State Farm Mutual Automobile Insurance Company v. P.B., 2014 ONFSCDRS 124

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 124

Appeals P13-00036 and P13-00037

OFFICE OF THE DIRECTOR OF ARBITRATIONS

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Appellant / Cross-Respondent

and

P.B. Respondent / Cross-Appellant

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: Mr. K. Bruce B. Chambers for State Farm Mutual Automobile Insurance Company Mr. David E. Preszler and Mr. Michael Sloniowski for P.B.

HEARING DATE: June 27, 2014

APPEAL ORDER

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

1. Both of these appeals are dismissed. Arbitrator Fadel’s November 5, 2013 and Arbitrator Killoran’s January 19, 2012 decisions are confirmed.

2. My February 14, 2014 partial stay of Arbitrator Fadel’s benefit payment order is lifted.

3. An appeal expense hearing shall be requested within thirty days of the date of this decision, as set out below.

July 30, 2014

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL AND BACKGROUND

P.B. was injured in an August 18, 2005 motor vehicle accident. As a result, she applied to her first party insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), for statutory automobile accident benefits available under the 1996 Schedule.¹

The parties initially came before Arbitrator Killoran on preliminary arbitration issues. Her January 19, 2012 decision held, in part, that should P.B. be found entitled to income replacement benefits (“IRBs”), child benefits payable under the Canada Pension Plan, R.S.C., 1985, c. C-8 (“CPP”), were not deductible under subsection 2(9) of the 1996 Schedule.

The parties subsequently came before Arbitrator Fadel for determination of P.B.’s entitlement to IRBs and attendant care benefits, as well as whether P.B. was, as a result of the accident, catastrophically impaired as defined in clause 2(1.2)(f) of the 1996 Schedule. Being found catastrophically impaired entitles an insured person to claim an enhanced level of benefits.

Arbitrator Fadel’s November 5, 2013 decision found that P.B. was not catastrophically impaired. He did find P.B. entitled to ongoing IRBs as well as the restricted level of attendant care benefits available in non-catastrophic cases.

Both parties appeal Arbitrator Fadel’s decision. State Farm also appeals Arbitrator Killoran’s decision regarding the non-deductibility of CPP child benefits.

My April 27, 2012 decision (FSCO P12-00005), applying Rule 51.2(c) of the Dispute Resolution Practice Code (Fourth Edition – Updated August 2011), rejected State Farm’s appeal of Arbitrator Killoran’s decision pending a final decision of all of the issues in dispute. My February 14, 2014 decision stayed Arbitrator Fadel’s IRB payment order to the extent of CPP child benefits received.

State Farm raises four grounds of appeal:

1. Arbitrator Killoran erred in not finding CPP child benefits deductible under subsection 2(9) of the 1996 Schedule from the IRBs payable.

2. Arbitrator Fadel erred in finding that P.B.’s disc herniations were caused by the August 18, 2005 motor vehicle accident.

3. Arbitrator Fadel erred in not addressing whether P.B.’s conversion disorder was caused by the motor vehicle accident.

4. Arbitrator Fadel failed to say whether P.B.’s entitlement to IRBs and attendant care benefits was based on her disc herniation impairment, the combined psychological and physical impairments of her conversion disorder, or both.

P.B. raises the following ground of appeal:

1. Arbitrator Fadel erred when determining catastrophic impairment by failing to properly rate psychological impairment under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (the “4th Edition”).

I will address these grounds of appeal in turn.

II. ANALYSIS

(a) The deductibility of Child Benefits under the [Canada Pension Plan](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-8/latest/rsc-1985-c-c-8.html)

Paragraph 2(9)1 of the 1996 Schedule provides:

(9) For the purpose of this Regulation, payments for loss of income under an income continuation benefit plan shall be deemed to include the following payments:

1. Payments of disability pension benefits under the Canada Pension Plan.

[Emphasis added]

Different types of benefits payable are set out in section 44 of the Canada Pension Plan. Paragraph 44(1)(b) provides the criteria for payment to a contributor of what is specifically termed a “disability pension.” Paragraph 44(1)(e) provides the criteria for payment to each child of a disabled contributor of a “disabled contributor’s child’s benefit.”

Arbitrator Killoran found that P.B. received in 2011 a monthly CPP disability pension benefit of $852.30. In addition, a distinct monthly child’s benefit of $218.50 was paid the same year. I find it clear and unambiguous² that the 1996 Schedule, by specifically using in paragraph 2(9)1 the same words, “disability pension,” as in paragraph 44(1)(b) of the Canada Pension Plan, meant to restrict deductible CPP benefits to paragraph 44(1)(b) payments. Accordingly, paragraph 44(1)(e) child benefits are not to be deducted from IRB payments.

If there is any ambiguity in paragraph 2(9)1 of the 1996 Schedule in this regard, which I am not persuaded there is, subsection 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sc. F, assists as an interpretive aid. That latter states that an “Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.” Further, Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, holds that insurance coverage provisions are to be interpreted broadly while coverage exclusions or restrictions are to be construed narrowly in favour of the insured.

Sullivan on the Construction of Statutes, Fifth Edition (LexisNexis, 2008) states, at page 210, that the governing principle of statutory interpretation is against tautology, that “every word and provision found in a statute is supposed to have a meaning and a function.” State Farm’s argument, in essence, is that the word “pension,” in “disability pension benefits” in paragraph 2(9)1, is to be disregarded. I am not persuaded by this submission.

State Farm initially relied on Ruffolo v. Sun Life Assurance Co. of Canada, 2009 ONCA 274, arguing it was a binding decision regarding the deductibility of CPP child benefits. State Farm submitted that Arbitrator Killoran erred in distinguishing the deductibility of “disability pension” benefits in the 1996 Schedule from “disability” benefits held deductible in Ruffolo.

However, in oral submissions State Farm conceded that Ruffolo was not binding, it being distinguishable in addressing the specific wording of two private insurance plans. One of the two policies in Ruffolo expressly deducted CPP “benefits for dependent children.” The Court held that “disability benefits” payable under the Canada Pension Plan under the other policy incorporated CPP child benefits. The Court did not address whether CPP child benefits were incorporated under “disability pension benefits payable under the Canada Pension Plan.”

Sipos v. Sipos [2007] O.J. No. 711 (C.A.), however, determined that CPP child benefit payments were not deductible from child support obligations. The Court of Appeal held, in part, that if Parliament had intended to provide an offset of the child benefit against support, it would have provided for that result in the legislation, which it did not do. It further held that the CPP child benefit was the benefit of the child, not the contributor.

In the present case, Arbitrator Killoran noted:

… In a letter dated May 17, 2011 from Human Resources Development Canada, a payment explanation statement was enclosed which shows the breakdown of the lump sum amount for the previous months and the amount paid to her, including the child’s benefit. In the attached explanation, it states, among other things, “Any benefits paid for your children are their income, even if you received the payment.” The purpose of the CPP child’s benefit is to pay children in trust and consequently, any benefits paid for the children is their income and the child benefit component is not subject to taxation in the hands of the parent.

State Farm argues that it is significant that subsection 2(9) of the 1996 Schedule provides for deduction of payments, in the plural, for loss of income under an income continuation benefit plan, including payments, again in the plural, of CPP disability pension benefits.

State Farm submits that the CPP child benefit is a supplement received for the benefit of a child who has no disability; it is derivative of P.B.’s disability and dependent on it. It argues that the use of the plural in paragraph 2(9)1 means that all derivative forms of the CPP benefit are to be deducted, including CPP child benefits. As a straightforward reading of the provision is that all CPP benefits received are deductible, there is no basis for excluding the CPP child benefit.

State Farm argues that the Legislature could have explicitly excluded CPP child benefits from deduction in subsection 7(2) (in addition to explicitly excepting specific Employment Insurance, sick leave and workers’ compensation benefits). It is significant, it submits, it did not do so.

