Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2013 ONFSCDRS 168
FSCO A09-001676
BETWEEN:
M.M.
Applicant
and
AVIVA CANADA INC.
Insurer
SUPPLEMENTARY REASONS FOR DECISION
Before: Jessica Kowalski
Heard: Referred back by order of the Director's Delegate dated December 10, 2012
Background
Ms. M appeared before me at a hearing in Barrie over two weeks in September and October 2010. She sought a determination that she sustained a catastrophic impairment within the meaning of clause 2(1.1)(f) of the Schedule1 as a result of a motor vehicle accident on November 26, 1999.
Ms. M’s primary complaints were related to a lumbar spine discectomy and associated pain. She claimed that the accident caused a disc rupture in 2001 which led to the discectomy and to her current chronic pain condition.
In my original reasons of October 28, 2011 (the “2011 decision”), I found that Ms. M had failed to prove that those problems (which her doctors described were her major problems) were caused by the accident. Ms. M appealed my decision. Director’s Delegate Blackman upheld my decision on causation as it related to Ms. M’s primary concerns, namely the discectomy and subsequent chronic pain.
There were, however, other impairments identified by Ms. M’s chronic pain physician, Dr. Steve Blitzer, for which he gave impairment ratings. According to Dr. Blitzer, Ms. M had 13 impairments which resulted in a whole person impairment (“WPI”) rating of 82%. In the 2011 decision, I dealt with her primary concerns. Given my findings that the accident did not cause Ms. M’s major complaints, I felt that it was moot to analyze her whole person impairment rating as it related to every complaint.
The Director’s Delegate has asked me to analyze each of the 13 impairments referred to by Dr. Blitzer and to clarify whether my findings regarding Ms. M’s lower back complaints included complaints of hip pain and gait derangement.
These reasons supplement my 2011 decision, and follow the Director’s Delegate’s request for clarification and for a determination whether the combination of Ms. M’s impairment ratings resulted in 55% or more whole person impairment, and which, according to the Director’s Delegate, may include making any further necessary findings regarding causation.
Summary
There was no dispute that Ms. M has impairments and chronic pain. I am not persuaded, however, that the accident was the cause, or that it materially contributed to any of the impairments identified by her assessors.
Although Ms. M claimed that the accident resulted in her discectomy and chronic pain condition, she complained of other symptoms in addition to lower back complaints that are discussed below. I make no new findings regarding causation, except as set out herein.
A significant concern during the hearing was Ms. M’s credibility and the overwhelming inconsistencies between her oral account and her medical records. I find nothing in calculating her WPI that would rehabilitate her credibility and therefore warrant additional or different findings regarding causation.
According to the Schedule in effect at the time of the accident, a catastrophic impairment must be permanent and directly caused by the use or operation of an automobile. The Schedule directs the use of the 4^th^ edition of the Guides to the Evaluation of Permanent Impairment, 4^th^ Edition, (the “Guides”) in measuring and evaluating a person’s WPI. Unless stated otherwise, reference to the Guides in these reasons is reference to the 4^th^ edition.
WPI
I find Ms. M’s WPI rating for impairments as a result of the accident to be 0%.
Even if I were wrong on the issue of causation, and if all of Ms. M’s impairments and complaints are permanent and caused by the November 26, 1999 accident, then I find that Ms. M is still not catastrophically impaired as a result of the accident and that her WPI is 41% (well below the 55% required for a finding of catastrophic impairment).
I now turn my mind to the specific impairments and symptoms rated by Dr. Blitzer.
Mental and Behavioural
As part of Work Able’s 2006 assessment, psychologist Dr. Kerry Lawson examined Ms. M and conducted the psychological evaluation component of the insurer examination specific to the determination of catastrophic impairment.
Dr. Lawson wrote that Ms. M’s results for pain intensity, “when her degree of symptom over reporting is taken into account, indicate that [she] is likely experiencing a level of pain intensity and related symptomatology commensurate with that experienced by individuals who are coping with a chronic pain syndrome.”
