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

Neutral Citation: 2013 ONFSCDRS 139

FSCO A09-003232

BETWEEN:

P. B.

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Alec Fadel

Heard: June 4, 5, 6, 7, November 13, 2012 and February 14, 2013, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions, transcripts and further submissions all received as of April 2, 2013

Appearances: David Preszler for Mrs. B. Bruce Chambers for State Farm Mutual Automobile Insurance Company

Overview:

Mrs. B., the applicant, was injured in a motor vehicle accident on August 18, 2005. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹

The applicant claims that the disc herniations she experienced nine months after the accident and the resulting difficulties, including a conversion disorder, are a result of the motor vehicle accident of August 18, 2005. The applicant also claims that she sustained a catastrophic impairment in the motor vehicle accident.

The applicant was unable to return to her employment and started new employment in February 2006. The applicant continued to receive physiotherapy, complaining of accident-related issues until she experienced disc herniations in her lumbar spine in May 2006. As a result of these herniations, which resulted in a cauda equina-like syndrome², the applicant is now unable to return to work and is reliant on others to assist her in many of her activities of daily living. She is unable to ambulate without assistive devices and takes opioid analgesics on a daily basis. It is also suggested that the applicant has a conversion disorder that accounts for her perceived disability in the face of minimal objective neurological findings.

The applicant claims to be catastrophically impaired as a result of the motor vehicle accident. In particular, she claims that she has 55% whole person impairment (“WPI”) under s. 2(1.2)(f) of the Schedule by combining her physical impairments with her mental and behavioural impairments.

State Farm takes the position that the disc herniations were not caused by the motor vehicle accident and refuses to pay an ongoing income replacement benefit beyond August 15, 2008 and denied the applicant’s claim for attendant care benefits. This position is supported by most of its medical experts who find the temporal lag between the accident and the disc herniations to be too long to support that the accident caused same. This opinion is based on the premise that she was not complaining of lower back pain significantly at the time of the accident or throughout the period until her actual disc herniations in May 2006.

State Farm also takes the position that the applicant is not catastrophically impaired even if I find that the accident was the cause of her disc herniations, as her WPI rating would not meet the 55% threshold.

For the reasons that follow, I agree with the applicant that the disc herniations were caused by the motor vehicle accident. There is evidence of ongoing back pain and strong medical opinions supporting that but for the accident the applicant would not have experienced the disc herniations nine months later and the subsequent complications including a conversion disorder all of which have had an ongoing effect on her ability to perform her employment and activities of daily living.

I do not agree, however, that the applicant was catastrophically impaired in the motor vehicle accident under s. 2(1.2)(f) of the Schedule as the medical evidence does not support that she meets the 55% whole person impairment threshold, mandated by the Schedule.

Issues:

The issues in this hearing are:

1. Is Mrs. B. catastrophically impaired as a result of the motor vehicle accident of August 18, 2005 as defined by the Schedule?

2. Is Mrs. B. entitled to an income replacement benefit from August 15, 2008 to date and ongoing?

3. Is Mrs. B. entitled to an attendant care benefit in the amount of $5,916.60 per month from May 7, 2006 to date and ongoing?

4. Is Mrs. B. entitled to interest for overdue payments?

5. Is either party entitled to their arbitration expenses?

Result:

1. Mrs. B. is not catastrophically impaired as a result of the motor vehicle accident of August 15, 2005.

2. Mrs. B. is entitled to an income replacement benefit from August 15, 2008 to date and ongoing, along with applicable interest.

3. Mrs. B. is entitled to an attendant care benefit at the monthly rate of $3,000.00 from May 7, 2006 to August 15, 2007, plus applicable interest, less any time of hospitalization.

4. There is no order on the issue of expenses. I remain seized should the parties be unable to resolve this issue on their own.

EVIDENCE AND ANALYSIS:

The motor vehicle accident and the applicant’s post-accident status

The applicant was driving home from work in the afternoon of August 18, 2005. She had the right of way when another vehicle approached from her left. Her vehicle was t-boned on the driver’s side and pushed into a ditch. Her vehicle was totalled in the collision. She was flown by helicopter and admitted to Royal Victoria Hospital until her discharge at 9:00 p.m. the following day. The air ambulance/CCTU paramedic call report noted that it took 15 minutes to extricate the applicant from her vehicle and at the time she was complaining of “neck/back pain” which she described as 9 out of 10. Mrs. B. was 25 years old at the time of this accident.

The day after the accident, after her discharge from hospital, the applicant testified that on arriving at her home she experienced great pain and was unable to descend the stairs leading to her front door even with the assistance of her husband, Trevor. In fact, both the applicant and her husband testified that she needed to call ambulance services to assist, though a record of such ambulance call was not entered into evidence.

The applicant first saw her family doctor, Dr. Brian Swarbreck, about one week after the accident. He noted that she was still sore, prescribed analgesics and made a referral for physical therapy. Dr. Swarbreck also referred her for CT imaging specifically on the neck and back area due to ongoing reports of severe pain.

In the OCF-3 (Disability Certificate) completed by Dr. Swarbreck dated September 9, 2005, he noted a whiplash injury, contusion to the left chest wall and right groin pain. In the applicant’s description of her own injuries on page 1 of the same OCF-3 she lists “torn back muscles on left side … bruised left hip … shooting pain in the left leg when I put pressure on it.” In the OCF-3 dated November 24, 2005, the applicant again refers to back pain on page 1.

Dr. Swarbreck’s clinical notes show that the applicant attended very regularly until January 18, 2006. The next note after that visit is April 18, 2006 where Dr. Swarbreck records “chronic back pain.” (emphasis mine)

Several treatment plans were submitted including two that were filed at the hearing dated November 10, 2005 and January 25, 2006 which both describe as the injuries: WAD II cervical strain-associated right arm radicular symptoms; Thoracic strain; Lumbar strain; Post concussion syndrome.

Subsequent to her return to employment, Dr. R.H.N. Fielden, orthopaedic surgeon, assessed the applicant on behalf of the insurer on February 24, 2006. The insurer suggests that this report is evidence that the applicant was improving to her pre-accident status and that the subsequent disc herniations were therefore not caused by the accident.

Dr. Fielden confirmed that the applicant started physiotherapy around the end of September going three times a week and that she was still attending at this rate. He stated that she was initially on Celebrex and Percocet but was not taking medication at the time of the assessment. Dr. Fielden noted that the applicant was complaining of pain in her upper back and left arm as well as pain in her neck which radiated to the base of her skull and down to the shoulders. The physical exam showed that her trunk rotation motions were full and the lumbar spine would flex 60 degrees, extend 15 degrees and side bend 20 degrees to the right and the left. He confirmed that the applicant’s condition was caused by the motor vehicle accident and diagnosed cervical strain which was almost fully resolved with a little loss of rotation to the right and no other findings.

The Disc Herniations

In May 2006 while the applicant was helping her husband fold laundry in their bedroom, she suddenly felt an increase in her back pain with radiation down both legs. She testified that the pain occurred as she was getting up from the floor with her hands on the bed. She returned to Royal Victoria Hospital and a clinical note by Dr. Thomas Mills on May 7, 2006 states that:

the patient was simply bending over yesterday and return to a standing position and had sudden onset of severe back pain, particularly on the right. It radiated down her lower extremities, left to midthigh but to the right shin area. She had numbness in the right foot felt diffusely but she thinks more prominent medially. The pain continues and she was unable to ambulate and therefore was admitted.

