M.M. v. Aviva Canada Inc., 2012 ONFSCDRS 160

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 160

Appeal P11-00030

OFFICE OF THE DIRECTOR OF ARBITRATIONS

M.M.

Appellant

and

AVIVA CANADA INC.

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

The Appellant, M.M., was self-represented

Ms. Susan Bromley for the Respondent, Aviva Canada Inc.

HEARING DATE:

September 21, 2012 in Barrie Ontario

APPEAL ORDER

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

1. I confirm the Arbitrator’s October 28, 2011 finding that the November 26, 1999 accident did not cause or materially contribute to the Appellant’s discectomy and chronic pain.

2. I refer this matter back to the Arbitrator for her determination, pursuant to paragraph 2(1.1)(f) of the Schedule, of whether the combination of the Appellant’s specific and particularized impairment ratings to be determined by the Arbitrator in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993, and specifically the Combined Values Chart, result in 55 per cent or more whole person impairment. This includes the Arbitrator making any further necessary findings regarding causation.

3. If the parties cannot agree on the legal expenses of this appeal, an expense hearing shall be requested within forty-five days of the date of this decision, as set out below.

December 10, 2012

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

In issue in this appeal is whether the Arbitrator erred in law in (1) finding that the November 26, 1999 accident did not cause or materially contribute to the Appellant’s discectomy and chronic pain condition, and (2) in finding that the Appellant had not sustained a catastrophic impairment under paragraph 2(1.1)(f) of the Schedule¹ as a result of the accident, specifically by failing to make a Whole Person Impairment (“WPI”) finding in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993 (the “AMA Guides”).

I find no error in law in the Arbitrator’s causation finding and uphold that part of the decision.

I refer this matter back to the Arbitrator for her determination, pursuant to paragraph 2(1.1)(f) of the Schedule, of the Appellant’s particularized impairment ratings under the AMA Guides, including any further necessary findings regarding causation, and whether the combination of those ratings results in 55 per cent or more whole person impairment.

II. BACKGROUND

The Appellant, M.M., was injured in a motor vehicle accident on November 26, 1999. She attended that night at the Sudbury Regional Hospital. The hospital records note that the Appellant had pain starting right away in her neck and upper back.

Two years later, on December 6, 2001, the Appellant underwent surgery for a lumbosacral (low back) discectomy (removal of a herniated disc). On March 24, 2003, the Respondent, Aviva Canada Inc., received the Appellant’s Application for Accident Benefits, dated November 29, 2002. The Appellant states that the Respondent paid her accident benefits until the tenth anniversary of the accident.

In the fall of 2010, the parties came before Arbitrator Kowalski (the “Arbitrator”) for a nine-day

hearing on whether the Appellant, as a result of the accident, had sustained a catastrophic impairment as defined in paragraph 2(1.1)(f) of the Schedule. That provision states:

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

The term “accident” is defined in section 2 of the Schedule:

…an incident in which the use or operation of an automobile directly causes an impairment …

In her October 28, 2011 decision, the Arbitrator was not persuaded that the accident had caused or materially contributed to the Appellant’s 2001 discectomy or her chronic pain condition. The Arbitrator was further not persuaded that the Appellant met the paragraph 2(1.1)(f), 55% WPI threshold for catastrophic impairment.

The Appellant asks that the Arbitrator’s order be set aside and replaced with an order that she has suffered a catastrophic impairment within the meaning of paragraph 2(1.1)(f). In the alternative, the Appellant asks that the Arbitrator’s October 28, 2011 order be set aside and that the matter be returned to arbitration for another hearing. The Appellant further requests her legal expenses at arbitration and on appeal.

On consent, by letter decision dated December 20, 2011, I stayed the Arbitrator’s decision.

The Appellant, in her April 2, 2012 written submissions, argued that:

1. She should be allowed to submit complete and credible evidence to clarify and show how misunderstandings and misrepresentations can cause confusion.

2. She was deprived of a fair hearing due to the Respondent’s manipulation of the evidence.

3. She was prejudiced by the excessive time taken for the decision to be released, the Arbitrator having to rely on her memory and notes, and on records that were prejudicial to the Appellant.

4. She was deprived of a fair hearing by the Arbitrator’s failure to completely outline the facts behind her conclusions that Dr. S. Blitzer and Dr. T. Berns, upon whom the Appellant relied, did not comply with the Schedule.

