Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2011 ONFSCDRS 100
FSCO A09-001346
BETWEEN:
CARRIE LEACH
Applicant
and
INTACT INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi
Heard: November 15, 16, 17, 18, 23 and 24, 2010 in Ottawa
Appearances: Colleen L. Burn for Ms. Leach Christopher F. Reil for Intact Insurance Company
Introduction:
The Applicant, Carrie Leach, was injured in a motor vehicle accident on October 16, 2003. She applied for and received statutory accident benefits from Intact Insurance Company, payable under the Schedule.1 She also made an application for determination of catastrophic impairment under section 2(1.2)(g) of the Schedule.2 Under that section, a catastrophic impairment is one where a person suffers a marked impairment on account of a mental or behavioural disorder.
Intact’s assessment team concluded that Ms. Leach had only a moderate impairment and therefore does not meet the definition for catastrophic impairment. Ms. Leach’s own assessment team found that she is catastrophically impaired because she is markedly impaired in one area of function. The parties were unable to resolve their dispute through mediation, and Ms. Leach applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
Issue:
The issue before me is whether Ms. Leach has a marked impairment on account of a mental or behavioural disorder considering four areas of function.
Finding:
I find that Ms. Leach does not meet the definition of catastrophic impairment because she has no marked impairment in any of the four areas of function due to a mental or behavioural disorder. Also having assessed all four areas of function, I find that Ms. Leach has no marked impairment. I make this finding based on the medical evidence and based on the evidence about Ms. Leach’s function.
Background:
As a result of the October 2003 accident, Ms. Leach suffered some physical injuries and in addition to other disorders has more recently been diagnosed with a pain disorder associated with psychological factors and a general medical condition. This is the diagnosis under which she makes her claim to catastrophic impairment under section 2(1.2)(g) of the Schedule.
The car accident itself was unremarkable. Ms. Leach was hit from behind while stopped. She was mostly concerned for her children, who were also in the car, but did not notice any particular injury to anyone, including herself. She returned to her home and her work as a hairstylist later in the afternoon. While working on a customer, she lifted her arms and heard a snap in her neck. She testified that the resulting pain brought her to her knees.
Ms. Leach has been unable to work since the accident. Ms. Leach was an active working individual. She had a good client base and earned a good living. She engaged in numerous activities with her friends and family. She socialized by dancing, concerts, sports with her children, camping and visiting family and friends. She volunteered at the Sunday school and at her children’s schools. She was also primarily responsible for the housework as she was at home during the day. Before the accident, she owned and operated a hairstyling business out of her home. Ms. Leach has received much treatment to deal with the consequences of the accident. She has undergone psychological and psychiatric treatment, attended at a pain clinic for six weeks, and has recently been treated with injections and biofeedback.
For the purpose of determining whether Ms. Leach met the criteria for catastrophic impairment, both Intact’s assessors and her own assessment team conducted several examinations using as their guide the American Medical Association’s, Guides to the Evaluation of Permanent Impairment.3
The Schedule says that a catastrophic impairment is an impairment that, in accordance with the Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder. Therefore, in order to find that Ms. Leach is catastrophically impaired, I must be satisfied that she has at least a marked impairment due to a mental or behavioural disorder.
The Guides call for the assessment of four areas of function to determine the severity of impairment due to a mental or behavioural disorder: (1) activities of daily living (ADLs); (2) social functioning; (3) concentration, persistence and pace; and, (4) deterioration in work or work-like settings; or repeated failure to adapt to stressful circumstances (adaptation).
Intact’s assessors found that Ms. Leach does not meet the definition of catastrophic impairment because she has no marked impairment in any of the four areas of function. Ms. Leach’s assessment team found that she has a marked impairment in one area only, the area of adaptation. On that basis, Ms. Leach’s assessment team concluded that she has a catastrophic impairment.
