Jaggernauth’s permanent impairments. It was found by this group that Mr. Jaggernauth did not qualify under clause 2(1.2)(g) of the Schedule as being catastrophically impaired as he was found only to have suffered mild to moderate mental or behavioural impairments (i.e., no marked or extreme mental or behaviour impairments). Applying its interpretation of the AMA Guides (4th ed.), Impairment Resources came up with a WPI rating of 18% for physical impairments and 18% for mental or behaviour impairments for an overall WPI rating (if the two can be combined) of 33%, which is well below the threshold (55%) for catastrophic impairment under clause 2(1.2)(f) of the Schedule.

Overview of the AMA Guides (4th ed.) and its Application in the Context of Accident Benefit Claims in Ontario

The American Medical Association’s Guides to the Evaluation of Permanent Impairment were created in the 1970s for the stated purpose of bringing greater objectivity to estimating the degree of long-standing or “permanent” impairments. The AMA Guides have been used in the United States primarily in relation to obtaining a medical opinion as to the severity of a person’s permanent impairment. This estimate of permanent impairment is then considered as one of the factors used to determine whether the person is disabled from working, which can result in that person receiving disability benefits under the federal social security system and/or under some form of government workers’ compensation program.

Due to advances in medical knowledge, subsequent editions of the AMA Guides were released periodically. The Fourth Edition was released in 1993. At page 5 of the Fourth Edition, it states the following:

The American Medical Association strongly discourages the use of any but the most recent edition of the Guides, because the information in it would not be based on the most recent and up-to-date material.

There have subsequently been released a Fifth Edition, a Fifth Revised Edition and a Sixth Edition of the AMA Guides. Nevertheless, according the Statutory Accident Benefits Schedule, it is the Fourth Edition of the AMA Guides that continues to be applied here in Ontario.

The Fourth Edition conveys several basic principles. A key tenet is that the book applies only to permanent impairments, which are defined as adverse conditions that are stable and unlikely to change (in spite of further medical or surgical therapy). Evaluating the magnitude of these impairments is in the purview of the physician, while determining disability is usually not the physician’s responsibility. Impairment percentages derived using AMA Guides criteria represent informed estimates (rather than precise determinations) of the degree to which an individual’s capacity to carry out daily activities has been diminished. Disability is a description of the extent to which one or more impairments prevent a person from meeting their personal, social, or occupational demands. A person can have an impairment (loss or abnormality of psychological, physiological, or anatomical structure or function) that does not prevent that person from engaging in any of the activities that they need or want to perform; such a person can be said to have an impairment but no disability, as defined in the AMA Guides.

For an evaluation to be considered to have been done “in accordance” with the AMA Guides (4th ed.), it should be carried out in accordance with the directions in the Guides and should be based on the following three components:

1. Gather and review as much information as possible;

• Chapter 2 specifies the type of information that is required and defines a format for analyzing, recording and reporting the information

• The first key to effecting an accurate impairment evaluation is a review of office and hospital records maintained by the physicians who have cared for the patient since the onset of the medical condition

• Using multiple sources of information and attempting to ensure that the sources are objective can help eliminate bias

• Before judgments according to the Guides are accepted, the history and course of the medical condition must be analyzed

• This analysis should include findings from previous examinations, the treatment and responses to treatment and the impact of the condition on the patient’s activities

• Before a judgment regarding impairment is made, it must be shown that the problem has been present for a period of time, is stable, and is unlikely to change in future months in spite of treatment

• If the evaluator’s findings are consistent with the results of previous clinical studies, the findings may be compared with the Guides criteria to estimate the impairment

• If the findings are not consistent with those of earlier studies, there should be communication between the involved physicians and clinical studies as needed to resolve any disparities

2. Follow the Guides protocols for evaluating each body part or system;

3. Utilize the tables relating to the evaluation protocols.

The AMA Guides (4th ed.) caution the reader (at p. 3) that the Guides do not and cannot provide answers about every type and degree of impairment:

The physician’s judgment and his or her experience, training, skill, and thoroughness in examining the patient and applying the findings to Guides criteria will be factors in estimating the degree of the patient’s impairment. These attributes compose part of the ‘art’ of medicine…

Furthermore, the Guides are meant to provide an informed estimate of impairment, not a precise measure of the extent to which such impairments disable the individual from specific tasks. Therefore, the AMA Guides (4th ed.) states as follows (at pp. 4-5):

Each administrative or legal system that uses permanent impairment as a basis for disability ratings should define its own means for translating knowledge about an impairment into an estimate of the degree to which the impairment limits the individual’s capacity to meet personal, social, occupational, and other demands or to meet statutory requirements.

It must be emphasized and clearly understood that impairment percentages derived according to Guides criteria should not be used to make direct financial awards or direct estimates of disabilities. [emphasis in original]

For the case at hand, the parties agree that the relevant chapters of the AMA Guides (4th ed.) are Chapter 2 (Records and Reports), Chapter 3 (The Musculoskeletal System), Chapter 4 (The Nervous System), Chapter 13 (The Skin) and Chapter 14 (Mental and Behavioural Disorders).

Chapter 2 focuses on methodology and states (at p. 7):

The major objective of the Guides is to define the assessment and reporting of medical impairments so that physicians can collect, describe, and analyze information about impairments in accordance with a single set of standards. Two physicians, following the methods of the Guides to evaluate the same patient, should report similar results and reach similar conclusions. Moreover, if the clinical findings are fully described, any knowledgeable observer may check the findings with the Guides criteria.

If two physicians who examine a patient and use the methods of the Guides do not obtain similar results and reach similar conclusions, then the book can be used to resolve the discrepancies. Analysis of the records and reports in question will disclose the disparities, which should be in matters of fact rather than opinion. If the patient’s medical condition is stable, then different physicians should reach the same general conclusion. If widely disparate evaluations occur, then the stability of the medical condition and the matter of permanent impairment would be in question.

Chapter 2 also reminds the reader that the impairment estimate or rating is “a simple number” and that “it does not convey any information about the person or the impact of the impairment on the person’s capacity to meet personal, social, or occupational demands.” The strength of the medical support for an impairment estimate depends on the completeness and reliability of the medical documentation. The first step in assessing an individual’s impairment is gathering thorough and complete historical information on the medical condition(s) and then carrying out a medical evaluation supported by appropriate tests and diagnostic procedures.

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

In certain instances, the treatment of an illness may result in apparently total remission of the patient’s signs and symptoms but the underlying condition remains. In these instances, the physician may choose to increase the impairment estimate by a small percentage (e.g., 1% to 3%), combining that percent with any other impairment percent by means of the Combined Values Chart.

Where pharmaceuticals are necessary but may result in side-effects, the physician can combine an estimated impairment percent, based upon the magnitude of the effect.

A patient may decline treatment of an impairment with a surgical procedure, a pharmacologic agent, or other therapeutic approach. The view of the Guides’ contributors is that if a patient declines therapy for a permanent impairment, that decision should neither decrease nor increase the estimated percentage of the patient’s impairment.

A physician who is asked to re-evaluate an individual’s impairment must realize that change may have occurred, even though a previous evaluator considered the impairment to be permanent. The physician should assess the current state of the impairment according to the criteria in the Guides.

There are several difficulties in applying the AMA Guides (4th ed.) in the context of a claim for accident benefits in Ontario.

First, the AMA Guides were designed for and, in the United States, are used primarily in cases where a person is applying for long-term financial compensation as a result of an alleged disability that prevents the person from working. Not surprisingly, there appears to be a heavy emphasis (or bias) in the AMA Guides towards impairment of work-related functions, with significantly less emphasis on other activities of daily living and social functioning.

Second, the fourth edition of the AMA Guides is now out of date. It is based on data that is more than twenty years old and does not necessarily reflect the most up-to-date approach to the issue of long-term physical and mental/behavioural impairments.

Third, the AMA Guides recommend that an estimate of permanent impairment not be done until the affected person has stabilized (i.e., has reached maximum recovery), regardless of how long that takes. In the context of the Ontario Schedule, however, it is not clear that this is practical or necessary.

A finding of catastrophic impairment is not necessarily linked to a permanent impairment. For instance, a score of 9 or less on the Glasgow Coma Scale (“GCS”) according to a test administered within a reasonable period of time after an accident by a person trained for that purpose will also qualify a person as catastrophically impaired. A reduced GCS score suggests some brain injury. Nevertheless, a person who had a GCS score of 9 or less shortly after an accident may suffer few, if any, long-term effects. The GCS score is no indication of permanent impairment.

If one looks at all of the types of impairments under the Schedule that can qualify as catastrophic impairments (paraplegia, quadriplegia, amputation, permanent total loss of vision in both eyes, brain injury as measured by a diminished GCS score, marked or extreme mental or behavioural impairments, or a combination of impairments that result in 55% or more whole person impairment) and tries to find a common thread, I believe that it is that the legislature has attempted to provide access to an enhanced level of accident benefits to those who have suffered the type of impairments that are likely to result in the person requiring substantially greater-than-average assistance.

Also, in Ontario, the CAT assessment can be done (and usually is done) about two years after the accident.¹⁰ It is implicit in the regulations that two years is considered to be a sufficient period of time to permit for stabilization of the person’s condition (although an earlier assessment can be done if a medical professional certifies that the person’s condition is permanent and is unlikely to improve). Some of the doctors who testified in this case suggested that, if a person’s condition is not stable, no CAT assessment should be done because you may not be measuring a permanent impairment. But what if, two years post-accident, an accident victim continues to deteriorate? Would it make sense to continue to wait until they further deteriorate or die before conducting the necessary assessment to classify the person as catastrophically impaired so that they can have access to the assistance they desperately require? In Ontario, the assessment can be conducted two years after the accident (whether or not each impairment has stabilized). As stated by Director’s Delegate Blackman in Bains and RBC (at p. 9):¹¹

The submission that subsection 2(2.1) is subject to the Guides’ requirement that impairments be rated only if they are permanent … is simply inconsistent with the scheme, object and intention of the legislation.

it would be illogical to allow an insured person to apply for a catastrophic designation two years post-accident in accordance with the Schedule, but then not rate impairments that are not permanent, stable or static.

Fourth, assigning a WPI number suggests a precision that just does not exist. The WPI rating is a rough estimate of the long-term impairments suffered by an individual. In and of itself, the WPI rating offers little insight into what effect those impairments will have on that person’s day-to-day functioning in the real world (i.e. their level of disability with respect to specific, real-world tasks).

Fifth, the AMA Guides (4th ed.) does not provide a methodology for assigning a WPI rating for mental/behavioural impairments.¹²

Sixth, the Guides assume that there will be multiple assessments and that assessors will communicate with each other and work towards a consensus. It suggests that where one assessor obtains results that are different from a previous assessor’s results, the two assessors should communicate and try to resolve the divergent results. I find that this expectation of collaboration is unrealistic in the adversarial system that exists in Ontario.

Finally, notwithstanding the warnings contained therein, in the U.S., an estimate of impairment under the AMA Guides often determines (or plays a significant role in determining) whether a person receives financial compensation. In Ontario, under the Statutory Accident Benefits Schedule, a determination that a person has suffered a catastrophic impairment never directly results in the payment of any benefits. It simply permits the person to make claims to an enhanced level of benefits. If challenged by the insurer, a person who has been found to have suffered a catastrophic impairment will still have to prove that he or she suffers the requisite level of impairment to qualify for that particular benefit.

A larger and more liberal interpretation of the AMA Guides may be justified in Ontario given that the Schedule is meant to be consumer protection legislation and given the fact that a determination of catastrophic impairment in Ontario only permits an accident victim to advance a claim but does not necessarily result in any compensation.¹³ Therefore, in the case of ambiguity, I find that it is appropriate to construe the AMA Guides in a manner that favours the insured person. In a close case, it is probably preferable to err on the side of finding a person to be catastrophically impaired and permit them their “day in court” than to automatically bar a person who is seriously impaired from making further claims because of an unnecessarily restrictive or narrow interpretation of a guide to medical assessments that was designed for use in a different regime and, at best, provides only an estimate of the person’s level of impairment.

Mr. Jaggernauth’s Psychological History and Diagnoses

There is no evidence to suggest that Mr. Jaggernauth had any mental or behavioural impairments prior to the accident of August 2005. Since the accident, he has developed mental or behavioural impairments that have been attributed to the accident.