I find that the Legislature could easily, in paragraph 2(9)1 of the 1996 Schedule, have required the deduction of all of the different types of CPP benefits. I agree with Arbitrator Killoran:

Relying on rules of statutory interpretation, I find that the word “pension” has been included for a reason. One reason is to distinguish the CPP disability pension benefit from the CPP child’s benefit ... I find that the terms “disability benefits” and “disability income” are more inclusive than “disability pension benefits”. Also, in the case before me, there is no clear contractual language which specifies that income replacement benefits are to be offset by disability pension benefits under the CPP, including the CPP child’s benefit.

I am not persuaded that the use of the plural in subsection 2(9) of the 1996 Schedule refers to all the distinct types of CPP benefits. Rather, I am persuaded, in the case of paragraph 2(9)1, that it simply refers to all payments of “disability pension benefits,” as stated, received over time.

I agree with P.B. that as child benefits are not considered to be her income nor are they taxable in her hands, they cannot be considered “payments for loss of income under an income continuation benefit plan” under subsection 2(9) of the 1996 Schedule unless specifically deemed to be so in the legislation, which they are not.

I also agree that subsection 7(2), listing payments that are not deductible from IRBs (as opposed to restricting benefit entitlement, as per Monks), is not exhaustive. Rather the subsection was intended to flag benefits clearly having an income component but are not deductible, namely employment insurance, sick leave and workers’ compensation benefits.

Accordingly, State Farm’s appeal from Arbitrator Killoran’s January 19, 2012 preliminary issues decision is denied and her decision confirmed. My February 14, 2014 partial stay of Arbitrator Fadel’s benefit payment order is, therefore, lifted.

(b) Causation: P.B.’s Disc Herniation

In May 2006, P.B. sustained a disc herniation at L4-5 and L5-S1 while getting up from the floor. On August 2, 2006 she underwent decompression surgery. State Farm submits that the “preponderance of medical opinion is that there was no causal relationship between the August 18, 2005 accident and the May 6, 2006 disc herniations.”

Subsection 283(1) of the Insurance Act restricts appeals from the orders of an arbitrator to questions of law. The Divisional Court, in State Farm Mutual Automobile Insurance Company and S.R. et al., 2013 ONSC 2086, held that to “constitute an error of law, there would have to be a complete absence of evidence from which the inferences could be drawn.”

Delegate Evans, in Liberty Mutual Insurance Company and Young,³ cited Delegate McMahon in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003):

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

State Farm concedes there was evidence supporting Arbitrator Fadel’s disc herniation causation decision; its challenge is to the sufficiency of that evidence. It argues that to “find causation, there must be proof that the accident of August 18, 2005 materially or significantly contributed to the disc herniations … While [P.B.] is not required to trace the chain of causation with precision, causation cannot be reasonably established solely on the basis of speculation which, although theoretically possible, lies outside the realm of medical probability.”

State Farm cites Pastore v. Aviva Canada Inc., 2012 ONCA 642, that the standard of review is reasonableness. In that case, the Court of Appeal quoted Dunsmuir v. New Brunswick, 2008 SCC 9, that “[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process … it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Arbitrator Fadel, in support of his finding of causation, referenced the evidence of Drs. G. Ko, R.S.T. Kaminker, R.J. McBroom and B.M. Stewart. State Farm critiques Dr. Kaminker’s opinion as addressing causation only in terms of a theoretical possibility. Dr. McBroom’s and Dr. Stewart’s opinions, it submits, were based on unreliable assumptions of the symptom history without knowledge of P.B.’s pre-accident pain complaints and other accidents.

State Farm states that Dr. Ko admitted in cross-examination there was no real way to know where or when the ligament tear eventually leading to the disc herniations could have occurred. State Farm suggests that relevant to the weight to be given to Dr. Ko’s opinion is that P.B. paid for his report and he only saw her four and a half years after the accident. State Farm argues that Dr. Ko’s advocacy on behalf of P.B. strayed outside the bounds of reasonableness.

State Farm argues, in any event, that P.B. herself testified in cross-examination that the doctors could not determine that the disc herniations were caused by the August 2005 accident.

State Farm, noting the many medical opinions contrary to a finding of the requisite causative link, including reports it did not pay for, argues that Arbitrator Fadel’s decision “falls outside the range of defensible outcomes and, as such, constitutes a failure of proof and therefore an error of law.”

P.B. notes her oral testimony that she did not have any back problems in the year or so prior to the motor vehicle accident, confirmed by her family doctor, Dr. B. Swarbreck. Arbitrator Fadel noted that the call notes of the air ambulance transporting P.B. to hospital post-accident documented generalized back pain. The November 10, 2005 and February 1, 2006 treatment plans diagnosed a lumbar strain. Arbitrator Fadel also noted Dr. Swarbreck’s testimony that his use of the word “chronic” in his April 18, 2006 clinical note describing lower back pain indicated it was likely this was not the first time P.B. had mentioned lower back pain since the August 2005 accident.

At page 8 of his decision, Arbitrator Fadel stated that based on the evidence he was not prepared to accept State Farm’s premise that lower back pain was not a real issue for P.B. in the relevant period following the accident.

P.B. notes that her family doctor testified that in his treating opinion the May 2006 disc herniations were probably related to the car accident. She also notes that her treating neurologist, Dr. Stewart, opined there was a reasonable probability she had a lumbar spine injury in this accident that either caused some disc herniation which increased on May 7, 2006 or produced intervertebral ligamentous injury that allowed the disc herniations to occur with a minor straining incident on that date.

P.B. also notes the report of her treating orthopaedic surgeon, Dr. McBroom, supporting the causal connection. Dr. Ko, in cross-examination, opined that it was greater than an 80% probability that the accident caused P.B.’s disc herniations. Although there were prior accidents, he stated “I think the big turning point was the 2005 car accident.”

P.B. also notes that State Farm’s own orthopaedic assessor, Dr. Kaminker, postulated that P.B. may have suffered initial tears as a result of the August 2005 accident that may explain her initial complaints of back pain and may have predisposed her to the development of the disc herniations. P.B. notes that State Farm’s medical experts failed to attend the arbitration hearing and were not available for cross-examination.

I find that State Farm’s arguments regarding reasonableness, justification, transparency and intelligibility pertain to the credibility and weight to be given to the expert and lay evidence.

The early decision of Allison and Markel Insurance Company of Canada, (OIC P-001231, August 21, 1996), when the role of appeals was being restricted to errors of law, stated that deference was due to the hearing arbitrator who “is able to consider the evidence in totality, including observing and hearing any witnesses, and usually is in the best position to assess the merits of the case and the way it was handled by the parties.” Director Sachs, in Epps and Co-operators General Insurance Company, (OIC P-002340, December 14, 1994), held that it is not the role of the appellant officer to substitute his or her own assessment for the arbitrator’s.

I agree with P.B. that there is not a complete absence of supporting evidence, resulting in mere conjecture and amounting to an error of law, regarding the determination of disc herniation causation. Accordingly, this further ground of appeal by State Farm is rejected.

(c) Causation: P.B.’s Conversion Disorder

State Farm argues that Arbitrator Fadel did not “expressly state that the conversion disorder was caused by the accident of August 18, 2005.” It submits that if his decision is deemed to imply that the accident caused the conversion disorder such an implication would be an error of law as not having any evidentiary foundation.

State Farm submits that Dr. H. Rosenblat, a psychiatrist, did not mention the August 2005 accident as a psychological stressor at page 279 of the transcript. At page 299, he would not make a conclusion regarding the causative link between the disc herniations, cauda equina symptoms (the cauda equina, the “horse’s tail,” being a bundle of spinal nerves and spinal nerve roots in the low back) and the conversion disorder. Accordingly, State Farm submits that a conversion disorder cannot be causally linked to the August 18, 2005 accident.

Arbitrator Fadel, at page 14 of his decision, poses the question whether P.B. had a conversion disorder. He notes that a conversion disorder “is a psychiatric disorder that appears to be a neurological problem but does not have [an] adequate neurological explanation for the symptoms involved.” Dr. Rosenblat testified to that effect at page 240 of the transcript.