A CT scan of the lumbar spine revealed “a relatively large central disc herniation at L4-L5 producing central canal and lateral recess stenosis.” An MRI revealed “broad-based disc herniations at L4-L5 and L5-S1 resulting in mild-to-moderate and mild spinal stenosis respectively.” A discharge note from June 2, 2006 noted that she received OxyContin, Endocet and Demerol along with Ibuprofen. There was slow improvement and it was noted that she seemed to have a lot of exaggerated pain responses. There was no evidence of cauda equina and it was felt that she was not a surgical candidate at the time.

After her discharge, the applicant was referred to Dr. Robert McBroom, orthopaedic surgeon, on July 19, 2006 who ultimately recommended decompressive spinal surgery. The applicant was admitted to hospital and, on August 2, 2006, a posterior lateral decompression was performed. The applicant stated that the surgery did help her left leg numbness but her right leg pain, numbness and weakness were not helped.

After the surgery, the applicant reported that she was not able to walk unaided and had to use canes to go up and down stairs, a scooter to shop and a walker. She testified that she continues to be in this condition. Post surgery, the applicant continued to use OxyContin 40 mg every eight hours in order to manage her pain. She testified that she presently uses OxyNEO and Lyrica along with other medication on a daily basis. The applicant lives in a condominium with her husband and son, who was two years old at the time of the motor vehicle accident. Presently, she is able to dress her upper body but is completely dependent on her husband and sometimes her mother for assistance with her lower body including assistance washing her lower body and sometimes requiring assistance with toileting activities.

Credibility

I give weight to Mrs. B.’s testimony. She testified in a credible, detailed, sincere manner. Her testimony is supported by both her husband and mother each giving corroborating evidence concerning the applicant’s condition and needs following both the accident and the disc herniations 9 months later. In addition, the applicant’s testimony is corroborated by medical evidence presented at this hearing that support her claims.

Dr. Harpreet Sangha, physiatrist, who completed the second catastrophic assessment on behalf of the applicant, noted in his report of May 8, 2012 that possible explanations for the applicant’s condition was “a true neurological condition, a functional or conversion disorder, or malingering.” He noted that there was nothing in any of her previous assessments nor in his interactions with the applicant that would “in any way suggest a malicious attempt to mislead the examiner and as such, would exclude the latter possibility of malingering.” (p. 23)

Dr. Andy Cancelliere, psychologist, who completed a neuropsychological assessment on July 5, 2010, on behalf of the applicant, stated that the applicant gave an unusual report of intermittent memory loss immediately after the accident. He stated that the medical records document no loss of consciousness or disturbance to her level of awareness, that the applicant’s recollections are “likely an idiosyncratic interpretation on her part of requests for the history of a continuous memory after the subject MVA.”

I do not find that the applicant is feigning her symptoms. This is not supported in the medical reports or in my own assessment of the applicant’s credibility based on her own testimony. Many of the inconsistencies in the various medical reports can be explained by the existence of a conversion disorder (which is supported by medical professionals, discussed below). I accept her testimony, supported by medical evidence, that as a result of the accident she now lives with physical limitations that have an effect on her ability to carry on a normal life.

State Farm’s Medical Reports

The insurer only filed its medical reports. At the outset of the resumption of hearing, counsel for State Farm informed me that its experts were unavailable to attend the hearing. He stated that he was only informed on the Wednesday before the resumption that Drs. Benjamin Clark and Ben Meikle, both of whom completed the executive summaries for the two insurer catastrophic impairment assessments, were unavailable to give evidence. The applicant was only informed the Friday before the resumption. Rather than ask for an adjournment, the applicant requested that the hearing continue and that I draw an adverse inference to the non-availability of the expert witnesses. Given that this was a resumption of hearing after a very long adjournment I was sympathetic to the applicant’s request that the hearing proceed and allowed the insurer to file its reports. It should be noted that there was no request to exclude these reports.

Without the actual testimony from the expert who authored the report, I do not find these reports particularly helpful to the issues that are before me. A main issue in this hearing is whether or not the disc herniations suffered by the applicant were caused by the motor vehicle accident. On the whole, the insurer’s experts concluded that there was no causal connection given the temporal lag between the two events. They seem to base this conclusion on the premise that lower back pain was not a real issue for the applicant in the relevant time following the accident. However, based on the evidence, this is not a premise that I am prepared to accept. Without testimony to further explain this finding, I do not find the insurer’s examinations of great assistance to me in determining the issues.

Throughout this decision, I will refer to the insurer’s experts where their reports inform my decision. The insurer conducted two catastrophic impairment assessments. The first occurred in November 2007 and the second in March and April 2011. Dr. Benjamin Clark, physiatrist, completed the executive summary for the first assessment. Assessments and reports were completed Dr. Rehan Dost, neurologist, Dr. Richard Kaminker, orthopaedic surgeon, Dr. Donald Young, psychologist and Mr. Michael Drinkwater, registered physiotherapist. For the second assessment Dr. Ben Meikle, physiatrist, completed the catastrophic rating with assessments and reports being completed by Dr. Clark, neurologist, Dr. Ken Scapinello, psychologist, and Ms. Karen Dmytryshyn, occupational therapist.

Causation

One of the primary issues in this case is whether or not the disc herniations suffered by the applicant on May 7, 2006, and her subsequent ongoing disability, are causally related to the motor vehicle accident of August 18, 2005. Section 2(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment…”

The issue of causation has been the subject of much jurisprudence. The case law sets out that a two-part test must be met: purpose and causation. The “purpose test” has been met as there is no dispute that an accident occurred involving the use of an automobile. I accept the applicant’s submission that the law on causation can be summarized as follows:

• The extent of coverage for the consequences of an accident is governed by the “as a result of” test, which requires proof that the accident materially or significantly contributed to the disability or impairment that gives rise to the claim for benefits³

• Causation is a legal issue rather than a medical issue; disability is not a question of diagnosis but a question of function⁴

• Requiring an insured person to trace the “chain of causation” with precision is inconsistent with the legislative objectives underlying the Schedule⁵

• Unless there is a break in the chain of causation (ie. an intervening act) then causation shall be established⁶

The applicant testified that prior to the accident she had been healthy with a history of migraine headaches (2-3 times per month) and did not have issues with back pain. This was confirmed by Dr. Swarbreck who testified that he had been treating the applicant as her family doctor since at least August 8, 2003. He stated that she was a healthy young woman with no significant pre-accident back problems.

Dr. Julian Mathoo, physiatrist, who conducted the first catastrophic assessment on behalf of the applicant, concluded in his report of April 30, 2008 that the accident was not causally related to the disc herniations. He refers to the time lag between the accident and the herniation suggesting that the two were not related “within the context of medical probability.”