5. She was deprived of a fair hearing by the Arbitrator’s focus solely on inconsistencies in the medical records and not assessing and taking into account all of the Appellant’s evidence showing the deterioration in her medical condition following the 1999 accident.

6. The Arbitrator failed to fully consider section 1.3 of the AMA Guides regarding the degree of confidence that should be given to medical assessors.

7. The Arbitrator failed to fully outline why the Respondent’s evidence should be accepted over that of the Appellant.

8. The Arbitrator failed to determine the Appellant’s WPI regardless of causation.

On appeal, the Appellant requested that the Arbitration transcripts be ordered. The Respondent stated that the appeal must include consideration of the transcripts and ordered copies for both parties and for myself. At the oral appeal hearing, the Appellant confirmed that she had received from her former counsel all of the arbitration exhibits. However, the Appellant stated that due to mobility and transportation challenges she had not brought any of the exhibits or the transcripts with her. The Appellant was provided access at the oral hearing to other copies of the transcripts and the exhibits.

lll. FRESH EVIDENCE

In her November 24, 2011 Notice of Appeal, the Appellant requested additional time to determine if any further evidence was available that should be brought to my attention.

My November 30, 2011 letter noted the Commission’s web site guide that if a party in an appeal wished to rely on any additional or new evidence, the party must explain what the evidence is and why it should be allowed in the appeal. I noted that in Budd and Personal Insurance Company of Canada, (FSCO P99-00032, January 8, 2000), Delegate McMahon adopted the following criteria on whether to admit fresh evidence:

• The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

• The evidence must be credible, in the sense that it is reasonably capable of belief;

• The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; and,

• The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The Appellant was ultimately given until February 15, 2012 to set out what fresh evidence she proposed to file on appeal and why such evidence should be allowed. The Appellant’s February 13, 2012 letter stated that she had:

… fresh medical evidence to submit of my medical reports that were not available during arbitration. The medical evidence will be to clarify the cancer issue(s) to show how misunderstandings or interpretations can confuse the issue(s).

My March 2, 2012 letter decision held that I was not persuaded to exercise my discretion to allow the requested fresh evidence, the onus being on the requesting party, because:

1. AXA Insurance Company and Kernaghan, (FSCO P07-00018, February 4, 2008), noted that the “restriction of appeals to matters of law reflects … legislative recognition that judicial resources are limited, that deference should be given to the skills and expertise of first-level adjudicators and that the need for a speedy, simplified and inexpensive dispute resolution system necessitates a narrowed basis for appeal … arbitrations are not dress rehearsals; appeals are not a ‘second kick at the can.’”

2. The Appellant did not identify what specific documents she wished to enter as fresh evidence, their date or author, under what circumstances they were created or how they would clarify the cancer issue. It was, therefore, not possible to determine whether the requested fresh evidence was credible.

3. The Appellant stated that the documents were not available during arbitration. She did not say why. It was thus not possible to determine why the documents could not, by due diligence, have been adduced at arbitration.

4. In issue at arbitration was whether the Appellant had sustained a catastrophic impairment as a result of her 1999 accident. The Appellant argued that she injured her lumbar spine in that accident, leading to her December 2001 discectomy and chronic pain condition.

The Arbitrator stated that this case “turns on the credibility of Ms. M’s evidence.” The Arbitrator noted a number of “inconsistencies between Ms. M’s account and the medical evidence.” One of these inconsistencies was that, “although wholly unrelated to any injuries Ms. M might have sustained in the accident … Ms. M denied ever reporting or having cancer, but it keeps popping up in her medical records.”

In finding that the 1999 accident did not cause or materially contribute to the Appellant’s discectomy and chronic pain condition, the Arbitrator noted, in part, the Appellant’s failure to report any back symptoms for more than a year after the accident. She also noted “references to another accident between January 10, 2001 and August 8, 2001, at which time Ms. M has a second x-ray of the lumbar spine which, this time, shows some pathology and degeneration.”

It was thus difficult to see the cancer issue as decisive or potentially decisive. It was further difficult to see that the unidentified fresh evidence on the cancer issue, if believed, could reasonably, when taken with the other evidence adduced at the arbitration, be expected to have affected the result.

