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

Neutral Citation: 2013 ONFSCDRS 167 FSCO A10-001381

BETWEEN:

M.D. Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Maggy Murray Heard: February 14, 15, 16 and 17, 2011, in Kitchener, Ontario. Written submissions completed October 16, 2013

Appearances: Douglas O’Toole for the Applicant Robert H. Rogers and Cara Boddy for Aviva Canada Inc.

Issues:

The Applicant, M.D., was injured in a motor vehicle accident on June 4, 2004. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The Applicant applied to Aviva pursuant to section 40 of the Schedule for a determination that he sustained a catastrophic impairment (“CAT”). An assessment at an Insurer’s Examination determined that the Applicant did not sustain a catastrophic impairment. The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Did the Applicant sustain a catastrophic impairment within the meaning of clause 2(1.2)(f) of the Schedule?

2. Did the Applicant sustain a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule?

3. Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?

Result:

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

2. The Applicant sustained a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule.

3. The issue of expenses is deferred.

EVIDENCE AND ANALYSIS

Following this hearing, the parties agreed that they would wait until the court released its decision in Pastore v. Aviva Canada Inc.² and provide their written submissions on it. According to Pastore,³ one marked impairment is sufficient for a catastrophic impairment designation.

Witnesses

I heard testimony on behalf of the Applicant from himself, Mr. N.D. (the Applicant’s brother), Mr. A.H. (the Applicant’s step-father) and Dr. Levitt (psychologist). Dr. Salmon (psychologist/ neuropsychologist), Ms. Laura Youm (occupational therapist) and Calla Leitch (an analyst with Aviva) testified on behalf of Aviva.

Background

The Applicant claims that he sustained a catastrophic impairment within the meaning of clauses 2(1.2)(f) and/or (g) of the Schedule.

The accident occurred while the Applicant was a passenger in a car. His injuries included loss of vision in his left eye, a skull fracture, multiple facial fractures, headaches, a concussion and emotional difficulties.

Position of the Parties

The parties agree that the Applicant’s physical injuries result in a 34% Whole Person Impairment (WPI) within the meaning of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition (the “Guides”).

The issue in this case is whether mental and behavioural impairment ratings assigned by the Applicant’s catastrophic impairment assessors are overstated. According to the Applicant, his mental and behavioural impairment rating warrants a catastrophic impairment rating designation. According to Aviva, the Applicant’s mental and behavioural impairment rating does not warrant a catastrophic impairment rating designation.

Both the Applicant’s assessors and Aviva’s assessors agree that the Applicant has a panic disorder as a result of this accident but they disagree on the degree to which his panic disorder impairs him. According to the Applicant, he has difficulty leaving the house because of his panic disorder and has a limited ability to socialize with only close friends and family. His panic disorder is so severe that he cannot meaningfully engage with new people or strangers or cope in a stressful environment and cannot work. He vomits daily.

Aviva argued that the Applicant did not suffer a marked impairment in any of the four areas of functioning and does not meet the catastrophic designation. In addition, the Applicant’s life changes do not represent a marked departure from his pre-accident life. For example, he was living with his pregnant teenage girlfriend and was financially supported by her at the time of this accident. He dropped out of high school, didn’t complete grade 11, had poor grades, had a troubled past that included fights and assault convictions. In addition, he has a checkered work history. For example, his first job led to incarceration. He was then fired from another job when he did not return to work following his release from jail. Later when he worked at another company, he assaulted a co-worker. His next job came to an end as a result of an altercation with a co-worker.

Applicant’s Testimony:

Before the accident, the Applicant had many friends with whom he would participate in activities such as swimming, playing pool and hockey.

The Applicant did not complete grade 11 and went to work in general labour jobs which always involved working with other people. He was incarcerated twice before the accident. When he was released from jail, he took a few days off and was terminated from the position he had before he was incarcerated. Then he began working with his step-father but was laid off and got into a dispute about his pay. He quit his next job when he had an argument with a lead hand who was rude to him. He was in the car accident the following month.