Dr. Gordon Ko, physiatrist and head of the chronic pain fibromyalgia clinic at Sunnybrook Health Sciences Centre, testified on behalf of the applicant and authored two reports dated May 25, 2010 and June 17, 2010. Dr. Ko stated that the probability was great that the applicant’s condition was all related to the car accident. He explained that it was possible for the applicant to have been involved in an accident in August 2005 and then only in May 2006 suffer a severe disc herniation. Dr. Ko explained that the applicant had suffered an injury to the ligaments in her lower back at the time of the accident which, over time, degraded resulting in the herniations. On cross-examination, Dr. Ko testified that there was a greater than 80% chance that the accident caused the applicant’s disc herniations. He was of the view that the big turning point was the 2005 car accident. He also confirmed that previously he had seen a delay of this nature in his clinical practice.

Dr. Kaminker completed the first orthopaedic assessment as part of the insurer’s first assessment of catastrophic impairment.⁷ Like all of the other insurance assessors, Dr. Kaminker noted the sparsity of evidence of lower back pain before the disc herniations. He referred to the initial disability certificate where Dr. Swarbreck diagnosed a whiplash injury, contusion to the chest wall, and right groin pain with no mention of any symptoms regarding her back or lower extremities. Despite this, the applicant informed Dr. Kaminker that she initially did have low back pain that was radiating down the back of her leg towards her toes. Dr. Kaminker noted that Dr. Swarbreck’s clinical notes did not document this lower back pain initially or on any follow-up visit in September, October, November and December 2005. He did note the treatment plan dated November 10, 2005 that documented complaints of lumbar pain.

Dr. Kaminker noted that the applicant denied pre-existing complaints with respect to her back and lower extremities which was confirmed in a review of the family doctor’s notes. Dr. Kaminker concluded that it was:

impossible to know for sure whether the initial motor vehicle accident was directly attributable to the development of her subsequent disc herniations and leg symptoms, but it is theoretically possible. In particular, she may have suffered initial annular tears as a result of the motor vehicle accident, which may have explained her initial complaints of back pain. This may have predisposed her to the development of disc herniations, which subsequently caused worsening of her back pain and leg symptoms.

When answering the specific questions at the end of his report Dr. Kaminker stated that based on the applicant’s history:

it appears that as a direct result of the motor vehicle accident, she likely sustained soft tissue contusions to the cervical spine and lumbar spine. It is possible that in the lumbar spine she sustained annular tears involving the L4-L5 disc and the L5-S1 disc. Given the progression of her symptoms, it appears she may have also sustained disc herniations several months after the initial trauma.

Dr. Bruce Stewart, neurologist who saw the applicant in relation to her disc herniations, in his report of July 21, 2006, stated that he believed there was a reasonable probability that the applicant sustained a lumbar injury in the motor vehicle accident which either caused some disc herniation which increased on May 7, 2006 adding neurological deficits, or produced intervertebral ligamentous injury which allowed disc herniation to occur with a minor non-straining incident on May 7, 2006.

Dr. McBroom noted in his report of October 31, 2006 that:

If progression of symptoms is as described above, then I believe that there is a [causal] connection between the injury and the motor vehicle accident. It would be probable that [Mrs. B.] suffered an injury to the annulus of the disc that eventually led to disc herniation in May 2006.

Many other insurer assessors concluded that the accident could not be responsible for the subsequent disc herniations 9 months later. In the second insurer’s catastrophic impairment assessment, Dr. Meikle indicated that the assessment team had determined that there was a significant lumbosacral spine impairment, however same was not causally related to the motor vehicle accident. The applicant’s WPI was rated at 0%.

Dr. Clark, in his executive summary from the insurer’s first catastrophic impairment assessment, concluded that the lumbar spine mechanical pain which the applicant experienced in May 2006 was unrelated to the motor vehicle accident despite Dr. Kaminker’s report which did not support this conclusion. In a subsequent report, to review the applicant’s first catastrophic assessment, Dr. Clark reiterated his position on causation:

The causation is paramount in this case analysis. My rationale behind my decision not to attribute the disc herniations to the motor vehicle accident … is based largely on the assessment of Dr. Fielden, February 24, 2006, at which time [Mrs. B.] had returned to work in a factory, she was not reporting low back pain, and it was never a primary complaint after the accident. Her low back pain began suddenly May 7, 2006 while she was leaning forward folding laundry, and therefore does not appear related to the motor vehicle accident.

I note that Dr. Clark set out a history of the applicant’s file noting the visits to the family doctor post-accident. He referred to the note prior to the disc herniation of “chronic back pain” and referred to the disability certificates that pre-dated the disc herniations. He did not point out that the applicant was self-reporting back pain throughout the period up to the disc herniation in the disability certificates. He also did not explain Dr. Swarbreck’s notation of “chronic lower back pain” which, again, predated the disc herniations.

Dr. Dost only wrote that the temporal lag between the accident and the disc herniations was incompatible with causation without further explanation. Despite his opinion on causation, in the “specific questions” portion of his report, Dr. Dost states the following to the question,

Q: What is the etiology of the diagnosed injury or condition?

A: Dr. Stewart concluded that there was a reasonable probability that she had a lumbar spine injury in the accident that caused some disc herniation.

Given his reference to and reliance on Dr. Stewart’s opinion, Dr. Dost confuses his conclusion on causation and did not testify to explain.

While it is apparent that a number of assessors including some of the applicant’s own, conclude that the disc herniations were not related to the accident, there are also a number of persuasive opinions that conclude that the accident is responsible. From an adjudicative perspective, I am left with medical opinions that support both interpretations. The reality is, however, that the applicant had no documented pre-accident lower back issues, she was in a serious car accident and complained of lower back issues throughout.

While many assessors conclude that the applicant was not experiencing lower back pain after the accident, I find this was not the case. There is evidence that lower back pain was an issue for the applicant after the accident and up to the disc herniations, including:

• the air ambulance call notes generalized back pain

• the applicant referred to back pain in two disability certificates that pre-date the disc herniations

• two treatment plans specifically note lumbar strain

• Dr. Swarbreck noted “chronic back pain” in his notes prior to the disc herniations

Dr. Swarbreck also testified that despite his notes not referring to lower back pain until April 18, 2006, it was likely that they reflected the applicant’s main complaints being the neck and shoulder. He agreed that it was likely that his use of the word “chronic” when describing the lower back pain in a clinical note from April 2006 indicated to him that this was not the first time the applicant had mentioned lower back pain since the accident.

There were no discernible intervening events between the motor vehicle accident and the herniated discs to suggest something other than the accident is the cause. It seems logical therefore to conclude that but for the motor vehicle accident the applicant’s injuries would not have occurred. There is also convincing medical evidence to suggest this is the case. I therefore find that a chain of causation exists between the originating event, the motor vehicle accident and the incident of May 7, 2006 when the applicant was ultimately diagnosed with disc herniations. This therefore meets the test of causation.

Does Mrs. B. have a conversion disorder?

Conversion Disorder is a psychiatric disorder that appears to be a neurological problem but does not have adequate neurological explanation for the symptoms involved.