My March 2, 2012 letter decision noted that the question of fresh evidence had now been determined. The Appellant, in her subsequent April 2, 2012 written submissions, indicated that she wished to have the following fresh evidence received on appeal:

1. Sudbury General Hospital, Department of Radiology, note dated March 28, 1989.

2. Sudbury General Hospital of the Immaculate Heart of Mary, Operative Note dated March 31, 1989.

3. Sudbury General Hospital of the Immaculate Heart of Mary, Laboratory Histology Report reported 04-04-89.

4. Sudbury General Hospital, Department of Radiology, note dated August 29, 1989.

5. Sudbury General Hospital of the Immaculate Heart of Mary, Consultation Note dictated October 13, 1989.

6. Sudbury General Hospital of the Immaculate Heart of Mary, Operative Report dated January 31, 1992.

7. Sudbury General Hospital of the Immaculate Heart of Mary, Histology Report dated February 3, 1992.

8. Health Sciences North, Health Information Services, Consent Form dated January 11, 2012 requesting details of abdominal surgery to remove a cyst around 1989 to 1992.

9. Dr. T. Berns, letter dated March 12, 2012 reviewing the Appellant’s February 3, 1992 cervical biopsy and attesting to the Appellant’s honesty.

10. WebMD article on Carbon Dioxide Laser Surgery for Abnormal Cervical Cell Changes.

11. WebMD article on Colposcopy and Cervical Biopsy

12. WebMD article on Sigmoidoscopy (Anoscopy, Proctoscopy)

13. St. Mary Medical Centre explanation of Endoscopy

At the appeal hearing, the Appellant requested that 1992 echocardiograph and electrocardiograph records of Centenary Health Centre, a printout of the University of Dundee on testing the pituitary gland and a printout regarding thyroid disease also be accepted as fresh evidence. The Appellant submitted that if the Arbitrator had the above documentation, her credibility would not have been in issue.

The Respondent concedes that the additional records are credible and capable of belief. It agrees that if this material had been entered as evidence at the arbitration hearing it would have cleared up some confusion. However, it argues that it would not have been determinative in any way.

I am not persuaded to allow this fresh evidence on appeal, for the following reasons:

1. With the partial exception of Dr. Berns’ letter, the fresh evidence pertains to pre-accident treatment between 1989 and 1992. The Appellant considers it crucial to establish the true nature of this treatment as being abdominal surgery and laser surgery of the cervix rather than cancer. She submits that it is important that the record show that the pre-accident surgeries took place between 1989 and 1992 and not between 1993 and 1995.

However, on pages 20 and 21 of her decision, where the Arbitrator lists five areas of the evidence leading to her conclusion on causation, the cancer issue itself is not mentioned. I am not persuaded that this fresh evidence could reasonably, when taken with the other evidence adduced at arbitration, be expected to have affected the result.

The Appellant requests a new hearing. She concedes that she was a poor witness at arbitration, having a poor recall of dates. She cites evidence of her cognitive problems, loss of concentration and forgetting what she is doing in the middle of things. She argues that as she now knows the questions that she is going to be asked, she can do better at the new hearing with the further notes and records before her. However, as stated in Kernaghan, “arbitrations are not dress rehearsals; appeals are not a ‘second kick at the can.”’

2. Dr. Berns gave oral evidence, under oath and subject to cross-examination, on October 6, 2010. It would be unfair to allow unchallenged into evidence Dr. Berns’ further opinion regarding not only the cancer issue but also the Appellant’s honesty and her present function and complaints.

3. The Appellant did not explain why this fresh evidence could not, by due diligence, have been adduced at the arbitration hearing by her then counsel.

IV. ANALYSIS

(1) Causation re Discectomy and Chronic Pain Condition

Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, set out the principles behind deferring to the findings of fact of the trial judge:

(1) Judicial resources are scarce. There is utility in avoiding needless duplication of judicial proceedings with little, if any improvement in the result, while concurrently not prejudicing litigants with fewer resources and frustrating the goal of providing an efficient and effective remedy.

(2) An appeal is the exception rather than the rule. Frequent and unlimited appeals would weaken public confidence in the trial process and undermine the presumption that a trial judge is competent to decide the case before him or her and that a just and fair outcome will result from the trial process.

(3) The trial judge’s expertise and advantageous position to make factual findings should be recognized, owing to the judge’s extensive exposure to the evidence, the advantage of hearing oral testimony and the judge’s familiarity with the case as a whole. The trial judge’s expertise and insight in this area should be respected, given the trial judge’s primary role is to weigh and assess voluminous quantities of evidence.