In November 2005, the Applicant was referred to a psychiatrist, Dr. Joseph Caplan, as he was exhibiting signs of depression related to the August 2005 motor vehicle accident. Dr. Caplan had several sessions with Mr. Jaggernauth over November and December 2005 and prescribed some medications. In January 2006, Dr. Caplan wrote:

He [Mr. Jaggernauth] impresses me as a fairly well-integrated individual and I think the prognosis is quite fair, but of course, his drawback is the ongoing pain and his intense disappointment at losing so much of his normal lifetime existence.

Dr. Caplan saw Mr. Jaggernauth three more times and then Dr. Caplan wrote the following report on March 23, 2006:

…he has shown marked and most desirable improvement… He is eating and sleeping well, and he presents a very good picture.

In general he is a hard-driving, success-oriented man and I told him frankly that it was a pleasure to find somebody who had been in an accident and was trying to bring their life back to a normal setting…

Unfortunately, Mr. Jaggernauth’s psychological condition appears to have quickly deteriorated. In May 2006, he was seen by Dr. Pilowsky and, based upon her interview, she recommended a comprehensive psychological assessment.

In August 2006, the Applicant’s wife was reporting that the Applicant was “miserable” and Mr. Jaggernauth agreed that he was upset and depressed because he could not do what he used to do. He also reported problems with memory and concentration.

Around the same time (August 2006), Dr. Pilowsky produced her first psychological assessment of Mr. Jaggernauth. Dr. Pilowsky diagnosed the Applicant as having post-traumatic stress disorder and major depressive disorder (moderate). She described his situation at that time as follows:

The accident of August 6, 2005 has had a highly detrimental impact on all relevant aspects of Mr. Jaggernauth’s functioning. By all accounts, he led an active family, occupational, social, and recreational life prior to his motor vehicle accident. He was able to work on a full-time basis at a cognitively and physically demanding job. He also helped his wife at home with chores and maintenance duties. He was socially active and enjoyed spending time with his family and friends. He loved playing with his children and going on family outings. He also cherished playing cricket with his friends. Mr. Jaggernauth came to Canada as an immigrant in search of better opportunities, and there is every indication that by the time of the accident, he led a dynamic, stable, fulfilling and happy life.

As a result of the motor-vehicle accident of August 6, 2005, and its subsequent physical and psychological limitations, Mr. Jaggernauth has been affected in every significant respect. Emotionally, he now feels depressed, hopeless, nervous, helpless, and overwhelmed. From an occupational perspective, he has been rendered unable to work. Moreover, he feels completely unable to accomplish his household chores. Recreationally, Mr. Jaggernauth no longer attends social activities, gatherings, and get-togethers, as he did in the past because of his low mood and pain. He has also stopped playing cricket with his friends.

Dr. Pilowsky recommended 15 sessions of psychotherapy.

Economical arranged for a multi-disciplinary assessment of Mr. Jaggernauth in August 2006 which included a psychological assessment by Dr. Deborah Cowman. Dr. Cowman determined that as a direct result of the accident, Mr. Jaggernauth met the diagnostic criteria for: (1) Adjustment Disorder Associated with Anxious and Depressed Mood; (2) Pain Disorder with Associated Psychological Factors and a General Medical Condition. Dr. Cowman also noted symptoms of post-traumatic stress. Dr. Cowman recommended psychotherapy and consideration of a chronic pain management program.

Economical approved of the treatment plan submitted by Dr. Pilowsky. Psychological treatment with Dr. Pilowsky began in September 2006. On March 30, 2007, Dr. Pilowsky issued a report as the treatment recommended in her initial plan had been exhausted. She reported that through psychotherapy and anti-depressant medication, Mr. Jaggernauth had shown improvement over the course of the initial 15 sessions. He had begun to make plans to return to work but his hopes were dashed when he learned that he would require further surgery. Upon learning of his need for more surgery, his mood “plummeted”, he felt overwhelmed and he confided that he was engaging in passive suicidal ideation. He continued to have a “pervasive and entrenched sense of vulnerability”. Pain continued to be a major source of stress. Dr. Pilowsky diagnosed Mr. Jaggernauth with chronic major depressive episode (moderate severity) and chronic symptoms of post-traumatic stress disorder. Dr. Pilowsky recommended 12 more psychotherapy sessions.

Around the same time (March/April 2007), at the instigation of the Insurer, Dr. Marek J. Celinski conducted a neuropsychological assessment of the Applicant and found that he suffered from: (1) post-traumatic stress disorder; (2) major depressive disorder (moderate to severe), single episode with psychotic features; and (3) pain disorder associated with both psychological factors and a general medical condition, chronic. Dr. Celinski concluded as follows:

From the psychological perspective, he [the Applicant] is seriously affected by depression which is secondary to his physical restrictions and also by symptoms of Post Traumatic Stress Disorder. He reports improvement with psychological help and this, in my opinion, should continue…

The 12 sessions recommended by Dr. Pilowsky were approved. After 8 of those 12 sessions had been completed, on July 9, 2007, Dr. Pilowsky prepared an update report for the adjusters acting on behalf of Economical. Dr. Pilowsky reported that Mr. Jaggernauth had seriously deteriorated. The surgery on his shoulder had not been as successful as he had hoped it would be and he was told by his physician that there was nothing more they could do for his neck pain. Dr. Pilowsky reports that:

… this news has crushed Mr. Jaggernauth, as he realizes that the possibility of returning to work in the near future is next to impossible. Also, the realization that he will have to live with pain for the rest of his life has been very difficult for this man to accept.

During sessions, Mr. Jaggernauth presents as sad, overwhelmed, lethargic, hopeless, helpless and tired.

It is my strong professional opinion that Mr. Jaggernauth’s condition has worsened ... His severe depression in combination with his pain and Posttraumatic Stress Disorder, affect all aspects of his daily functioning. He is currently on the verge of suffering an emotional breakdown given his many problems and his difficulty coping with them.

Dr. Pilowsky recommended further psychotherapy as well as 10 sessions of marital counselling as the Applicant’s marriage appeared to be in crisis.

Dr. William Gnam was the psychiatrist who examined Mr. Jaggernauth in November 2007 as part of the Custom Rehab CAT assessment team. Mr. Jaggernauth reported continuing to have flashbacks of the accident, increased irritability and rage, sleep problems, constant depression, frequent suicidal thoughts (without plan or intent), decreased appetite, low energy and avoidance of social interaction. This is consistent with what Mr. Jaggernauth had been reporting to his treating psychologist, Dr. Pilowsky. He also reported hypnogogic auditory hallucinations (hearing music playing in his head while falling asleep). Based upon his review of the medical history and his assessment of Mr. Jaggernauth, Dr. Gnam was satisfied that the Applicant’s accident-related diagnoses were as follows: (1) major depressive disorder (single episode, chronic); (2) pain disorder associated with both psychological factors and a general medical condition; and (3) anxiety disorder not otherwise specified (with features of post-traumatic stress disorder).

Dr. Rosenblat was the psychiatrist who examined Mr. Jaggernauth on February 25, 2008 as part of the Omega CAT assessment team. Dr. Rosenblat noted that the Applicant’s depression appeared to have worsened since he was assessed by Dr. Gnam just a few months earlier. For example, there were now signs of psychosis (frequent auditory hallucinations that were intrusive and experienced while fully awake), frank and frequent suicidal ideation and irritability leading to violence towards objects. Based upon his review of the medical history and his assessment of Mr. Jaggernauth, Dr. Rosenblat was satisfied that the Applicant’s accident-related diagnoses were as follows: (1) major depressive disorder (single episode, chronic with psychotic features); (2) anxiety disorder not otherwise specified (with features of post-traumatic stress disorder; and (3) pain disorder associated with both psychological factors and a general medical condition.

In March 2008, Dr. Pilowsky provided a further report at the conclusion of another round of 15 psychotherapy sessions. She indicates that the Applicant’s condition continued to plummet, despite her assistance. She reports that in the last few weeks before her report, Mr. Jaggernauth spent most of his time locked inside his room. Arguments with his wife and children were increasing and he was concerned that he might “lose it” and assault his wife. Dr. Pilowsky also noted psychotic symptoms as Mr. Jaggernauth reported hearing music in his head and a voice calling out his name. His suicidal ideation was becoming more alarming as it was occurring more frequently (daily) and he had now developed a plan as to how he would kill himself. Dr. Pilowsky wrote to Mr. Jaggernauth’s family physician (Dr. Solmon) about her concerns and recommended that Mr. Jaggernauth undergo a psychiatric evaluation and be referred to the Centre for Addiction and Mental Health (“CAMH”).

Apparently, based on this advice, Dr. Solmon did refer Mr. Jaggernauth on March 6, 2008 to the Humber River Regional Hospital on an emergency basis out of concern that he might injure himself or others. Dr. J. Van Kampen (psychiatrist) examined Mr. Jaggernauth at the Humber River Regional Hospital. Dr. Van Kampen suggested that the sleep and mood problems being experienced by Mr. Jaggernauth might, in part, be side-effects of taking Morphine and MS Contin. Dr. Van Kampen was not satisfied that Mr. Jaggernauth actually planned to take his life (i.e., there was no imminent risk of harm), although he showed symptoms of depression, anxiety, adjustment difficulties, and post-traumatic stress. Mr. Jaggernauth was discharged from the hospital and was told to follow-up with his family doctor and treating psychologist.

In June 2008, Dr. Gnam was asked to comment on the report of Dr. Rosenblat. He found that the worsening of Mr. Jaggernauth’s depressive symptoms, the worsening of psychotic symptoms and his increasing preoccupation with suicide reported by both Dr. Rosenblat and Dr. Pilowsky were plausible and well supported by clinical evidence. Therefore, as noted earlier in this decision, Dr. Gnam found Dr. Rosenblat’s higher impairment ratings to be reasonable but questioned whether it was appropriate to be providing any opinion as to Mr. Jaggernauth’s permanent level of impairment given that Mr. Jaggernauth’s psychological condition had still not stabilized and that, in the opinion of Dr. Gnam, all treatment options (including much more aggressive pharmacological treatment, especially for his psychotic depression) had not yet been exhausted.

On November 4, 2008, Dr. Pilowsky reported that Mr. Jaggernauth’s condition had improved somewhat since her last report. His medication had been changed and the suicidal ideation and psychotic symptoms were reportedly under control with the assistance of the family physician. Dr. Pilowsky felt that Mr. Jaggernauth’s recovery had reached a plateau and that, although he might deteriorate (as he did a few months earlier), she did not foresee improvement in his condition given the time that had elapsed since the accident (three years), the seriousness of his injuries, and his lack of improvement despite psychological and pharmacological treatment. Mr. Jaggernauth was still reporting profound sadness, loss of interest, difficulty concentrating, low mood, irritability, anger, insomnia, anxiety, hopelessness, nightmares, intrusive images and marital problems. He was having difficulty accepting that he might never again be able to do a physically demanding job and was aware that, given his lack of education and transferable skills, his future employment options were quite limited. He was also coping poorly with overwhelming, incapacitating chronic pain. In total, Dr. Pilowsky had had 55 psychotherapy sessions with Mr. Jaggernauth by this point in time. Dr. Pilowsky suggested that while further psychotherapy was unlikely to result in improvement, it would at least help in a supportive role to prevent a complete psychological collapse. She recommended another 15 sessions of psychological treatment.

The Insurer referred this treatment plan to Dr. Carolee Orme, psychologist, for her opinion as to whether the proposed treatment by Dr. Pilowsky was reasonable and necessary. Dr. Orme prepared a report dated January 14, 2009. In this report, Dr. Orme generally agreed with the diagnoses made by the psychiatrists and psychologists who examined Mr. Jaggernauth previously. Dr. Orme supported the plan proposed by Dr. Pilowsky but goes on to opine on the prognosis for Mr. Jaggernauth:

Yes. Mr. Jaggernauth continues to suffer significant psychological difficulties [as] a result of his accident and its sequelae. His symptoms and disorders for some time have been affecting all aspects of his life, including his marriage, his family relationships, his occupational, social and recreational activities, with little improvement to date. Although the psychological treatment he has received appears appropriate and he has acquired some better coping strategies, these have not been sufficient to bring about a significant reduction in his psychopathology.