Intact argued that: the proper approach to finding catastrophic impairment is one that considers an individual’s overall impairment not just one area of function; an assessment under section 2(1.2)(g) must only consider impairment due to a mental or behavioural disorder; and in any event, Ms. Leach’s assessors incorrectly concluded that she has a marked impairment in the area of deterioration in work or work-like settings or adaptation. Ms. Leach argued that I need only be satisfied that she has a marked impairment rating in one of the four areas of function.4
Analysis:
My decision in this case does not turn on drawing a fine line between the physical component and the mental or behavioural component of Ms. Leach’s pain disorder. For the most part, both Ms. Leach’s and Intact’s assessors agree that Ms. Leach has a pain disorder associated with a general medical condition as well as psychological factors. Further, the Guides suggest that the type of pain Ms. Leach suffers from is not a symptom only of a mental or behavioural disorder. However, even if I found that Ms. Leach’s pain disorder was wholly within the scope of a mental or behavioural disorder, I would still conclude that she is not catastrophically impaired given my conclusion that her level of impairment is no more than moderate.
My conclusion that Ms. Leach does not have a catastrophic impairment rests on the following three findings:
Ms. Leach has a moderate impairment in the first three areas of function: ADLs, social functioning, and concentration, persistence and pace. The parties agreed on these facts and did not lead evidence to dispute them. I will not address this point in these reasons.
Ms. Leach has only a moderate impairment in the area of adaptation.
Ms. Leach has a moderate impairment considering all four areas of function.
(i) Ms. Leach’s moderate impairment in the area of adaptation
In finding that Ms. Leach has a moderate impairment in the area of adaptation on account of a mental or behavioural disorder, I assessed the following factors:
(a) the concept that adaptation is a measure of the stress tolerance of the individual rather than their ability to work; and,
(b) the evidence of Ms. Leach’s functional abilities, both physical and psychological.
Ms. Leach’s assessment team focused on Ms. Leach’s ability to tolerate work as demonstrated in her unsuccessful work placement at a local school as a teaching assistant in a vocational hair styling course. I considered her work placement experience from a broader perspective and also examined her ability to tolerate stress in her other life activities and found her to be reasonably capable and flexible and only moderately impaired in this regard.
a. Adaptation as a measure of stress tolerance
I considered the approach in the Guides. The Guides indicate that an assessment of function in the area of adaptation entails a consideration of the individual’s repeated failure to adapt to stressful circumstances:
Deterioration or decompensation in work or worklike settings 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. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers. It is useful to give examples of decompensation and the stresses that might have brought it about.
In assessing the stress tolerance of the individual, the examiner should be mindful of the following issues. First, “stress” may be defined with reference to an objective (“reasonable man”) standard in some systems and a more subjective standard in others. Second, the circumstances of a given case might suggest a prophylactic preclusion from certain types of tasks or work settings; for example, a patient with symptoms of posttraumatic stress disorder dating from a robbery and assault might require a prophylactic preclusion from jobs involving contact with the general public or handling large sums of money.5
I also relied on the finding of the court in Desbiens6 that the focus of the analysis in the area of adaptation is on the psychological stress tolerance of the individual. I find that a focus on Ms. Leach’s inability to work is too narrow an approach to the assessment of her adaptation or stress tolerance.
When I consider the evidence of Ms. Leach’s stress tolerance in this context, I find that she has only a moderate impairment. While I agree that Ms. Leach was unsuccessful in working as a teaching assistant, she is more generally successful in managing and coping with her pain and her daily activities and can reasonably tolerate stress.
It is true that Ms. Leach was unable to do the work of a teaching assistant without serious repercussions: she could not complete her work assignment and she could not function well in her life at home after some time at the work placement. The occupational therapist who arranged the placement and assessed Ms. Leach noted her difficulties with work.7 She observed that the longest shift Ms. Leach could handle at the work placement was fifty minutes. At other times she could only manage 30 minutes. Ms. Leach reported experiencing increased fatigue and pain and by the end had difficulty maintaining conversation with the therapist. After her shifts she was unable to participate in any of her regular daily activities in the home and she reported soaking in the tub and then having to rest for the next day or two due to the effects of medication and increased pain. She could not enjoy leisure activities either. Ms. Leach testified that at the end of her work placement days, she would feel exhausted and irritable. She would have to go straight to bed.