The DSM IV, 300.11, filed, sets out the diagnostic features of Conversion Disorder as follows:

The essential feature of Conversion Disorder is the presence of symptoms or deficits affecting voluntary motor or sensory function that suggest a neurological or other general medical condition (Criterion A). Psychological factors are judged to be associated with the symptom or deficit, a judgment based on the observation that the initiation or exacerbation of the symptom or deficit is preceded by conflicts or other stressors (Criterion B). The symptoms are not intentionally produced or feigned, as in Factitious Disorder or Malingering (Criterion C). Conversion Disorder is not diagnosed if the symptoms or deficits are fully explained by a neurological or other general medical condition, by the direct effects of a substance, or as a culturally sanctioned behavior or experience (Criterion D). The problem must be clinically significant as evidenced by marked distress; impairment in social, occupational, or other important areas of functioning; or the fact that it warrants medical evaluation (Criterion E). Conversion Disorder is not diagnosed if symptoms are limited to pain or sexual dysfunction, occur exclusively during the course of Somatization Disorder, or are better accounted for by another mental disorder (Criterion F).

Conversion symptoms are related to voluntary motor or sensory functioning and are thus referred to as “pseudoneurological.” Motor symptoms or deficits include impaired coordination or balance, paralysis or localized weakness, aphonia, difficulty swallowing or a sensation of a lump in the throat, and urinary retention. Sensory symptoms or deficits include loss of touch or pain sensation, double vision, blindness, deafness, and hallucinations. Symptoms may also include seizures or convulsions. The more medically naive the person, the more implausible are the presenting symptoms. More sophisticated persons tend to have more subtle symptoms and deficits that may closely simulate neurological or other general medical conditions.

In his report of April 30, 2008, Dr. Henry Rosenblatt, psychiatrist, using the DSM IV-TR Axial System, diagnosed the applicant with a conversion disorder in Axis I, “if the low back and lower extremity sensory and motor symptoms are not otherwise accounted for by organic pathology.” He referred to the applicant suffering sexual abuse at the hands of her father’s best friend when she was a child noting that this information had not been previously documented. Dr. Rosenblatt testified that during the repeated horrendous sexual abuse the applicant utilized disassociation as a defence mechanism, highly predisposing her to a conversion disorder.

In his testimony, Dr. Rosenblatt explained that when he reviewed the applicant’s case he saw repeated notations that her symptoms of paralysis in her right leg, lack of sensation, and bladder incontinence did not have an adequate explanation neurologically. He also stated that people with such a horrendous history of sexual abuse were highly predisposed to suffer from a conversion disorder. In cross-examination, Dr. Rosenblatt clarified that a number of the applicant’s symptoms were pain-related however a number were not, including: incontinence, loss of sensation and loss of strength. Such symptoms are a necessary component of a conversion disorder diagnosis.

In his report dated July 5, 2010, Dr. Cancelliere confirmed the existence of a conversion disorder. Dr. Cancelliere noted that the applicant listed only physical symptoms when spontaneously describing her current motor vehicle accident symptomology and difficulties. He stated that consistent with a conversion disorder or somatoform disorder, the applicant reported that her predominant emotional state was one of happiness, despite “the marked disability/limitations caused by her injures and her report of low energy, self-esteem and emotional control (e.g., uncontrolled tearfulness at times).”

After a review of the file, Dr. Cancelliere concluded that Conversion Disorder was most likely. He noted as follows:

Conversion disorder is most likely, based in the review of file although her physicians will have to judge whether symptoms can be fully explained by her objective medical condition. Opinion suggests this is not the case. While she reported PTSD symptoms, she did not fulfill all of the criteria of this disorder. Dr. McBroom opined that Mrs. B. had neurological deficit that was greater than should occur with pathology at this level and he was not sure how much of her neurological deficit would be aided by decompression. That is, there was a disparity between the severity of her neurological signs and decompression demonstrated on MRI. Furthermore, following the operation MRI revealed no disc herniation yet back pain was still severe and she was taking large doses of OxyContin. After the surgery she began regressing in her strength, mobility and pain management. Thus, with an improvement in the appearance on MRI came worsening of her pain, weakness in the right leg, foot drop, difficulty climbing stairs and sensation issues in her right leg (see occupation therapy report).

Furthermore, neurological assessment in October, 2007 found excellent muscle bulk throughout with a marked degree of pseudo—weakness. Even extending the supported right knee was almost impossible because of pain but the reason for this could not be discerned. There was no muscle wasting. The surgical procedure failed from her perspective but objectively had been successful. Dr. Stewart felt that her difficulties were not completely explained by the MRI and this was borne out by the deterioration since the operation (subsequently being in twice as much pain). Chronic pain syndrome was diagnosed and this was felt to be functionally disabling. Dr. Zeldin felt there was some exaggeration in that there appeared to be a combination of inorganic and organic factors in her ability to stand and walk. Dr. Dost indicated that the neck and back pain had no neurological component. Functional abilities evaluation on November 14, 2007 documented severe palpation sensitivity, severe weakness in both legs, significant give way weakness in the lower extremities, a degree of self limitation and non-dermatomal loss of sensation in the legs. Measures such as grip strength indicated maximal efforts but there was self limitation and guarding.

Dr. Cancelliere referred to Drs. Clark, Zabieliauskas⁸ and Kaminker reporting of the applicant’s severe pain-focused behaviour and exaggerated pain behaviour, suggesting that it supports the diagnosis of conversion disorder. Dr. Kaminker supported that the neurological findings did not correspond to a particular nerve root or dermatomal distribution. For example, the applicant demonstrated almost complete global weakness and paralysis of the right leg but had normal symmetrical reflexes on both sides which could not be explained. Dr. Clark found no objective signs of neurological impairment and non-organic weakness in both legs. Dr. Dost was of the view that there were no neurological components despite the applicant’s subjective complaints. There was no objective evidence for radiculopathy, cauda equina syndrome, or spinal cord injury.

Dr. Cancelliere referred to the objective psychometric assessment which indicated a “limited insight and likely minimization of difficulties in the socioemotional and personality spheres.” He thought the applicant may have been underestimating her difficulties and found there was likely a valid profile that featured a prominent conversion or somatoform disorder profile.

Dr. Sangha noted that the applicant was using a 4-wheeled walker with complaints of persistent, disabling symptoms of a neurological or quasi-neurological nature. He stated that the possible explanations for this would be a true neurological condition, a functional or conversion disorder, or malingering. He noted that nothing in any of her previous assessments or in his interaction with the applicant suggested a malicious attempt to mislead the examiner and excluded the possibility of malingering.

The applicant points to Dr. Scapinello’s report of March 24, 2011 where he did not comment on the conversion disorder despite being in possession of the report of Dr. Rosenblatt of April 30, 2008. The insurer’s catastrophic assessment failed to address the conversion disorder diagnosis or provide any explanation for the applicant’s complaints and/or symptomology. Of note, the AssessMed teams did not consist of a psychiatrist in order to assess the applicant from a psychiatric perspective.

I find that there is sufficient evidence to support a finding that the applicant has a conversion disorder. The reports and opinion of Drs. Rosenblatt and Cancelliere provide ample evidence that proves on a balance of probabilities the applicant has a conversion disorder. The insurer has failed to show why this diagnosis is incorrect and none of its doctors testified at the hearing. The only information I can glean from the AssessMed reports with regard to conversion disorder is an overwhelming view that the applicant was pain-focused with no neurological findings to support her complaints, suggesting that she was feigning her symptoms. As discussed, Dr. Cancelliere’s view is that this is only further evidence of the existence of a conversion disorder.