Mr. Jaggernauth’s limited psychological progress despite treatment appears to be related to a number of factors. First, review of the documentation (particularly Dr. Celinski’s report) and Mr. Jaggernauth’s self-report indicate that Mr. Jaggernauth’s levels of education and of cognitive functioning are at a sufficiently low level that comprehension, integration and application of the information presented to him in psychotherapy is likely to take much longer than average. Secondly, Mr. Jaggernauth does not have relationships outside therapy where he can express himself and defuse his distress. His brother’s involvement in the accident and the extended family’s tendency to avoid talking about what happened have probably contributed to Mr. Jaggernauth’s emotional isolation. Thirdly, despite reported benefit, Mr. Jaggernauth has not taken antidepressant medication consistently until recently, and consequently he has not had the benefit of combining pharmacological treatment with cognitive-behavioural treatment. Fourthly, Mr. Jaggernauth’s current psychopathology is unlikely to resolve as long as he still faces more surgery and an uncertain future, particularly in relation to his physical recovery and occupational options. To date, although he has been told that this is the case, Mr. Jaggernauth has not fully accepted that his pain is chronic and that he will likely never be able to return to his pre-accident functioning. Coming to terms with this outcome is apparently very difficult for Mr. Jaggernauth, and likely increases his risk of self-harm.

The proposed treatment plan appears reasonable and necessary at this time. In my opinion, Mr. Jaggernauth has benefited and will continue to benefit from his psychotherapy in terms of improved coping skills, mitigation of suicide risk, and prevention of further deterioration in his psychological functioning. The recommendation of this Treatment Plan for 15 sessions may well not be sufficient: Mr. Jaggernauth is likely to need psychological treatment until his physical condition has stabilized and he has a realistic perspective on what his future holds, particularly in terms of his chronic pain, his physical limitations, and his ability to provide for his family.

On August 14, 2009, Dr. Pilowsky provided an update to Economical. Dr. Pilowsky had read and agreed with Dr. Orme’s clinical assessment and diagnosis. Dr. Pilowsky points out that Mr. Jaggernauth’s condition is chronic in nature and most likely permanent given his significant physical limitations and pain. Dr. Pilowsky repeats her earlier opinion that Mr. Jaggernauth has reached a plateau in his recovery and that he was unlikely to improve. She feels that continued psychotherapy will be crucial in preventing Mr. Jaggernauth from committing suicide or suffering some other psychological collapse.

In February 2010, Dr. Celinski was authorized by Economical to perform a neuropsychological re-assessment of Mr. Jaggernauth. After an extensive review of the relevant documentation, an interview of Mr. Jaggernauth and administration over two days of numerous neuropsychological tests, Dr. Celinski concluded as follows:

It is my opinion that at this time, Mr. Jaggernauth’s condition is permanent and he is left with serious impairments and the need for support… The primary issue is depression secondary to pain and physical restrictions, and both pharmacological (psychiatric) and psychological help need to continue, most likely indefinitely. His serious physical restrictions prevent him from returning to work, to his previously enjoyable lifestyle, and from involvement in a full range of domestic chores. Further progress is unlikely.

His symptoms of anxiety and PTSD are better but depression is not. When he has neck pain, he wants to see nobody.

Cognitively, memory and concentration fluctuate depending on the level of pain. When he feels better, he does some things around the house and is able to cut grass or to wash his truck. On the other days, he is totally disabled and not able to do simple things... He has suicidal thoughts and hallucinatory experiences in the way of hearing music … and he also hears peoples’ voices but not recognizing what they are talking about. He also sees “shadows” pass by. He recognizes that these experiences do not represent real things and he prays in such instances. He noted that they occur with lesser frequency now than in the past.

He continues with physical therapy such as gym and swimming pool which are paid by insurance and receives massage therapy and acupuncture. He also has physio which involves exercises involving his shoulders. He smokes half a pack of cigarettes a day which helps him to relax.

He is able to drive short distances. He experiences visualizations of being immobilized while being hit by the car (the scene of the accident) but such flashbacks occur seldom now and also he has less frequent dreams about this event.

Thus, in essence, Mr. Jaggernauth confirmed the impressions obtained both from the clinical interviews and testing.

Dr. Pilowsky has continued to treat Mr. Jaggernauth to the present. The focus of this treatment has been on helping Mr. Jaggernauth to cope with chronic pain (especially in his neck which at times is severe and has been described as overwhelming), chronic severe depression, frustration and anger and the effect all of these have had on his relationships, especially his relationship with his wife and children.

Assessing the Severity of Impairment Caused by Psychological Problems

Methodology Required under AMA Guides (4th ed.)

For an assessment to be considered valid, it must be done in accordance with the methodology required by the Guides. Amongst other requirements, the assessor must:

1. Gather and review as much information as possible;

2. Follow the Guides evaluation protocols;

3. Utilize the tables relating to the evaluation protocols; and

4. Prepare a report that conforms in form and content to the requirements of the Guides.

The Guides also remind us that it is also important not to confuse the seriousness of a diagnosis with the level of impairment. The Guides are designed to estimate impairment of function. A person can be diagnosed with a serious condition but have little or no impairment of function. This can be because the condition is in remission, the symptoms are being controlled by medication or other forms of treatment, the condition affects a function that is not crucial to this individual’s daily activities and so forth.

Impairment of function due to mental or behaviour impairments is measured in four spheres: activities of daily living; social functioning; concentration, persistence and pace; and deterioration or decompensation in work or worklike settings (adaptation). A brief description of each of these four spheres follows.

The Four Spheres of Function

(1) Activities of Daily Living

Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should (for the purposes of Chapter 14 of the Guides) be related to the mental disorder rather than to other factors. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

(2) Social Functioning

Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by avoidance of interpersonal relationships or social isolation.

(3) Concentration, Persistence and Pace

Concentration, persistence and pace refer to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings or everyday household tasks. One should not place too great emphasis on results of psychiatric or psychological testing as a person may score well in a clinical setting but have real difficulties completing tasks in a real-world situation.

(4) Deterioration or Decompensation in Work or Worklike Settings

(“Adaptation”)

This category refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.

Word Descriptors Used to Rate the Severity of Impairments Due to Mental and Behavioural Disorders (in each of the four spheres of function)

The Table at page 301 of the Guides (4th ed.) provides a guide for rating mental impairment in each of the four areas of functional limitation on a five-category scale that ranges from no impairment to extreme impairment. The following are recommended by the Guides as anchors for the categories of the scale (see pp. 300-301):

“None”

• means no impairment is noted in the function

“Mild”

• implies that any discerned impairment is compatible with most useful functioning

“Moderate”

• means that the identified impairments are compatible with some but not all useful functioning

“Marked”

• is a level of impairment that significantly impedes useful functioning

“Extreme”

• means that the impairment or limitation is not compatible with useful function
• this implies complete dependency on another person for care
• in the sphere of social functioning it implies no meaningful contact, such as in a catatonic state
• in the sphere of concentration, persistence and pace, it means that the person cannot perform any productive task at all
• in the sphere of adaptation, it means that the person cannot tolerate any changes at all to their environment or routine and that the person may completely breakdown when there are even minor changes

Analysis - Clause 2(1.2)(g) of the Schedule – Classifying the Applicant’s Level of Impairment Due to Mental and Behvioural Disorders

Summary of the Opinions

The severity of the Applicant’s mental and behavioural impairments has been assessed (for all four spheres of function) by Custom Rehab, Omega, Impairment Resources and Dr. Pilowsky. The conclusions of these assessors are summarized in the table below (taken from Ex. 11):

Custom Rehab

Omega

Impairment Resources

Dr. Pilowsky

Activities of Daily Living

2-3

2-3

2-3

4

Social Functioning

2-3

3

2-3

4

Concentration, Persistence and Pace

3

3

2-3

4

Adaptation

3

3-4

2-3

5

2 = mild 3 = moderate 4 = marked 5 = extreme

Weighing the Opinions

Of all the mental health experts who have seen Mr. Jaggernauth, the only one who has opined that he qualifies as catastrophically impaired as a result of one or more marked or extreme mental or behavioural impairments is Dr. Pilowsky. On the other hand, Impairment Resources was the only group to find that Mr. Jaggernauth suffered only mild to moderate mental or behavioural impairments in all four spheres of function. Below, I shall review the opinions, and outline my concerns with the methodologies and conclusions, of both Dr. Pilowsky and the assessors from Impairment Resources.

Dr. Pilowsky has been a psychologist since 1994. At the hearing, she was qualified as an expert in clinical psychology with experience in assessing the degree of psychological impairments of patients. Currently, about 70% of her time is devoted to treating patients and about 30% of her time is devoted to conducting assessments for medical-legal purposes. She has been treating the Applicant since about September 2006 and has seen him on about 100 occasions in total. She has submitted seven treatment plans that have been approved by the Insurer.

When she conducted her first assessment of the Applicant, Dr. Pilowsky obtained a GAF score for him of 55.¹⁴ Based upon this and her observations, her first impression was that Mr. Jaggernauth’s impairment at that time was in the moderate to severe range. Initially, Mr. Jaggernauth’s attitude was positive and he expected eventually to make a full recovery. As time went on, each time he had to undergo another surgical procedure or each time he was told that he would likely not improve and that he would have to learn to live with his pain, he began to lose hope and his mood plummeted. He began to express a desire to kill himself and eventually developed a plan as to how he would carry this out. He began to have psychotic symptoms (hallucinations). He was angry and behaving erratically. He was very short-tempered. There were times when he would isolate himself and refuse to see anyone. With the help of anti-depressants, pain medication (narcotics) and psychotherapy, his ability to cope has improved but, according to Dr. Pilowsky, no matter what happens in the future, Mr. Jaggernauth will remain a risk. His post-traumatic stress disorder has improved (the intensity and frequency of episodes has lessened) but his depression has worsened. The Applicant’s GAF scores (as obtained by Dr. Pilowsky) went from around 55 at the time of the initial assessment to 45 (in July 2007) and then further dropped to 35 (in March 2008 and November 2008). Since he cannot work or do much to help around the house, Mr. Jaggernauth feels like a burden on his family. This has placed a great strain on his relationship with his wife.

Dr. Pilowsky diagnosed the Applicant as having: (1) severe depression; (2) post traumatic stress disorder; and (3) pain disorder. The intensity of his symptoms has changed over time but the diagnoses remain the same.

While the observations made by Dr. Pilowsky may be useful in this case (after all, she got to meet with him many more times and over a considerably longer period than any of the other experts who have given an opinion in this case), I give little weight to her conclusions when it comes to the categorization of the level of Mr. Jaggernauth’s mental or behavioural impairments for the reasons that follow.

First and foremost, she utterly failed to follow the procedures required for a valid assessment under the Guides. She made no effort to gather and evaluate the complete medical history. In particular, she did not obtain clinical notes and records, test results, assessments or reports from other mental health professionals who have treated or assessed the Applicant.

Her reasoning was that it was not necessary since she knew the Applicant better than anyone else so that there was no point in reviewing such records. On cross-examination, it became obvious, however, that the Applicant had withheld some very important information from Dr. Pilowsky, including the fact that it was his brother who had run him over and that he had undergone a psychological assessment in August 2006 (shortly before seeing Dr. Pilowsky). It therefore appears that, had she obtained and reviewed the complete medical records, she may have gained some useful insights. In any event, failing to do so means that her assessment was not done in accordance with the Guides.

Furthermore, the testimony of Dr. Pilowsky revealed that she was really not as familiar with the Guides as she ought to have been and could not even say which edition of the Guides she had used in making her assessment (and there are significant differences between editions).

Finally, Dr. Pilowsky seemed to be more concerned with the seriousness of the diagnoses than with gathering information about how Mr. Jaggernauth’s psychological problems were actually impairing his function. Certainly, her notes are lacking much in the way of specific examples. Her conclusions appeared to be based more on her concern for what might occur in the future than on specific examples from the past.

For the reasons that follow, I also tend to give less weight to the conclusions of the assessors from Impairment Resources when it comes to the categorization of the level of Mr. Jaggernauth’s mental or behavioural impairments.

First, Dr. Leclair and the other assessors at Impairment Resources never actually met with the Applicant. While this is not necessary in every case (and I recognize that the Guides suggest that anyone trained in the Guides should be able to review and comment upon another practitioner’s assessment), in a complex case of this sort¹⁵, firsthand observations are important. This is especially true where the credibility of the person being assessed is an issue. Dr. Leclair stated that he believes that credibility is an important issue in this case.

Second, Dr. Leclair admitted that he “downgraded” the impairment classification for Activities of Daily Living and for Social Functioning from “moderate” to “mild to moderate” because of his concerns that Mr. Jaggernauth was exaggerating his level of impairment. Dr. Leclair’s opinion in this regard was influenced by the surveillance evidence. I have also carefully reviewed the surveillance evidence but I do not attribute as much importance to it as did Dr. Leclair. Dr. Leclair’s conclusion that Mr. Jaggernauth was deliberately exaggerating his level of impairment was also based upon the results of neuropsychological tests that were administered to Mr. Jaggernauth and validity measures from those tests.