Dr. Lawson noted that a review of the file documentation revealed a number of occasions in which Ms. M consulted with medical practitioners regarding various physical ailments and concluded that, “As such, it would appear that this person’s current pain syndrome represents an exacerbation of the pre-accident condition.”
Dr. Lawson opined that “it does not appear Ms. M was experiencing her present degree of emotional distress, pain intensity, and related symptomatology in the year prior to the subject MVA. As such, it is my view that these aspects of her current clinical presentation remain materially related to the accident in question.”
Dr. Lawson concluded that Ms. M suffered a mild impairment (Class 2) with respect to Activities of Daily Living and Concentration, and a mild-to-moderate degree of dysfunction with respect to Adaptation to Work Environments and Social Functioning (Class 2‑3). This, he wrote, corresponds to an impairment rating of 20% under criterion (f) of subsection 2(1.1) of the Schedule.
Dr. Blitzer testified that he felt 20% was an adequate value for mental and behavioural disorders and adopted Dr. Lawson’s rating.
I find that there are some gaps in Dr. Lawson’s report.
It is true that Ms. M’s medical records show multiple pre-accident physician visits. In 1997 she had neck pain that required a CT scan, and was reporting a history of migraines that was repeating itself in 1999. Although Ms. M testified that she started using narcotics like oxycocet and oxycontin after the accident, her medical records show she used them before the accident.
It is unclear from the report what Dr. Lawson felt “the pre-accident condition” was. Dr. Lawson noted that Ms. M exaggerated her pain symptoms but that the accident is what led to her current pain symptoms and chronic pain syndrome.
The preponderance of Ms. M’s evidence is that the accident caused the discectomy which caused a chronic pain condition.
If Ms. M’s pain is rateable as a mental and behavioural disorder in accordance with the Guides, 4^th^ edition, I am not persuaded by Dr. Lawson’s report that Ms. M’s chronic pain condition was itself caused by the accident. It appears that Dr. Lawson did not consider, among other things, that:
Ms. M went from light work before the accident to heavy work after the accident
Ms. M did not report any back symptoms for more than a year after the accident
Ms. M had a normal lumbar x-ray on January 10, 2011, following her first documented complaint of low back pain 13 months after the accident
there were references to an accident after January 10, 2001 and before August 8, 2001, at which time Ms. M had a second lumbar x-ray which, at that point, showed some pathology.
Dr. Lawson also did not distinguish between Ms. M’s migraines before and after the accident. Although Ms. M described herself as in perfect health before the accident, her medical records disclose she had a history of headaches, migraines and neck pain for which she sought treatment at various hospital emergency rooms and used narcotics to treat her pain.
After the accident, Ms. M continued to attend emergency rooms and walk-in clinics to treat the same variety of symptoms, with one noteworthy detail: those symptoms did not include low back or neck pain for more than a year after the accident.
I agree that Ms. M has a chronic pain condition. I find, however, that it was not caused by the 1999 accident. A catastrophic impairment within the meaning of the Schedule is an impairment caused by an accident. Because I find that Ms. M’s mental and behavioural disorder was not caused by the accident, I would assign a 0% WPI related to the 1999 accident. Ms. M’s evidence made clear that the pain condition was brought about by the discectomy, which I found was not caused by the 1999 accident.
If I am wrong on the causation issue, I find that Ms. M’s pain condition would not be separately rateable under the Guides because the 4^th^ edition of the Guides does not assign impairment rating numerical values for pain, instead treating pain as an anticipated component of Ms. M’s physical complaints.
If I am further wrong, and Ms. M’s chronic pain was caused by the accident and is assigned a number rating, then I would not disturb Dr. Lawson’s 20% WPI rating because it was accepted by both Aviva’s assessors and Ms. M’s assessors and represents the most generous assessment before me of a mental and behavioural disorder.
According to the 4^th^ edition of the Guides, when assigning impairment ratings for mental or behavioural disorders, four areas of functioning must be considered: Activities of Daily Living; Social Functioning, Concentration; and Adaptation to Work Environments.