His son was born two months after the accident. In 2006, he was charged with assaulting the mother of his son. Shortly thereafter, M.D. was living with his sister and the mother of his son came to his sister’s house and dropped off their son and never came back. In 2007, he moved in with his girlfriend who later gave birth to his daughter. That relationship ended.

M.D. currently lives with his young son and daughter in an apartment. He has never gone to any of his son’s parent-teacher interviews because he is concerned about his anxiety. He sees his brother N.D. up to two times a week. Sometimes on Saturdays he goes to his mother’s house and sees his sister.

In the month prior to the hearing, M.D. had 3-5 severe panic attacks and 8-10 milder panic attacks. When he has a panic attack his hands, chest and face go numb, his hands may seize, sometimes he has difficulty talking, he gets nervous, dizzy and disoriented.

M.D. has not made any attempts to find work since the accident because he is afraid he would have a panic attack and get disoriented. Also, he wouldn’t want to hurt himself if he falls when he has a panic attack. He has accidently banged his head on things because of his lack of vision and disorientation. He wouldn’t feel safe doing any job.

M.D. has remained independent in housekeeping and his personal hygiene. He took a Caring Dads course run by Family Services once a week for two hours for approximately 12 weeks. This was a mandatory course that he had to take after he lost his kids. There were approximately 10 people in the class. He missed some classes. After the accident, he also took a 25 hour in-class course to learn to drive with 15-29 other people. He then had to relearn how to drive with one eye, which involved instruction with a driver. His obtained his G2 licence in September 2008.

He goes to the grocery store two to three times per week and tries to get out of the house at least every other day. He takes his son to school. His panic attacks have improved over the years and are less severe and less frequent. However, even being at other people’s houses causes an anxiety attack.

Applicant’s Brother’s Testimony:

In the year before the accident, N.D. saw his brother almost every day. According to N.D., M.D. was outgoing, hyper, very energetic, and always willing to participate in whatever they were going to do. Now he sees M.D. less frequently. Sometimes he phones M.D. but M.D. does not answer the phone even when he is home. Sometimes when M.D. is driving, he has a panic attack, at which time M.D. will roll down the window and turn off the music. They went to the shopping mall in December 2010 on Boxing Day and he could tell M.D. felt very uncomfortable being there. N.D. testified that M.D. is most comfortable in his own apartment. Following this accident M.D. is more quiet, shy, does not express his feelings as much, and is more private.

M.D.’s Step-Father’s (A.H.) Testimony:

A.H. has known M.D. since M.D. was one year old. Before this accident, M.D. was the “life of the party.” He would see M.D. more than once a week and they would go to Kiwanis, bowling, hockey games, have family gatherings, and barbecues. M.D.’s spirits were good. M.D.’s friends would join them 70% of the time.

Following the accident, his relationship with M.D. is like “night and day.” Sometimes he phones M.D. but M.D. does not answer the phone. Sometimes he goes to M.D.’s house and M.D. does not answer the door even though he is home. He sees M.D. once or twice a month. It’s always someone other than M.D. that initiates the gathering. M.D. is no longer “the life of the party.” M.D. is anti-social and unreliable in that if he says he’s going to A.H.’s house, sometimes he doesn’t. A.H. hasn’t seen any of M.D.’s friends after the accident. Since September 2010, M.D. has had full custody of both his children.

THE LAW

a) The Schedule

Under the Schedule, a person is eligible for increased benefits if their impairment falls within the definition of “catastrophic impairment” which is defined in clause 2(1.2) of the Schedule as:

(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

(g) subject to subsections (1.4), (2.1) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a Class 4 impairment (marked impairment) or Class 5 impairment (extreme impairment) due to mental or behavioural disorder.

(2.1) Clauses (1.2) (f) and (g) do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs after September 30, 2003 unless,

(a) the insured person’s health practitioner states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment; or

(b) two years have elapsed since the accident.

b) Combining Physical Whole Person With Mental and Behavioural Impairment Ratings

In Desbiens v. Mordini⁴ and Arts (Litigation guardian of) v. State Farm Mutual Automobile Insurance Company,⁵ it was found that an assessor could assign a WPI to a mental impairment and combine it with a physical WPI.