These considerations are consistent with subsection 283(1) of the Insurance Act that restricts appeals from the order of the arbitrator to questions of law, and apply equally to this tribunal.

In considering what “an error of law” encompasses, Delegate McMahon, in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003), held that:

… errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. The vital distinction is between a conclusion that there was “no evidence” to support a finding and a mere “insufficiency of evidence.”

On page four of her decision, the Arbitrator found the Appellant’s oral evidence not reliable:

Ms. M’s testimony about the accident itself is not consistent with the police report or emergency room records. Her testimony about her condition is not consistent with what she was reporting to numerous medical practitioners following the accident, although she conceded repeatedly that she accurately reported her symptoms to her various health practitioners when she saw them. More than ten years have passed since the accident, and where there is conflict between her testimony and her medical records, I have preferred the information in the various medical records.

The Arbitrator further found that the Appellant:

… was not disclosing an accurate or complete history to her treating physicians like Drs. Blitzer or Berns. And where her assessors relied on Ms. M’s subjective accounts, her credibility affects the credibility of their reports and opinions to the extent that they were based on Ms. M’s self-reports of symptomology and history.

The Arbitrator concluded that “the cumulative inconsistencies are overwhelming, and I find Ms. M’s credibility must be cast in doubt and her testimony given little weight except where it was supported by independent evidence.”

In Sacco and Zurich Insurance Company, (FSCO P96-00063, September 25, 1998), Delegate Naylor stated:

Assessing the reliability of evidence is a central aspect of the arbitrator’s job. That is not necessarily a judgement on the witness’ honesty, but includes consideration of such factors as powers of observation, judgement and memory, and interest in the outcome, which may, unconsciously, shade his or her testimony.

In finding that the November 26, 1999 accident did not cause or materially contribute to the Appellant’s discectomy and chronic pain condition, the Arbitrator noted, on pages 20 and 21 of her decision, the following evidence in support:

(i) The Appellant failed to report any back symptoms for more than a year after the accident, during which time the Appellant did somewhat heavy work.

(ii) The Appellant’s first complaints of low back pain occur just over 13 months after the accident. The January 10, 2001 x-ray is normal and unremarkable.

(iii) There are references to another accident between January 10, 2001 and August 8, 2001, at which time the Appellant had a second x-ray of the lumbar spine which now showed some pathology and degeneration.

(iv) The Appellant failed to report the accident at various times and during critical assessments, such as at the McKenzie Institute before her discectomy.

(v) Drs. Muller, Blitzer, Berns and Wolbeck were never made aware of the medical history and relied on the Appellant’s self-reporting, which was proven inconsistent, to conclude that the accident caused the disc rupture – conclusions they changed when, on cross-examination, they were presented with the inconsistencies between the Appellant’s self-report and the medical reports.

During oral appeal submissions, I asked the Appellant what documents the Arbitrator should have referred to showing a deterioration in her condition between the November 26, 1999 accident and her December 6, 2001 surgery. On review, the Appellant stated that she did not see anything earlier than a January 10, 2001 entry from an after-hours medical clinic, found in Exhibit 2, at page 179. The entry is more than 13 months post-accident. It refers to a few days of low back pain, with no obvious precipitating factors.

The Appellant’s decoded OHIP records at Tab 11 of Exhibit 1 show 30 entries in 1996 (from April 4^th of that year), 33 entries in 1997, 23 entries in 1998 and 13 entries in 1999 before the November 26, 1999 motor vehicle accident.

There are two entries in November 1999. These are on the successive days following the accident. There is only one OHIP entry for the remainder of 1999 and all of 2000, being February 2, 2000, showing a Diagnosis Code Description of “Migraine.” The next OHIP entry is January 10, 2001, of Signs / Symptoms not yet diagnosed – “Musculoskeletal System – Leg Cramps.”

The Appellant argues on appeal that between 1999 and 2000 she did not have a family doctor, she attended emergency departments and clinics, took Tylenol and went to work. However, as stated in Housen, the Arbitrator, as trier of fact, was in an advantageous position to make factual findings having extensive exposure to the evidence and the advantage of hearing oral testimony. The Arbitrator’s primary role of weighing and assessing voluminous quantities of evidence should be respected.

