Neutral Citation: 2014 ONFSCDRS 17

FSCO A12-003518

BETWEEN:

HANS-JORG REICHERT

Applicant

and

CHUBB INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Rosemary Muzzi

Heard: April 22, 23, 24, 25, 29, 30, May 1 and 2, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Joel Dick for Mr. Reichert George Kanellakos for Chubb Insurance Company of Canada

Issues:

Hans-Jorg Reichert, was injured in a motor vehicle accident on October 1, 2007. He seeks a determination that he suffered a catastrophic (CAT) impairment due to a mental or behavioural disorder¹ as a result of the accident. He also seeks a finding that he is entitled to attendant care benefits.

The issues are:

Is Mr. Reichert catastrophically impaired as that term is defined in section 2(1.2)(g) of the Schedule?
If Mr. Reichert is catastrophically impaired, what is the attendant care benefit to which he is entitled?

Result:

Mr. Reichert is catastrophically impaired as a result of the accident.
Mr. Reichert is entitled to a monthly attendant care benefit of $3,036.82.

ANALYSIS

Introduction

Mr. Reichert claims that he has a marked impairment as a result of the injury suffered in the accident and that such impairment renders him catastrophically impaired in accordance with section 2(1.2)(g) of the Schedule. The result is that he becomes entitled to enhanced benefits for attendant care.

Chubb concedes that the accident of October 2007 contributed to Mr. Reichert’s current presentation. But it relies on the findings of the multidisciplinary panel, and in particular, on the report of Dr. West, psychologist, to assert that the level of Mr. Reichert’s impairment is at most moderate and therefore does not meet the threshold for catastrophic impairment. Chubb also asserts that the severity of his impairment cannot be attributed to the accident because (a) he had some pre-existing psychological conditions resulting from work stress and other personal factors that required treatment, and (b) his response to the accident is exaggerated: his actual impairment is less than he believes it to be.

Law and Framework of Analysis

The Court of Appeal in the case of Pastore v. Aviva Canada Inc.² confirmed that the assessment in CAT impairment determinations under this section of the Schedule is carried out by reference to the American Medical Association’s Guides to the Evaluation of Permanent Impairment. (“Guides”)The Court proposed this three stage legal analysis in determining the question:

Did the accident cause the claimant to suffer a mental or behavioural disorder?
If it did, what is the impact of the mental or behavioural disorder on his daily life?
In view of the impact, what is the level of impairment?

If the person concerned has a marked or more severe level of impairment, they meet the definition for CAT impairment as a result of a mental or behavioural disorder.

The Guides’ approach to assessing a concerned person’s function in their daily life is to examine the concerned person’s abilities within four different areas of life: activities of daily living; social functioning; concentration, persistence and pace; and, deterioration or decompensation in work or work-like settings – also referred to as failure to adapt to stressful circumstances.

The Guides also assist in quantifying or otherwise rating the severity or degree of impairment of function within those general areas.

1. Did the accident cause Mr. Reichert to suffer a mental or behavioural disorder?

The preponderance of the medical evidence indicates that Mr. Reichert was diagnosed with various mental or behavioural disorders following the accident by numerous medical assessors including those retained by Chubb.

Most of the medical assessors found that Mr. Reichert suffered some head trauma or brain injury as a result of the accident leading to serious cognitive difficulties, referred to as dementia by some of the assessors. These assessors include Drs. Gruson, Porter³, Chan, Prendergast, Hamilton, and Wolkoff and Ouchterlony. Drs. Doxey and Mitson found⁴ that Mr. Reichert’s memory problems and difficulty with executive problem-solving were consistent with injuries to the frontal areas of the brain and that he had physical and other findings consistent with the mechanism of the accident.

Several of the assessors also noted that Mr. Reichert’s older brain would have been vulnerable to such a trauma given some pre-existing mild atrophy.

In December 2012, Dr. Seyone, psychiatrist and Director, Acquired Brain Injury Clinic, at the Toronto Western Hospital, concluded⁵ that Mr. Reichert sustained an acquired brain injury that while minimal from a physiological perspective, was severe in its impact from a neuropsychiatric perspective, resulting in a cognitive disorder.