In the decision of Pilot Insurance Company and Ms. G.,⁶ the Director’s Delegate agreed that it was appropriate to assign a percentage WPI to an impairment based on a mental or behavioral disorder and combine that with a percentage WPI due to a physical impairment.

Catastrophic Assessments

The burden of proof rests with the Applicant. He must prove on a balance of probabilities that, as a result of the accident, he is catastrophically impaired. I have considered the whole of the evidence and for the following reasons I find that the Applicant has discharged his burden. He provided reliable and credible evidence that he sustained a catastrophic impairment.

(a) Physical Whole Person Impairment

The parties agree that the Applicant’s physical injuries result in a 34% WPI within the meaning of the Guides.

(b) Impairment Due to Mental or Behavioural Disorder

The Guides deal with the assessment of mental and behavioral impairment in Chapter 14 and assign a Class of impairment to four areas of functioning, namely: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decompensation in work or work-like settings.

Under clause 2(1.2)(g) of the Schedule, a person satisfies the definition of “catastrophic impairment” if they suffer a Class 4 impairment (marked impairment) or a Class 5 impairment (extreme impairment) as defined in the Guides. Class 1 is defined as no impairment. Class 2, mild impairment, means the impairment levels are compatible with most useful functioning. Class 3, moderate impairment, means impairment levels are compatible with some, but not all, useful functioning. A Class 4 marked impairment is one in which “Impairment levels significantly impede useful functioning.” A Class 5 extreme impairment is one in which “Impairment levels preclude useful functioning.”⁷

(i) Activities of daily living

Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep and social and recreational activities. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. For example, a person who can cook and clean might be considered to have marked restriction of daily activities, if he or she were too fearful to leave the home to shop or go to the physician’s office.⁸

(ii) Social Functioning

Social functioning refers to an individual’s capacity to interact appropriately with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers. Social functioning in work situations may involve responding appropriately to persons in authority and cooperative behaviour towards coworkers.⁹

(iii) Concentration, persistence, and pace

Concentration, persistence, and pace refer to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. Deficiencies in concentration, persistence, and pace are best noted from previous work attempts or from observations in work-like settings.¹⁰

(iv) Deterioration or decompensation in work or work-like settings

Deterioration or decompensation in work or work-like settings refers to repeated failure to adapt to stressful circumstances … Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.¹¹

Dr. Levitt testified on behalf of M.D.. He is an expert in psychology qualified to offer opinion evidence in his field with respect to the Guides. Drs. Levitt and Kaplan conducted a catastrophic impairment assessment of M.D. in 2007. As part of that assessment, Dr. Levitt also interviewed the Applicant’s sister. Drs. Levitt and Kaplan concluded that M.D. has a Class 3, moderate impairment, with respect to: (i) activities of daily living, (ii) concentration and (iii) social functioning. They concluded that M.D. had a marked impairment with respect to (iv) adaptation to work environments. In 2007, they found that M.D. had a 29% mental and behavioural impairment, at the top of the moderate range,¹² based on Table 3 in Chapter 4 of the Guides. M.D.’s global assessment of function score (“GAF”) was 50 in 2007. He was diagnosed with agoraphobia (a fear of being in open or public places) with panic attacks and major depression.¹³

Drs. Levitt and Kaplan reassessed M.D. over two days in 2009 and concluded that he had a Class 3, moderate impairment with respect to: (i) activities of daily living, (ii) concentration, and (iii) social functioning and that M.D. had a marked impairment with respect to (iv) adaptation to work environments. They concluded in 2009 that M.D. had a 40%¹⁴ mental and behavioural impairment,¹⁵ based on Table 3 in Chapter 4 of the Guides. M.D.’s GAF was 35 in 2009.