Dr. Celinski (one of the experts who actually obtained the test results that Dr. Leclair finds to be questionable), however, was not concerned about the credibility of Mr. Jaggernauth. Dr. Pilowsky testified that cultural factors can affect the reliability of validity testing. Dr. Rosenblat agreed that validity testing can be influenced by cultural factors and went on to testify that it can also be influenced by such factors as: a lack of education/illiteracy (i.e., having the questions read to the person being assessed can skew the results) and an unconscious “cry for help” (which can be a symptom, rather than evidence of a deliberate attempt to mislead). Dr. Rosenblat did not find any evidence of exaggeration. In fact, none of the other mental health professionals who have actually met with Mr. Jaggernauth have had any serious concerns in this regard.

Having had the opportunity to observe the Applicant while he testified and to hear testimony from his wife, from his treating psychologist and from numerous experts (in addition to reviewing the medical documentation), I am satisfied with the Applicant’s credibility. I find that Dr. Leclair’s concerns about the credibility of Mr. Jaggernauth are not supported by the preponderance of the evidence.

Third, although the assessors at Impairment Resources may be familiar with the AMA Guides, this is primarily in the context of workers’ compensation and social security cases from the U.S. Dr. Brigham testified that, while he has been involved in tens of thousands of assessments under the Guides, he has been involved in as few as 10 cases from Ontario. A narrower, more restrictive interpretation of the Guides may be appropriate in the U.S. A larger and more liberal interpretation may be required in the context of a catastrophic impairment assessment under the Ontario Statutory Accident Benefits Schedule.

Furthermore, the refusal of Impairment Resources to assess any impairment that is not static (i.e., unchanging and recorded consistently by virtually every assessor) is an approach that has been disapproved of by the Financial Services Commission in the context of a catastrophic impairment assessment under the Ontario Statutory Accident Benefits Schedule.¹⁶

All of this suggests to me that the approach taken by the assessors from Impairment Resources may simply be inappropriate for assessments of catastrophic impairment under the Ontario Statutory Accident Benefits Schedule. While I do not dismiss out-of-hand the opinions of the assessors from Impairment Resources, I am mindful that the approach they take and the interpretation they give to the Guides may not be consistent with the jurisprudence and the statutory scheme here in Ontario.

Effect of the Applicant's Mental or Behavioural Impairments on Activities of Daily Living

Mr. Jaggernauth is physically capable of doing many activities of daily living but he is often so depressed or in so much pain that he does not. He may stay in bed or refuse to leave the bedroom. A main feature of depression is a feeling of exhaustion. Dr. Pilowsky stated that, while she had encouraged the Applicant to try to go out and do what he can when he feels able, overall, Mr. Jaggernauth cannot routinely and consistently perform many activities of daily living. Though her notes do not reflect this, she also testified that there were times when he was drunk or unwashed when he came to see her. Dr. Pilowsky concluded that Mr. Jaggernauth had a marked level of impairment when it comes to the effect of his mental/behavioural impairments on his ability to perform activities of daily living.

Custom Rehab, Omega and Impairment Resources all found that the impairment of activities of daily living was somewhere between mild and moderate. Physically, the Applicant has a relatively small reduction in full range of motion in his neck and shoulders. His larger problems are chronic pain, anxiety and depression. Surveillance clearly shows that the Applicant is able to perform many daily activities with relative ease. He is seen driving his son to and from school, walking, shopping, climbing a ladder to change a lightbulb (in the garage), taking out the garbage and moving empty garbage bins, carrying objects and placing them in the vehicle, washing his vehicle, moving a sheet of plywood with the assistance of another person, climbing up onto the front porch of his house (and then back down), and so forth. The Applicant did not deny doing these things and has been encouraged by Dr. Pilowsky to be as active and involved in daily chores as possible. Nevertheless, I accept the testimony of the Applicant and his wife that there are many days that, due to his psychological impairments, the Applicant does not engage in many of the daily activities in which he used to engage and cannot do so independently (without constant reminders and cuing), appropriately and effectively.

Based upon the evidence, I find that the impairment to the Applicant’s activities of daily living as a result of mental or behavioural impairments is moderate (but at the lower end).

Effect of the Applicant's Mental or Behavioural Impairments on Social Functioning

Both the Applicant and his wife have reported episodes of angry outbursts, where the Applicant has been verbally abusive towards his wife or has shown violence to objects. His relationship with his wife has suffered greatly. All of the evidence suggests that this is completely different from the way things were before the accident. While he can sometimes carry on a friendly conversation, he often has difficulty engaging in meaningful interactions with others. He withdraws when depressed. Again, Dr. Pilowsky concluded that Mr. Jaggernauth had a marked level of impairment when it comes to the effect of his mental/behavioural impairments on his social functioning.

Custom Rehab and Impairment Resources found that the impairment of social functioning was in the mild to moderate range. Omega found that the impairment of social functioning was moderate. In this case, I agree with Omega.

Surveillance shows that the Applicant is capable of some social interaction. On November 27 and 28, 2008, he was seen sitting in the food court of a shopping mall engaged in conversation with others. On August 17, 2009, on what was presumably a warm summer day, he appears to enjoy the company of others while he entertains a few friends for a couple of hours outside of his new home in Brampton (at what I call “the housewarming party”). On March 17, 2010, he is seen chatting with someone outside a restaurant for about 20 minutes while he smokes a cigarette. Thus, Mr. Jaggernauth is not significantly impeded or precluded by his impairments from social functioning.

Nevertheless, based upon the testimony of Mr. Jaggernauth and his wife, when one compares how the Applicant interacts with others now compared to how he interacted before the accident, there is a dramatic difference. He now spends much less time with former friends. He is rarely involved in social activities. Perhaps most importantly, his relationship with his wife has suffered greatly. His angry outbursts and his frequent periods of depression and self-imposed isolation have severely damaged this relationship.

Before the accident, the Applicant says that he and his wife were best friends. The Applicant described their marriage before the accident as “great”. They would watch movies together, go out every week to flea markets or malls. They had a satisfying sex life.

Since the accident, they rarely go out together. They fight a lot. Mr. Jaggernauth is angry and moody and has thrown a glass at his wife. They rarely have sex and, according to both the Applicant and his wife, each one only engages in such activity for the benefit of the other. Again, according to their testimony, this is much different than the way it was before the accident, when they both enjoyed physical intimacy with each other on a regular basis.

According to Mrs. Jaggernauth, while they have stayed together for the benefit of the children, their relationship is in crisis. Because of Mr. Jaggernauth’s mood, they cannot talk about either the past or the future. It is hard to get him to talk at all. He does not complain a lot but he will not tell his wife how he is feeling. Sometimes he is happy (like when they moved into their new home in Brampton) but it never lasts long. They rarely go out or have fun. They argue all the time. Mrs. Jaggernauth says that she still loves her husband but she feels that she is on her own – that she has no support.

The Applicant often isolates himself from his family. The Applicant feels that his relationship with his children has suffered. Emotionally, he has distanced himself from his daughter. He may, at the insistence of his wife, transport his son to and from school and give him something to eat but the Applicant does not play with his son and feels that they really have no relationship. He testified that this is tearing him apart. The Applicant’s social life before the accident revolved around his friends and family and, since the accident, his social functioning in both regards has been impaired. He has maintained some contact with a couple of his friends and he has some relationship with his wife and children but, clearly, his social functioning has been impaired. This impairment is “compatible with some but not all useful functioning”. I therefore find that the impairment to the Applicant’s social functioning as a result of mental or behavioural impairments is moderate.

Effect of the Applicant's Mental or Behavioural Impairments on Concentration, Persistence and Pace

According to Dr. Pilowsky, when his depression is worse, Mr. Jaggernauth’s thoughts are erratic. He does not make sense. He suffers from psychotic episodes including auditory hallucinations. Although her notes do not reflect this, Dr. Pilowsky testified that, when Mr. Jaggernauth’s mood was at its lowest, he was hearing voices commanding him to kill his wife and then himself. Mr. Jaggernauth complains of short-term memory problems. Based on the foregoing, Dr. Pilowsky concluded that Mr. Jaggernauth had a marked level of impairment when it comes to the effect of his mental/behavioural impairments on concentration, persistence and pace.

Custom Rehab found moderate impairment to the Applicant’s ability to concentrate, persist and pace himself. Dr. Gnam of Custom Rehab based this upon the findings of a neuropsychological evaluation that was done shortly before Dr. Gnam’s assessment and the plausible effects on persistence and concentration of sleep impairment, depression and chronic pain. Mr. Jaggernauth was noted to have problems staying focused during assessments, particularly during the Occupational Therapy Assessment, and required cueing on several occasions. He was able, however, to tolerate four hours of Occupational Therapy testing, suggesting to Dr. Gnam that impairment in persistence cannot be marked or extreme. Since Mr. Jaggernauth’s impairment in this domain has precluded some but not all useful functioning, Dr. Gnam rated the impairment as moderate.

Omega also found moderate impairment to the Applicant’s ability to concentrate, persist and pace himself based upon the Applicant’s consistent reports that he is slow at tasks, does very little with his time and has difficulty in concentration at most tasks.

I note that Dr. Pilowsky, in her report of May 3, 2010 (at p. 4), relates that Mr. Jaggernauth’s sleep is still highly disturbed and non-restorative (due to pain, anxiety, nightmares, etc.), which leaves him exhausted during the day, with poor energy levels. Although Mr. Jaggernauth testified that he tries to take naps during the day, I believe that it is reasonable to conclude that chronic sleep deprivation is likely impairing the Applicant’s ability to concentrate on and to persist in many tasks.

Impairment Resources classified this somewhat lower at mild to moderate impairment. The assessors at Impairment Resources assessed the level of impairment lower because of questionable results obtained in a neuropsychological assessment in 2010 and because of the surveillance evidence that was made available to Impairment Resources. The team at Impairment Resources seem to have concluded that Mr. Jaggernauth was deliberately exaggerating his level of impairment and, therefore, they downgraded their assessment from moderate to mild to moderate.

In a complex case such as this, especially where credibility is an issue, I find that it is important for an assessor to actually meet with the person being assessed. The fact that the assessors at Impairment Resources are the only ones never to have met with the Applicant is one of the factors I have considered in deciding how much weight to give their opinion. I also find that the assessors at Impairment Resources were unduly influenced by the results of the 2010 validity tests and by the surveillance. It is worth noting that the assessor who obtained the results in 2010 (Dr. Celinski) was not concerned that the results he obtained lacked validity. Also, there may be reasonable explanations for poor validity scores other than a deliberate attempt by Mr. Jaggernauth to exaggerate his symptoms.¹⁷ I have reviewed the surveillance as well and I do not find that it undermines the Applicant’s credibility or that it is particularly helpful in assessing the impact of Mr. Jaggernauth’s mental or behavioural impairments on concentration, persistence and pace.

I find that the impairment to concentration, persistence and pace as a result of mental or behavioural impairments is moderate.

Effect of the Applicant's Mental or Behavioural Impairments on Adaptation

The experts seem to agree that adaptation is the area of function which has been most affected by Mr. Jaggernauth’s mental or behavioural impairments. Mr. Jaggernauth has great difficulty coping with change or stress, he has difficulty maintaining a schedule as he is very labile and his participation in any activity is dependent upon his mood at that moment. He has not been able to work. According to Dr. Pilowsky, his borderline intelligence makes this impairment that much worse. Based on the foregoing, Dr. Pilowsky concluded that Mr. Jaggernauth had an extreme level of impairment when it comes to the effect of his mental/behavioural impairments on deterioration or decompensation in work or worklike settings.

Impairment Resources classified Mr. Jaggernauth’s impairment with respect to adaptation to be in the mild to moderate range. Custom Rehab (Dr. Gnam) found the impairment to be moderate. Omega (Dr. Rosenblat) found the impairment to be moderate to marked. Dr. Gnam’s follow-up letter (June 13, 2008) indicated that he would increase his estimation of impairment if, as suggested by the report of Dr. Rosenblat, Mr. Jaggernauth had deteriorated psychologically since the time of Dr. Gnam’s evaluation.

The evidence clearly shows that Mr. Jaggernauth responds extremely poorly to stress and to unexpected changes. He has had great difficulty adjusting to the idea that he will not make a full recovery from the accident and that he will have to continue to live with chronic pain and other accident-related problems, probably for the rest of his life. At such times, he simply “shuts down” and he may pose a risk to himself or others. Dr. Leclair testified that this does not count because, although it may be an example of decompensation, it is in response to events that anyone would find stressful. What Dr. Leclair fails to acknowledge is the severity and duration of the decompensation which the evidence suggests is much more than normal.