As set out above, Dr. Lawson concluded that Ms. M suffers a mild impairment (Class 2) with respect to Activities of Daily Living and Concentration; and a mild-to-moderate (Class 2-3) degree of dysfunction with respect to Social Functioning and Adaptation to Work Environments. This, wrote Dr. Lawson, corresponds to an impairment rating of 20% under criterion (f).2
Dr. Blitzer testified that, when he assessed Ms. M in 2008, he felt that her psychological status was similar to what it was in 2006, and he had no hesitation adopting Dr. Lawson’s 20% WPI rating.
I agree that Ms. M’s daily life changed after her discectomy. Her friends Wayne Donahue and Tracy Martin testified that her activities became more limited and she became dependent on her cane for mobility. They assisted her with heavier tasks at home, such as taking out her cat litter and occasionally making up her bed. They did not specify when following the accident Ms. M needed assistance, or for how long after, or whether anything changed in the months or years after. Based on their evidence, she was able to socialize, eat out from time to time, go to the mall, make occasional road trips, and cook. She told Dr. Lawson that she was capable of completing activities outside the home like shopping for groceries and running errands. I find no evidence to support a marked or greater impairment due to a mental or behavioural disorder in one of the four domains set out in the Guides, 4th edition, that would satisfy the criteria for catastrophic impairment. Absent evidence to contradict Dr. Lawson’s rating, and if the chronic pain condition was indeed a rateable impairment caused by the accident, then I would accept Dr. Lawson’s 20% WPI rating.
Physical
Physiatrist Dr. Oshidari testified as an expert in the interpretation of the 4^th^ edition of the Guides. He concluded both in 2006 and 2009 (as part of the Work Able insurer examinations) that Ms. M’s WPI was 10% from a physical point of view. He opined that some of Ms. M’s physical impairments were not rateable because of inconsistencies and non-organic findings.
According to Dr. Oshidari, the Guides, 4th edition require the assessor to focus on structural abnormality rather than function, and do not provide for a separate rating for pain. For example, although Ms. M complained of headaches and fibromyalgia, Dr. Oshidari testified that they were not rateable physically absent a structural abnormality, but could be rated under mental and behavioural disorders based on their effect on the above-noted four spheres of functioning. Pain without a physical basis, he said, would not be rated under the physical.
In 2010, Aviva nevertheless asked Dr. Oshidari to comment on Dr. Blitzer’s December 15, 2008 catastrophic assessment report and provide a WPI rating for all the areas of impairment that Dr. Blitzer rated. In response, Dr. Oshidari prepared a Physiatrist Addendum Report dated April 21, 2010. While Dr. Blitzer openly rated on symptoms, Dr. Oshidari testified that, in the 4^th^ edition, symptoms have to be confirmed by imaging or objective findings and that symptoms and objective evidence have to be correlated in arriving at a conclusion.
If I were to use Dr. Oshidari’s 2006 and 2009 ratings of 10%, and if I accepted that Ms. M’s psychological impairments were caused by the accident, then her rating would be 30% WPI (20% for psychological impairment + 10% physical = 28% rounded up to 30%).
If I apply Dr. Oshidari’s 2010 addendum ratings, and presume that the mental and behavioural impairments were caused by the accident, I find Ms. M’s WPI to be 41% (20% for psychological impairment + 26% physical = 41% using the Combined Values Chart).
Lumbar Spine
Ms. M’s primary complaint was of low back pain. In fact, Dr. Blitzer testified that her back was Ms. M’s “absolutely worst” problem.
In the Guides, 4^th^ edition, the level of most musculoskeletal impairments is measured by loss of range of motion (using the ROM Model, also called the Functional Model). For spinal injuries, however, the 4^th^ edition introduced an Injury Model (also called the Diagnosis-Related Estimates, or DRE, Model) and instructs the assessor to use the DRE Model if the patient’s condition is one of those listed in Table 70 (at p.108 of the Guides). Only if none of the eight categories of the DRE Model is applicable should the assessor use the ROM model. Assessors are cautioned to use only one or the other approach in making the final impairment estimate.
The Guides suggest that if a patient demonstrates the structural inclusions of two categories (from the DRE Model), the physician should place the patient in the category with the higher impairment rating. If the DRE model applies but it is not clear into which of two or more possible categories an injury falls, an assessor can consider the ROM Model to provide evidence to assist in choosing between the possible DRE categories.