Did Mrs. B. sustain a catastrophic impairment as a result of the motor vehicle accident?

The applicant claims that she has sustained a catastrophic impairment as defined by the Schedule. The parties agree that she did not sustain a catastrophic impairment based solely on a mental and behavioural impairment under s. 2(1.2)(g) as she was not found to have a marked impairment in any one or more of the four domains. The applicant is seeking to prove that she sustained a whole person impairment rating of 55% or more when combining both her physical and mental and behavioural impairment ratings. The applicable section of the Schedule is s. 2(1.2)(f), which reads as follows:

(f) subject to subsections (1.4), (2.1) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

Kusnierz⁹ is a leading decision with respect to the permissibility of combining physical and psychological impairments. The case stands for the proposition that from the language of the Schedule, the purpose of the Guides and the goals of the Schedule allow for a combination of the physical and psychological impairments. Kusnierz followed Desbiens¹⁰ and Arts¹¹ and Mrs. G.¹² all of which allow for the combination of physical and psychological impairments in the quantification of the whole person impairment rating under s. 2(1.2)(f). This aspect of the law is now settled.

I will therefore determine the applicant’s whole person impairment rating by combining the scores for her physical impairment with her mental and behavioural impairment in order to determine if she meets the 55% whole person impairment threshold set out in the Schedule.

Mrs. B.’s Physical Impairment Rating

Dr. Mathoo’s Ratings

Dr. Mathoo completed the physical medicine assessment on behalf of the applicant on April 9, 2008. His rating of the applicant’s accident-related physical impairments was 13% WPI if the motor vehicle accident was not considered to be a contributing factor to the disc herniations and the resulting sequelae. His rating was 31% WPI if it was found that the accident was a contributing factor to the disc herniations.

Dr. Mathoo found that as a result of the accident the applicant exacerbated her pre-existing neck pain. He noted that numerous assessors had diagnosed minor musculoskeletal impairment associated with WAD II injury after her accident and therefore rated her cervicothoracic impairment to a category II DRE impairment of the cervical thoracic spine, or 5% impairment of the whole person (Table 73, Chapter 3). No rating was given for upper extremity impairments.

Dr. Mathoo was of the view that the lumbosacral spine impairment was not causally related to the motor vehicle accident, given the time between the accident and the onset of the neurological symptoms. Therefore, the maximum lumbosacral rating attributed to the accident was a DRE-II lumbosacral impairment, or 5% impairment of the whole person (Table 72, Chapter 3).

Dr. Mathoo noted that if it was later determined that the lumbosacral disc injury at the time of the accident was causally linked to the applicant’s subsequent disc herniation than the appropriate lumbosacral impairment category would be DRE-V which has a corresponding whole person impairment rating of 25%. Dr. Mathoo stated that there would not be adequate justification to involve DRE-VI or VII for cauda equina-like syndrome with or without bowel bladder impairment since there was no “objectively demonstrated, permanent, partial loss of lower extremity function bilaterally.” He noted that if it was later determined that the neurological sequelae related to the subsequent lumbosacral disc herniations was causally related to the accident then the neurological sequelae would be incorporated into the already described DRE- V. Dr. Mathoo gave a rating for chronic opiate use noting the side effects related to same, and concluded that 3% WPI was reasonable.

Dr. Sangha’s Ratings

Dr. Sangha who completed the second catastrophic physical assessment on behalf of the applicant, concluded that the applicant’s accident-related physical impairments was 13% whole person impairment if the motor vehicle accident was not considered to be a contributing factor to the disc herniations and 21% WPI if the accident was a contributing factor to same.

Dr. Sangha noted that the applicant sustained a cervical strain injury to the neck in the accident. He noted that this was a non-uniform loss of range of motion and that it was best categorized as a DRE-II class impairment with 5% WPI. In assessing the lumbosacral spine, Dr. Sangha noted a lumbosacral strain type injury in the accident but as a less salient issue compared to soft tissue injuries in the left shoulder, left ribs and right hip. Nonetheless, he noted that she was complaining of tenderness over L3 and that upon presentation to the Royal Victoria Hospital on May 7, 2006, she complained of pain that existed since the motor vehicle accident. Dr. Sangha concluded that if no causal link was found between the accident and the disc herniations, her impairment rating would be characterized best as a lumbosacral spine DRE-II with a 5% WPI rating for non-uniform motion loss. If it was determined that there was a causal link between the accident and the disc herniations, Dr. Sangha stated that the WPI would be best rated by an alternative method, using Table 75 (Whole Person Impairment Present due to Specific Spine Disorders). He referred to Dr. Clark’s report of March 10, 2011 where it was stated:

Her condition was described by intervertebral disc or other soft tissue lesion. (E) - surgically treated disc lesion with residual medically documented pain and rigidity. In the Lumbar Spine, it is a 10% WPI. There is adding of 1% per level; therefore, she has 11% WPI. This specific spine disorder is combined with the range of motion and the neurological findings. There are no neurological findings and her range of motion is self-limited and not accurate, yet I believe there is a legitimate ROM reduction. Therefore 15% WPI is estimated using this methodology.

Dr. Sangha agreed that there was range of motion loss but no objective neurological findings and agreed with Dr. Clark’s use of Table 75 and that 15% WPI accurately depicted the impairment rating. Dr. Sangha opined that there existed “a reasonable scenario in which the subject motor vehicle collision resulted in some degree of disc herniation which did not immediately cause any neurological sequelae, or caused surrounding ligamentous disruption that left Mrs. B. susceptible to eventually developing disc herniations in the future.” (p. 24 of 43) Dr. Sangha also assigned a WPI for medications noting that the Guides allow for a 3% WPI rating for the need to use medications in order to treat a chronic medical condition.

When asked about the difference in the rating for lumbosacral impairment by Dr. Mathoo and Dr. Sangha, Dr. Harold Becker, who completed both executive summaries for the applicant’s catastrophic impairment assessments, testified that he did not try to reconcile Dr. Mathoo’s DRE-V rating of 25% with Dr. Sangha’s 15% WPI. He stated that both were valid but he agreed with Dr. Mathoo’s use of the DRE method noting that the Guides say it is best to use the DRE method.

Analysis

The fourth edition of the Guides indicates that one of its purposes is to lead to similar results when different clinicians evaluate illnesses and impairments. The fourth edition refers to impairment percentages related to the range of motion which assessed to the degree of spine of motion and assigned impairment percentages according to limitations of motion (Drs. Sangha and Clarke’s approach). The fourth edition indicates that one of the concerns with the range of motion approach has been that other clinical data and diagnostic information tended to be ignored. Also, some clinicians were concerned about the accuracy and reproducibility of mobility measurements. In the fourth edition, the contributors had elected to use two approaches in assessing spinal impairments. One approach which applies especially to patients with traumatic injuries is called the “Injury Model.” The injury model is also referred to as the “diagnosis-related estimates (DRE) Model”. The injury model involves assessing a patient to one of eight categories on the basis of objective clinical findings (Dr. Mathoo’s approach). The other component is the range of motion model which was recommended in previous editions of the Guides. The fourth edition acknowledges that the approach recommended is different from that of previous Guides editions.