The Appellant noted the oral evidence of Ms. M. Van Hook, O.T., who testified on September 15, 2010 as to deterioration in the Appellant’s condition. However, Ms. Van Hook met with the Appellant on July 6, 2009, almost a decade after the accident. The deterioration in question, at page 505 of the transcript, referred to deterioration in the Appellant’s ability to perform occurring over the course of a three-hour assessment, not over the thirteen-month period following the November 26, 1999 accident.

The Appellant noted her oral evidence at arbitration that doctors and hospital staff, on assessment, only write down one complaint. She quotes Dr. Blitzer, at page 1046 of his cross-examination on October 5, 2012:

Someone comes in and, “What’s your chief complaint?” “Oh, my neck hurts.” They don’t want to note 30 other problems to evaluate, they just want to deal with your main complaint and send you home.”

I am not persuaded the Arbitrator erred in law in not accepting this speculation as to the alleged

routine incompetence, negligence, indifference and/or impatience of the medical practitioners seen by the Appellant.

The Appellant notes medical practitioners attesting as to her credibility. However, it is the adjudicator who determines credibility based on all of the evidence before her, including the consistency of a party’s evidence with that of the contemporaneous documentary evidence.

The Appellant references the oral evidence on October 5, 2010, of Dr. A. Oshidari, called by the Respondent. At page 1128, on cross-examination, Dr. Oshidari testified that there was definitely a connection between what happened at the accident to the point where the Appellant needed surgery. However, Dr. Oshidari further testified that he deferred to Dr. P. Muller in this regard.

Dr. Muller, on October 7, 2010 at page 1302 of the transcript, testified that there was a 100% likelihood that the November 1999 caused a lumbar injury, because the likelihood of some form of injury to the lumbar spine where there is some kind of violence, whether a car accident or a fall, is relatively high. Dr. Muller further stated, at page 1304:

… it’s difficult to quantitate and these things don’t allow themselves scientific certitude, but I do believe on the basis of the storied sequence of events that there was a material relationship between the motor vehicle accident and the disc rupture. [emphasis added]

The word “storied” suggests reliance on the history given specifically by the Appellant, rather than the contemporaneous medical records.

The Appellant failed to address the following exchange during Dr. Muller’s cross-examination, found at pages 1332 and 1333 of the arbitration transcript:

Ms. Bromley: In that case I am going to ask you to put those all together. So just to recap for you … and I’m going to ask you to specifically assume just for the purposes of my scenario that there are no complaints of lumbar pain at the time of the accident. All right?

Dr. Muller: Mm-hmm.

Ms. Bromley: So there are no complaints, no treatment, no complaints of low back pain for over a year, heavy lifting, a subsequent motor vehicle accident, and a dramatic increase in back pain just prior to surgery. Can you tell this tribunal that the 1999 accident was a material contributor?

Dr. Muller: Given those assumptions, one could say that the probability that the accident in question set the chain of events in play would be relatively low. Making all of the assumption that you’ve stated, I think one would have to state – again not with scientific certitude, but with medical and physiological reasoning – that the likelihood would be low.

Ms. Bromley: Thank you doctor. Those are all of my questions.

The cross-examination of Dr. Blitzer, on October 5, 2010 at page 1047, concluded as follows:

Dr. Blitzer: If the back was perfectly fine for 12 months after the accident and on, you know, on – in the 13^th month there was an acute back flare-up, I would not attribute that to the accident, in your theoretical example. What do Dr. Muller’s notes say about her back history?

Ms. Bromwell: Those are all my questions.

Dr. Oshidari, who was not a treating doctor, deferred to Dr. Muller on the question of causation. On this basis, I accept the Respondent’s submission that it is reasonable to conclude that given Dr. Muller’s changed evidence at the oral hearing from 100% likelihood of causation to a relatively low causative link, Dr. Oshidari’s presumption of causation is similarly undermined.

I am not persuaded that the Appellant was prejudiced any more than the Respondent by the length of time for the arbitration decision to be rendered. Further, the above noted portions of the transcript support the Arbitrator’s evidential basis for not accepting the initial opinions of medical practitioners regarding the causation issue in question.

The Appellant’s allegation that the Respondent manipulated the evidence is, in large measure, a variation of her concession that she was a poor witness at arbitration with poor recall, and wishes to have a second opportunity to present her case. As set out above, judicial resources are scarce and there is utility in avoiding needless duplication of proceedings.