The medical diagnoses of Dr. Saint-Cyr, neuropsychologist, and Dr. West differed substantively from those of the other assessors, both agreeing that no brain injury resulted, with Dr. Saint-Cyr concluding that Mr. Reichert suffered a conversion disorder and Dr. West diagnosing an adjustment disorder and an overreaction to the disability.

I am not persuaded by the opinion of Dr. Saint-Cyr as it stands alone and in stark contrast to almost every other opinion. Dr. Saint-Cyr’s diagnosis incorporates a factitious disorder and/or malingering, concepts which are not shared by most other assessors if any. Though his diagnosis is less serious, Dr. West finds that Mr. Reichert has a mental or behavioural disorder resulting from the accident: “Adjustment Disorder, unspecified, chronic, of mild to moderate severity ⁶, opining that it accounts for Mr. Reichert’s various psychological and emotional symptoms, his current level of functioning, and, in fact, his functioning from the date of accident. As such, even Dr. West recognizes the development of a disorder as a result of the accident.

While there is evidence that Mr. Reichert sought medical advice and some mild treatment related to stress and difficult personal circumstances, such as the death of his mother, the test for whether the accident caused Mr. Reichert’s mental or behavioural disorder is the test of material contribution. In this context, in fact, Chubb did not dispute causation. I find that the accident materially contributed to the development of Mr. Reichert’s mental or behavioural disorder.

I am persuaded by the preponderance of medical evidence indicating that Mr. Reichert suffered a mental or behavioural disorder on account of the accident. That disorder is likely some cognitive disorder, such as dementia, due to a brain injury and that disorder has hindered his functioning.

2. If it did, what is the impact of the mental or behavioural disorder on his daily life?

There was an abundance of evidence before me about Mr. Reichert’s life pre- and post-accident.

In assessing the impact of the dementia on Mr. Reichert’s daily life, I have relied on his testimony and on his reports to the numerous and various assessors and treatment providers, as such his credibility is an issue requiring comment.

I found that Mr. Reichert was a credible witness at the arbitration, though he at times answered questions obliquely and in a rambling way. Various assessors noted the same manner and also found him credible. Dr. Wong saw no malingering or pain amplification behaviour. Dr. Gruson found his complaints and impairment valid and credible given his clinical presentation and test findings and their consistency over most assessments carried out over the four years since the accident. Even Dr. West testified that Mr. Reichert’s efforts at narrative and testing were the best he could muster. I find therefore that Mr. Reichert’s testimony was trustworthy.

In determining the impact of the dementia on his life, I have also relied on the testimony and reports of his wife, Marianne Reichert, also a straightforward and reliable witness.

The preponderance of the evidence is that the dementia has affected Mr. Reichert’s daily life in all areas and in some areas to a significant degree. Chubb does not dispute that Mr. Reichert’s life has changed since the accident. Chubb disputes the level or degree of the impairment that Mr. Reichert suffered as a result of the accident.

It is certainly the case that Mr. Reichert’s professional circumstances changed even before the accident. Mr. Reichert had been a major force in the restaurant and food service industry for many years. He had been a high functioning executive employer who managed all aspects of his business, working long days, socializing with other industry leaders and leading a busy family life with his wife and two daughters. The circumstances of his work life began to change dramatically when his business was reorganized in 2004 leading to his ouster. This situation resulted in some protracted legal proceedings eventually leading to a financial settlement. It is acknowledged that this was a time of stress for Mr. Reichert but Mrs. Reichert described her husband as eager to start the next chapter of his career and eventually he and his wife embarked on another project – the development of a new restaurant north of the city.

It is acknowledged that the new business was not successful, its opening coming on the heels of the car accident. The new restaurant was eventually shut down and Mr. Reichert’s plans to start yet another, smaller business, post-accident, providing eco-friendly packaging to the restaurant and food service industry, were never realized either.