On the other hand, Ms. Leach also had some successes at the work placement and coped reasonably well with some of the demands made on her as a teaching assistant. Ms. Leach had very positive interactions with the teacher and the students. While she was precluded from doing physical demonstrations due to her own physical limitations, Ms. Leach was able to direct and assist the students. She testified that she enjoyed her experience and that the students responded well.
Ms. Leach’s assessment team did not comment on her ability to manage stress during the work placement and instead focussed on the fact that she could not do the work as expected. In the application for determination of catastrophic impairment, Dr. Ricci, psychologist, describes Ms. Leach’s pain disorder as having a marked impact on “work functioning.”8 Dr. Ricci notes9 in particular that it would be challenging to find Ms. Leach suitable competitive employment and that her participation in work activity would increase fatigue and lead to deterioration in psychological functioning. Dr. Ricci reiterates the narrow approach in her rebuttal psychological report10 where she states that given that Ms. Leach is unable to meet the demands of competitive employment, she then meets the criteria of a marked impairment in this sphere of function.
The occupational therapist also noted that Ms. Leach had made some significant strides in her functioning since the accident and that the physical toll of regular work overshadowed those advances:
Quick learner of body mechanics. Able to demonstrate appropriate body mechanics both -at her home and in her placement as long as the placement was of short duration. But her baseline of pain never decreases. She reported a decreased role in the home due to the placement which was hard on her as she felt that she had made gains in this area since the accident. So not able to return to gainful employment even with modified hours and or tasks.
Ms. Leach’s volunteer work placement at the local school was unsuccessful because her pain levels increased preventing her from attending the placement regularly and adversely affecting her ability to function in other areas of her life. However, I find that Ms. Leach can still carry out a number of complex functions though she is limited in ability and duration because of pain.
b. Ms. Leach’s moderate impairment in the area of adaptation considering her physical and psychological impairments
While I find that Ms. Leach is limited in ability and duration of activity because of pain, I find that she is moderately impaired in adaptation because she has learned good coping strategies for her pain and can use them effectively.
As a result, with the exception of work, Ms. Leach still participates in most of the activities she enjoyed prior to the car accident while she may not be able to function as she did before the accident. Moreover, her strictly psychological impairments are of moderate severity only, a fact that also assists her in coping with her physical limitations.
Ms. Leach’s pain symptoms are not controversial and they cause her these limitations:
She feels “foggy and maybe headachy”, “stiff and sore” and has to spend some time trying to get physically functional in the morning.
She feels a “zinging” pain that runs through her body like an electric cord and she has it more when she pushes herself and does too much housework. Sometimes even simple actions will set it off.
She feels throbbing pain at other times, her joints are stiff and snapping, and she suffers from headaches.
She is not as graceful as she once was and describes herself as not a nice person when she feels strained; she frustrates easily.
However, as discussed, Ms. Leach has developed good coping and management strategies. Ms. Leach consulted at a pain clinic where she learned that she must exercise, relax and not push herself too much physically. Ms. Leach testified that she knows how to cope with the pain: exercise, swim, relax and take time for herself.
Ms. Leach is still able to do what needs to be done in a day including:
driving her daughter to school;
picking up things she needs for the day; and,
light housekeeping such as sweeping, dusting, washing clothes, dog care and light kitchen cleaning.
Socially, Ms. Leach spends time with her family watching movies, enjoying campfires and going to hockey games though she may have to leave some social situations early to get away from the noise and the people. Ms. Leach described a vacation to Florida as the trip from hell because she was sick from the airplane pressure which caused a lot of pain, the stops and transfers were very difficult, and she had to rest a lot. On the other hand, Ms. Leach seemed to adapt well enough: she planned the trip, drove the rental car and managed to find ways to spend time with her family despite her limitations. Here is an example of her ability to tolerate stress with some adaptability.
Dr. Ricci comments on Ms. Leach’s abilities to better manage her pain condition and increase her functioning over the last several years. While she finds that there is indication of adjustment difficulties related to ongoing pain issues and their impact on her life, Ms. Leach is managing the limitations11:
Although her pain disorder impacts on all areas of her functioning, she is learning to adapt to her pain and has made changes in her lifestyle activities to accommodate her pain symptoms. She has been able to return to some of her pre-MVA levels of social and leisure functioning as well as activities of daily living.