Pharmacological treatment and psychotherapy have helped Mr. Jaggernauth to reach a level of stability in recent years. Nevertheless, when it comes to adaptation, the level of impairment certainly borders on one that significantly impedes useful functioning. I have no difficulty in finding that the impairment to the Applicant’s adaptation as a result of mental or behavioural impairments is at the high end of the moderate range.

Conclusion with respect to clause 2(1.2)(g) of the Schedule

Based on the foregoing, I have found that the Applicant has not suffered an impairment that, in accordance with the Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. Therefore, I find that the Applicant has failed to prove on a balance of probabilities that he sustained a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule.

Analysis - Clause 2(1.2)(f) – 55% or More Impairment of the Whole Person

Estimating a WPI Rating Based on Physical Impairments

(1) Spine

As a direct result of the accident, the Applicant sustained a type III odontoid fracture of the C1/C2 vertebrae with displacement of up to 8 mm on imaging. By the time of the CAT assessments, the fracture had healed (without the need for surgery), but with residual pain and asymmetric loss of motion of the cervical spine. According to both the Custom Rehab and the Omega reports, such an injury is given a 25% WPI rating under the AMA Guides (4th edition).

Dr. Brigham, however, stated that, while a rating of 25% might reflect the seriousness of the original injury to the Applicant’s cervical spine, it did not accurately reflect his condition at the time of the assessments (i.e., after the cervical fracture had healed) and, therefore overestimated the Applicant’s permanent level of impairment. Impairment Resources, therefore, rated this impairment at 15% WPI. During his testimony, Dr. Mathoo stated that, since writing his report for Custom Rehab, he had come to believe that, for spinal injuries that have healed, one ought to look at the person’s impairment at the time of the assessment and not merely provide a rating based on the nature of the original injury. Therefore, were he to prepare his report today, he would have provided a rating lower than 25%. The opinion of Custom Rehab concerning the spinal injury, however, was not just based upon the opinion of Dr. Mathoo. Dr. Pervez Ali was an orthopaedic surgeon who examined Mr. Jaggernauth as part of the Custom Rehab team. Dr. Ali was also of the opinion that the appropriate impairment rating to give for the spinal injury under the Guides was 25%. There is no evidence that Dr. Ali has had any change of heart in this regard.

The divergence in opinions concerning the appropriate rating to assign to Mr. Jaggernauth’s spinal injury results largely from inconsistency found within the AMA Guides (4th ed.). For most impairments, including those related to the musculoskeletal system, the Guides instruct the assessor to only consider permanent impairments that exist at the time of assessment. In Chapter 3 (The Musculoskeletal System), however, an exception seems to have been made when it comes to spinal injuries.

In the 4th edition of the Guides, for most musculoskeletal impairments, the level of impairment is measured by loss of range of motion. For spinal injuries, the 4th edition of the Guides introduced an “Injury Model” (also called the Diagnosis-Related Estimates Model or DRE Model) and instructs the assessor to use the Injury Model if the patient’s condition is one of those listed in Table 70 (p. 108 of the Guides). Only if none of the eight categories of the Injury Model is applicable should the evaluator use the Range of Motion Model (also called the Functional Model) and evaluators are cautioned that only one or the other approach should be used in making the final impairment estimate. The Guides suggest that if a patient demonstrates the structural inclusions of two categories (from the DRE Model), the physician should place the patient in the category with the higher impairment percent. If the DRE Model is applicable but it is unclear into which of two or more possible categories the injury falls, it is permissible to consider the Range of Motion Model to provide evidence to assist in choosing between the possible DRE categories.

Notwithstanding the introduction of this new Injury Model, the Guides repeat that to be valid, the impairment being evaluated should be a permanent one, that is, one that is stable, unlikely to change within the next year, and not amenable to further medical or surgical therapy. On the other hand, the Guides state at page 100 that, “With the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment.” They also state (at p. 9) that a patient may decline treatment and that this should not affect the impairment rating.

Impairment due to a vertebral body fracture (or dislocation) with loss of motion segment integrity or radiculopathy falls into Categories III, IV or V of Table 70 (equivalent, according to Table 73, to WPI ratings of 15%, 25% and 35%, respectively).

The assessors in this case had some difficulty in classifying the Applicant’s injuries under the Injury Model. Odontoid fractures are not specifically identified in Table 70. Table 70 also fails, according to Dr. Mathoo, to reflect that the C1 and C2 vertebrae are significantly more important to function than the other vertebrae and that damage to these vertebrae is much more likely to result in serious complications, including paralysis and death.

There are only two references to healed spinal fractures in Table 70. The first is with respect to a posterior element fracture, healed, stable, with no dislocation or radiculopathy. That does not apply in this case as this was a different type of fracture and there was dislocation in this case. The second is with respect to a transverse or spinous process fracture with dislocation of fragment, healed, stable. Again, this does not apply as this was a different type of fracture.

Thus, the question that must be answered in this case is, “How should one estimate impairment in the case of a healed odontoid fracture of the cervical spine with loss of motion segment integrity?” Should the whole person impairment rating be determined using the most appropriate category identified in Table 70 based upon the original injury or based upon the person’s condition at the time of assessment? Dr. Mathoo and Dr. Becker, in their respective reports, both rated the impairment as it was at the time of injury. Dr. Brigham’s team considered the injury after it had healed. Dr. Mathoo testified that, were he to do the assessment again, he now would also base the WPI rating on the healed injury rather than the original injury.

I have concluded that, for this type of injury, the impairment rating should be based upon the initial injury unless the Guides specifically provide otherwise. This conclusion is based upon the following reasons.

First, the Guides do provide (in Table 70, p. 108) categories for two very specific types of spinal fractures that is based on the condition of the person once the fracture has healed. The cervical fracture suffered by the Applicant in this case does not fall squarely within either of these two types where healing is relevant. For all other spinal injuries, the categories in Table 70 appear to be based upon the original injury. This suggests to me that the Applicant’s impairment rating ought to be based upon his original injury.

Second, the medical professionals who testified about this issue all agreed that if Mr. Jaggernauth had had surgery to repair the cervical fracture, the appropriate WPI rating would be 25%. They also agreed that if surgery had been recommended but he had refused, the appropriate WPI rating would be 25% (see comments at p. 9 of Guides). In both cases, it would not have mattered if the condition of Mr. Jaggernauth’s cervical spine had improved or deteriorated. It therefore seems absurd to me that, according to the interpretation urged by Dr. Brigham, the fact that Mr. Jaggernauth’s doctor tried to help him heal through use of a cervical collar rather than through surgery should result in a substantially lower WPI rating. Dr. Brigham offered no medical justification for treating similar cases in such a dissimilar fashion and I reject such an interpretation.

Third, it has been argued that this is inconsistent with the overall scheme of the Guides which, in general, seeks to rate only permanent injuries. While it is true that, in general, the Guides seek to rate only permanent injuries (and this principal is repeated in the section of the Guides on the “The Spine”), the introduction of an Injury Model into the 4th edition of the Guides is an anomaly that was bound to create uncertainty. In cases of ambiguity, as I have already indicated, in the context of the Ontario accident benefits scheme, I find it appropriate to resolve such ambiguities in favour of the insured person.

I therefore find that the appropriate impairment rating related to the Applicant’s cervical spine injury to be 25% whole person impairment.

(2) Upper Extremities

a. Right Shoulder

Based upon a decreased range of motion in internal rotation, Dr. Mathoo (Custom Rehab) found that the Applicant suffered a 2% upper extremity impairment. This conclusion was not challenged in the report from Impairment Resources. Dr. Lisa Becker (Omega) found that the Applicant suffered a 2-3% upper extremity impairment. Dr. Lisa Becker, however, also found a small reduction in the range of motion of the right shoulder in flexion and abduction which had not been observed by Dr. Mathoo and Dr. Ali. She therefore assigned another 3% to the upper extremity impairment rating related to the right shoulder.

According to Dr. Brigham, Dr. Lisa Becker’s results should be ignored unless others have made the same observations. In fact, others have made similar observations. The Custom Rehab CAT assessment includes a report from Parisa Noori, occupational therapist, who conducted a range of motion analysis of both of Mr. Jaggernauth’s shoulders (as well as other parts of his body). Parisa Noori found a decreased range of motion in abduction and flexion in both the right and left shoulders (similar to the subsequent findings of Dr. Lisa Becker), together with complaints by the Applicant of stiffness and pain in his shoulders when he attempted these movements (see p. 5 of Ms. Noori’s report).

The fact that Dr. Lisa Becker’s results are slightly different from those of Dr. Mathoo and Dr. Ali does not mean that her observations and test results were not accurate. The fact that similar observations were made by a member of the Custom Rehab team tends to support her findings. The fact that the range of motion for certain types of shoulder movements varies slightly from day to day may simply indicate that, because of the chronic pain experienced by the Applicant, there are some days where he experiences more pain or difficulty in moving through a full range of motion.

Other than Dr. Leclair, none of the medical experts in this case have challenged the credibility of the Applicant. It has not been suggested that he has malingered, misrepresented his abilities or put forward less than an honest effort. On some psychological assessments he did not pass the validity tests but Dr. Pilowsky explained that such validity tests are themselves culturally biased and are not reliable when administered to a person, like Mr. Jaggernauth, who was born outside Canada.

I therefore find that the credibility of the Applicant is really not an issue in this case.

The surveillance evidence suggests that, at least some of the time, the Applicant has a full range of motion (or close to a full range of motion) in his shoulders. That does not convince me that the findings of both Dr. Lisa Becker and Parisa Noori ought simply to be ignored. I accept that the Applicant has sustained a permanent impairment to both shoulders, as reflected by a consistent reduction in the range of internal rotation of his shoulders and intermittent reduction in the practical range of motion in abduction and flexion.

What ought we to do then when faced with results that vary slightly? As I indicated earlier in this decision, the suggestion made in the Guides that the assessors consult with each other and reach a consensus or keep testing until they are certain that the person’s condition has stabilized seems unrealistic in the Ontario accident benefits context. So, should Mr. Jaggernauth’s impairment be measured on his best day or his worst day and should the impairment rating reflect that his abilities (or level of impairment) may fluctuate slightly over time?

Dr. Brigham suggested that, if the goal is to measure a permanent level of impairment, only consistent, repeated test results should be counted and what we should concern ourselves with is a person’s performance (functional ability) on their “best” day. This, however, ignores that fluctuations in the level of chronic pain experienced by a person may preclude that person from meaningfully engaging in many activities. In my view, only counting a person’s functional abilities on their “best” day, especially in cases of chronic pain, tends to underestimate a person’s true level of functional impairment. Dr. Brigham’s approach would be highly prejudicial to people like Mr. Jaggernauth who suffer from chronic pain (especially since the pain itself is typically assumed to be included in other impairment ratings and is often not given its own WPI rating).

I therefore find that the appropriate impairment rating related to the Applicant’s right shoulder to be 6% upper extremity impairment.

b. Left Shoulder

Based upon a decreased range of motion in internal rotation, Dr. Mathoo found that the Applicant suffered a 2% upper extremity impairment. This conclusion was not challenged in the report from Impairment Resources. Dr. Lisa Becker found that the Applicant suffered a 2-3% upper extremity impairment. Dr. Lisa Becker, however, also found a small reduction in the range of motion of the left shoulder in flexion and abduction which had not been observed by Dr. Mathoo and Dr. Ali. She therefore assigned an additional 3-4% to the upper extremity impairment rating related to the left shoulder.

Again, Parisa Noori found a decreased range of motion in abduction and flexion in the right and left shoulders (similar to the subsequent findings of Dr. Lisa Becker), together with complaints by the Applicant of stiffness and pain in his shoulders when he attempted these movements.

For the reasons already given, I do not dismiss Dr. Lisa Becker’s findings simply because they do not entirely accord with those of Dr. Mathoo and Dr. Ali and I attribute the different results to fluctuations in functional ability attributable to Mr. Jaggernauth’s chronic pain.

In all of the circumstances, I find that the appropriate impairment rating related to the Applicant’s left shoulder to be 6% upper extremity impairment.

c. Sensory Impairment of Right Forearm

Dr. Mathoo and Dr. Lisa Becker agree that the Applicant suffered some loss of sensation in his right forearm.