Arbitrator Fadel concludes, four pages later, that the “reports of Drs. Rosenblat and Cancelliere provide ample evidence that proves on a balance of probabilities that [P.B.] has a conversion disorder.” However, unlike the six pages he spent specifically addressing whether P.B.’s disc herniations were casually related to the August 18, 2005 accident, Arbitrator Fadel does not specifically state that the August 2005 accident caused P.B.’s conversion disorder.

I find, however, that it was implicit in Arbitrator Fadel’s decision that the August 2005 motor vehicle caused the conversion disorder. At page 24 of his decision, Arbitrator Fadel states that Dr. Rosenblat noted that P.B. was highly predisposed to a conversion disorder primarily because of her childhood sexual abuse and her use of disassociation as a defence mechanism. Arbitrator Fadel further notes Dr. Rosenblat that stated that P.B.’s depression after the accident indicated that psychological factors played an important role in her pain disorder.

Dr. Rosenblat’s May 8, 2012 report addressed, in part, Axis I of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition – Text Revision (DSM-IV-TR). Axis I, Dr. Rosenblat states, provides information about clinical disorders. A conversion disorder is included under Dr. Rosenblat’s diagnoses, if cauda equina like symptoms are not otherwise accounted for by organic pathology, which they were not in the decision.

Dr. Rosenblat states that four diagnoses, including a conversion disorder, “are all accident related.” P.B.’s subsequent 2009 accident, in Dr. Rosenblat’s view, “resulted in mild worsening of her symptomology. The index accident played a material role in her current psychiatric diagnosis.”

At page 242 of the transcript, Dr. Rosenblat testified that he could not say that the conversion disorder was 100 percent related specifically to the accident or specifically caused by the disc herniations, it was a combination of those factors. The cause of the disc herniations was outside Dr. Rosenblat’s expertise. Arbitrator Fadel specifically found that the disc herniations were caused by the accident. Accordingly, the basis of Dr. Rosenblat’s qualification is removed. In any event, balance of probabilities, not 100 percent certainty, is the standard of proof.

Further, Dr. A. Cancelliere, a psychologist, in his July 5, 2010 report, stated:

[P.B.] does have a severe level of disability currently. Her disability is based in the synergistic impact of her emotional, personality and social difficulties (apparently conversion disorder) in combination with the physical injuries/vulnerabilities sustained in the subject MVA.

There was medical expert evidence in support of a causative link between the August 18, 2005 motor vehicle accident and P.B.’s conversion disorder, implicit in Arbitrator Fadel’s decision. I am not persuaded that this issue should be returned to a new arbitration hearing on the basis that the Arbitrator could have expressed himself more clearly. Accordingly, this further ground of appeal by State Farm is rejected.

(d) Causation: Benefit Entitlement

State Farm submits that Arbitrator Fadel did not explain the nature of the accident-related disability that rendered P.B. eligible for various accident benefits at various times. The first time that a possible diagnosis of conversion disorder was proposed by Dr. Rosenblat was on April 30, 2008. As the conversion disorder was previously undiagnosed, State Farm argues there can be no entitlement to attendant care benefits for the period May 6, 2006 to August 18, 2007, even if the conversion disorder is accident related.

State Farm argues that Arbitrator Fadel did not consider the extent to which post-accident events such as the February 9, 2009 car accident or the second back surgery in May 2011 affected P.B.’s level of function regarding benefit entitlement. While Arbitrator Fadel “made the call” on causation regarding the disc herniations, he failed to do so otherwise. State Farm argues that, accordingly, there is a lack of justification and transparency in his decision of sufficient magnitude and significance to fail the reasonableness test laid out in Dunsmuir.

Arbitrator Makepeace, in Quattrocchi and State Farm Mutual Automobile Insurance Company, (OIC A-006854, September 29, 1997), held that the general intent of the Schedule is to provide compensation for loss of function, not for specific diagnoses.

It is not necessary for an Arbitrator to accept any particular diagnosis of the Applicant’s complaints, because the issue for the Arbitrator is whether the Applicant is substantially disabled from performing the essential tasks of her pre-accident job as a result of the accident. This requires a comparison of the insured person’s functional ability before and after the accident.

Regarding IRB entitlement Arbitrator Fadel stated, in part, addressing at length P.B.’s level of function:

[P.B.] 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.

[Emphasis added]

Regarding attendant care, Arbitrator Fadel stated:

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.”

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 ….

[Emphasis added]

I am not persuaded that Arbitrator Fadel erred in law in failing to find the requisite causality between the subject accident and P.B.’s benefit entitlement, or that there was no evidentiary basis for the requisite causal link being established. Regarding the latter, Dr. Rosenblat opined in part, as noted above, that the subsequent 2009 accident “resulted in mild worsening of her symptomology.” Arbitrator Fadel specifically found that the lower back impairments were caused by the August 18, 2005 motor vehicle accident. Accordingly, this further ground of appeal of State Farm is rejected.

(e) Rating psychological impairment under the 4th Edition of the AMA Guides

Clause 2(1.2)(f) of the 1996 Schedule provides that, for accidents after September 30, 2003, catastrophic impairment includes 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 (“WPI” or whole person impairment).

Arbitrator Muir, in McMichael and Belair Insurance Company Inc.,⁴ (FSCO A02-001081, March 2, 2005), stated:

… practical difficulties aside, the Schedule requires the addition of all impairments, however caused, together in arriving at the appropriate WPI.

The Court of Appeal in Kusnierz v. Economical Mutual Insurance Co., 2011 ONCA 823, stated the same, at paragraph 27, that to “disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.” It preferred the reasons of Spiegel J. in Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] 135 A.C.W.S. (3d) 90 (S.C.J.) and J.R. MacKinnon J. in Arts (Litigation Guardian of) v. State Farm Insurance Co.,⁵ holding:

The language of the SABS, the purpose of [page 279] the Guides, the Guides’ references to combining physical and psychological impairments, and the goals of the SABS lead me to conclude that the combination of physical and psychological impairments is appropriate under s. 2(1.1)(f).

In Pastore and Aviva Canada Inc.,⁶ Arbitrator Nastasi stated:

Desbiens did not specifically decide or comment on the use of one prevailing methodology in assigning percentage ratings to psychological impairments. In fact, one rigid formula or approach is not consistent with the general analysis adopted in Desbiens …

I find that there should be some flexibility in the choice of assessment tool and method selected for rating impairments. The Guides themselves provide some flexibility in terms of options for rating impairments for the different body systems. Clinicians are encouraged to examine and assess impairments having considered the various sections in order to determine which assessment tool is most appropriate for a particular individual and impairment.

I agree with Arbitrator Nastasi’s comments. In Ms. M.G. and Economical Mutual Insurance Company, (FSCO A09-002443, November 23, 2012), partially overturned on a different issue (FSCO P13-00001, July 21, 2014), Arbitrator Sapin stated:

As neither the Guides nor the Court in Kusnierz provide a specific methodology for converting qualitative mental/behavioural ratings to percentage values, assessors have devised a number of options for doing this. In Jaggernauth and Economical Mutual Insurance Company … Arbitrator Feldman reviewed in detail the pros and cons of the six methodologies considered so far by assessors, arbitrators and judges. All incorporate a certain degree of imprecision and subjectivity, such that no single one, needless to say, is entirely satisfactory …

In Jaggernauth and Economical Mutual Insurance Company, (FSCO A08-001413, December 20, 2010), Arbitrator Feldman agreed that the 4th Edition does not provide a methodology for assigning a WPI rating for mental and behavioural impairments. After detailing the weaknesses in the use of the 4th Edition as a basis for catastrophic impairment determination, Arbitrator Feldman stated:

A larger and more liberal interpretation of the AMA Guides may be justified in Ontario given that the Schedule is meant to be consumer protection legislation and given the fact that a determination of catastrophic impairment in Ontario only permits an accident victim to advance a claim but does not necessarily result in any compensation …Therefore, in the case of ambiguity, I find that it is appropriate to construe the AMA Guides in a manner that favours the insured person. In a close case, it is probably preferable to err on the side of finding a person to be catastrophically impaired and permit them their “day in court” than to automatically bar a person who is seriously impaired from making further claims because of an unnecessarily restrictive or narrow interpretation of a guide to medical assessments that was designed for use in a different regime and, at best, provides only an estimate of the person’s level of impairment.