However, the CAT impairment test requires an assessment of the change in abilities or function as a result of the accident and it is here where the evidence shows a significant decline. From the very day after the accident, Mr. Reichert exhibited changes to his personality, mood and behaviour that had a profound impact on his function. These changes were noted by many including his wife and his family doctor, Dr. Francis, who was the first practitioner to see him after the accident. Dr. Francis’ notes over the course of his consultations with Mr. Reichert reveal a progressive decline in the areas of work, socialization and the ability to make decisions. These observations have been echoed in many of the other reports.

There is evidence that from the date of accident Mr. Reichert exhibited significant impairment in his ability to focus, analyze and think.

Several of the assessors noted Mr. Reichert’s difficulty in the completion of the psychological tests they administered, a task he would have handled adeptly before the accident. Dr. Samuel Wong, physiatrist, noted his difficulty with spontaneously answering questions and word finding. Dr. Doxey⁷ found Mr. Reichert provided lengthy, confused and rambling replies to the questions. Three years post-accident, in November 2011, Dr. Gruson noted that Mr. Reichert still had difficulty in test-taking, including difficulty understanding instructions and distractibility.

Test-taking ability is a source of evidence for impairment according to Chapter 14 of the Guides which reminds us that taking a standardized test requires concentration, persistence, and pacing, one of the very areas to be assessed in determining level or severity of impairment.

There was other evidence of serious issues with focus, initiative and persistence. Dr. Rivers, Mr. Reichert’s treating psychologist from October 30, 2007 to December 4, 2010,⁸ noted in 2009 that Mr. Reichert was reporting poor focus and concentration, difficulty accomplishing anything and many projects started but unfinished. He also continued to report difficulty with socializing.

Drs. Porter and Gruson also noted an uncharacteristic lack of initiative, drive and interest and an inability to manage his responsibilities and emotionally regulate himself. They also noted other cognitive and behavioural impacts such as social isolation tendencies. Dr. Porter commented that these impacts were not present prior to Mr. Reichert’s accident and, in spite of a potentially stressful four or five years pre-accident, he had been coping well.

This view is echoed by Dr. Hamilton in August 2010, finding that Mr. Reichert’s disorder had an adverse effect on his business skills and judgment that had never occurred before even when Mr. Reichert was under stress and being treated with mild medications.

In December 2012, Dr. Seyone, psychiatrist and director, Acquired Brain Injury Clinic, Toronto Western Hospital, concluded⁹ that Mr. Reichert suffered “emotionality and mismanagement of anger and outbursts”. He also found that Mr. Reichert needed to be appropriately treated for sleep, mood, pain and cognitive difficulties.

Many assessors noted that one of the most significant impacts on Mr. Reichert’s life has been his inability to work. They were of the view that Mr. Reichert’s injury directly affected his ability to run his business and, in fact, the evidence is that Mr. Reichert has engaged in almost no work or work-like activities since the accident.

Mrs. Reichert testified that her husband was unable to follow through on any of the tasks necessary to get their new restaurant venture operational and it had to close after six months.

In 2008, Dr. Wong found that Mr. Reichert was unable to meet pre-MVA job demands involving supervising and coordinating hundreds of employees. Dr. Saint-Cyr, in June 2009, also found that he could not resume normal employment duties at that time. Dr. Hamilton said in 2010 that he was disabled from working at the level he was at before the accident. Dr. Bayley, in 2011, said that Mr. Reichert has an accident-related disability in his ability to work and earn a living at his employment of choice.

More generally, Dr. Bayley agreed with Drs. Porter and Hamilton that Mr. Reichert’s accident-related cognitive inefficiency combined with his pain and mood symptoms to undermine his ability to play the role of an executive resulting in a loss of his business. Similarly his anxiety and mood symptoms likely played a role in his inability to forge and maintain business relationships that are critical for success. He found him disabled from returning to work.¹⁰

Both Drs. Chan and Wolkoff found that Mr. Reichert could not work in any capacity with Dr. Chan reporting in 2009 that he could not work consistently, efficiently or productively at that time or in the future; and Dr. Wolkoff concluding that he could not be gainfully employed at all.