Dr. Lisa Becker assigned 2% upper extremity impairment to sensory impairment of the Applicant’s ulnar nerve and 1% upper extremity impairment to sensory impairment of his antebrachial cutaneous nerve. Dr. Lisa Becker also found sensory impairment to the brachial cutaneous nerve and assigned a further 1% upper extremity impairment for this as well.

Custom Rehab originally agreed with assigning 2% upper extremity impairment for the sensory impairment related to the ulnar nerve but did not assign any other impairment ratings related to sensory impairment of the right forearm. Upon further consideration, Custom Rehab increased the upper extremity impairment rating by an additional 1% since Dr. Ali had also noted reduced sensation in the territory of the medial antebrachial cutaneous nerve. Since no assessor other than Dr. Lisa Becker reported sensory impairment to the brachial cutaneous nerve (i.e., there were not consistent findings of sensory impairment), Custom Rehab did not assign an impairment rating for this.

Impairment Resources agreed with the original impairment rating given by Custom Rehab (2% upper extremity impairment) for sensory impairment but felt that the findings related to the medial antebrachial cutaneous and the brachial cutaneous nerve were not consistent enough to warrant a permanent impairment rating.

In this instance, I find the approach taken by Custom Rehab to be the more balanced and appropriate. Since Dr. Ali had similar findings to Dr. Lisa Becker, it is appropriate to provide an impairment rating for sensory impairments related to both the ulnar nerve and the medial antebrachial cutaneous nerve. With respect to the brachial cutaneous nerve, however, the unique findings of Dr. Lisa Becker cannot be attributed to chronic pain and Dr. Lisa Becker did not testify at this hearing or attempt in her report to explain this discrepancy. In the absence of some plausible explanation for this discrepancy, I cannot accept that there has been permanent impairment to the brachial cutaneous nerve.

In all of the circumstances, I find that the appropriate impairment rating related to the Applicant’s right forearm sensory impairment to be 3% upper extremity impairment.

d. Total Upper Extremity Impairment

According to the methodology outlined at page 49 of the Guides, if there is bilateral upper extremity involvement, the unilateral impairments are determined separately, and each is converted to a whole-person impairment (using Table 3, p. 20). The unilateral values then are combined using the Combined Values Chart (p. 322).

For the left shoulder, I found an upper extremity impairment rating of 6%. This is equivalent to a whole person impairment rating of 4%.

For the right arm, I found an upper extremity impairment rating of 6% for the shoulder and 3% for right forearm sensory impairment, for a total of 9% upper extremity impairment. This is equivalent to a whole person impairment of 5%.

Using the Combined Values Chart (at p. 322 of the Guides) to combine the whole person impairment ratings related to the Applicant’s upper extremities, I find the appropriate rating for upper extremity impairments to be 9% whole person impairment.

(3) Skin

The Applicant has scars on the back of his head and on his calf from the lacerations he suffered during the accident. He also has surgical scars on his shoulders and right forearm. These scars are not generally visible (i.e., most of the time, they are covered by the Applicant’s hair or clothing) and the testimony of the Applicant suggested that, while he was sometimes conscious of a feeling of “pulling” of the skin at the site of these scars, they did not impede function.

All of the experts agreed that the impairment related to these scars fell within the 0-9% WPI range (see Class 1 of Table 2, p. 280 of Guides). The real question is, “What impairment rating within that range is the most appropriate?”

By definition, to be within Class 1: (1) there can be no limitation in function or limitation in the performance of few activities of daily living; and (2) no treatment or intermittent treatment is required. Presumably, a case in which there is no limitation of function would be considered less severe than one in which there is some limitation in the performance of a few activities of daily living. Similarly, I think that it is reasonable to conclude that a case in which no treatment is required would be considered less severe than one in which intermittent treatment is required.

In the selection of an appropriate impairment percentage and estimate within any class, the Guides¹⁸ instruct the assessor to be guided by the frequency and intensity of signs and symptoms and the frequency and complexity of medical treatment.

Dr. Lisa Becker (Omega) picked a mid-point of 5% with very little explanation. Dr. Mathoo (Custom Rehab) chose a WPI rating of 3%, also with no explanation. Dr. Brigham (Impairment Resources) reasoned that since the scars were not disfiguring, there was no apparent impact on function and no treatment was required, the most appropriate WPI rating is 0%.

The Guides offer some scenarios (at pages 281-282) to assist the assessor in determining an appropriate rating within this range. In these examples, in every case in which there is no impairment of function and in which no treatment is required, the impairment rating given for the skin impairment is 0%. Only where there is some impairment of function or where some treatment is required is an impairment rating provided that is greater than 0%.

In the present case, there is no evidence that Mr. Jaggernauth suffers any impairment of his ability to engage in activities of daily living as a result of his scars or that these scars require any treatment. I therefore agree with Dr. Brigham that the most appropriate WPI rating for these scars is 0%.

(4) Effects of Medication

At page 9 of the Guides, it is suggested that where medication is used to control signs and symptoms of an underlying condition that is likely to remain, the assessor may choose to increase the impairment estimate by a small percentage (e.g., 1%-3%), combining that percent with any other impairment percent by means of the Combined Values Chart (p. 322).

The Applicant is on a number of potent medications (including narcotics for pain and anti-depressants).¹⁹ It is undisputed that Mr. Jaggernauth will likely be on such medications indefinitely. Mr. Jaggernauth reported that the morphine makes him drowsy and irritable (“grumpy”). Analgesic medication has resulted in constipation that occasionally requires him to use laxatives. Clearly there are risks associated with long-term use of narcotics. Mr. Jaggernauth also periodically gets nerve block injections. These injections also carry risks including, in the case of injections to his neck, the risk of death (according to Dr. Alan Shievitz, who has been administering these injections at the Toronto Poly Clinic).

Impairment Resources suggest that increasing the impairment estimate for use of medication should only be considered where the medication is being used to control the symptoms of an illness that is in remission. I find this interpretation to be too restrictive.

I prefer the interpretation of the doctors from Custom Rehab and Omega who both used their discretion in this case to increase the impairment estimate for Mr. Jaggernauth by a small percentage. This recognizes the possibility that the medications Mr. Jaggernauth must take may be contributing to his overall level of impairment or harming him in ways that are not otherwise captured in other impairment ratings provided under the Guides and carry the risk of future side-effects.

Both the Custom Rehab and the Omega teams found it appropriate to assign a WPI rating of 3% under this heading and I concur.

(5) Total WPI Based on Physical Impairments

Using the Combined Values Chart (p. 322) of the Guides, the total whole person impairment rating for Mr. Jaggernauth based upon his physical impairments is 34%.²⁰

Combining Estimates of Mental or Behavioural and Other Impairments

My first comment is about terminology. I have seen decisions on this issue which have referred to combining estimates of mental or behavioural and other impairments as a combining of clauses (f) and (g) of the Schedule.²¹ I disagree. If an insured person proves that they suffer from a marked or extreme mental or behavioural impairment under clause (g), they will be deemed to be catastrophically impaired and there is no need to refer to clause (f). When considering whether a person’s impairments or combination of impairments results in 55 per cent or more impairment of the whole person, the only clause being considered is clause (f). The real issue under clause (f) is whether a numeric rating for mental or behavioural impairments can be included as part of the whole person impairment rating.

Although the preponderance of the existing case law (both from the Financial Services Commission of Ontario and from the Ontario Superior Court of Justice) suggests that a whole person impairment rating under clause (f) ought to include a rating for mental or behavioural impairments, this issue is far from settled.

The arguments for including such a rating are explained in the Desbiens decision.²² Based upon the cases I have read and from the testimony given and submissions made before me (and at the risk of oversimplifying), some of the main arguments in favour of the inclusion of a rating for mental or behavioural impairments can be summarized as follows:

1. The language used in Chapter 14 of the Guides concerning this issue is equivocal. If the Guides are ambiguous, they ought to be construed in a large and liberal fashion in favour of the insured person.

2. It is not really an assessment of the “whole person” if you exclude consideration of psychological impairments and it would be unfair to the injured person to ignore significant psychological impairments just because they fall below the level of “marked” or “extreme”.

3. The 4th edition of the AMA Guides does not say to ignore mental or behaviour impairments when assessing impairment of the whole person; it simply anticipates using word descriptors for such impairments rather than trying to reduce the mental or behavioural impairments to a numeric (percentage) rating.

4. Behavioural impairments are specifically given a whole person impairment rating in the 4th edition of the Guides when such impairments are neurologically-based. To fail to rate virtually identical behavioural impairments that are psychologically-based would be discriminatory and might well fail to withstand challenge under either the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms.

5. Previous and subsequent versions of the AMA Guides (for example, the 2nd and 6th editions) do permit the inclusion of a numeric rating for mental or behavioural impairments as part of the estimation of whole person impairment.

6. Many other jurisdictions that use or have used the 4th edition of the AMA Guides have found a way²³ to permit a whole-person impairment assessment that provides a numeric impairment rating that reflects both physical and psychological impairments.

The arguments against including a rating for mental or behavioural impairments as part of a whole person impairment rating under clause (f) are set out in the recent decision of Kusnierz.²⁴ Again, at the risk of oversimplifying, some of the main arguments against the inclusion of a numeric rating for mental or behavioural impairments can be summarized as follows:

1. On this issue, the Guides are not ambiguous. They deliberately do not permit the mental and behavioural disorders in Chapter 14 to be assessed in percent terms and combined with the percentage values derived from impairments assessed under the other chapters of the Guides for the purpose of determining whole person impairment.

2. The structure of the Schedule reinforces the bright line demarcation between mental and behavioural impairments on the one hand (which are dealt with under clauses 2(1.1)(g) or 2(1.2)(g) of the Schedule, depending upon the date of the accident) and other types of impairments²⁵ on the other hand (which are dealt with under clauses 2(1.1)(f) and 2(1.2)(f) of the Schedule).

3. This interpretation is consistent with the legislative purpose of limiting catastrophic designation to rare and exceptional cases including those where, as a result of a motor vehicle accident, a person has suffered a marked or extreme mental or behavioural impairment (clause (g)) or where, based on other types of impairments, the person has sustained impairments that, in accordance with the AMA Guides, 4th edition, results in 55 per cent or more impairment of the whole person (clause (f)).

In short, the arguments against including a percentage rating for mental or behavioural impairments as part of a whole person impairment rating under clause (f) is that doing so would not be in accordance with the 4th edition of the Guides and would be contrary to the intent of relevant provisions of the Schedule (i.e., mental or behavioural impairments are meant to be dealt with exclusively and exhaustively under clause (g)).

Were I unfettered, I would need to enter into a detailed analysis of these opposing views and, ultimately, I would have to decide one way or the other. I am not unfettered however. I am bound by the FSCO appeal decision of Pilot and Ms. G.²⁶ In that case, one of the grounds of appeal by the insurer was that the arbitrator allegedly erred in following the Desbiens approach (i.e., arriving at a numeric rating based upon mental or behavioural impairments and adding this number to other WPI ratings to arrive at an overall WPI rating of 55%). The Director’s Delegate hearing the appeal upheld the original decision and explicitly approved of the methodology adopted by the hearing arbitrator. Until the appeal level of FSCO or the Ontario Divisional Court, the Court of Appeal or the Supreme Court of Canada says otherwise or the Schedule is amended in such a way as to overrule the interpretation that FSCO has given to this part of the Schedule, the Pilot and Ms. G. decision will continue to govern the approach I must take with respect to this issue.

Therefore, I must determine the appropriate percentage WPI impairment rating to attribute to Mr. Jaggernauth’s mental or behavioural impairments and then combine that rating with the WPI rating I determined earlier in this decision with respect to all of his other impairments.

Estimating a WPI Rating Based on Mental or Behavioural Impairments

Not surprisingly, since the 4th edition of the AMA Guides recommends against trying to convert descriptions of mental and behavioural impairments into percentage ratings of impairment, it does not provide any methodology for doing so. What method should be used then in determining a percentage impairment rating for mental and behavioural impairments?

In Pastore²⁷, the arbitrator at first instance suggested that “there should be some flexibility in the choice of assessment tool and method selected for rating impairments.” Arbitrator Nastasi went on (at p. 21) to conclude that:

… until the Schedule mandates a specific approach or method, I find that given the lack of guidance offered in the 4th edition of the Guides that adopting a more wholistic [sic] and flexible approach will result in the most fulsome and true picture of an individual’s impairments. Such an approach will produce the most fair and accurate results and is most in line with the true intent, meaning and spirit of the legislation.