The fourth edition of the Guides indicates that the evaluator assessing the spine should use the injury model, “if the patient’s condition is one of those listed in table 70.” The fourth edition states that if none of the eight categories of the injury model is applicable, then the evaluator should use the range of motion model. The Guides clearly states that all persons evaluating impairments are cautioned that either one or the other approach should be used in making the final impairment estimate. However if disagreement exists about the category of the injury model, the Guides state that a range of motion model may be applied “to provide evidence on the question.”

I therefore prefer the assessments of Drs. Sangha and Clark in assigning a WPI rating to the lumbar spine. Dr. Clark noted that if using Table 70 to assess the applicant’s lower back condition, DRE-IV would not be appropriate as it requires “loss of motion segment or structural integrity, or greater than 50% compression of the vertebral body without residual neurological compromise, or multilevel spine segment structural compromise with fractures or dislocations without residual neurological motor compromise.” He concluded that using the DRE model, the applicant would fall under DRE-III “due to the presence of a two-level laminectomy without evidence of radiculopathy.” Dr. Clark noted that DRE-III radiculopathy may or may not be present and he confirmed that there was “no evidence of loss of motion segment integrity.” He therefore found that using the DRE, the applicant’s impairment was a 10% WPI and not the DRE-V with a WPI of 31% that Dr. Mathoo found.

Dr. Sangha’s analysis accounts for neck (5% WPI), lumbosacral strain injury (5% WPI) and medication (3% WPI) leads to a total of 13% WPI or (5+15+3) 21% WPI if the accident was a material contributor to the disc herniations. I therefore find that with regard to physical impairments, the applicant has sustained a 21% WPI given my earlier findings on causation.

Mrs. B.’s Mental and Behavioural Impairments and Ratings

There is general agreement among the assessors that with regard to the applicant’s mental and behavioural impairments, she is moderately impaired.

Dr. Rosenblatt completed the psychiatric assessment for the two catastrophic impairment assessments completed on behalf of the applicant. He confirmed that the applicant suffered from Class II-mild impairment in the domains of social function, concentration persistence and pace and Class III-moderate impairment in the domains of social functioning and adaptation. Overall, the applicant’s impairment was rated at Class III-moderate impairment (impairment levels compatible with some but not all useful functioning) from a psychiatric perspective.

In Dr. Rosenblatt’s first assessment, he estimated the applicant’s WPI for mental impairments at 30% based on page 301 of chapter 14 of the Guides. This rating was on the assumption that conversion disorder did not contribute to the overall mental and behavioral ratings. Dr. Rosenblatt gave another rating if the diagnosis of conversion disorder was applicable and did contribute to the overall mental and behavioral rating. He indicated that he would increase the rating under the work adaptation to Class III-IV (moderate-to-marked) which, according to him, would result in an overall mental and behavioral rating of 40% WPI.

In the subsequent psychiatric assessment as part of a catastrophic assessment of May 2012, Dr. Rosenblatt provided a report dated May 8, 2012. Dr. Rosenblatt rated the applicants GAF (Global Assessment of Functioning) score at 50-53 if cauda equina-like symptoms were related to organic pathology and 45-48 if cauda equine-like symptoms were not related to organic pathology and therefore related to a conversion disorder. In Dr. Rosenblatt's review of documentation he noted Dr. Malik’s psychiatrist, GAF score of 40 from a report dated April 17, 2007. As well, he noted the GAF score of 55 in Dr. Scapinello’s report of March 24, 2011.

Dr. Rosenblatt noted that the applicant was highly predisposed to a conversion disorder primarily because of the childhood sexual abuse and her utilization of disassociation as a defense mechanism. Furthermore, he noted that with regards to the applicants pain disorder, the presence of sexual abuse, coping with an alcoholic father as well as her depression after the accident indicated that psychological factors played an important role in her pain disorder. Therefore, a diagnosis of pain disorder associated with both psychological factors and a general medical condition was made. As a result of the presence of this pain disorder, pain-related impairments were rated as mental and behavioral impairments.

Dr. Rosenblatt testified that in terms of assigning impairments from a mental and behavioural perspective, he reviewed each of the four domains prescribed by the Guides, fourth edition, assigning degrees of impairment for each:

Activities of Daily Living

Dr. Rosenblatt testified that he took into consideration the applicant’s ability for things such as self care, personal hygiene, communication problems, ambulation, travel, sexual functioning, sleep issues, social and recreational activities. In this regard, he rated her as Class III-moderate impairment, with impairment levels compatible with some, but not all useful functioning.

Social Functioning

Dr. Rosenblatt testified that there was some decrease in her number of friends since the accident and some irritability and felt that the applicant met Class II-mild impairment in this domain.

Concentration, Persistence and Pace

Dr. Rosenblatt testified that the applicant’s ability to focus on scraper foil for hours at a time and reading for a couple of hours a day was most consistent with Class II-mild impairment.

Work Adaptation

Dr. Rosenblatt testified that a lot of the features to be reviewed have to be extrapolated in people who are not going to work at all. He noted that the applicant had been able to work for a period of time after the accident but was prevented from continuing because of pain, he noted that she was still able to do scraper foil for a few hours per day which he considered to be a work-like activity. He concluded that it was difficult to classify the applicant as anything more than Class III-moderate impairment.

In his second report, Dr. Rosenblatt confirmed that the applicant’s impairment ratings were identical to those found in his earlier report.

Dr. Rosenblatt commented on the difficulties in establishing a WPI rating for psychological impairments utilizing the Guides, fourth edition. He stated that there was no well-accepted or valid means of determining this type of whole person impairment rating and testified to the various means to do so. He stated that he had been primarily using the text on page 301 of the Guides, fourth edition as a means of determining mental and behavioral WPI (this is how he reached his conclusions on WPI in his earlier report). He referred to Pastore and Aviva ¹³ which suggest utilizing ratings from categorical representations in Table 3 of Chapter 4 of the Guides. His view was that this approach was problematic as Table 3 of Chapter 4 was intended for use with neurological disorders. Dr. Rosenblatt also referred to the sixth edition of the Guides which provides a detailed protocol to determine mental and behavioral WPI. However, he stated that the Financial Services Commission of Ontario report on the five-year review of automobile insurance, March 31, 2009, indicated that moving to the sixth edition was problematic and he did not employ this method.

Dr. Rosenblatt therefore proposed the use of the GAF-to-WPI conversion table as described in the Schedule for Rating Permanent Disabilities, January 2005, State of California. Dr. Rosenblatt is of the view that the conversion table is the most reasonable means of determining a mental and behavioural WPI rating. He noted that it is extensively used in California. He noted that the GAF is rated based on the description of the impairment or symptomology, whichever provides the lowest rating and since the primary concern in his assessment was impairment, only the impairment description was used in determining the GAF in relation to the WPI. He stated that the use of symptomology in determining GAF may result in excessive levels of impairment ratings. He concluded, by using the conversion table, that the applicant’s GAF of 53-50 corresponded to a WPI of 26 to 30%. The applicant’s GAF of 45-48 corresponded to a WPI of 34 to 40%.