He was diagnosed with a panic disorder with agoraphobia and a major depressive disorder.¹⁶

At the time of the 2009 assessment, M.D. was in the midst of a custody trial regarding his son.¹⁷ By the second day of the assessment, M.D.’s son was living with him again.¹⁸ Drs. Levitt and Kaplan determined that, based on their clinical interviews, psychometric testing, behavioural observations and file review, that their findings reflect the impact of the 2004 accident.¹⁹

Dr. Salmon testified on behalf of the Insurer. He is an expert in psychology and neuropsychology qualified to offer opinion evidence in his field with respect to the Guides. In his Insurer’s Examination conducted in 2008, he concluded that the Applicant has a Class 2-3, mild-moderate impairment with respect to: (i) activities of daily living, (ii) concentration and (iii) social functioning and (iv) adaptation to work environments.²⁰ Dr. Salmon assigned the Applicant a 15% WPI rating based on Table 3 in Chapter 14 of the Guides.²¹ M.D.’s GAF was 51-60.²² He was diagnosed with a panic disorder with agoraphobia.²³

Both Dr. Levitt and Dr. Salmon rate M.D. similarly with respect to: (i) activities of daily living, (ii) concentration, and (iii) social functioning. That is, Dr. Salmon assessed these three areas as mild-moderately impaired, and Dr. Levitt assessed them as moderately impaired. Their main area of disagreement is with respect to (iv) adaptation to work environments.

Analysis:

I found Dr. Levitt’s insight, both in his report and testimony, credible and useful. I find that Dr. Levitt’s scores and ratings of M.D.’s impairments are founded on reliable evidence. I prefer his assessment to that of Dr. Salmon’s assessment because Dr. Levitt recognized when rating someone, it is important that they not be rated within their simplified life,²⁴ but rather, to assess the impact of their mental state on functioning.²⁵ In addition, although M.D.’s depression is well documented,²⁶ Dr. Salmon felt that M.D.’s depression is less severe than Dr. Levitt although M.D. has nightly suicidal thoughts²⁷ and daily sadness.

Although the insurer, in its closing submissions, suggested that Drs. Levitt and Kaplan’s 2009 GAF assessment of 35 was arrived at using M.D.’s lowest level of functioning, this is not accurate. It was never suggested that when Drs. Levitt and Kaplan assigned the 35 rating for M.D., this was done at the lowest level of function. In fact, M.D.’s 2009 CAT assessment states that the “GAF of 35 captures (his) overall functioning.”²⁸ In calculating the GAF in this way, I find that Drs. Levitt and Kaplan adopted a more comprehensive approach to calculating the GAF than Dr. Salmon.

Aviva submitted that because Dr. Levitt revised his GAF rating of the Applicant’s mental and behavioural disorders from 50 in 2007 to 35 in 2009, his expertise was “unreliable”. However, Dr. Salmon testified that he would also revise the GAF score he gave the Applicant. In addition, Dr. Salmon testified that there is controversy about how to arrive at a GAF score therefore, he places more weight on the functional aspect, which is what Drs. Levitt and Kaplan did.

I find that inflexibility to one’s conclusions is not the hallmark of a good expert. According to Dr. Levitt’s testimony, which I accept as credible and reliable, M.D.’s GAF of 50 in 2007 did not capture his impaired functioning and was more of a reflection of how he is doing when he is coping. M.D.’s GAF was decreased to 35 in 2009 because of a recognition of the impact the disorder is having on his life. Although some of M.D.’s psychological symptoms improved by 2009,²⁹ M.D.’s depression had increased.³⁰

On a typical day, M.D., will help his son with breakfast. He then makes his son’s lunch and takes him to school. He watches television with his daughter in the afternoon, then picks his son up from school. He cooks dinner and watches television.³¹

I find that in assessing the Applicant within the simplified life he has created for himself within which he tries to function, the insurer's CAT team deprived itself of useful information about the Applicant's true level of functioning. This resulted in the insurer’s CAT team scoring M.D. more favourably than the evidence taken as a whole supports. That lead to an overestimation of the Applicant's level of impairment under Chapter 14 of the Guides.