Of course, without a mandated methodology it is difficult, if not impossible, to achieve the consistency that the Guides were intended to create. Furthermore, when choosing amongst possible methods of estimating a person's whole person impairment rating based upon mental or behavioural impairments, it will be difficult to establish that one approach is superior or more “in accordance with” the 4th edition of the Guides than any other method.

As previously determined in this decision, other than Dr. Pilowsky, virtually all other qualified assessors found that Mr. Jaggernauth suffered from permanent mental and behavioural impairments that ranged in severity from mild-moderate (2-3) to moderate (3). Dr. Pilowsky felt that Mr. Jaggernauth’s mental and behavioural impairments in all four spheres were marked or extreme and Dr. Rosenblat found that, when it came to “adaptation”, the psychological impairments bordered on “marked”. The general consensus amongst these experts seems to be a moderate rating in at least three of the four categories.

I have found that, based upon the Applicant’s mental or behavioural impairments, the level of impairment is moderate for all four spheres of function. How then ought this to be converted into a percentage whole person impairment rating?

Based upon the evidence presented during this proceeding, the options available for me to consider include the following:

1. Use the methodology from the 2nd edition of the AMA Guides (referenced at p. 301 of the 4th edition)

In the 2nd edition of the Guides, mental functions, such as intelligence, thinking, perception, judgment, affect and behaviour were considered to fall into five classes, and the ranges were given as follows:

Class

Impairment Rating

Ability to carry out daily activities

1. Normal

0% - 5%

Self-sufficient

2. Mild Impairment

10% - 20%

Needs minor help

3. Moderate Impairment

25% - 50%

Needs regular help

4. Moderately Severe Impairment

55% - 75%

Needs major help

5. Severe Impairment

75%

Quite helpless

Assuming that a “moderately severe” impairment from the 2nd edition is analogous to a “marked” impairment in the 4th edition and that a “severe” impairment in the 2nd edition is analogous to an “extreme” impairment in the 4th edition, at least this provides a rating based upon five classes of impairment that bears some resemblance to the classification system used in the 4th edition.

This was the methodology adopted by Dr. Rosenblat in the present case (in the Omega report).

Many decisions (like Desbiens and Pastore) at least consider the ratings from the 2nd edition as part of the analysis. The problem, of course, is that these ratings are only included in the 4th edition in order to provide an historical context and are expressly disapproved of in the 4th edition as being highly subjective and unreliable. Dr. Leclair testified that this method is based upon out-of-date data, that it tends to yield impairment ratings that are far too high and that it was discredited and rejected by the medical community years ago.

In the present case, using this method would yield an impairment rating somewhere between 25% and 50%.

2. Use Table 3 from Chapter 4 of the Guides (p. 142)

Neurological impairment can result in emotional or behavioural disturbances. Chapter 4 of the Guides deals with neurological impairments and provides, in Table 3, a method for rating whole person impairment that results from emotional or behavioural impairments that are neurologically based.

Impairment Description

% Impairment of the whole person

Mild limitation of daily social and interpersonal functioning

0 - 14

Moderate limitation of some but not all social and interpersonal daily living functions

15 - 29

Severe limitation impeding useful action in almost all social and interpersonal daily functions

30 - 49

Severe limitation of all daily functions requiring total dependence on another person

50 - 70

There are two main arguments in favour of using this table. First, at least it actually comes from the 4th edition of the Guides. Second, using this table as a guide will help ensure that people with mental or behavioural impairments will receive similar impairment ratings regardless of whether the cause of the impairments is neurological or psychological.

There are, however, some difficulties with using this table. There are only four classes, not five. The terminology used to describe the classes is different from that used in Chapter 14. Most importantly, whereas Chapter 14 looks at all aspects of a person’s life (activities of daily living; social functioning; concentration, persistence and pace; and deterioration or decompensation in work or work-like settings), Table 3 from Chapter 4 seems to only focus on social and interpersonal functions (unless the person is totally dependent on another person, in which case the Table makes reference to “all daily functions”). Mental or behaviour impairments can affect activities that have no social or interpersonal aspect. Although there are some similarities between the impairment descriptions in Table 3 of Chapter 4 and the impairment classifications from Chapter 14, there is no direct correlation between the two. Thus, it is not clear to me that a person who is moderately impaired in all four spheres considered in Chapter 14 automatically fits into the second category of Table 3 of Chapter 4 just because it uses the words “moderate limitation”.

Despite these difficulties, in the absence of any other guidance, arbitrators and judges have considered Table 3 of Chapter 4 when rating mental and behavioural impairments.

If I were to accept that the second category of Table 3 is applicable in the present case, this would yield an impairment rating somewhere between 15% and 29%.

3. Use a combination of the methodology from the 2nd edition of the AMA Guides (referenced at p. 301 of the 4th edition) and Table 3 from Chapter 4

From the case law, the most common approach by judges and arbitrators seems to be a consideration of both the methodology from the 2nd edition of the AMA Guides (referenced at p. 301 of the 4th edition) and Table 3 from Chapter 4.

If I were to accept that the second category of Table 3 is applicable in the present case and if I were also to attempt to reconcile this with the range of percentage impairment ratings for moderate mental impairments that were used in the 2nd edition of the Guides, the area of “overlap” between these two tables would yield an impairment rating somewhere between 25% and 29%.

4. GAF scores and the “California method”

To estimate a person’s current state of mental and emotional wellness, psychiatrists and psychologists often use a Global Assessment of Functioning (GAF).

The GAF is a numeric scale (0 through 100) used to subjectively rate the social, occupational, and psychological functioning of adults (e.g., how well or adaptively one is meeting various problems-in-living):

100-91 Superior functioning in a wide range of activities, life’s problems never seem to get out of hand, is sought out by others because of his/her many positive qualities. No symptoms.

90-81 Absent of minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members).

80-71 If symptoms are present, there are transient and expectable reactions to psycho-social stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).

70-61 Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships.

60-51 Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).

50-41 Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

40-31 Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).

30-21 Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home or friends).

20-11 Some danger of hurting self or others (e.g., suicidal attempts without clear expectation of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or mute).

10-1 Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.

In California, the State decided to use GAF scores as the basis for obtaining an impairment rating for mental or behavioural disorders. Through a regulation, the State of California introduced a table which permits GAF scores to be converted into whole-person impairment ratings. Dr. Rosenblat testified that, subsequent to writing his report in this case, he learned of this method and has now adopted it.

The main benefit of this approach is its ease of use.

There are several problems with this approach, however. First, this method is not recommended by the AMA Guides and it appears to be unique to California. Second, a GAF score is a “snapshot” of how the person is doing at that moment and may be a poor measure of permanent or long-term mental or behaviour impairment. A healthy person who has undergone an emotionally traumatic event (such as the loss of a loved one) may score quite low on the GAF scale if the assessment were to be done around the time of the event but would likely score much higher if the assessment was done a short time later. Nevertheless, if numerous GAF scores are taken over a considerable period of time by different qualified assessors and the results are relatively consistent, this may be evidence of a permanent or long-term mental or behavioural impairment and I think that such GAF scores ought to be considered as part of the assessment of the person’s mental or behavioural impairment. Clearly, the American Medical Association believes that GAF scores have some validity because the GAF score is now one of three methods used in the 6th edition of the AMA Guides to rate mental or behavioural impairments.

From 2006 through 2010, Mr. Jaggernauth has been assessed by numerous mental health professionals including, Dr. Cowman, Dr. Pilowsky, Dr. Celinski, Dr. Gnam, Dr. Rosenblat and Dr. Orme. Some have been treating practitioners. Some have been assessors retained on behalf of the Applicant. Others have been assessors retained on behalf of the Insurer. GAF scores have been reported for Mr. Jaggernauth on at least twelve occasions.

There are no GAF scores available for Mr. Jaggernauth from the first year after the accident. In the second year after the accident, the Applicant’s psychological problems became more manifest. During that period, his GAF scores were in the range of 60 - 45 (i.e., moderate to serious impairment). Thereafter, Mr. Jaggernauth appears to have deteriorated and then reached a plateau. Subsequent to 2007, there have been five GAF scores taken, all in the range of 47 – 35 (i.e., serious to major impairment is several areas of functioning). Using what I am calling the “California method”, the GAF scores for the Applicant from 2008, 2009 and 2010 would yield a WPI rating of 35% - 61%, based solely on mental or behavioural impairment.

5. Dr. Gnam’s method

In the absence of any method being specified in the 4th edition of the Guides, Dr. Gnam devised his own scale to convert GAF scores to whole-person impairment ratings. The conversion scale developed by Dr. Gnam is as follows:

GAF Score

Description of Impairment

WPI Rating

71 - 80

Minimal

0 - 5%

61 - 70

Mild

10 - 20%

51 - 60

Moderate

21 - 37%

41 - 50

Serious

38 – 54%

≤ 40

Extreme (Profound)

55%

Using this method, he determined that the appropriate whole-person impairment rating for Mr. Jaggernauth based on mental or behavioural impairments was in the range of 24% to 34% (based on a GAF score of 55 and allowing some room for uncertainty), but Dr. Gnam subsequently agreed that the impairment rating could be higher if Mr. Jaggernauth’s condition had deteriorated since the time that Dr. Gnam had assessed him.

6. 6th edition of Guides

According to Dr. Leclair, in the 6th edition of the AMA Guides, impairment scores are derived using three methods (the Brief Psychiatric Rating Scale, Global Assessment of Functioning (GAF) and the Psychiatric Impairment Rating Scale). The scores from these three methods are converted to whole-person impairment ratings. Then the highest and lowest ratings are dropped and the middle score is the one that is used. I have insufficient evidence in this case concerning the details of the methodology contained in the 6th edition of the Guides and no opinion from an expert as to what impairment rating would have been attributed to Mr. Jaggernauth’s mental and behavioural impairments had the methodology from the 6th edition of the Guides been applied in this case. Of course, even if I had such evidence, it would be difficult to argue that the impairment rating was being determined “in accordance with” the 4th edition of the Guides (as required by clause 2(1.2)(f) of the Schedule) if the methodology comes from the 6th edition of the Guides.

Method(s) Adopted in This Case

If determination of a whole person impairment rating for mental or behavioural impairment is to be done “in accordance with” the 4th edition of the Guides, then I tend to agree with the preponderance of case law that relies heavily upon the ratings that are actually referred to within the text of the 4th edition (i.e., Table 3 of Chapter 4 at page 142 and the ratings from the 2nd edition referred to at page 301 of the 4th edition). Again, following the cases that have gone before, if I were to try to find impairment ratings for moderate impairments that would be common to both sources (pages 142 and 301), that would leave me with a range of 25-29%.

In closing arguments, counsel for the Applicant urged that I find an impairment rating based on mental or behaviour impairments of 29% (the high end of the moderate category from Table 3 of Chapter 4). Counsel for the Insurer suggested that a more reasonable estimate would be 22‑23% (the mid-point of the moderate category from Table 3 of Chapter 4). Both counsel suggested that Table 3 of Chapter 4 should at least be considered in arriving at a percent rating for mental and behavioural impairments.

In choosing a percent rating within the moderate range, I have considered the opinions of various assessors (including Drs. Gnam, Rosenblat, Leclair and Pilowsky). I have also considered the GAF scores. Although the GAF scores may not, in and of themselves, yield a reliable rating of permanent impairment, they certainly have been consistent enough over time and across assessors to determine that: (1) Mr. Jaggernauth deteriorated after seeing Dr. Gnam and has remained more impaired than when seen by Dr. Gnam; (2) while the level of impairment may not consistently be severe enough to be considered “marked”, I have found a moderate level of impairment in all four spheres of function, approaching a marked level of impairment in at least one sphere.

Mr. Jaggernauth is taking narcotics (for pain) and anti-depressants. He has received extensive psychological therapy. He continues to require psychological treatment as a result of this accident. He is likely to continue to require such treatment for the foreseeable future. He is withdrawn, depressed, verbally abusive to his wife, short-tempered and violent towards objects. He has had suicidal ideation and has suffered from psychotic hallucinations, hearing music, sounds and voices that, according to Dr. Pilowsky, have commanded him to kill his wife and himself. While this does not happen all of the time and seems to have improved with medication, there is the possibility that Mr. Jaggernauth will refuse or forget to take his prescribed medication and then pose a danger to himself or others.

The surveillance reveals that he does have good days where he is able to converse with others and appear to be happy and sociable (as on the occasion of the house-warming party at his new home in Brampton). I accept the opinion of Dr. Rosenblat (given during his testimony) that this is not inconsistent with a finding that Mr. Jaggernauth has a moderate level of impairment. While choosing the appropriate rating within the moderate range may begin as a matter of professional medical judgment, ultimately, it is a matter for me to decide.

