Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 72

FSCO A12-001073 and A12-004644

BETWEEN:

DEBORAH ELLIS

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

REASONS FOR DECISION

Before: Isoken Osunde

Heard: June 24, 25, 26, 2014, in Belleville, Ontario. Written submissions were completed on October 15, 2014.

Appearances: Frank Van Dyke for Ms. Ellis Rose Bilash and Keri Wilson for Guarantee Company of North America

Issues:

The Applicant, Deborah Ellis, was injured in a motor vehicle accident on November 15, 2005. She applied to Guarantee Company of North America (“Guarantee”) for a determination of Catastrophic Impairment under the Schedule.¹ Guarantee concluded that Ms. Ellis did not suffer a catastrophic impairment as a result of the motor vehicle accident of November 15, 2005. The parties were unable to resolve their dispute through mediation, and Ms. Ellis applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Has Ms. Ellis suffered a catastrophic impairment under Section 2(1.2) (f) of the Schedule?

2. Has Ms. Ellis suffered a catastrophic impairment under Section 2(1.2) (g) of the Schedule?

3. Is Ms. Ellis entitled to a special award?

4. Which party is entitled to expenses?

Result:

1. Ms. Ellis has not suffered a catastrophic impairment under Section 2(1.2) (f) of the Schedule.

2. Ms. Ellis has suffered a catastrophic impairment under Section 2(1.2) (g) of the Schedule.

3. Ms. Ellis is not entitled to a special award.

4. There is no order on expenses. The parties are encouraged to resolve this issue on their own failing which I may be spoken to on it within 30 days of this decision.

BACKGROUND:

Ms. Ellis, presently a 60 year old woman, was involved in a motor vehicle accident on November 15, 2005 from which she sustained various injuries. The motor vehicle accident occurred while Ms. Ellis was a passenger on a city bus. She was sitting on a side facing bench seat behind the bus driver when the bus was struck by a truck and Ms. Ellis suffered various injuries as a result of this accident.

Ms. Ellis’ position is that she has suffered a catastrophic impairment as a result of the injuries she sustained from the accident. Guarantee disputes this position and the issue which I must decide is whether, as a result of the physical and/or mental impairments she sustained from the accident, Ms. Ellis is catastrophically impaired under Section 2(1.2)(f) and/or Section 2 (1.2) (g) of the Schedule.

Has Ms. Ellis suffered a catastrophic impairment under Section 2(1.2)(f)?

The Law:

Section 2 (1.2) (f) of the Schedule states that:

2(1.2) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 30, 2003 is,

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

In Ontario, Catastrophic Impairments are evaluated in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment.² (the “Guides”)

Under the Guides, impairment levels of different parts of the body are assessed using different protocols. The impairment is then expressed as a whole person impairment which represents an estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.

The individual whole person impairment (WPI) ratings are combined using the combined values chart at pages 322 to 324 of the Guides. This represents the level of severity of a person’s overall impairment. Under the Guides, they range from 0% to 100%. The higher an individual’s WPI rating, the greater the level of severity of their impairment.

Parties Positions:

Ms. Ellis’ position is that as a result of a combination of her physical and mental or behavioural impairments, she has achieved a whole person impairment rating of 55% or more as required by the Schedule and therefore, she has sustained a catastrophic impairment under section 2(1.2)(f) of the Schedule.

Guarantee’s position is that Ms. Ellis does not meet the 55% whole person impairment rating threshold as required under section 2(1.2)(f) of the Schedule as a result of a combination of her physical and mental or behavioural impairments and therefore, she is not catastrophically impaired under this section.

For the reasons that follow, I find that Ms. Ellis has not sustained a catastrophic impairment under Section 2(1.2)(f) of the Schedule.

EVIDENCE AND ANALYSIS:

There is no dispute that Ms. Ellis does not meet the 55% or more WPI threshold due to her physical injuries alone. It is now settled law that an individual may achieve the 55% WPI threshold through a combination of physical and mental impairments.³ Therefore, in order for Ms. Ellis to be catastrophically impaired under section 2(1.2)(f) of the Schedule, she must attain a WPI of 55% or more due to a combination of her physical and psychological impairments.

Physical Injuries:

As a result of the accident, Ms. Ellis underwent several x-rays and MRI’s⁴ which revealed mild degenerative changes in her lumbar spine with narrowing of L5 – S1 disc.

Ms. Ellis was also seen by various medical examiners⁵ to whom she reported persistent pain in her left buttocks, left thigh, right hip and lower back at various times. There was a general consensus among the examiners that Ms. Ellis’ pain in her lower back was as a result of the accident and most likely the disc bulge.