The Guides suggests that a multitude of information sources should be consulted before arriving at a conclusion.³² However, Dr. Salmon acknowledged that he relied primary on what Ms. Youm observed, his own observations and his psychometric testing. When Ms. Youm was asked why she did not refer to collateral information, such as the report by Drs. Levitt and Kaplan, which refers to what M.D.’s family said about M.D.’s functioning, she replied that it is the role of the primary assessor to do that. However, Dr. Salmon only summarized it and did not analyze it.

I find that the insurer’s CAT assessment limited its understanding of the Applicant’s condition by relying too much on clinical testing and in failing to analyse the collateral material provided to it, such as the reports by Drs. Levitt and Kaplan. There is little analysis of this collateral material in the various reports. As well, none of the Applicant's relatives were interviewed by the insurer's CAT team or was present during any of its occupational therapist’s assessment. Although Ms. Youm tried unsuccessfully to contact M.D.’s sister, she did not try to contact any of his other family members, such as his step-father or brother who testified at the hearing.

Dr. Salmon criticized the Applicant’s CAT assessment because it did not include a situational assessment. However, I place little weight on the situational assessment that the insurer’s OT conducted for the following reasons: (1) Ms. Youm testified that it is intended to mimic the real-world setting. However, it cannot create the emotional stress of being with other people which is something that causes M.D. anxiety; (2) Ms. Youm testified that her examination was “client” centered to optimize M.D.’s performance. However, when functioning on a daily basis outside this assessment, people are not going to try to ensure that M.D. functions optimally. A situational assessment can recreate some of the physical demands of a work place setting and the cognitive demands of a completing a task. However, it cannot create the emotional stress of actually working.

Ms. Youm also conducted three “community outings,” as part of her assessment. The first was supposed to take place at a grocery store but M.D. declined participating in it because he felt uncomfortable going. Instead, he and Ms. Youm went to a coffee shop that was about a 7.5 minute walk from the assessment facility. M.D. ordered something to eat but chose to return to the assessment facility to eat rather than eating at the coffee shop. Ms. Youm noted reduced initiation of conversation.³³

On the second day of Ms. Youm’s assessment, she reintroduced the task of going to a grocery store but M.D. continued to report discomfort. Ms. Youm modified this task to include a walk around the neighbourhood and going to a convenience store.³⁴ The third community outing was a walk across the street from the assessment facility to a coffee shop where M.D. purchased something to eat, which he retuned to the assessment facility to eat.³⁵

I place little weight on these community outings because: (a) they are not a valid assessment of M.D.’s ability to interact in the community but rather, reflect his ability to function within a restricted environment; (b) Ms. Youm noted that M.D.’s face was flushed when she suggested going to the grocery store;³⁶ (c) Ms. Youm altered the program to reflect M.D.’s limitations. For example, M.D. declined going to the grocery store, which is larger and more crowded than either a coffee shop or convenience store, twice because of discomfort.

(I) Activities of Daily Living, (II) Social Functioning, (III) Concentration, Persistence and Pace

I find that the Applicant has a Class 3, moderate impairment for the reasons set out below with respect to activities of daily living, social functioning and concentration because it is a level of impairment which is “compatible with some, but not all, useful functioning.”³⁷

(I) Activities of Daily Living

With respect to activities of daily living, the Applicant’s fear of leaving his home and going to public places limits his ability to do things such as go to the grocery store. Because of his depression, he has difficulty initiating activities, unless the activities involve the care of his son.³⁸ His functioning is compromised by ongoing and severe panic attacks that are unpredictable.