I agree with Arbitrator Feldman’s above comments. Arbitrator Feldman found six different approaches to rating psychological impairment to have been raised in the case law and in the evidence before him:

1. The methodology from the 2nd Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (1984) (the “2nd Edition”)

Paragraph 2(1.2)(g) of the 1996 Schedule provides an alternate basis for a catastrophic impairment determination: an impairment that in accordance with the 4th Edition results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. Chapter 14 of the 4th Edition is entitled Mental and Behavioural Disorders.

The Chapter 14 table at page 301 sets out five classes of impairment: none, mild, moderate, marked and extreme. This five-category scale provides a guide for rating mental and behavioural impairment against four areas or aspects of functioning: activities of daily living, social functioning, concentration and adaptation. These four aspects of functioning are discussed in greater detail at pages 299 to 300 of the 4th Edition:

(a) Activities of daily living including adaptive activities such as cleaning, shopping, cooking, paying bills, self-care, maintaining a residence and working.

(b) Social functioning includes the ability to get along with others including family members, friends, neighbours and others of the public. In work situations it may involve responding appropriately to persons in authority and co-operative behaviour towards co-workers.

(c) Concentration, persistence and pace refer to a person’s ability to sustain focused attention long enough to permit the completion of everyday tasks in the workplace or home.

(d) Adaptation applies to deterioration or decompensation in work-like settings, including decisions, attendance, schedules, completing tasks, and supervisor and peer interaction.

Arbitrator Feldman noted that the 2nd Edition’s methodology of percentage estimates of mental impairment is referenced at page 301 of the 4th Edition. Mental functions such as intelligence, thinking, perception, judgment, affect and behaviour were considered to fall into five classes, with the following ranges of impairment:

Class	Impairment Rating	Ability to carry out daily activities
1. Normal	0% - 5%	Self-sufficient
2. Mild Impairment	10% - 20%	Needs minor help
3. Moderate Impairment	25% - 50%	Needs regular help
4. Moderately Severe Impairment	55% - 75%	Needs major help
5. Severe Impairment	>75%	Quite helpless

Arbitrator Feldman found the 2nd Edition’s five classes of impairment bore some resemblance to the five classes used in the 4th Edition, presuming, for instance, that a “moderately severe” impairment in the 2nd Edition is analogous to a “marked” impairment in the 4th Edition and “severe” impairment in the 2nd Edition is analogous to the 4th Edition’s “extreme” impairment.

Arbitrator Feldman noted that many decisions, including Desbiens and Pastore, at least considered the ratings from the 2nd Edition as part of their analysis. The problem with the 2nd Edition’s ratings was that the 4th Edition considered ratings for mental and behavioural impairment (in non-neurological cases, as discussed further below) highly subjective and advised against their use.

The Court of Appeal in Kusnierz, at paragraph 33, weighed that consideration against indications in the 4th Edition that rating psychological impairments may be permissible in certain circumstances.

Further, the 4th Edition itself states that there “are some valid reasons to use ranges of percents for mental impairments,” most importantly that the chapter on mental disorders would be consistent with the 4th Edition’s chapters for the other organ systems. This consideration takes on greater importance given the determination in Kusnierz that paragraph 2(1.1)(f) (in that case) included both physical and psychiatric impairments.

2. Chapter 4, Table 3 (Emotional or Behavioural Impairments), 4th Edition

The 4th Edition’s Chapter 4 pertains the nervous system. Section 4.1c notes the interrelationship between the fields of neurology and psychiatry, that neurologic impairments may have psychiatric features from irritability to outbursts of rage or panic, from aggression to withdrawal. The criteria for evaluating these disturbances are set out in Table 3, at page 142, stating they relate to the criteria for mental and behavioural impairments in Chapter 14 of the 4th Edition.

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

Arbitrator Feldman notes two arguments in favour of using Table 3. First, it actually comes from the 4th Edition. Second, it ensures that people with mental or behavioural impairments will receive similar impairment ratings regardless of whether the cause of the impairment is neurological or psychological.

Arbitrator Feldman notes the following difficulties in using Table 3 from Chapter 4 of the 4th Edition:

(1) There are only four classes of impairment, not five classes as set out at page 301 of Chapter 14.

(2) The terminology used to describe the classes is different than that used in Chapter 14.

(3) Most importantly, Chapter 14 looks at all aspects of a person’s life: activities of daily living including working, social functioning, concentrating including in the workplace and adaptation specifically in work-like settings. Table 3 in Chapter 4, however, is restricted to social and interpersonal daily functions other than for severe limitations.

Arbitrator Feldman notes that as mental or behavioural impairments can affect activities that have no social or interpersonal aspect, it was not clear that a person who is moderately impaired in all four areas of functioning considered in Chapter 14 automatically fits into the second category of Chapter 4, Table 3 just because it uses the words “moderate limitation.” He comments that despite these difficulties, arbitrators and judges, in the absence of any other guidance, have considered Table 3 when rating mental and behavioural impairments.

Dr. H. Becker (who testified in the present case) opined in Pastore that Chapter 4 was not appropriate for arriving at a psychological impairment rating because the chapter was intended for use in the case of a head injury. Dr. C. Brigham⁷ was of the view it was not appropriate to assign a percentage rating to a psychological impairment. However, if he had to choose an approach he would use Chapter 4, being the “lesser of two evils” compared to the 2nd Edition.

3. A combination of the methodology from the 2nd Edition and Table 3, Chapter 4 of the 4th Edition

Arbitrator Feldman found that the most common approach by judges and arbitrators appeared to be a consideration of both the methodology from the 2nd Edition and Chapter 4, Table 3 from the 4th Edition. In the case before him, the overlap between the second category of Table 3 (“moderate impairment”) and the percentage impairment rating for moderate mental and behavioural impairments in the 2nd Edition was 25% to 29%.

In Ms. G. v. Pilot Insurance Co., (FSCO A04-000446, March 16, 2006),⁸ I accepted the evidence of Dr. A. Ameis, who also testified in Desbiens and in Kusnierz, that it is important, where possible and practical, to double check one’s rating with other appropriate methods of analysis. After reviewing the Tables in Chapter 4 and the percentage ranges of the 2nd Edition, I found that there was an “overlap at 14% WPI, which I find appropriately captures Ms. G’s mental, psychological and behavioural impairments resulting from her accident.”

Spiegel J., in Desbiens, also used a combined or “hybrid” approach:

I have already found that Dr. Finlayson’s evidence supports the conclusion that Mr. Desbiens’ psychological impairments, in each of the areas of functioning listed in the Table at page 301 of Chapter 14, fall within the category of moderate impairment. Dr. Finlayson testified that if he were assessing Mr. Desbiens’ impairments under Chapter 4 he would have found them to fall within the description of “moderate limitation of some but not all social and interpersonal daily living functions” … which permits a WPI percentage ranging from 15%-29%. Dr. Finlayson would have assigned a 25% WPI. Dr. Finlayson testified that the percentages from the 2nd edition can also provide guidance for the appropriate percentage quantification of these impairments and a 25% WPI falls within the percentage range attached to the ‘moderate’ category in the 2nd edition. The essence of Dr. Finlayson’s evidence in this regard is that the analysis under Chapter 4 and Chapter 14 yields the same result. I therefore find that the appropriate quantification of Mr. Desbiens’ psychological impairments is 25% WPI.