Even Dr. West concluded that the accident resulted in significant decompensation and deterioration, albeit accompanied by a subjective self-perception of disability and impairment that is disproportionate to and inconsistent with what might be expected following this type of accident.¹¹

Two occupational therapists, Galit Liffshiz and Jeff Ford, undertook situational assessments, visiting Mr. Reichert at home and observing him in his daily tasks. They came to different conclusions about his function in the areas of his daily life.

Mr. Liffshiz found that he was incapable of accomplishing many of the tasks he did so easily pre-accident. When Ms. Liffshiz observed him in his attempts to complete productive work – in this case, correspondence to the bank requesting a second mortgage — she noted that he stared at the document for thirty minutes and then constantly asked her for assistance. He re-edited the same document and made the same errors over and over again, stopping every 5-6 minutes, forgetting to save his changes and made many spelling mistakes. He finally finished it after two hours. He was agitated and frustrated the whole time.

Ms. Liffshiz found that Mr. Reichert required cuing for activities such as showering and dressing. He had the assistance of a rehabilitation support worker with whom he consulted to create a daily schedule but she could not make a schedule for him that he could maintain. She found his task completion woeful because he was easily distracted, needed a lot of time to do the simplest tasks, constantly changed his mind and could not focus. She found his decision-making questionable because he was impulsive or recalcitrant. She found that he could not prepare food and was challenged by even basic cooking.

Mr. Ford, also found limitations to Mr. Reichert’s function that were not present pre-accident but he found the limitations to be much less severe than did Ms. Liffshiz. For example, he found that Mr. Reichert deferred to his wife for decision-making. He also said that Mr. Reichert was unable to vocalize his daily activity plan or specify the events that comprised his daily routine. He recognized Mr. Reichert’s difficulty with problem-solving and attending to tasks and in August 2011 determined that it was reasonable and necessary for Mr. Reichert to have the support of a rehabilitation support worker.¹² Mr. Ford also noted that Mr. Reichert had decreased social functioning.

When all the evidence is considered in its entirety, it is fair to conclude that Mr. Reichert’s life has been altered on every level by the disorder he suffered as a result of the accident. Mr. Reichert went from being a high functioning individual professionally, personally and socially to someone who could not work or socialize easily, focus or concentrate, or accomplish what would have been in the past the easiest of tasks for him.

3. In view of the impact, what is Mr. Reichert’s level of impairment?

In order to qualify as catastrophically impaired under section 2(1.2)(g) of the Schedule, an applicant must demonstrate a level or degree of impairment that is marked. The Guides direct that the assessment of the level or severity of a mental or behavioural impairment is undertaken by examining four areas of function in daily life:

activities of daily living (ADLs)
social functioning
concentration, persistence and pace
deterioration or decompensation in work or work-like settings.¹³

Many of the assessors observed or commented on one or more of these areas and Dr. West specifically undertook this type of assessment as did Ms. Liffshiz and Mr. Ford.

Dr. West concluded that Mr. Reichert had developed emotional or behavioural symptoms in response to an identifiable stressor and that those symptoms or behaviours were clinically significant as evidenced by “(1) marked distress that is in excess of what would be expected from exposure to the stressor”, and (2) significant impairment in social or occupational (academic) functioning.”¹⁴ He also concluded that Mr. Reichert had a moderate impairment in work because he should be able to do more than he is doing. (emphases mine)

Other assessors found a marked if not severe impairment in the area of work (deterioration or decompensation in work or work-like settings) by concluding that he could not be gainfully employed at all (Dr. Wolkoff, Drs. Doxey and Mitson¹⁵, Dr. Chan).

A number of assessors found that he was compromised in his ability to concentrate (Drs. Saint-Cyr, Chen, Hamilton,Wolkoff, and Doxey and Mitson).

Dr. Doxey’s testing found the following:

he has significant loss of capability at working under time pressure conditions; also reflected a profound loss in capabilities;
he shows a desire to deny consciously or unconsciously the effects of the accident on his life
he shows clinically significant symptoms of anxiety
he shows severe depression.