Dr. Gnam assessed the appropriate range of impairment as 24-34%. Dr. Rosenblat assessed the impairment at 35-40% and if he were to do that assessment today, using the “California method”, the rating would be more like 51% (based on a GAF score of 40). If we were to consider the GAF scores for the last three years or so, the WPI rating (using the “California method”) would be at least 35% (and possibly considerably higher). While I have not accepted Dr. Pilowsky’s conclusions that Mr. Jaggernauth’s mental and behavioural impairments can be rated as marked or extreme (due to her failure to follow the procedures required under the AMA Guides), I am convinced that, having observed the Applicant during their 100 or so sessions together, she is in a position to offer useful insights into these impairments and she is convinced that Mr. Jaggernauth is seriously impaired and will require substantial assistance for the foreseeable future.

Impairment Resources found that the mental and behavioural impairments ranged in severity from mild to moderate. Based upon Table 3 from Chapter 4, this provides a WPI range from 0‑29%. Impairment Resources suggests a WPI rating for mental and behavioural impairments of 18% as being around the mid-point of the ranges being considered but still within (although at the lower end of) the moderate classification (according to Table 3 from Chapter 4). I reject this impairment rating for two main reasons. First, I found the classifications of Impairment Resources to be a bit low and, for reasons given earlier in this decision, I prefer the approach taken by Omega and Custom Rehab. (i.e., I found Mr. Jaggernauth to be moderately impaired in all four spheres of function). Second, Dr. Leclair testified that when faced with a range of impairment levels he would exclusively use Table 3 from Chapter 4 and choose the mid-point within the range(s) under consideration. For the reasons that follow, I am not convinced that choosing the mid-point of the range(s) under consideration is either required by the Guides or necessarily the most accurate reflection of Mr. Jaggernauth's functional impairments.

Also, while the ratings contained in Table 3 of Chapter 4 are useful in providing some guidance, the fact that this Table does not consider all four spheres of activities that must be considered when undertaking this sort of analysis means that there remains some room for the exercise of discretion when choosing a number within any of the ranges provided in that Table or, in appropriate circumstances, the discretion to choose a different methodology altogether.

Even if I accept that, for some spheres of function, Mr. Jaggernauth fell in the mild to moderate range (or lower end of moderate range) and for other spheres of function he fell in the moderate or moderate to marked range (or higher end of the moderate range), I do not agree that his overall impairment rating for mental and behavioural disorders is necessarily best represented by the mean or median point on that range. Impairment in multiple areas of function may result in significantly greater overall functional impairment.

Thus, in choosing a percentage impairment rating, I have kept in mind the following:

1. The range of WPI ratings given in Table 3 from Chapter 4 for “moderate” limitations (15-29%) cannot be applied strictly to mental and behavioural impairments because:
   1. it may not apply to moderate mental and behavioural impairments (as defined in Chapter 14); and
   2. it focuses on only some functions (social and interpersonal) and does not cover functional impairments related to concentration, persistence and pace, adaptation and activities of daily living that do not have a social component;
2. The range of WPI ratings referenced at p. 301 of the Guides (25-50%) ought also to be considered;
3. The Applicant’s consistently low GAF score suggest that his mental and behavioural impairments are (at least) at the high end of the moderate impairment scale;
4. The Applicant is moderately impaired in all four categories of function (activities of daily living; social functioning; concentration, persistence and pace; and adaptation).

In all of the circumstances of this case, I find that the appropriate rating for Mr. Jaggernauth’s mental and behaviour impairments is 29%. This is below the rating suggested by Dr. Pilowsky and Dr. Rosenblat. This rating is at the lower end of the range provided for moderate impairments in the method used in the 2nd edition of the Guides. It is within the range that was suggested by Dr. Gnam (before Mr. Jaggernauth’s psychological condition deteriorated). It is within the range provided for moderate impairments in Table 3 of Chapter 4; it is at the high end of the range but (for the reasons already given) I find that to be appropriate in this case.

An impairment rating of 29% reflects that Mr. Jaggernauth has serious (but not marked or extreme) permanent mental or behavioural impairments in all four spheres of activities and will continue to require psychological counselling and pharmacological treatment for the foreseeable future. This rating also recognizes that Mr. Jaggernauth's mental and behavioural impairments are compatible with some but not all useful functioning.

Overall WPI Rating (based on physical and mental or behavioural impairments)

I have found that the appropriate whole person impairment ratings are 29% for mental and behavioural impairments and 34% for all other impairments. Using the Combined Values Chart (p. 322), this results in an overall whole-person impairment rating 53%. I note that this is just 1% higher than the rating given to the Applicant’s impairments by the Insurer’s own assessors (Custom Rehab).

According to page 9 of the Guides, “A final estimated whole-person impairment percent … may be rounded to the nearer of the two nearest values ending in 0 or 5.” As I have already indicated, in close cases, I find it appropriate to give the benefit of doubt to the insured person so that he or she will have an opportunity to make further claims and to try to prove entitlement should those claims be denied. Mr. Jaggernauth may or may not pursue further claims. He may or may not be able to prove that he meets the requisite level of disability to actually qualify for benefits he claims. Nevertheless, the impairments Mr. Jaggernauth sustained as a result of the accident on August 6, 2005 are sufficiently severe that he should have the opportunity to advance those claims and, if necessary, to have those claims adjudicated on their merits. I therefore find it appropriate to round up the whole person impairment percent to 55%. As such, Mr. Jaggernauth’s impairments are, by operation of clause 2(1.2)(f) of the Schedule, deemed to be catastrophic impairments.

Conclusion:

Because the Applicant did not sustain marked or extreme mental or behavioural impairments as a result of this accident, the Applicant did not sustain a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule.

Because the Applicant did sustain a combination of impairments as a result of the accident that, in accordance with the AMA Guides (4th ed.), result in 55 per cent or more impairment of the whole person, the Applicant did sustain a catastrophic impairment within the meaning of clause 2(1.2)(f) of the Schedule.

December 20, 2010

Richard Feldman Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 147

FSCO A08-001413

BETWEEN:

DHANRAJ JAGGERNAUTH

Applicant

and

econonical mutual insurance company

Insurer

ARBITRATION ORDER

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

1. The Applicant did not sustain a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule.

2. The Applicant did sustain a catastrophic impairment within the meaning of clause 2(1.2)(f) of the Schedule.

3. If the parties require a determination of other issues raised by the Applicant in his Application for Arbitration, within 30 days of the date of this order, the parties may request a teleconference with me to discuss the scheduling of the hearing of such remaining issues and any procedural issues related to that hearing.

December 20, 2010

Richard Feldman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2hereinafter referred to as the “Guides” or the “AMA Guides”.
3. 3Aviva Canada Inc. and Pastore (FSCO Appeal P09-00008, December 22, 2009)
4. 4Hereinafter referred to as “Custom Rehab”. In this case, the team consisted of Dr. J. Mathoo (physiatrist), Ms. Parisa R. Noori (occupational therapist), Dr. P. Ali (orthopaedic surgeon) and Dr. W. Gnam (psychiatrist).
5. 525 of the 30% WPI (for physical impairments) was attributable solely to the original cervical spinal injury. At the hearing, for the first time, Dr. Mathoo indicated that if he had to do this assessment today, he would rate the impairment related to the cervical spine injury significantly lower as he would look at the level of impairment at the time of the assessment rather than rating the original injury (as it was at the time of the accident). More will be said about this controversy later in this decision.
6. 6Hereinafter referred to as “Omega”. In this case, the team consisted of Dr. Harold Becker (author of the executive summary), Dr. Lisa Becker (physiatrist) and Dr. Henry Rosenblat (psychiatrist).
7. 7although Dr. Rosenblat did find that for the category of “adaptation” that the Applicant suffered a moderate to marked impairment.
8. 8At the hearing, for the first time, Dr. Rosenblat indicated that if he had to do this assessment today, he would rate the impairment related to mental or behavioural disorder significantly higher as he now uses a different methodology for calculating the percentage WPI rating. More will be said about this later in this decision.
9. 9In this case, the team consisted of Dr. Steven Leclair (psychologist), Dr. Norma Leclair (nurse, psychologist and rehab. counsellor), Dr. James Talmage (orthopaedic surgeon), Dr. Craig M. Uejo (Board certified in occupational medicine) and Dr. Christopher Brigham (Chairman, expert in field of occupational medicine with experience in assessment of impairment using the AMA Guides, 4th ed.).
10. 10Pursuant to clause 2(2.1) of the Schedule.
11. 11Bains and RBC General Insurance Company (FSCO Appeal P09-00005, June 3, 2010).
12. 12There will be much more said about this later in this decision.
13. 13See McMichael and Belair Insurance Company Inc. (FSCO A02-001081, March 2, 2005), upheld on appeal (FSCO Appeal P05-00006, March 14, 2006), Aviva Canada Inc. and Pastore (FSCO Appeal P09-00008, December 22, 2009) and Liu v. 1226071 Ontario Inc., 2009 ONCA 571, [2009] O.J. No. 3014 (C.A.).
14. 14To estimate a person’s current state of mental and emotional wellness, psychiatrists and psychologists often use a Global Assessment of Functioning (GAF). The GAF is a numeric scale (0 through 100) used to subjectively rate the social, occupational, and psychological functioning of adults. The lower the score, the worse is the person’s condition. The GAF scale is described in greater detail later in this decision.
15. 15Dr. Brigham acknowledged that this was the most complex case Impairment Resources had handled in at least a year.
16. 16Bains and RBC General Insurance Company (FSCO Appeal P09-00005, June 3, 2010), at p. 9.
17. 17Such as the illiteracy of Mr. Jaggernauth or, according to the testimony of Dr. Pilowsky, the fact that these validity tests cannot be reliably used for persons who were not born in Canada.
18. 18In a note just below Table 2 (p. 280).
19. 19Such as Celexa (slow release Morphine) and Baclofen.
20. 20Based upon a WPI rating of 25% for the spinal injury, 9% for impairment of the upper extremities and 3% for the effects of medication.
21. 21either clauses 2(1.1)(f) and (g) or 2(1.2)(f) and (g) of the Schedule, depending on whether the accident occurred before October 1, 2003 or after September 30, 2003.
22. 22Desbiens v. Mordini, 2004 CanLII 41166 (Ont. S.C.J). See also Arts v. State Farm Insurance Company, 2008 CanLII 25055 (ON SC), 91 O.R. (3d) 394 (S.C.J.) and Economical and Augello (FSCO Appeal P09-00002, November 17, 2009).
23. 23either through regulation, through judicial interpretation of the 4th edition of the Guides or by abandoning the 4th edition and moving on to the 6th edition of the Guides.
24. 24Kusnierz v. The Economical Mutual Insurance Company, 2010 ONSC 5749, [2010] O.J. No. 4462 (Ont. S.C.J.).
25. 25i.e., impairments that are not mental or behavioural and not specifically referred to in clauses 2(1.1)(a)-(e) or 2(1.2)(a)-(e) of the Schedule.
26. 26Pilot Insurance Company and Ms. G., (FSCO Appeal P06-00004, September 4, 2007). The Insurer in the present case argued that the case of George and State Farm Automobile Insurance Company (FSCO Appeal P04-00028, December 6, 2005) is contrary to the Pilot and G. decision and therefore I am not bound by the decision in Pilot and G. I disagree. It was unnecessary for the Director’s Delegate in George and State Farm to comment on whether or not it is appropriate to include a rating for mental and behavioural impairments as part of the whole person impairment analysis (i.e., it was a moot point) since he found that there was no error in the findings of the hearing arbitrator concerning the impairment ratings. Based upon the findings of the hearing arbitrator, as upheld by the Director’s Delegate, assuming that physical and psychological impairments can be combined under clause (f), the combined WPI rating in the George case for the applicant’s physical and psychological impairments fell below 55%. Thus, the Director’s Delegate never had to decide whether or not he agreed with the decision in Desbiens (as followed in Pilot and G.). The Director’s Delegate specifically wrote, “Since I have found that the arbitrator committed no error in assessing Mr. George’s WPI at 30 percent [for impairments other than mental and behvioural impairments], I do not have to consider Desbiens further.” The appeal decision in George and State Farm therefore does not conflict with that in Pilot and G. (which remains the binding case on this issue at the Financial Services Commission).
27. 27Pastore and Aviva Canada Inc., (FSCO A04-002496, February 11, 2009), upheld on appeal (FSCO Appeal P09-00008, December 22, 2009) and currently under judicial review by the Divisional Court.