I find that the Arbitrator outlined, in significant detail, why she did not accept the Appellant’s evidence regarding the causation issue. I further accept, regarding the Arbitrator’s finding regarding causation, as stated in Sacco, that:

[w]hile an arbitrator must give reasons for his or her decision, he or she need not detail or summarise all the evidence. That would not be sensible or in keeping with the adjudicator’s mandate to deal with disputes expeditiously. There is no reason to conclude that the arbitrator ignored evidence before her simply because she did not specifically mention it.

Following the test set out in Lombardi, I am not persuaded that there was no evidence to support the Arbitrator’s finding on causation. Nor am I persuaded that this finding was based on conjecture or on a misapprehension of the evidence caused by a misdirection on a legal principle. Accordingly, I find no error of law in this regard. I thus confirm the Arbitrator’s finding that the November 26, 1999 accident did not cause or materially contribute to the Appellant’s discectomy and chronic pain.

(2) Whole Person Impairment Rating

As noted above, catastrophic impairment under paragraph 2(1.1)(f) of the Schedule requires an impairment or combination of impairments that, in accordance with the AMA Guides, results in 55 per cent or more impairment of the whole person.

The Catastrophic Impairment Determination by the insurer’s medical examiner (“IME”), Work Able Centres Inc., dated September 5, 2006, provided a 10% WPI for the Appellant’s physical injuries and a 20% WPI for her mental and behavioural impairment, for a combined WPI of 28%.

The August 26, 2009 IME by Work Able Centres Inc. stated that the Appellant’s physical impairment was not ratable due to inconsistencies and nonorganic findings. However, Dr. Oshidari stated that his opinion regarding the physical injuries remained unchanged from his prior 10% WPI rating. A 20% WPI regarding psychological impairment was provided.

The Appellant relied significantly on Dr. Blitzer’s opinion regarding catastrophic impairment. Dr. Blitzer was the Appellant’s treating chronic pain specialist and assessed her WPI at 82%. The Appellant also relied on the evidence of her family physician, Dr. Berns.

In her decision, the Arbitrator concluded that:

… having found that Ms. M did not meet her burden of proof to establish impairment within the meaning of the Schedule, I do not feel I need to deal with Aviva’s evidence that at most Ms. M’s WPI is 45%.

At the oral appeal hearing, the Respondent advised that the 45% rating is not to be found in the evidence. Rather, it was purely argument at arbitration, based on the assumption that causation was established, and was considerably higher than the IME ratings.

I find that the Arbitrator did outline the weaknesses she found in the evidence of Drs. Blitzer and Berns. Regarding Dr. Blitzer, the Arbitrator found, in part, that:

1. His understanding of the Appellant’s injuries and condition came primarily from what the Appellant told him. He assigned a WPI rating for shoulder pain, hip pain and sleep disturbances based on information he got from the Appellant, notwithstanding there was no mention in his file of any of those symptoms.
2. He did not have or use the 4^th edition of the AMA Guides when he rated the Appellant. On page 805 of his October 4, 2010 examination-in-chief, Dr. Blitzer agreed that he used the 5^th edition of the AMA Guides. The Schedule, however, refers to the 4^th edition.
3. Dr. Blitzer testified that he had very limited training and experience with the 4^th edition, having attended a one-day series of lectures over 10 years ago. On page 951 of his cross-examination Dr. Blitzer states that he had no formal training in the 5^th edition and had received no training in the differences between the 4^th and the 5^th editions.
4. He did not conduct a rigorous examination in accordance with the Schedule.
5. He used his discretion to increase the Appellant’s ratings when he felt they were not high enough using the AMA Guides.
6. He rated the Appellant’s psychological impairment as 20% because a psychologist had rated the Appellant 20% impaired in 2006.

Regarding Dr. Berns, the Arbitrator stated that the family doctor felt it was unfair that the Appellant’s condition be described as anything less than catastrophic. Dr. Berns did not calculate the Appellant’s WPI. Rather, he gave a “global assessment” that the Appellant had a WPI rating greater than 55%.

The Arbitrator found that the approaches taken by Dr. Blitzer and Dr. Berns suggested that they

placed themselves in the role of well-meaning advocates, that they relied on the art of medicine

at the expense of the examination set out in detail in the 4^th edition of the AMA Guides by which to assess the Appellant’s WPI.