Dr. Ricci reports that Ms. Leach continues engaging in a regular exercise program and tries to remain active. She continues to socialize regularly and is trying to find alternative leisure activities she can engage in that do not increase her pain symptoms.
From a strictly psychological perspective, Ms. Leach’s impairment in adaptation appears only moderate as well. While all of the assessors agreed that it was difficult to attribute impairment in a system that rates impairment by class rather than by number or percentage, some of them attempted to hive off the psychological impairment from the physical impairment.
In my view, the exercise was worthwhile and helpful in assessing Ms. Leach’s level of impairment. If part of a pain disorder is to suffer from depression, anxiety, distraction, concentration or memory problems because of the pain, then it makes rational sense to look for exacerbation of those symptoms to determine the degree of impairment that can arise from the pain. (Especially in this case because Ms. Leach appears to be engaged in most activities except certain kinds of work.)
Dr. Suddaby, a psychiatrist who saw Ms. Leach on two occasions, in 2004 and 2007, looked for an underlying psychiatric disorder. He found no psychiatric disorder in 2004. In 2007, he diagnosed (i) adjustment disorder with depressed mood, in remission and (ii) pain disorder with psychological factors affecting a physical condition. He concluded that Ms. Leach does not suffer an impairment as a result of the injuries sustained “Strictly from a psychiatric perspective, and excluding the Pain Disorder.”
Dr. West, psychologist, looked for an underlying psychological disorder while admitting that pain is a component of the psychological condition. He looked for whether the nature of Ms. Leach’s symptoms was psychological when her functioning decreased. For example: did she become anxious or phobic when having to be on her feet too long at the checkout counter or did she suffer increased pain? Were her limitations at the job placement affected by mental health issues or by the pain? Dr. West made a diagnosis of an “adjustment disorder – which accounts for occupational, social, marital problems.”12 He concluded that psychological factors play a minor role in Ms. Leach’s impairments and problems.
Dr. Finestone, physiatrist, found that she did not meet frank criteria for any specific psychological disorder such as depression or anxiety and that her physical disabilities rated at 16% whole person impairment. However, he still found her level of function extremely impaired and “quite mentally disturbed” as a result of experiencing chronic pain. While some of Dr. Finestone’s articulation seems extreme, the other indicators are of an individual who is not markedly psychologically impaired.
Even Dr. Ricci’s opinion of Ms. Leach’s psychological disorder suggests a moderate psychological impairment. For example, in her executive summary Dr. Ricci found Ms. Leach to have a whole person impairment rating of 27% based on her psychological impairments only. Furthermore, she also concluded that there is no significant mood disorder present.
In addition, Dr. Ricci’s psychological exam test results also seem to corroborate a more general finding of a moderate impairment in the area of adaptation. Dr. Ricci states that Ms. Leach’s perception of pain and disability “are in keeping with the average client who presents with chronic pain” (my emphasis). In measuring her pain coping style, Dr. Ricci finds that Ms. Leach uses adaptive pain coping techniques while at other times ignores her pain sensations altogether. In general, she reports that Ms. Leach feels that she has moderate control over her pain and a good ability to decrease her pain with current coping strategies. Dr. Ricci also finds a moderate level of depression, fatigue and reduced concentration. She notes a mild level of anxiety and moderate difficulties with numbness, tingling, etc. In my view, none of these comments reflects an opinion that Ms. Leach has a marked impairment in the area of adaptation.
Moreover, Ms. Leach’s psychological impairment does not appear to be marked according to her own testimony.
Ms. Leach testified that she must physically cope with her experience of pain: she must move, stretch, walk around, lie down, take hot baths and limit her activities in order to cope with the pain. She testified of difficulty carrying her weight around the house and being there for her family.
Ms. Leach did testify that she was disheartened, impatient and even, at times, depressed about her inability to work and enjoy the things she used to because of increased pain. She was frustrated that at times she needed to remove herself from certain situations or pace herself, things she never did before the accident. Ms. Leach did not testify about a marked psychological breakdown or consequences.