In my October 2011 decision, I set out lengthy reasons why I found that the injury (or injuries) that led to her December 2001 discectomy and the subsequent chronic low back pain, were not caused by the accident. I included in my reasons that there was a dearth of evidence supporting low back injury post-accident.
Ms. M did not report injuries or pain to her lumbar spine after the accident. She did not seek treatment for her lower back for some 13 months after, and even then, her first post-accident x-ray of the lumbar spine, taken more than 13 months after the accident, was normal.
Ms. M went from working as a cashier before the accident, to doing heavier work involving transporting car parts after the accident, with no reports of trauma to her lower back during numerous medical visits after the accident.
A January 10, 2001 x-ray, taken after Ms. M’s first documented post-accident complaint of low back pain, was normal.
Thereafter, on August 8, 2001, an x-ray showed minimal disc space narrowing in the lumbar spine and some degenerative changes. In addition to heavy work and no reports of previous trauma, Ms. M’s medical records had by this time documented a 2001 accident (but that Ms. M denied reporting).
In his 2006 report, Dr. Oshidari was skeptical of a relationship between the discectomy and the 1999 accident. He wrote that:
it was difficult to conclude if her radiculopathy was caused by the accident
two months following the accident she was able to be involved in a job that was physically heavy
more than one year later, she developed sciatic pain
there was a possibility that the car accident contributed to her disc problems but that the surgery took place two years following the accident
Dr. Oshidari concluded that “If we consider that this type of radiculopathy was somehow related to the accident, then we can provide her with DRE III radiculopathy, which provides her with 10% impairment (Chapter 3, Page 110, Table 72.).”
Dr. Blitzer testified that using the 4^th^ edition of the Guides would result in a 5% rating for Ms. M’s back, which he felt was too low. He assigned a 23% rating for the lumbar spine, which he opined represented the mid-point between 22% based on DRE criteria, and 24% based on using the ROM method.
When presented on cross-examination with Ms. M’s medical history, however, even Dr. Blitzer testified that if Ms. M’s back was fine for 12 months following the accident and in the 13^th^ month there was a back flare-up, he would not attribute it to the accident.
Likewise, Dr. Paul Muller (the surgeon who performed the discectomy), initially opined that there was a relationship between the accident and Ms. M’s disc rupture based on Ms. M’s self-report. On cross-examination, when presented with the facts of the accident as they appear in the objective evidence, Dr. Muller testified that the probability of the accident having caused Ms. M’s disc rupture was very low.
Notwithstanding inconsistencies in testing, Dr. Oshidari assigned a 10% WPI rating under DRE III. When he noticed that there was significant impingement of her range of motion and formal and informal examination remained the same, he could upgrade Ms. M to DRE IV, where the rating would be 20%. He testified that if he could rate Ms. M’s lower back and right leg (which he did not in 2009 because she had Waddell’s signs), if there were no positive Waddell’s signs, he would have rated her under DRE category IV.
To the extent that a causal relationship between the impairment and the accident is required for SABS purposes, I would assign a 0% rating for lumbar spine impairment arising from the accident. The Director’s Delegate upheld my decision on causation relating to the lumbar spine.
If, however, I were to take a liberal view of the evidence and give Ms. M the benefit of the doubt and assume that the accident did give rise to the need for the surgery and that, if Ms. M’s radiculopathy was secondary to the accident, then I find that her impairment would be under the DRE IV for the lumbosacral area, which provides a 20% rating. This takes into account concerns regarding gait abnormality and hip impairments to the extent that they followed the discectomy (and I would therefore assign no separate rating for each).
Gait Abnormality
In Ms. M’s case there was no history of peripheral nerve injury to her lower extremity and no fracture in her bones, pelvis or legs.