Both Ms. Liffshiz and Mr. Ford found Mr. Reichert impaired in all areas. They agreed that he was more impaired in the areas of (i) social functioning and (ii) deterioration or decompensation in work or work-like settings than he was in the area of activities of daily living. Ms. Liffshiz found that he had a marked impairment in social and work functioning and Mr. Ford found a moderate impairment. Ms. Liffshiz found a moderate impairment in ADLs and Mr. Ford a mild impairment in this regard.

The Guides assist in classifying level of impairment. For example, they provide a table¹⁶ for the classification of impairments due to mental and behavioural disorders which indicates that a marked impairment indicates impairment levels that significantly impede useful functioning.

Applying this general description to the findings in Mr. Reichert’s case, I find that the evidence shows that he has a significant impediment in the areas of concentration, persistence and pace and has significant decompensation in work or work-like settings such that he has a marked impairment.

The descriptions of Mr. Reichert’s attempts to be productive and his ability to cope with a basic daily schedule are similar: he is unable to complete even simple administrative tasks; he has serious difficulty concentrating and applying himself; he requires cuing but still cannot complete tasks; what he accomplishes is of poor quality; he has poor short term memory; he cannot organize his thoughts; he cannot accomplish more complex tasks and many simple tasks as well.

Further, Mr. Reichert has been unable to work and his prognosis for work in the future is poor at best. The preponderance of the evidence supports the notion that Mr. Reichert has a marked impairment in his ability to adapt appropriately in a work or work-like setting with many assessors finding that he is unable to work at any job much less on the level he performed in the past.

When the serious limitations in these two areas of his life are combined with his decreased social functioning and limitations in his activities of daily living, I find that Mr. Reichert has demonstrated that he has a marked impairment on account of the mental or behavioural disorder resulting from the accident. Consequently, Mr. Reichert has a catastrophic impairment.

ATTENDANT CARE

The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.¹⁷ Enhanced benefits of up to $6,000 monthly are available to insured persons who are catastrophically impaired.

There are three different levels of attendant care accounted for with the attendant care benefit: level 1 – routine personal care, level 2 — basic supervisory functions, and level 3 — complex health care and hygiene. The monthly amount to be paid in attendant care benefit is to be determined in accordance with a Form 1.

In this case, both of the occupational therapists conducted an assessment and produced a Form 1. Ms. Liffshiz’s Form 1 indicates a need for supervisory care that brings the monthly amount of attendant care to over $6,000, compared to the Form 1 of Mr. Ford that recommends no attendant care benefit payable.

In my view, Mr. Reichert’s circumstances warrant some attendant care but not to the degree indicated by Ms. Liffshiz.

Based on the evidence before me, I take no issue with Ms. Liffshiz’s estimates and recommendations as they pertain to levels 1 and 3.

In level 1, she estimated that Mr. Reichert requires 120 minutes per day of assistance with preparing and serving meals, 120 minutes per day of supervision or assisting in walking and 60 minutes three times per week with additional or extra laundering. These estimates makes sense given the evidence that Mr. Reichert is challenged by even simple cooking and that his forgetfulness and confusion require that he be accompanied when out in the community.

In level 3, Ms. Liffshiz recommended 15 minutes per week of assistance with maintaining and controlling Mr. Reichert’s medication supply. Again given his issues with his short term memory, this recommendation seems eminently reasonable.

In level 2, Ms. Liffshiz recommends 65 minutes per week for assistance to clean the bathroom after use and change bedding and make the bed. I take no issue with these recommendations and estimates of time. However, the bulk of the benefit recommended by Ms. Liffshiz in this level is subsumed in the category of the provision of basic supervisory care because Mr. Reichert lacks the ability to respond to an emergency or needs custodial care due to changes in his behaviour. Here Ms. Liffshiz concludes that Mr. Reichert requires 8150 additional minutes per week of supervisory care.¹⁸ This amount translates to approximately 19 hours per day of supervisory care. Presumably, the rationale for this conclusion is found in the report accompanying the Form 1 where she finds that:

Due to his limited mobility, impaired balance, impaired coordination, and due to impaired cognition the client requires constant supervision, cueing and reminder. In addition, due to his mood changes and personality changes his wife has been supporting him emotionally throughout the day since the day of the accident with no change. ¹⁹

However, I was directed to no significant medical evidence that Mr. Reichert requires day-long supervisory care. Such a need was not noted by any of the doctors who assessed or treated Mr. Reichert.