4. Global Assessment of Functioning (GAF) scores and the “California method”

Arbitrator Feldman noted in Jaggernauth that psychiatrists and psychologists often use a Global Assessment of Functioning (GAF) to estimate a person’s current state of mental and emotional wellness. As Arbitrator Feldman states, the GAF is a numeric scale (from 0 to 100) that subjectively rates the social, occupational, and psychological functioning of adults such as how well or adaptively one is meeting various problems in living.

The GAF consists of ten ranges. The highest range, 100-91, applies to superior functioning in a wide range of activities, with no symptoms. A range of 60-51 applies to moderate symptoms, 50-41: serious symptoms or “any serious impairment in social, occupational or school functioning.” The lowest range, 10-1, encompasses persistent danger of severely hurting oneself or others.

Arbitrator Feldman states that the State of California introduced a table that converted GAF scores into WPI ratings. In Jaggernauth, Dr. Rosenblat (who was testified in the present case) stated that he had adopted this approach. Arbitrator Feldman noted that the main benefit of this approach was its ease of use. The problems were:

(1) It was not recommended by the 4th Edition and appeared to be unique to California.

(2) A GAF score was a “snapshot” of how a person was doing at that moment and may be a poor measure of permanent or long-term mental or behavioural impairment.

Arbitrator Feldman postulated that taking several GAF scores over a period of time might, if the results were relatively consistent, evidence a permanent or long-term mental or behavioural impairment. He was of the view that GAF scores ought to be considered as part of the assessment of the person’s mental or behavioural impairment. He noted that a GAF score is now one of the three methods used in the 6th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (2008) to rate mental and behavioural impairments.

5. Dr. Gnam’s method

Arbitrator Feldman stated that one of the experts testifying before him, Dr. W. Gnam, a psychiatrist, in the absence of any method being specified in the 4th Edition of the Guides,

devised his own scale to convert GAF scores to WPI ratings, as follows:

GAF Score	Description of Impairment	WPI Rating
71 - 80	Minimal	0 - 5%
61 - 70	Mild	10 - 20%
51 - 60	Moderate	21 - 37%
41 - 50	Serious	38 – 54%
≤ 40	Extreme (Profound)	>55%

The obvious criticism of this approach is that paragraph 2(1.2)(f) of the 1996 Schedule requires that the impairments or combination, in accordance with the 4th Edition, result in 55% or more WPI.

However, Arbitrator Nastasi, in Pastore, held:

Each edition of the Guides indicates that the reviewer can turn to other sources of information to help clarify an impairment rating if this additional information would lead to further clarity in the impairment rating process …In light of all of the evidence presented, I find that it is then open to assessors to use not only previous editions of the Guides but also those subsequent to the 4th edition to assist them in determining the most accurate impairment rating for an individual.

6. The 6th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (2008)

In Jaggernauth, Arbitrator Feldman noted that according to Dr. S. Leclair, a psychologist, the 6th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (2008), derives impairment scores using three methods: the Brief Psychiatric Rating Scale, Global Assessment of Functioning (GAF) and the Psychiatric Impairment Rating Scale. The scores from these three methods, he states, are converted to WPI ratings.

Arbitrator Feldman notes again that it would be difficult to argue that determining a psychological impairment rating using methodology from the 6th Edition was, as required by the legislation, in accordance with the 4th Edition.

In the present case, starting at page 361 of the transcript, Dr. Becker opined strongly against using the 6th Edition for rating psychological WPI, that there is “a falsely low impairment score using the GAF table.” He described it as “totally bogus” that the 6th Edition implies that the GAF impairment score provided is actually a WPI rating. In Pastore, the arbitrator stated that using the 2nd Edition produced a 30% mental and behavioural WPI, Table 3 of Chapter 4 a 22% WPI. Dr. Becker stated that the arbitrator incorrectly accepted the 6th Edition as providing a psychological WPI score and that score was only 10%. Dr. Becker summarized:

So, I don’t have any faith in the sixth edition with respect to the GAF. I think they’ve done some kind of end run on it and I don’t think that was a reasonable one. That’s my personal view.

Arbitrator Feldman was of the view that if a WPI for mental or behavioural impairment is to be done “in accordance with” the 4th Edition, he would tend to agree with the preponderance of case law that relies heavily upon the ratings that are actually referred to in that edition, namely Table 3 of Chapter 4 and the ratings from the 2nd Edition referenced at page 301.

I agree with Arbitrator Feldman’s endeavour to determine “the most accurate reflection of Mr. Jaggernauth's functional impairments.” He held that “there remains some room for the exercise of discretion when choosing a number within any of the ranges provided in [Table 3 of Chapter 4] or, in appropriate circumstances, the discretion to choose a different methodology altogether.” Therefore, in choosing a percentage impairment rating, he kept in mind:

1. The WPI ratings range in Chapter 4, Table 3 for “moderate” limitations (15-29% WPI) could not be applied strictly to mental and behavioural impairments because:

(i) It may not apply to moderate mental and behavioural impairments as defined in Chapter 14; and,

(ii) Mr. Jaggernauth was moderately impaired in all four areas or aspects of functioning (activities of daily living, social functioning, concentration and adaptation) set out in Chapter 14. Table 3 of Chapter 4 focused on social and interpersonal functioning and did not cover functional impairments relating to activities of daily living, concentration and adaptation that did not have a social component.

2. The 2nd Edition’s WPI range for moderate impairment (25-50% WPI) referenced in the 4th Edition ought also to be considered.

3. Mr. Jaggernauth’s consistently low GAF score suggested that his mental and behavioural impairments were at least at the high end of the moderate impairment scale.

Arbitrator Feldman found that a 29% WPI for mental and behavioural impairments reflected Mr. Jaggernauth’s serious (but not marked or extreme) permanent mental or behavioural impairments in all four areas or aspects of functioning in Chapter 14 that would continue to require psychological counselling and pharmacological treatment for the foreseeable future. This rating also recognized that Mr. Jaggernauth’s mental and behavioural impairments were compatible with some but not all useful functioning. Arbitrator Feldman concluded:

In all of the circumstances of this case, I find that the appropriate rating for Mr. Jaggernauth’s mental and behaviour impairments is 29%. This is below the rating suggested by Dr. Pilowsky and Dr. Rosenblat. This rating is at the lower end of the range provided for moderate impairments in the method used in the 2nd edition of the Guides. It is within the range that was suggested by Dr. Gnam (before Mr. Jaggernauth’s psychological condition deteriorated). It is within the range provided for moderate impairments in Table 3 of Chapter 4; it is at the high end of the range but (for the reasons already given) I find that to be appropriate in this case.

I see no error in this double checking, yet still appropriately flexible approach as a means in the circumstances of a case (and not necessarily the only means) of properly and fairly assigning a WPI percentage for mental and behavioural impairment, consistent with the statement in Ms. G:

The intent of the Guides to accurately estimate the extent of each impairment means, amongst other things, not underestimating or overestimating the extent of the impairment. The former includes not penalizing insured persons for gaps in the Guides or in [the catastrophic impairment assessment process]. The latter concern includes not double counting impairments.

This approach is also consistent with Arbitrator Nastasi’s comments in Pastore, with which I agree:

… until the Schedule mandates a specific approach or method, I find that given the lack of guidance offered in the 4th Edition of the Guides that adopting a more holistic and flexible approach will result in the most fulsome and true picture of an individual’s impairments. Such an approach will produce the most fair and accurate results and is most in line with the true intent, meaning and spirit of the legislation.

Again, of prime importance in this regard is the recognition that a designation of catastrophic impairment does not entitle an insured person to benefits; it is merely a threshold that must be met for an insured person to claim an enhanced level of possible benefits.

In the present case, Arbitrator Fadel rated P.B.’s physical impairments at 21% WPI. That finding is not appealed. He rated P.B.’s mental and behavioural impairments at 28% WPI applying the hybrid approach taken in Jaggernauth. Using the Combined Values Chart at pages 322 to 324 of the 4th Edition, Arbitrator Fadel found a combined 43% WPI. That fell short of the requisite 55% WPI necessary under clause 2(1.2)(f) for a finding of catastrophic impairment.