The Respondent submits that “[h]aving found that the accident did not cause or materially contribute to [the Appellant’s] impairments, and having further rejected the impairment ratings put into evidence on behalf of [the Appellant], there was no legal or factual reason for the learned Arbitrator to assess [the Appellant’s level of impairment].”

The Arbitrator, however, did not make findings of causation regarding all of the Appellant’s thirteen submitted areas of impairment. Rather, the first twenty pages of her decision focus on the question of causation regarding the Appellant’s discectomy and chronic pain condition.

Secondly, as stated by the Arbitrator:

… the Fourth Edition also provides a methodology to use in assessing a patient, which Ms. M’s assessors did not follow.

The AMA Guides require that a value be determined for each area of impairment. Those values are expressed as percents. A Combined Values Chart is found at pages 322 to 323 of the 4^th edition of the AMA Guides. The Combined Values Chart does not add the specific impairment percents. Rather, it combines these individual impairment values according to a set methodology. That methodology is incorporated by reference in the Schedule by virtue of paragraph 2(1.1)(f).

Unlike Dr. Berns, Dr. Blitzer did set out percent values for the Appellant’s individual areas of impairment, specifically in his December 15, 2008 report. At page 12 of his report, Dr. Blitzer combines the individual values, evidently using the 5^th edition of the AMA Guides, to reach an 82% WPI for the Appellant.

Using the Combined Values Chart in the 4^th edition of the AMA Guides and simply entering (without evaluating) these individual impairment values in descending order, as required under the AMA Guides, one also arrives at a combined 82% WPI for the Appellant, as follows.

Area of Impairment	Dr. Blitzer’s Individual Impairment % ratings	Combined WPI % using the Combined Values Chart of the 4th edition of the AMA Guides
Lumbar Spine	23%
Mental and behavioural	20%	38%
Gait Derangement re low back	20%	50%
Cervical spine	18%	59%
Hip	17%	66%
Headaches	15%	71%
Bladder / Urinary Incontinence	15%	75%
Sleep Disorder	10%	78%
Dizziness	5%	79%
Cognitive	5%	80%
Digestive Problems	5%	81%
Left Shoulder	4%	82%
Right Shoulder	1%	82%

It is not clear that the chronic pain addressed by the Arbitrator in her causation analysis is synonymous with the mental and behavioural impairment rating note above. Presuming, without knowing, that the Arbitrator’s decision regarding the Appellant’s discectomy is synonymous with the lumbar spine, gait derangement re low back and hip impairment ratings highlighted above, entering (again, without evaluating) Dr. Blitzer’s ratings leave a 64% WPI, as follows:

Area of Impairment	Dr. Blitzer’s Individual Impairment % ratings	Combined WPI % using the Combined Values Chart of the 4th edition of the AMA Guides
Mental and behavioural	20%
Cervical spine	18%	34%
Headaches	15%	44%
Bladder / Urinary Incontinence	15%	52%
Sleep Disorder	10%	57%
Dizziness	5%	59%
Cognitive	5%	61%
Digestive Problems	5%	63%
Left Shoulder	4%	64%
Right Shoulder	1%	64%

By virtue of paragraph 2(1.1)(f) of the Schedule, the Arbitrator was required to follow the methodology of the Combined Values Chart of the 4^th edition of the AMA Guides and not simply, as she critiqued Dr. Berns, give a “global assessment.” Neither an equivalent to the above charts nor any similar methodology is to be found in the Arbitrator’s less than three pages addressing the central issue before her, that of WPI determination.

At page 706 of the transcript, the Respondent indicated it did not object to Dr. Blitzer giving his opinion respecting catastrophic impairment in his capacity as a physician. It did object to his being qualified as “an expert in the interpretation of the AMA Guidelines.” The Arbitrator held that as Dr. Blitzer had a background in both the “Fourth and Fifth” she would hear his opinion about the “Fourth and Fifth Guide,” but not as an expert.

R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, 1982 CarswellBC 230, however, states:

A general principle of evidence is that all relevant evidence is admissible. The law of evidence, however, reposes on a few general principles riddled by innumerable exceptions. Two major exceptions to this general principle are hearsay evidence and opinion evidence. There are also exceptions to the exceptions. “Expert witnesses may testify to their opinion on matters involving their expertise” (Cross on Evidence, 5^th ed. (1979), at p. 20) and may also, incidentally, base their opinions upon hearsay.