(II) Social Functioning

With respect to social functioning, M.D. is embarrassed about how he looks when he walks and is afraid of losing balance³⁹ and possibly falling. He is afraid to leave the house and be in public and is also concerned about having a panic attack in public. He does not pursue new friendships because of his fear of leaving the house.⁴⁰

The Applicant’s sister, step-father and brother noted profound changes in the Applicant since the accident. The Applicant's father and brother’s testified that the Applicant is withdrawn from most family life, except for what he does with his son. M.D.’s step-father testified that prior to the accident, M.D. was the “life of the party” and would participate in bowling, hockey games, family gatherings and barbecues. Now, his relationship with M.D. is like “night and day.” For example, sometimes he phones M.D. but M.D. does not answer the phone even though he is home; sometimes he goes to M.D.’s house and M.D. does not answer the door even though he is home. M.D. is no longer “the life of the party.” Instead, M.D. is anti-social and unreliable. This suggests a more significant level of impairment than found by Dr. Salmon.

(III) Concentration, Persistence and Pace

With respect to concentration, persistence and pace, because of his depression, M.D. is often uninterested in engaging in tasks at home. His fear of leaving the house poses problems for his participation in activities away from home. Anxiety affects his concentration and “he often finds himself distracted or having racing thoughts that get in the way of concentrating fully.”⁴¹

(IV) Adaptation To Work and Work-Like Settings

Everyone who has examined M.D. agrees that he suffers from anxiety, panic disorder and some degree of depression. I find that Aviva sought to minimize the impact of the Applicant’s psychological impairments by what he can do, such as being a loving parent, implying that impairment due to a psychological condition is minimal if he can function as a parent. That logic is flawed, however, because although the Applicant functions, he does so in a sheltered, narrow and confined world. For example, he takes his children to school, feeds them and cooks for them

but he does so in the absence of any other demands. He does not go to parent-teacher interviews, organized extra-curricular activities, or initiate activities with other parents because of his anxiety.

It is emotional stressors that impair M.D. and he has structured his life so as to minimize emotional stressors and he does that by minimizing the number of people in his life. So, within those narrow parameters, he can provide for his son and daughter.

Aviva, in cross-examination, raised the fact that the Applicant took a driver’s education course with other students and was able to obtain his driver’s licence following this accident, thereby implying he can function. However, various occupational therapists worked with the Applicant as early as January 2005 to assist him in getting a driver’s licence. M.D. eventually obtained his driver’s licence sometime in 2008.⁴² The occupational therapy reports demonstrate that much effort⁴³ by the occupational therapists was used in supporting the Applicant to obtain his driver’s licence.⁴⁴

Aviva also raised the fact that M.D. took a Caring Dads course, after he lost custody of his children, with other fathers, and that he went shopping on Boxing Day in 2010. However, the Caring Dads course was a mandatory weekly course for two hours a session, and he missed some classes. M.D.’s brother’s evidence was that when they went shopping on Boxing Day, he noticed that M.D. felt “very uncomfortable.”

The fact that the Applicant obtained his driver’s licence, took a brief mandatory course and went shopping on Boxing Day is not indicative of a high degree of independence in the community.

I find that the Applicant looks to escape when he’s in a stressful situation. For example, he leaves his brother’s house to go back home which is the only place he feels remotely secure.

M.D. is fearful of being in any work setting. This is because of agoraphobia and fear of panic attacks. It is also because of his fear that with the loss of one eye, he could make dangerous mistakes at work that might injure him and would also make him look “stupid.” He often avoids leaving the house for activities because of fear of uncontrolled panic attacks. The only thing M.D. is consistently capable of doing is looking after his son. In addition, he fatigues easily. I place little weight on the insurer’s situational assessment, for the reasons outlined above, which was meant to demonstrate that M.D. could function in a work environment.

I find that the Applicant has a Class 4, marked impairment with respect to adaptation to work environments because his impairment levels significantly impede useful functioning. I find that the description of this level of impairment is a more accurate description than a Class 3 impairment, which is defined as impairment levels which are compatible with some, but not all, useful functioning.

Combined WPI Ratings

The parties agree that the Applicant’s physical impairment rating is 34% WPI. This does not meet the threshold of 55% WPI specified in clause 2(1.2)(f) of the Schedule which is required to satisfy the definition of “catastrophic impairment”.