The preponderance of evidence is that Ms. Leach has a moderate impairment in the area of adaptation on account of a mental or behavioural disorder.
(ii) Ms. Leach’s moderate impairment considering all four areas of function
Considering all four areas of function, I find that Ms. Leach has a moderate impairment on account of a mental or behavioural disorder and, as such, does not have a catastrophic impairment.
In addition to the analysis provided above indicating that in each area of function Ms. Leach is only moderately impaired given her physical and psychological functional abilities, the Guides provide some general assistance in relating functional abilities to levels of impairment.
For example, the Guides indicate that a moderate impairment rating means some useful functioning within all four areas of function. Ms. Leach has significant useful functioning in all four areas of function and in particular, in the area of adaptation, has a reasonable ability to tolerate stress and cope with circumstances.
The Guides also say that an individual who is impaired to a moderate degree in all four areas of function would be limited in ability to carry out many, but not all, complex functions.13 In general, I find that Ms. Leach’s situation is well-described by this phrase. Ms. Leach can engage in most everyday activities, with perhaps the exception of certain kinds of work, to a lesser degree than before the accident but with reasonable ability and flexibility. She understands her limitations and can manage her disorders to some degree. She continues to be a fairly high functioning individual with moderate limitations but bolstered by optimism and dedication to her family.
Conclusion
Ms. Leach has a moderate impairment in each of the four areas of function. As a result, Ms. Leach does not meet the definition of catastrophic impairment on account of a mental or behavioural disorder.
EXPENSES:
If the parties cannot agree on expenses, they may ask for a determination in accordance with the Dispute Resolution Practice Code.
November 7, 2011
Rosemary Muzzi Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2011 ONFSCDRS 100
FSCO A09-001346
BETWEEN:
CARRIE LEACH
Applicant
and
INTACT INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:
- Ms. Leach has a moderate impairment in each of the four areas of function. As a result, Ms. Leach does not meet the definition of catastrophic impairment on account of a mental or behavioural disorder.
November 7, 2011
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- The parties conceded at the arbitration hearing that no other definition of catastrophic impairment could apply in this case.
- American Medical Association, Guides to the Evaluation of Permanent Impairment, Fourth Edition (American Medical Association, June 1993).
- At the time of the hearing, a decision of the Director’s delegate at the Commission had upheld an arbitrator’s decision that a finding of marked impairment in one of the four areas of function was sufficient basis upon which to find that a person had a catastrophic impairment under section 2(1.2)(g) of the Schedule [Aviva Canada Inc. and Pastore (FSCO P09-00008, December 22, 2009) Appeal]. Between the hearing in this matter and the release of these reasons, the Divisional Court overturned the Director’s delegate’s decision [Aviva Canada Inc. v. Pastore, 2011 ONSC 2164, [2011] O.J. No. 2153] and remitted the matter back for redetermination by a Commission arbitrator on two bases: (i) the majority of the panel found that the Director’s delegate was in error because the decision failed to take into account all four areas of function identified in the Guides; and (ii) the panel was unanimous in concluding that the Director’s delegate’s conclusion that the applicant suffered a marked impairment in respect of ADLs improperly considered pain associated with her physical injuries. At the time of the arbitration hearing, counsel for Intact had made these same arguments and counsel for Ms. Leach had responded to those arguments.
- Chapter 14, section 14.3, page 294 to 295.
- Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735, at paragraph 130.
- Occupational therapy progress report of December 2006.
- Exhibit 1, Tab A1.
- Exhibit 1, Tab A4, page 27.
- Exhibit 1, Tab A8, page 3.
- Exhibit 1, Tab A2.
- The presence of an adjustment disorder can cause some confusion according to the Guides. The Guides identify adjustment disorder within the category of special impairments and state that it presents a dilemma to the evaluator. Adjustment disorder is characterized by abnormal emotional responses to stressful life events, which resolve in a short time when the stressor is removed and some authorities do not consider these responses to be medical impairments.
- Chapter 14, page 301.```