The Supreme Court of Canada further stated in R. v. Mohan, 1994 CanLII 79 (SCC), [1994] 2 S.C.R. 7:

. . . experts [should] not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial's becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.

Being allowed to give his opinion about the 4^th and 5^th Guides, Dr. Blitzer’s examination ran to 358 pages. At page 811 of the transcript, it is clear that both the 4^th and 5^th editions of the AMA Guides were before Dr. Blitzer. His examination references both versions. At page 936, Dr. Blitzer reviews the Combined Values Chart in the 5^th edition. At page 939, he reviews the Combined Values Chart in the 4^th edition. In addition, over the course of nine hearing days the Appellant and other lay witnesses, as well as several doctors in addition to Dr. Blitzer were called to give oral evidence, and extensive documentation was allowed into evidence regarding the central issue before the Arbitrator as to the Appellant’s WPI.

It was for the Arbitrator to evaluate the evidence before her pertinent to the central issue of WPI impairment rating, not simply accept or reject in whole Dr. Blitzer’s 82% WPI evaluation.

R. v. Walker, 2008 CSC 34, citing R. v. Sheppard, 2002 SCC 26, held that:

Sheppard holds that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” … Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue. The “trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision” … The duty to give reasons “should be given a functional and purposeful interpretation” and the failure to live up to the duty does not provide “a free-standing right of appeal” or “in itself confe[r] entitlement to appellate intervention” …

The live issue before the Arbitrator was whether the Appellant had suffered an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993, results in 55 per cent or more impairment of the whole person.

The Arbitrator provided a global assessment of Dr. Blitzer’s evidence. The parties and the appellate officer are left to surmise which of the Appellant’s submitted thirteen areas of impairment may be encompassed within the Arbitrator’s limited causation finding. We are left to surmise to what extent Dr. Blitzer’s individual WPI ratings are reduced on the basis of the overall inadequacies found in his evidence by the Arbitrator. We are left to surmise to what overall WPI Dr. Blitzer’s 82% (or the possible lesser 64%) WPI is reduced. We are left to presume, without the requisite methodology of the AMA Guides incorporated into the Schedule having been followed, that the Appellant’s WPI is less than 55%.

This is not the situation in Sacco of an arbitrator not detailing or summarizing all of the evidence. Rather, taking a “functional and purposeful” approach set out by the Supreme Court, I am persuaded that the Arbitrator’s decision regarding the central, live issue of 55% WPI, in failing to address the requisite methodology and make the necessary findings of individual impairment ratings and/or causation, is not reasonably intelligible, specifically to the losing party. Further, her decision in this regard does not provide the basis for meaningful appellate review.

As stated in Housen, noted above on page 7, the Arbitrator’s expertise and advantageous position to make factual findings should be recognized. The Arbitrator had extensive exposure to the evidence, the advantage of hearing the oral testimony and was familiar with the case as a whole. The transcripts of the entire oral evidence received at arbitration are now available. The Arbitrator’s primary role of weighing and assessing voluminous quantities of evidence should be respected.

As stated by the Divisional Court in Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986, motion for leave to appeal subsequently dismissed November 18, 2011, Court of Appeal file No. M40259, it is not an appellate officer’s role to hear the matter de novo. Nor is it for the appellate officer to endeavour to speculate what the Arbitrator might have found had she addressed the individual WPI ratings and/or any further questions regarding causation.

Rule 65.6 of the Dispute Resolution Practice Code (Fourth Edition, Updated – August 2011) (the “Code”) provides that an “adjudicator may at any time clarify a decision or order that contains a misstatement, ambiguity or other similar error.” I am persuaded that the Arbitrator’s WPI determination was ambiguous.

I refer this matter back to the Arbitrator for her determination, pursuant to paragraph 2(1.1)(f) of the Schedule, of whether the combination of the Appellant’s specific and particularized impairment ratings to be determined by the Arbitrator in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993, and specifically the Combined Values Chart, result in 55 per cent or more whole person impairment. This includes the Arbitrator making any further necessary findings regarding causation.

IV. EXPENSES

If the parties cannot agree on the legal expenses of this present appeal, amending Rule 79 of the Code, an expense hearing shall be requested within forty-five days of the date of this decision.

The request for an expense hearing shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as submissions on such entitlement or quantum expense issues as are in dispute.

December 10, 2012

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.