P.B. argues that Arbitrator Fadel was restricted to using Dr. Rosenblat’s 40% WPI rating for psychological impairment, resulting in a combined 53% WPI that should be rounded, as authorized at page 9 of the 4th Edition, to a 55% WPI. Therefore, P.B. seeks an order that she is catastrophically impaired pursuant to clause 2(1.2)(f) of the 1996 Schedule.

Accordingly, P.B. argues that she is entitled to an enhanced monthly attendant care benefit of $5,916.90 ongoing from May 7, 2006 allowed insured persons found catastrophically impaired. Although she concedes Arbitrator Fadel did not address her attendant care claims post 104 weeks, P.B. initially argued that she be paid the claimed amount to present in the absence of any contradictory findings. In oral submissions, P.B. conceded that the only fair way to determine her entitlement to further attendant care benefits might be to send the issue back to arbitration.

I am not persuaded by P.B.’s argument that Arbitrator Fadel was restricted to using the 2nd Edition percentages or that considering Chapter 4, Table 3 of the 4th Edition in arriving at a WPI percentage for mental and behavioural impairment constituted an error of law.

P.B. submits that Chapter 4, Table 3 is restricted to neurological impairments having psychiatric features. She argues that it is inherently inconsistent to find a mental and behavioural impairment based on a conversion disorder that has no neurological basis and then use a methodology based on rating neurological impairments to derive a mental and behavioural WPI percentage.

P.B., however, concedes that the various method of evaluating psychological WPI each has its flaws, which presents a “conundrum” to adjudicators in determining catastrophic impairment.

I find that this conundrum is addressed, in part, by subsection 2(3) of the 1996 Schedule that provides that where an impairment is sustained by an insured person but that impairment is not listed in the 4th Edition, the impairment shall be deemed to be the impairment that is listed in the 4th Edition that is most analogous to the impairment sustained by the insured person.

Mental and behavioural impairments are listed in Chapter 14 of the 4th Edition. They are not, however, given WPI percentages by that Edition. The most analogous impairment in the 4th Edition having approved WPI percentages is Table 3 of Chapter 4.

In any event, the impairment manifestations of a conversion disorder and a possible neurological problem were not determined to be completely foreign to one another. As noted above, Arbitrator Fadel held that a conversion disorder, which he found P.B. to have, “is a psychiatric disorder that appears to be a neurological problem but does not have [an] adequate neurological explanation for the symptoms involved.”

P.B. further argues that the only evidence regarding her psychological impairment was that of Dr. Rosenblat, and that Arbitrator Fadel erred in not accepting Dr. Rosenblat’s 40% WPI rating. P.B. further submits that there was no evidence upon which a 28% WPI rating for psychological impairment could be made and no expert provided a WPI rating based on Chapter 4, Table 3.

I am not persuaded that Arbitrator Fadel was restricted to using Dr. Rosenblat’s psychological WPI rating. Determining WPI percentages is an adjudicative function based on assessing all of the evidence. An adjudicator is not restricted to choosing solely between the specific WPI ratings provided by experts.

In Walker and State Farm Mutual Automobile Insurance Company, (OIC A-009905, February 23, 1996), State Farm argued that the opinion of a Designated Assessment Centre (“DAC”) assessor should be accepted unless the adjudicator had other evidence proving the assessor to be clearly wrong. Rejecting this submission, Arbitrator Rotter held:

I do not accept this submission … In my view, the evidence of a DAC assessor is and remains opinion evidence, which I must weigh carefully in coming to any conclusion. The weight to be accorded any such evidence must be in the discretion of the adjudicator, based on a careful evaluation of the thoroughness, relevance, neutrality and value of the opinion provided. Such factors as, for example, the familiarity with the details and history of a particular case, the length and thoroughness of the examination, and the particular area of expertise of the evaluator must all be carefully assessed. Ultimately, the arbitrator has the responsibility of considering all the evidence — not just the evidence from the DAC — and making a final determination based on his or her best judgement. It is not sufficient to simply accept or adopt the judgement of the DAC assessor, who does not have the legal responsibility or opportunity to hear and weigh all the available evidence in a particular case.

In any event, Dr. Rosenblat was qualified at page 218 of the transcript as an expert witness to give opinion evidence in the area of psychiatry, as specifically requested by P.B. At page 307 of the transcript, however, Dr. Becker was qualified, as requested by P.B., as an expert both as a family doctor and, unlike her request regarding Dr. Rosenblat, “somebody with specialization in catastrophic impairment ratings.” I return to the significance of the expert qualifications below as well as the evidence considered by Arbitrator Fadel in reaching his 28% psychological WPI.

P.B. raises the further argument that the hybrid approach adopted by Arbitrator Fadel “artificially handcuffs adjudicators by restricting moderate mental and behavioural impairments to a narrow WPI range without considering why a particular methodology may be more appropriate in a given claim or why assessors need larger ranges to make complex assessments of mental functioning across a variety of social and interpersonal spheres.”

Arbitrator Fadel found in Jaggernauth an attempt to lend certainty to the system. He stated:

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.

Arbitrator Feldman actually stated in Jaggernauth:

Of course, without a mandated methodology it is difficult, if not impossible, to achieve the consistency that the Guides were intended to create. Furthermore, when choosing amongst possible methods of estimating a person’s whole person impairment rating based upon mental or behavioural impairments, it will be difficult to establish that one approach is superior or more “in accordance with” the 4th edition of the Guides than any other method.

In Kusnierz, MacPherson J.A., speaking for the Court of Appeal, stated regarding consistency:

In my view, the trial judge erred by concluding that combining physical and psychiatric impairments “would contradict the express purpose of the Guides, which is to provide a system for evaluating impairments that is objective and standardized”. With respect, this ignores the Guides’ parallel aim of assessing the total effect of a person's impairments on his or her everyday activities. An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment …

P.B. argues that the two approaches (Table 3 of Chapter 4 and that of the 2nd Edition) have in common only the descriptor of “moderate.” Accepting an overlapping hybrid approach “fails to recognize the complexity of the factors that are considered by the assessors when deciding which approach will best measure a claimant’s condition.” P.B. submits that under the 2nd Edition ratings, moderate impairment (with a 25% to 50% range) applies where regular help is required to carry out daily activities, which is applicable in her case. The Arbitrator’s attempt to lend certainty to the system, she submits, resulted in a gross injustice to her.

State Farm argues that Arbitrator Fadel’s decision in this respect was reasonable, was supported by the evidence and followed Arbitrator Feldman’s reasoning in Jaggernauth. It argues that it was also reasonable for Arbitrator Fadel to reject Dr. Rosenblat’s 40% WPI rating when Dr. Rosenblat himself abandoned the basis of that rating in his May 2012 reassessment.

State Farm further argues that a conversion disorder is unique in that it is devoid of any psychological impairment, manifesting itself purely in physical symptomatology. It submits that P.B. herself testified that the only psychological component to her impairments was some depression. State Farm argues that there is, therefore, a risk of double counting of impairments.

In Allison and Markel Insurance Company of Canada, (OIC P-001231, August 21, 1996), Delegate Naylor stated, albeit in the context of party and party costs:

… Because the discretion is given to the arbitrator, it should not be interfered with lightly on appeal … Generally, his or her determination should not be disturbed unless the party appealing the order can point to a serious error in the exercise of the discretion: for example, the arbitrator adopted a wrong approach, based the decision on irrelevant considerations or inadequate evidence, or failed to look at the merits of the individual case by inappropriately fettering his or her discretion.

Calogero and The Co-operators General Insurance Company, (February 13, 1992, OIC P-000251), held that the “principle, as generally understood, is one should only interfere in the discretion exercised by the trier of fact if it is so clearly wrong as to amount to an injustice (Elsom v. Elsom, 1989 CanLII 100 (SCC), [1989] 1 S.C.R. 1367).”