When she was assessed by a neurosurgeon, Dr. Rudolph, Ms. M did not have signs of gait abnormality except for the above-noted radiculopathy. When she was assessed by neurologist Dr. Arts, who performed an EMG and nerve conduction, there was no neurological abnormality that would attract a rating pursuant to the Guides, 4^th^ edition. There is no evidence of neurological condition or orthopaedic injury that would contribute to gait abnormality and so she could not be measured using chapter 4 of the Guides (the Nervous System). According to Dr. Oshidari, the 4^th^ edition does not provide a rating for gait impairment when a person uses a cane or walker due to soft tissue injuries. If she had radiculopathy because of nerve impingement in her back radiating to her leg which caused some gait abnormality, she could be rated using the DRE model in chapter 3 of the Guides, 4^th^ edition (the Musculoskeletal System), where the maximum rating would be 10% using DRE III but which would result in a double rating if considered under the lumbar spine.
In any event, I have included gait abnormality in the 20% WPI rating for the lumbar spine, above.
Hip
Dr. Blitzer assigned a 17% WPI rating for hip impairment. He did not, however, measure Ms. M’s range of motion when he assessed her because of difficulties she was having on the day of the assessment, and so he globally estimated her range of motion to be less than 50%. According to Dr. Oshidari, in 2006 and 2009 Ms. M was in pain from her lower back and could not lift her hips up.
Based on the evidence, Ms. M’s hip impairment is directly related to her lower back complaints. There is no evidence of hip injury arising from or following the accident, and I find that there should therefore be no separate rating for the hip (that is, separate from lumbar spine).
As with gait abnormality, if I am wrong on causation and to the extent that the hip complaints may arise from the lumbar disc impingement and surgery, I have included hip impairment with the 20% WPI rating assigned to the lumbar spine (assuming that the impairments were accident-related).
Cervical Spine
Dr. Oshidari opined in his 2006 assessment that Ms. M’s history of discomfort and pain in her neck and upper extremities began a long time following the accident. When he assessed her in 2006, he found no sign of neurological deficit in the upper extremities, or tightess or guarding of the muscles around her paravertebral area. There was no MRI, CT scan, EMG or other objective testing to support Ms. M’s subjective complaints. Objective findings did, however, reveal restricted range of motion.
When Dr. Oshidari examined Ms. M, he saw inconsistencies between formal and informal observations. He testified that Ms. M’s cervical spine could not be rated because of the presence of Waddell’s signs in 2009. When asked to provide a rating in response to Dr. Blitzer’s report, Dr. Oshidari testified that the maximum would be 5%.
As with her low back, Ms. M sought no treatment for her neck between the November 1999 accident and January 2001. Even if her neck complaints resulted in a measurable impairment and were the result of the accident, I accept Dr. Oshidari’s testimony and assign a maximum rating of 5%.
Headaches
Ms. M had a history of headaches before the accident. In his December 15, 2008 report, Dr. Blitzer wrote that “though I did not go through the entire ratings questionnaire, clearly her headaches at least fit into the mild impairment category.” Based on her symptoms, he assigned a 15% rating for headaches.
According to Dr. Oshidari, whose opinion I accept, in using the 4^th^ edition, headaches would not be rated under a patient’s physical condition. They might be rated under mental or behavioural disorders to the extent that they interfere with work or social activities, but the 4^th^ edition of the Guides does not include rating for pain absent an organic cause such as irritation or tenderness of the great occipital nerve on the left or right side. There was no evidence in Ms. M’s case of great occipital nerve involvement. Therefore, I find that the WPI rating for headaches is 0%.
Gastrointestinal (the “Digestive System”)
Ms. M testified that she had some bowel incontinence following the accident.
There is no evidence of anatomical or physiological loss involving Ms. M’s gastrointestinal system and no evidence of an organic cause for Ms. M’s GI symptoms. There was no evidence that after the accident she had trauma to her rectum or colon or some functional disease in the rectum that would attract a WPI rating.
In 2004, she tested positive for an e.coli infection that Dr. Blitzer testified was incidental and unrelated to the 1999 accident.
Dr. Blitzer rated “all of her digestive gastrointestinal disorder” to be 5%. He wrote that he “would believe she likely has irritable bowel associated with her post-accident pain and stress state” but that he had “not been involved in investigation or treatment of her GI condition.”