Even Ms. Liffshiz’s observations taken over the two-day period of her situational assessment do not seem to support such a need.²⁰

(1) Though she recommends supervision in positioning and walking because he has fallen down in the past, nowhere is it noted that either she or Mrs. Reichert physically assisted Mr. Reichert in the household. Further, there was evidence that on occasion Mr. Reichert was going out on his own and driving. (In addition, during the hearing, I did not observe anyone physically assisting Mr. Reichert as he walked into or out of the room.)

(2) Though he required cueing to remember to do certain tasks, he accomplished those tasks for himself, e.g. he used the computer, he attempted to cook, and he showered and dressed himself.

Mrs. Reichert testified that, during the day, Mr. Reichert continues with his own activities. He sleeps while she drives their daughters to school and runs errands. Sometimes he is up and showered when she returns and other times not. They might have breakfast together. He might spend time during the day working at the computer, reading the paper, watching the television news, playing with their cats. For certain activities, he will request her assistance: finding or remembering names and phone numbers, certain tasks on the computer.

I accept, and the evidence shows, that Mr. Reichert needs cueing and reminding due to his poor short term memory and lack of initiative; therefore some basic supervisory care is required here. Mrs. Reichert may also have to accompany him out in the community, on errands, or otherwise in unfamiliar surroundings to ensure that he does not lose his way. However, I do not see the evidence that supports a need for constant supervisory care beyond that.

Even with respect to an emergency situation that occurred in the recent past, Mr. Reichert knew enough to keep himself safe: there was a fire on one of the properties they own and while Mr. Reichert was very upset and could not locate the number for the fire department or find the keys to the property, he took care of himself and did not remain in or near the fire. To some degree, I agree with Mr. Ford’s observation that Mr. Reichert at this time is still able to make decisions for his own safety.

Further, it is also clear to me that Mrs. Reichert in fact has had to assume most of the household management duties and deals with the other matters affecting the family in general. It is not possible therefore that she has spent 19 hours per day, all days since the accident, providing attendant care to Mr. Reichert. In addition, she testified that she continues to attempt to engage in work or activities that might earn an income and was spending one day per week engaged in such activity.

Moreover, Mr. Reichert’s need for his wife’s presence to reassure himself, or his need for emotional or personal support due to his depression and anxiety is not the kind of need that is in my view to be met by the provision or payment of an attendant care benefit. Therefore, I disagree with Ms. Liffshiz’s recommendation in that respect as well.

Consequently, in my view, the need for supervisory care is best described as intermittent and only for portions of the day. I would therefore subtract two-thirds from Ms. Liffshiz’s total minutes per week of such supervisory care to account for the time that Mr. Reichert is still able to spend on his own and the time that Mrs. Reichert spends engaged in other activities. Therefore, the total weekly minutes at level 2 are reduced to 2738. Using her calculation for the monthly benefit²¹, the amount payable at his level is $1.521.00.

When this amount is added to the monthly totals for levels 1 and 3²², I reach a total monthly benefit of $3,036.82. Therefore, I find that Mr. Reichert is entitled to a monthly attendant care benefit of $3,036.82 from the two-year anniversary of the accident to date and ongoing. Mr. Reichert is also entitled to interest on the outstanding amounts of attendant care to be calculated in accordance with the Schedule.

CONCLUSION:

I find that Mr. Reichert is catastrophically impaired because he has a marked impairment due to a mental or behavioural disorder as a result of the accident and is entitled to a monthly attendant care benefit of $3,036.82 from the two-year anniversary of the accident to date and ongoing.

EXPENSES:

I exercise my discretion to award Mr. Reichert his reasonable expenses incurred in this preliminary issue hearing.

February 5, 2014

Rosemary Muzzi Arbitrator

Financial Services Commission of Ontario