Did Arbitrator Fadel improperly restrict his discretion to the overlap between the 2nd Edition and the 4th Edition (Chapter 4, Table 3) methodologies, failing to consider the merits of the individual case before him, such as to lead to an injustice and constitute an error of law?

P.B. submits at page two of her reply submissions:

Dr. Rosenblat’s evidence was always consistent in that if a conversion disorder was found, a 40% rating was to be assigned. The essence of the applicant’s appeal rests on this point: it was unreasonable and/or incorrect in law to arrive at a non-catastrophic rating for the applicant given the finding of conversion disorder.

Dr. Rosenblat’s evidence, however, did not consistently rate P.B.’s psychological WPI at 40%.

Dr. Rosenblat’s April 30, 2008 report stated that if a conversion disorder diagnosis was found to contribute to P.B.’s overall mental and behavioural rating, she had mild impairment in two of the four aspects noted in Chapter 14: social function and concentration. P.B.’s activities of daily living were moderately impaired with significant difficulties with self-care and chores, while work adaptation was moderate to marked impaired. Overall, Dr. Rosenblat determined that P.B. had a moderate psychological impairment with “an overall mental and behavioural rating of approximately 40% WPI” using the ranges in the 2nd Edition, P.B. being neither at the extreme or mild ends of the 25% to 50% WPI range for moderate impairment.

Dr. Rosenblat’s May 8, 2012 report, however, stated that there “is no well accepted or valid means of determining whole person impairment secondary to mental and impairment issues.” Dr. Rosenblat now preferred using “the GAF to WPI conversion table as described in Schedule for Rating Permanent Disabilities, January 2005, State of California.”

At page 237 of the transcript, Dr. Rosenblat testified that Axis V under the DSM IV-TR Axial System is a GAF score, or a global assessment of functioning. It is a number that gives you an overall sense as to the psychiatric functioning of the patient, a “kind of like a big picture kind of wrapped up all into one and it gives you a sense of the overall functioning.”

In his May 8, 2012 report, Dr. Rosenblat warned, however, that the “use of symptomatology in determining GAF may result in excessive levels of impairment ratings.” He, therefore, stated that “only the impairment descriptors will be used in determining GAF score in relation to WPI.”

If P.B.’s symptoms were not related to organic neurological pathology but to a psychiatric conversion disorder, Dr. Rosenblat gave P.B. a GAF of 45-48 corresponding, in his evidence, to a psychological WPI of 34 to 40% using the California model. This was “lower in the serious symptom range.” Dr. Rosenblat’s April 30, 2008 report had given P.B. a GAF of 50. It is to be recalled that with GAF scoring, unlike WPI percentages, the lower the score, the more serious the impairment.

Dr. Rosenblat’s May 2012 report states that P.B.’s four areas of functioning from Chapter 14 of the 4th Edition are “identical” (two mild and two moderate) to those found in his previous report. Unlike his April 2008 report, Dr. Rosenblat does not appear to specifically say that if a diagnosis of conversion disorder is applicable, he would rate P.B.’s work adaptation impairment as moderate to marked.

Overall, Dr. Rosenblat’s May 2012 report found P.B.’s psychological impairment to be moderate. Using the wording from Chapter 14 of the 4th Edition, he stated that this means compatible with some but not all useful functioning.

P.B. retained Dr. Becker, as stated at page 308 of the transcript, to prepare a rebuttal report to State Farm’s first catastrophic insurer’s examination. Called by P.B. to testify, Dr. Becker stated that the 4th Edition gave “no indication of how to pick a number.” In his oral testimony, Dr. Becker specifically critiqued the ranges provided in the 2nd Edition noted at page 301 of the 4th Edition. He noted that Desbiens had used Table 3 of Chapter 4, “which is the only other table in the book that relates to emotional and behavioural impairment.” Dr. Becker states, at page 347 of the transcript:

Judge Spiegel in Desbiens has indicated that there is a way of doing it in the AMA guides. It’s always better to try to work within the AMA guides and that was used in Table 3, Page 142.

Dr. Becker opined, at page 341 of the transcript, on the California method that uses “the fifth edition of the AMA Guides to do a direct read out of WPI.” The moderate GAF range is 51 to 60; the serious range is 41 to 50. Dr. Becker called serious the equivalent of marked. Marked is a Class 4 impairment on page 301 of the 4th Edition; moderate is a Class 3 impairment. Dr. Becker testified at page 348 of the transcript that the moderate GAF range of 51 to 60 “comes out to 15 to 29 percent whole person impairment on the California method. Those are identical, identical to the single digits to Table 3 [Chapter 4] on Page 142, the Desbiens Table” [emphasis added].

Dr. Becker’s May 8, 2012 report had combined P.B.’s 21% physical WPI with Dr. Rosenblat’s 34 to 40% psychological WPI, arriving at a 48 to 53% WPI score that, in Dr. Becker’s words, “just meets the catastrophic threshold at the upper end of the range when rounded up” in accordance with the rounding directive of page 9 of the 4th Edition. Dr. Becker concluded:

The ultimate conclusion in this case is not clear at this point and remains elusive. However, I have demonstrated that there is a substantial possibility that [P.B.] indeed sustained catastrophic impairment as a result of this accident.

On cross-examination, at page 373 of the transcript, Dr. Becker stated “I agree it is not a probability … I think if anything it’s an ambiguity as to whether or not she meets it if I can add to my sentence.”

I am not persuaded, for the following reasons, that Arbitrator Fadel erred in law in finding that P.B. was not catastrophically impaired as defined in clause 2(1.2)(f) of the 1996 Schedule:

1. The parties, in oral submissions, agreed that the standard of review on pure questions of law is correctness, citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; on questions of fact and mixed fact and law, reasonableness.

P.B. requires nothing less than a 40% psychological WPI to be found catastrophically impaired. This, combined with her 21% physical WPI, results in a 53% total WPI. If discretion is used to round up as provided for at page 9 of the 4th Edition and as discussed by Arbitrator Feldman above, this just meets the requisite 55% WPI. Anything less than a 40% psychological WPI denies P.B. a catastrophic impairment designation. This issue in this case, to a very significant extent, is fact based.

2. The most significant criticism of using Chapter 4, Table 3 (including that of Dr. Rosenblat in his May 8, 2012 report) is that it largely disregards three of the four aspects of functioning in Chapter 14. By focusing on social and interpersonal functioning, it is argued that Table 3 significantly underestimates the full range of Chapter 14 mental and behavioural impairments. The evidence of Dr. Rosenblat in both of his reports was that P.B.’s social functioning impairment was mild. The WPI range in Table 3 for mild impairments is 0% to 14%. Arbitrator Fadel’s finding of psychological WPI of 28% is at the upper end of the moderate range of Table 3, 15% to 29% WPI, reflecting P.B.’s overall psychological impairment based on all four areas of functioning in Chapter 14.

3. Dr. Becker, P.B.’s retained expert, noted in his oral evidence the criticism of Table 3, Chapter 4 that it only looks at social interaction. In this present case, at page 339 of the transcript, he testified that he considered the critical part of Table 3 not the definitions but the numbers, the ranges provided for mild, moderate and severe impairment.

Throughout the AMA Guides, Dr. Becker testified, moderate impairment (which Dr. Rosenblat rated P.B. psychologically overall) tends to be rated at 15 to 29% WPI. Dr. Becker embraced the California methodology, at page 342 of the transcript, as “self-validating” of the Chapter 4 Table 3 approach applied in Desbiens. Implicitly arguing against the evidence of her own witness, qualified as an expert in catastrophic impairment ratings at her request, P.B. submits that Table 3 of Chapter 4 that is actually in the 4th Edition cannot be used in rating her psychological WPI.