In order to assign a rating for stomach problems there must be evidence of a trauma that caused a functional or anatomical abnormality. Dr. Blitzer also rated rectal impairment, which, likewise, requires evidence of trauma or some disease that causes rectal dysfunction.
Dr. Blitzer testified that Ms. M had constipation associated with her medications. He felt he could move her to a class 2 impairment rating because of her medications, but decided to “be conservative”, considered her symptoms and “rated her in the middle”.
According to the 4^th^ edition, absent anatomical abnormality, the only other way to rate would be based on the side effects of medication. For instance, if Ms. M had pain and was taking medication that caused GI symptoms as a side effect, then the maximum impairment would be 3%.
In this case, because I have found that Ms. M’s impairments were not a result of the accident, I find that a 0% rating is appropriate. However, if I am wrong on causation and Ms. M’s lumbar impairments were a result of the accident, then to the extent that she took additional narcotics for the pain that caused digestive upset, I find a 3% rating would be appropriate.
Bladder/Urinary Incontinence
Also in 2004, Ms. M began to complain of some bladder incontinence.
I find there was no evidence of a bladder disorder, no evidence of bladder problems prior to the 2001 discectomy, and no evidence that any stress-related bladder incontinence was at all related to the 1999 accident. The criteria for rating permanent impairment due to bladder disease (“Bladder”) are set out in Table 7-3 of Chapter 7.5 of the Guides, 4^th^ Edition. For a Class 1 impairment of the whole person (0%-15%), they are: “symptoms and signs of bladder disorder and requires intermittent treatment and normal functioning between malfunctioning episodes”.
According to Dr. Oshidari, the Guides, 4^th^ edition, require evidence of neuromuscular structural abnormality to provide an impairment rating for the bladder. In Ms. M’s case there was no evidence identified by any assessor to suggest an organic cause that would explain Ms. M’s complaints of difficulty with her bladder.
Ms. M testified that she began to experience bladder (and bowel – see gastrointestinal, above) incontinence because of the accident. She reported that this problem began before the discectomy.
The first notations of incontinence appear in Ms. M’s medical records in June 2004, and even then, Ms. M’s family physician Dr. Berns testified that she had stress incontinence and that “these [bladder incontinence and issues with bowel movements] are unlikely related to the injury.” He testified that the nature of her stress incontinence was more a question of bladder instability, and not the kind of incontinence one finds with neurological compression like would be expected with a nerve root being compressed.
In rating for a permanent bladder impairment, I find that Dr. Blitzer should have had supporting evidence. Dr. Blitzer made no actual diagnosis related to Ms. M’s bladder complaints. He conducted a urinalysis in 2006 and an ultrasound of her urological tract. The urinalysis disclosed presence of e.coli which Dr. Blitzer testified was incidental and unrelated to the accident. He could not recall any objective findings in Ms. M’s ultrasound. He nevertheless provided a permanent impairment rating of her urinary system, writing in his report that she had incontinence “1/3 of the time”.
Absent any evidence of bladder issues after the accident, and in view of her doctors’ comments that bladder issues were incidental and unrelated to the accident, I find no evidence of a permanent impairment, no relationship between any bladder-related issues and the accident and find the appropriate rating for permanent impairment due to bladder disease to therefore be 0%.
Sleep Disorder
According to the Guides, 4^th^ edition, absent some organic cause for difficulty with sleep, no rating can be provided. If sleep difficulties are addressed under mental or behavioral disorder, there may be a duplication of ratings under (f) and (g).
Ms. M testified that she did not have a real sleep routine, and that from around 2002 she usually slept sitting up or in a La-Z-Boy chair because of pain. Dr. Blitzer diagnosed fibromyalgia, which can cause difficulty with sleep. However, according to Dr. Oshidari’s expert testimony on interpretation of the Guides, the 4^th^ edition provides for no impairment rating for sleep difficulties induced by fibromyalgia or where there is no organic cause for difficulty with sleep. I accept Dr. Oshidari’s opinion and find that the WPI rating for sleep disorder is therefore 0%.