Analysis

The Guides, fourth edition, give no instruction on how to quantify WPI for mental or behavioural impairments, other than referencing the second edition of the Guides and providing a chart to assess neurological-based psychiatric disorders (Table 3 of Chapter 4). In his two assessments, Dr. Rosenblatt provided two ways of assessing the applicant’s WPI. In his assessment of 2008, it appears that Dr. Rosenblatt followed what was at the time his usual protocol in assessing the applicant pursuant to the second edition of the Guides as referenced to at p. 301 of the Guides, fourth edition. This resulted in a rating of 40% WPI. In his assessment of 2012, Dr. Rosenblatt indicated that he had moved on from his regular practice of assessing the applicant according to page 301 of the Guides. He noted several other ways to assess the WPI including reference to Table 3 of chapter 4 of the Guides, fourth edition, which appears as follows:

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

By using this table a range for moderate psychological impairment would result in a range for a WPI rating from 15 to 29%.

Setting a WPI for Mental and Behavioural Impairment

The applicant relies on Jaggernauth and Economical¹⁴ to support the idea that GAF scores can be used to determine a WPI rating for mental and behavioural impairments. In Jaggernauth, Arbitrator Feldman found that the applicant’s mental and behavioural impairments were moderate in all four spheres of function. He examined the options available to determine how this ought to be converted into a WPI rating. He acknowledged that page 301 of the Guides, fourth edition references the methodology from the 2nd edition of the Guides which gives an impairment rating for each of the five levels of impairment. For example, the moderate impairment rating from the 2nd edition gives a range of 25-50% impairment rating. The Arbitrator pointed out, this rating system is expressly disapproved of in the 4th edition as being highly subjective and unreliable.

The Arbitrator also examined Table 3 from Chapter 4 of the Guides, fourth edition, (set out above) which provides a method for rating WPI that results from emotional or behavioural impairments that are neurologically based.

Arbitrator Feldman noted some difficulties with using this table. It provides only four classes not five, which is different from the terminology used in Chapter 14. Also, Chapter 14 looks at all aspects of the person’s life whereas Table 3 from chapter 4 seems to only focus on social and interpersonal functions. This was an issue pointed out by Dr. Rosenblatt in his 2012 report and the reason he preferred not to utilize this table. However, the Arbitrator stated that “[d]espite 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.”

In fact, he noted from the case law that the most common approach taken by judges and arbitrators seems to be a hybrid approach of both the methodology from the 2nd edition, referenced at page 301, and Table 3 from Chapter 4. The range for moderate impairment based on the methodology from the 2nd edition is 25-50% WPI and the range for moderate impairment from Table 3 of Chapter 4 is 15-29%. The overlap from these two approaches leaves a range between 25 to 29% WPI for a moderate impairment. In my view, Jaggernauth supports that a WPI range for a class III moderate impairment is 25 to 29%.

Arbitrator Feldman also commented on the “California method” which was advocated by Dr. Rosenblatt. He found several problems with employing this method. Firstly, it is not recommended by the Guides, fourth edition and appears to be employed only in the state of California. Also, the GAF score presents a “snapshot” of how the person is doing at that moment and “may be a poor measure of permanent or long-term mental or behavioural impairment.” Despite its shortcomings, Arbitrator Feldman found that if there were numerous GAF scores “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.”

However the “California method” was not utilized in Jaggernauth in coming to a WPI calculation for mental and behavioral impairment. Instead, the arbitrator determined a range that he found was supported by the Guides, Fourth Edition (25-29%). The GAF scores for Mr. Jaggernauth were merely one of the various factors the arbitrator considered when determining where the applicant fell on this scale.

I agree with the approach taken in Jaggernauth and find the hybrid approach taken from the overlap of the 2nd Edition and Table 3 of Chapter 4 of the Guides, Fourth Edition, to be a reliable source to determine the applicant’s WPI rating in accordance with the fourth edition. The applicant’s rating can therefore be no lower than 25% and no higher than 29% whole person impairment for mental and behavioural impairments.

The applicant was assessed by Dr. Rosenblatt and found that she had a moderate impairment in two of the four spheres set out in chapter 14 of the Guides. In the other two spheres she was class II-mild impairment. In his 2008 report, Dr. Rosenblatt commented that if conversion disorder were accepted she would be moderate-to-marked in one sphere (in the area of work adaptation). I find that the applicant should be rated on the higher end of this moderate impairment scale, given the applicant’s low GAF score which appears to be consistent over a period of time by different assessors, and my findings regarding conversion disorder. I therefore assign a WPI rating of 28%. Despite her being found mildly impaired in only two of the four spheres, I find the higher rating justifiable given her low GAF scores and the fact that Dr. Rosenblatt rated her as moderate-to-marked in one sphere if conversion disorder is found. While the Guides do not have a “moderate-to-marked” category, this rating is sufficient to assess the client at the higher end of the moderate scale.

I do not find that the applicant should be rated higher than 28% despite the opinion of Dr. Rosenblatt and the various GAF scores that would be converted to a significantly higher WPI rating when utilizing the Schedule for Rating Permanent Disabilities. The applicant refers me to Jaggernauth and in many respects relies upon this case in her submissions as support for how I should calculate the WPI. An important factor coming out of that decision is an attempt to lend certainty to the system. I find that accepting a WPI higher than 29% would not be in keeping with the 4th edition of the Guides and would result in uncertainty and a piecemeal approach to calculating an applicant’s whole person impairment at arbitration.

The Combined Score

The rating for the applicant’s physical impairments has been determined to be 21% WPI. The applicant’s rating for mental and behavioural impairments has been determined to be 28% WPI. The combined value according to the chart starting at page 322 of the Guides is 43%. This is short of the 55% WPI required to be entitled to a catastrophic impairment designation from the motor vehicle accident of August 18, 2005. The applicant therefore is not catastrophically impaired from this accident.

Is Mrs. B. entitled to an income replacement benefit from August 15, 2008 to date and ongoing?

Section 5 of the applicable Schedule provides that the test to establish entitlement to an income replacement benefit after more than two years have elapsed is that the insured person must demonstrate that they are suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

Prior to the accident, the applicant was working at AGC in Bradford on a temporary, full-time basis. Her job entailed making rear windows for a Honda trucks and was not a light-duty job. She had been working there for only 4 days prior to the accident. This job included lifting moulds that weighed 25 pounds, applying primer to glass, and putting the glass into the moulds. Prior to this factory job, the applicant worked as a supervisor and oil technician at Mr. Lube.

The applicant started a new job after the accident on or about January 2006 at Glueckler Metal. This job involved putting a small shaft into a machine and measuring it to ensure it was of the correct specification. The applicant described this job as very light. The applicant testified and told several assessors that her return to different employment involved modified work duties. This was not something mentioned to Dr. Fielden in 2006 when the return to work was in play. However, from the description of what she was doing post-accident, the employment appears to be lighter duties than her pre-accident employment and I accept her testimony that this is one of the reasons she could continue to work until the disc herniations in May 2006.

The applicant has not worked since May 6, 2006 and has not been cleared by any of her treating doctors to return to work. She was paid an income replacement benefit for nearly three years following the accident. She is currently receiving a CPP disability benefit and has been specifically found by the CPP disability review board to have suffered a severe and prolonged disability that is unlikely to cease.