4. Dr. Rosenblat’s initial 40% psychological WPI was based on the 2nd Edition’s ratings referenced in the 4th Edition. Dr. Becker states at page 359 of the transcript in this present case regarding the 2nd Edition’s methodology: “I used to support that method. I don’t any longer. That method gives, I believe, too high a rating.” P.B. implicitly asks that her own expert’s opinion evidence be disregarded, submitting at page 9 of her written submissions, “the appropriate model that should have been employed is the accepted 2nd Edition AMA Guide method.”

5. Dr. Rosenblat changed P.B.’s WPI psychological rating to a range of 34% to 40% in his May 2012 report based no longer on the 2nd Edition but on GAF scoring. He stated that he preferred to use a GAF range, explaining at page 266 of the transcript, “it’s just too difficult to pin down the number that specifically. It’s just not a reasonable expectation for us to determine a number like that.” P.B. implicitly submits that the range provided by Dr. Rosenblat be ignored, that a 40% psychological WPI was the only evidence before Arbitrator Fadel.

6. Dr. Rosenblat noted Arbitrator Feldman’s critique of GAF scores in Jaggernauth (a case in which Dr. Rosenblat also testified), that it gave a snapshot picture of a person’s functioning, that it would be more useful if there were serial GAFs over a period of time.

Dr. Rosenblat’s initial GAF rating for P.B. was 50 (with Axis 1 including a conversion disorder). Dr. Rosenblat converted this into a psychological WPI of 30%, extremely close to Arbitrator Fadel’s 28% psychological WPI. In his examination-in-chief, Dr. Rosenblat noted, at page 253 of the transcript, a subsequent GAF score of 55 for P.B. The source of this scoring is noted in Dr. Rosenblat’s May 8, 2012 report as the March 24, 2011 Catastrophic Psychological Assessment of Ken Scapinello. This converts, on the Schedule for Rating Permanent Disabilities, January 2005, marked as Exhibit 28 and provided by Dr. Rosenblat, as a 23% WPI, which is below Arbitrator Fadel’s rating.

P.B. implicitly asks that P.B.’s GAF scores of 50 (assessed by Dr. Rosenblat himself) and 55 be ignored. Dr. Rosenblat’s second GAF rating for P.B. of 45 to 48 (Dr. Rosenblat again presuming a conversion disorder) translated into a psychological WPI rating of 34% to 40%. P.B. implicitly submits that only the rating of 40% within this range can be even considered, that any other rating within that range is unreasonable or incorrect.

7. Dr. Rosenblat testified that the first step in assigning a WPI score is to assess the four areas or aspects of functioning from page 301 of the 4th Edition’s Chapter 14: activities of daily living, social functioning, concentration and adaptation. Dr. Rosenblat’s May 2012 report states that P.B.’s four areas of functioning from Chapter 14 remained the same from his April 30, 2008 report. P.B. was still mildly impaired in social functioning and concentration, “impairment levels compatible with most useful function.” She was moderately impaired in activities of daily living, compatible with some but not all useful functioning. However, as noted above, work adaptation may have improved from moderate to marked to simply moderate.

It is unclear how P.B.’s GAF ratings, if applicable to WPI ratings, have worsened moving P.B. into the serious range (that Dr. Becker opined was the equivalent of marked impairment) while her Chapter 14 areas of functioning from the 4th Edition are no worse and, overall, are still within the moderate range of the four aspects of functioning set out in Chapter 14. At page 268 of the transcript, Dr. Rosenblat testified (confirming what is noted above) that the 4th Edition does not reference the California tables, that it does not say anything about converting a GAF score to a WPI score.

8. I am not persuaded that Arbitrator Fadel failed to look at the merits of the case before him. Nor am I am not persuaded that he had no evidence or basis upon which to make a determination of a 28% psychological WPI for P.B.

At page 29 of his decision, Arbitrator Fadel noted that Dr. Rosenblat found that P.B. had only mild impairment in two of the four aspects of functioning in Chapter 14 of the 4th Edition. He countered that by taking into consideration Dr. Rosenblat’s rating of work adaptation as initially being in the moderate to marked range and that P.B.’s low GAF scores appeared to be consistent over a period of time by different assessors. He found the hybrid approach, “a reliable source to determine the applicant’s WPI rating in accordance with the fourth edition.”

Further, Arbitrator Fadel’s 28% psychological WPI would seem to be consistent with the evidence of Dr. Becker, who preferred using Table 3 of Chapter 4. A 40% psychological WPI using Table 3 falls significantly into the 30% to 49% range provided for a “severe limitation impeding useful action in almost all social and interpersonal daily functions.” Dr. Rosenblat did not assess P.B.’s level of impairment in that range in any of the four areas of functioning from Chapter 14.

9. Arbitrator Fadel had an opportunity to see and hear P.B., which I have not. He had an opportunity to see and hear the expert witnesses, which I have not. He had the benefit of hearing and reviewing all of the evidence while I have only restricted issues that have been appealed before me. Deference should be given to the advantageous position of the first level adjudicator. As stated in Calogero, “it is not the Director’s function to substitute her assessment for that of the arbitrator.”

10. The determination of catastrophic impairment has been legislatively mandated. Based solely on P.B.’s own overall expert evidence, it is difficult to see a new arbitration hearing being warranted on the basis that Arbitrator Fadel’s 28% psychological WPI, or anything less than the 40% psychological WPI necessary in the particulars of this case for a determination of catastrophic impairment, constitutes an unreasonable or an improper exercise of discretion such as to lead to an injustice constituting an error of law. On the evidence, it is difficult to see in this particular case, using the words of Arbitrator Feldman, that the hybrid approach was “an unnecessarily restrictive or narrow interpretation” of the 1996 Schedule. Applying the oral expert testimony of Dr. Becker, P.B.’s own witness, it is difficult to see a 40% psychological WPI as a reasonable result.

Accordingly, P.B.’s appeal is rejected and Arbitrator Fadel’s November 5, 2013 decision is confirmed.

III. EXPENSES

If the parties cannot agree on the legal expenses of these appeals, pursuant to Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014) and as agreed by the parties, an expense hearing shall be requested within thirty days of the date of this decision.

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

July 30, 2014

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Ruffolo v. Sun Life Assurance Co. of Canada, 2007 CanLII 50284 (ON SC), [2007] O.J. No. 4541, (upheld on appeal, 2009 ONCA 274), states that “[w]here a contract is unambiguous, a court should give effect to the clear language, reading the contract as a whole: Brissette Estate v. Westbury Life Insurance Co., 1992 CanLII 32 (SCC), [1992] 3 S.C.R. 87; Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551.
3. 3(FSCO P03-00043, June 20, 2005) Application for judicial review dismissed in Liberty Mutual Insurance Company v. Young, 2006 CanLII 7286. Leave to appeal denied by the Court of Appeal. Doc. CA M33635 June 12, 2006.
4. 4Affirmed on appeal (FSCO P05-00006, March 14, 2006), application for judicial review dismissed, (2007), 2007 CanLII 17630 (ON SCDC), 86 O.R. (3d) 68 (Div. Ct.).
5. 52008 CanLII 25055 (ON SC), leave to appeal denied [2008] 72 C.C.L.I. (4th) 249 (S.C.J.)
6. 6(FSCO A04-002496, February 11, 2009), upheld on appeal (FSCO Appeal P09-00008, December 22, 2009), set aside in Aviva Canada Inc. v. Pastore, 2011 ONSC 2164, overturned in Pastore v. Aviva Canada Inc., 2012 ONCA 642.
7. 7Arbitrator Nastasi noted that Dr. Brigham was an American physician, Board certified in Occupational Medicine and a Certified Independent Medical Examiner. She further stated that he is “a prominent American advisor on disability issues.”
8. 8Set aside in G., Ms. and Pilot Insurance Company, (FSCO P06–00004, August 28, 2006), application for judicial review allowed in G. B. v. Pilot Insurance Company, 2008 CanLII 2602 (ON S.C.D.C.) Leave to appeal refused, G.B. v. Pilot Insurance Co. (M36025 ), June 11, 2008.