Dizziness
Dr. Blitzer used the 5^th^ edition of the Guides to assign a WPI rating of 5% for dizziness. In doing so, he relied on a table in the 5^th^ edition dealing with vestibular impairments, notwithstanding that there was no evidence of a vestibular disorder in Ms. M’s case.
I found no evidence of trauma, and no documentation of cerebellar, inner ear dysfunction or arterial deficiency to explain dizziness. There was no brain injury documented at the time of or after the accident that would explain Ms. M’s reported symptoms of dizziness. According to Dr. Oshidari, fibromyalgia or side effects of medication could account for dizziness. The Guides, 4^th^ edition, however, provide no rating for dizziness without an organic cause.
Accordingly, based on Dr. Oshidari’s addendum report, and his expert testimony on the interpretation of the Guides, together with Ms. M’s evidence (and the dearth of support in the medical records), I find insufficient evidence to find that Ms. M is impaired by any dizziness as a result of the 1999 motor vehicle and find that a 0% rating for dizziness is appropriate.
Cognitive
Dr. Blitzer provided a 5% rating for cognitive impairment. There was no evidence whatsoever that Ms. M sustained any head trauma or presented with head trauma or brain impairment at or post-accident, and I find no basis to rate a cognitive impairment, either physically or under mental or behavioural disorder. Accordingly, I assign a 0% rating for cognitive impairment.
Left and right shoulder
Dr. Blitzer assigned a rating to each shoulder. He gave the left shoulder a rating of 4% and 1% for the right shoulder. He testified that his ratings were based on Ms. M’s account of her symptoms.
By the time Dr. Blitzer rated Ms. M he was her primary treating health care provider, yet there is no mention in his file at all of any left or right shoulder problems. None were reported after the accident. I therefore find no basis to support a rating of more than 0% for the right and left shoulder in accordance with the 4^th^ edition of the Guides.
Conclusion
Ms. M’s family physician Dr. Berns concluded that Ms. M was catastrophically impaired. Her chronic pain physician, Dr. Blitzer concluded that Ms. M’s WPI was 82%. I did not accept their opinions because they did not follow the Guides protocols and rated on symptoms. My reasons are set out in greater detail in the 2011 decision. Dr. Blitzer assigned impairment ratings for impairments that he himself acknowledged were not accident-related (for example, GI disorder), or that were not even documented in his own files as her treating chronic pain doctor (for example, left and right shoulder) relying instead on Ms. M’s list of symptoms. For the reasons set out in my 2011 decision, Ms. M’s evidence was unreliable and was overwhelmingly contradicted by the documented medical evidence. To the extent that her assessors relied on her self-reporting of symptoms, their reports were equally unreliable.
For the reasons set out herein and in the 2011 decision, I find that impairments not caused by the accident should not be rated in determining Ms. M’s accident-related WPI and that Ms. M’s WPI for impairments caused by the November 26, 1999 accident is 0%.
If I am wrong on the issue of causation and if all of the alleged impairments complained of by Ms. M are permanent, rateable and directly caused by the November 1999 accident, then, for the reasons set out herein, I find that Ms. M’s WPI is 41% (see appendix “A”, attached). This is below the 55% required under subsection 2(1.1)(f) of the Schedule for a determination of catastrophic impairment.
December 19, 2013
Jessica Kowalski Arbitrator
Date
APPENDIX “A”
Ms. M’s WPI ratings for all alleged impairments if they are permanent, rateable, and directly caused by the November 1999 accident
Area of Impairment
Individual impairment % rating
Combined WPI % using the Combined Values Chart of the 4^th^ edition of the Guides
Mental or Behavioural
20%
Lumbar Spine
20%
36%
Gait derangement re low back (included with lumbar spine)
Hip (included with lumbar spine)
0%
Cervical spine
5%
39%
Headaches
0%
Bladder / Urinary Incontinence
0%
Sleep Disorder
0%
Dizziness
0%
Cognitive
0%
Digestive (GI) Problems
3%
41%
Left Shoulder
0%
Right Shoulder
0%
Combined WPI % using the Combined Values Chart of the 4^th^ edition of the Guides
41%
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Subsection 2(1.)(f) of the Schedule.