The insurer conducted a post-104 week insurer examination, however, that report was not filed as an exhibit. The applicant gave evidence that following the news that her income replacement benefit was being cut off, her mother got her telemarketing job. According to the applicant, this job lasted for 3 hours because she was unable to complete the required tasks. The applicant gave further evidence that when she attempted to apply for employment and/or drop off her resume, perspective employers would laugh at her.

The applicant gave evidence at the hearing regarding her ongoing impairment since the accident. She described ongoing neck pain that causes migraines, memory loss, shoulder pain, lower back and leg pain, and numbness. She described increased shoulder pain with the use of a walker, incontinence, driving phobia and severe back pain. She described falling numerous times due to numbness in her legs. She gave evidence that she is unable to stand and walk unassisted at all even around her house. Since the accident, the applicant has undergone two failed back surgeries and continues to take various prescription drugs, attend physiotherapy and various chronic pain therapies on a constant or consistent basis. The applicant describes a sitting tolerance of 30 to 45 minutes and a standing tolerance of 5 to 10 minutes. She gave evidence that she can walk for about 15 minutes with her canes and walker and that she can concentrate for at most 5 to 10 minutes.

Dr. Swarbreck gave evidence that he had never cleared the applicant to work. He opined that from a treatment perspective the applicant was incapable of doing any type of work and stated that she had great difficulty even getting into his office.

Dr. Ko gave evidence that it would be very difficult, if not impossible, for her to attend to a workplace setting even to find a job that has sedentary work requirements because she is so limited in her personal care function, her ability to be timely and to sit for reasonable length of time as required by any of the three occupations selected in the insurer’s examination. Dr. Ko stated that he was confident that the applicant’s condition was deemed permanent and that she suffered a complete inability to perform the job tasks for any employment for which she is reasonably suited by education, training or experience.

I find that the applicant is entitled to an ongoing income replacement benefit as claimed. Based on the evidence, the applicant is disabled and incapable of engaging successfully in the workplace, even in sedentary-type employment. The applicant attempted to mitigate by making an effort to return to the workplace and this was a failed attempt. I believe the applicant, that despite her disability she was motivated to work and would like nothing more than to return to some form of employment but that she is unable to do so as a result of the accident-related impairments.

Is Mrs. B. entitled to an attendant care benefit from May 7, 2006 to date and ongoing?

Section 16 of the applicable Schedule provides that in order to establish entitlement to attendant care benefits, the applicant must demonstrate that she sustained an accident-related impairment for which attendant care was required. She must also prove that the attendant care received was reasonable, necessary and incurred. Section 16 provides that the monthly amount payable for attendant care benefits shall be determined in accordance with a Form 1.

In the leading appeal case of Fernandes and Certas¹⁵, the Directors Delegate found that a Form 1 does not bind an arbitrator and that the onus is on the applicant to establish on a balance of probabilities that the attendant care sought was reasonable and necessary.

The applicant had two Form 1s prepared by Andy Beecroft, occupational therapist. A Form 1 dated November 12, 2006 assessed her monthly attendant care needs at $5,916.90. A second Form 1 dated May 1, 2008 assessed her monthly attendant care needs at $1,045.20. According to the applicant, the insurer never obtained a Form 1.

The applicant gave evidence at the hearing that following her acute episode in May 2006 before her first surgery in June 2006, she was essentially couch bound and people would come over and help. She stated that her mother and sister would help as much as they could when her husband was at work. This was supported by the testimony of both Trevor and Susane, the applicant’s mother.

The applicant was not paid any attendant care and is claiming same from the date of her disc herniations to date and ongoing on the basis that she is catastrophically impaired. Given my finding that she is not catastrophically impaired pursuant to the Schedule, s. 18(2) states that “No attendant care benefit is payable for expenses incurred more than 104 weeks after the accident.” Any amounts that are payable according to s. 16(5)2 “shall not exceed, i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident.”

In its closing submissions, the insurer points to the fact that no attendant care is available beyond the 104 weeks as the applicant is not catastrophically impaired. It also notes that attendant care was not required by the time the applicant returned to employment in February 2006. It does not opine on the quantum of this benefit prior to the 104 weeks.

Based on the evidence before me and my finding on causality, I find that the attendant care recommended by Ms. Bancroft in her Form 1 dated November 12, 2006 is reasonable and necessary. There was no argument made regarding the date of the form 1 and the retroactive claim for benefits and it seems clear to me that if $5,916.90 was reasonable in November 2006, it was also reasonable in the more acute periods. Since this benefit is limited to $3,000.00 per month, I find that the applicant is entitled to $3,000.00 per month from May 7, 2006 up to August 18, 2007, including applicable interest. There was evidence before me that the applicant was hospitalized for almost 4 weeks from May 7, 2006. No evidence was provided that she required any additional care beyond that supplied by the hospital. There is therefore no entitlement to an attendant care benefit for this period.

EXPENSES

If the parties are unable to reach an agreement on expenses, they may request an appointment before me in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 5, 2013

Alec Fadel Arbitrator

Date

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

Neutral Citation: 2013 ONFSCDRS 139

FSCO A09-003232

BETWEEN:

P.B.

Applicant

and

STATE FARM MUTUAL AUTOMOBILE 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:

1. Mrs. B. is not catastrophically impaired as a result of the motor vehicle accident of August 18, 2005 pursuant to the Schedule.

2. Mrs. B. is entitled to an income replacement benefit from August 18, 2008 and ongoing,

3. Mrs. B. is entitled to an attendant care benefit at the monthly rate of $3,000.00 from May 7, 2006 to August 15, 2007, plus applicable interest, less any time of hospitalization.

4. I remain seized on the issue of expenses should the parties be unable to resolve this issue on their own.

November 5, 2013

Alec Fadel Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Cauda equina syndrome is a serious neurologic condition in which damage to the cauda equina causes acute loss of function of the lumbar plexus, (nerve roots) of the spinal canal below the termination (conus medullaris) of the spinal cord.
3. 3Correia and TTC Insurance Co. Ltd. (FSCO A00-000045, October 27, 2000) at paragraphs 96-99
4. 4Onyszkiewicz and Economical Mutual Insurance Company (FSCO P06-00039, May 20, 2008) at paragraph 23
5. 5Correia at para 97
6. 6Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (Ont.C.A.) at para 30
7. 7Report dated November 22, 2007
8. 8Dr. R.J. Zabieliauskas, physiatrist, completed an insurer examination dated February 26, 2008
9. 9Kuznierz v. Economical Mutual Insurance Company 2011 ONCA 823 (C.A.)
10. 10Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 (S.C.J.)
11. 11Arts (Litigation guardian of) v. State Farm Insurance Co. 2008 CanLII 25055 (ON SC), [2008] O.J. No. 2096 (S.C.J.)
12. 12Pilot Insurance Company and Ms. G., (FSCO P06-00004, September 4, 2007), Appeal
13. 13Pastore and Aviva Canada Inc., (FSCO A04-002496, February 11, 2009), upheld on appeal (FSCO P09-00008, December 22, 2009), Appeal, judicial review by the Divisional Court allowed the appeal, appeal to the Court of Appeal allowed and arbitrator’s order is restored.
14. 14Jaggernauth and Economical Mutual Insurance Company (FSCO A08-0001413, December 20, 2010)
15. 15Fernandes and Certas Direct Insurance Company (FSCO P06-00030, Appeal, February 14, 2008)