The Applicant’s impairment rating based on mental or behavioural disorder, is marked, and I agree with Drs. Levitt and Kaplan’s assessment of 40%. This meets the threshold of a Class 4 impairment (marked impairment) specified in clause 2(1.2)(g) of the Schedule and the Applicant sustained a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule.

When the physical impairment rating of 34% is combined with the mental and behavioural impairment rating of 40%, this results in a WPI of 60%.

Based on the above, the Applicant sustained a catastrophic impairment within the meaning of clauses 2(1.2)(f) and (g) of the Schedule.

Ruling:

According to the insurer, the Mental and Behavioural Impairments Assessment Guideline found on the FSCO website indicates that a situational assessment is required when performing a CAT assessment.⁴⁵ This Guideline is titled “Catastrophic Impairment Designated Assessment Centre Assessment Guidelines A guide to conducting catastrophic impairment DAC assessments.” I find that this Guideline is not applicable to this proceeding because it does not apply to non-DAC matters.

EXPENSES:

Expenses were not addressed at the hearing. If the parties are unable to agree on the issue of entitlement to or amount of the expenses, they may make submissions on both issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.

December 19, 2013

Maggy Murray Arbitrator

Date

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

Neutral Citation: 2013 ONFSCDRS 167 FSCO A10-001381

BETWEEN:

M.D. Applicant

and

AVIVA CANADA INC. Insurer

ARBITRATION ORDER

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

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

2. The Applicant sustained a catastrophic impairment within the meaning of clause 2(1.2) (g) of the Schedule.

3. If the parties cannot agree on the issue of entitlement to or amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.

December 19, 2013

Maggy Murray Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(2012), 2012 ONCA 642, 112 O.R. (3d) 523 (Ont. C.A.)
3. 3QL at para. 50
4. 4“Desbiens” 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 (Ont. S.C.J.)
5. 5“Arts” 2008 CanLII 25055 (ON SC), [2008] O.J. No. 2096 (Ont. S.C.J.)
6. 6(FSCO Appeal P06-00004, September 4, 2007)
7. 7Guides at 14/301
8. 8Guides at 14/294
9. 9Guides at 14/294
10. 10Guides at 14/294
11. 11Guides at 14/294
12. 12Exhibit 1, tab 13 at 11
13. 13Exhibit 1, tab 13 at 20
14. 14Exhibit 1, tab 14 at 10; Rounding up from 39.5%
15. 15Exhibit 1, tab 14 at 10
16. 16Exhibit 1, tab 16 at 14
17. 17Exhibit 1, tab 16 at 12
18. 18Exhibit 1, tab 16 at 2
19. 19Exhibit 1, tab 16 at 15
20. 20Exhibit 3, tab 53C at 43-44
21. 21Exhibit 5, tab 5 at 7
22. 22Exhibit 3, tab 53C at 42
23. 23Exhibit 3, tab 53C at 42
24. 24Exhibit 1, tab 16 at 20
25. 25Exhibit 1, tab 16 at 13
26. 26Exhibit 1, tab 10 at 1; Exhibit one, tab 16 at 13
27. 27Exhibit 1, tab 16 at 9
28. 28Exhibit 1, tab 16 at 20
29. 29Exhibit 1, tab 16 at 20
30. 30Exhibit 1, tab 16 at 12
31. 31Exhibit 1, tab 13 at 10 and M.D.’s testimony
32. 32at page 14/293
33. 33Exhibit 3, tab 53D at 54 and 58
34. 34Exhibit 3, tab 53D at 58
35. 35Exhibit 3, tab 53D at 60
36. 36Exhibit 3, tab 53D at 54
37. 37Guides at 14/301
38. 38Exhibit 1, tab 13 at 22
39. 39Exhibit 1, tab 8 at 2
40. 40Exhibit 1, tab 13 at 6 and 22; Exhibit 1, tab 11 at 3
41. 41Exhibit 1, tab 13 at 23
42. 42Exhibit 3, tab 75
43. 43Abundant prompting and planning was required
44. 44Exhibit 3, tabs 65, 71, 74 and 75
45. 45At 4-3, para. 4.6