On February 16, 2006, Ms. Ellis was seen by Dr. Harris, a specialist in physical and rehabilitation medicine for a physiatry assessment at the request of Guarantee. In a letter dated February 16, 2006⁶, Dr. Harris opined that Ms. Ellis appeared to be suffering from an acute lumbosacral radiculopathy.

Dr. Harris opined that Ms. Ellis’ symptoms of pain, dysesthesia and weaknesses were the direct result of the motor vehicle accident in question. He further opined that because of her age and body habitus, there may have been a predisposition to such injury but the clear temporal association with exacerbation in therapies, made it clear that the primary problem was an acute injury, i.e the motor vehicle accident. He recommended an MRI of Ms. Ellis’ lumbar spine and suggested a withdrawal of the occupational therapy and physiotherapy sessions which were ongoing at the time.

On November 2, 2006, Dr. Craig McInnes, a specialist in physical medicine and rehabilitation saw Ms. Ellis. In a letter dated November 2, 2006⁷, Dr. McInnes opined that most of Ms. Ellis’ pain was related to the annulus tear noted on the MRI.

There were only 2 medical opinions commenting on Ms. Ellis’ WPI as a result of her physical impairments. Below, I shall address both opinions.

Dr. Kadish:

Dr. Leon .J. Kadish⁸ conducted an orthopaedic assessment on Ms. Ellis on July 4, 2007 at her request. Dr. Kadish did not testify at the hearing. His report was filed by Ms. Ellis.⁹

In May 2011, Dr. Kadish submitted an OCF 19 – Application for Determination of Catastrophic Impairment dated May 4, 2011¹⁰ on behalf of Ms. Ellis. Dr. Kadish opined that Ms. Ellis has suffered an impairment that results in a WPI of 55% or more as a result of her dependence on a motorized scooter for her mobility. For the reasons that follow, I reject Dr. Kadish’s opinion.

Under Part 3 of the application, and in response to providing information on his knowledge of Ms. Ellis, Dr. Kadish checked off the following statement:

“I have reviewed the file but have not seen the applicant…”

In addition, under Part 4 of the Application, in response to the criteria under which he assessed Ms. Ellis as catastrophic, Dr. Kadish checked off criterion 7:

an impairment or a 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.

He stated further that:

She remains severely disabled by her limited mobility and is dependent on a motorized scooter and a 4-wheeled walker because of her MVA-related impairments sustained on November 15, 2005.

Ms. Ellis’ position is that the regulation does not require an applicant to submit a detailed medical report when applying to an Insurer for a catastrophic determination. Guarantee’s position is that Dr. Kadish’s application should be rejected because he did not conduct a catastrophic impairment assessment on Ms. Ellis.

The Guides state that an impairment estimate or rating is a simple number which does not convey any information about an applicant or the impact of the impairment on the person’s capacity to meet personal, social or occupational demands. In fact, one may lose sight of important information in viewing the number. The Guides state further that the strength of the medical support for an impairment estimate depends on the completeness and reliability of the medical documentation. In addition, a clear, accurate and complete report is essential to support a rating of permanent impairment.¹¹

Other than the orthopaedic assessment in 2007 in which Dr. Kadish opined about Ms. Ellis’ ability to perform her pre-accident housekeeping and home maintenance activities and her ability to perform her pre accident work duties, Dr. Kadish did not conduct any catastrophic assessment on Ms. Ellis before arriving at a rating of 55% or more as indicated in the OCF 19. Without an assessment to accompany the OCF 19, I find the OCF 19 insufficient and therefore unreliable and I reject his opinion.

Dr. Oshidari:

As part of a multidisciplinary catastrophic assessment by LifeMark Assessments conducted at Guarantee’s request, Dr. Alborz Oshidari, a physiatrist, assessed Ms. Ellis on August 13, 2011. His report formed part of the multidisciplinary catastrophic assessment report dated September 27, 2011¹² and was filed by Guarantee. Dr. Oshidari did not testify at the hearing. Dr. Oshidari assigned a WPI of 20% to Ms. Ellis for her physical injuries. There is no dispute about this rating. I am satisfied that Dr. Oshidari’s opinion is supported by the evidence adduced. In the absence of any contrary opinion to Dr. Oshidari’s, I defer his opinion and I accept his rating.

The Psychological Assessments:

There were three catastrophic assessments conducted to address Ms. Ellis’ mental and behavioural impairments as a result of the accident; two at the request of Guarantee by Dr. Henry Rosenblat¹³ and one at Ms. Ellis’ request by Dr. Duncan Day.¹⁴ Overall, for the most part, I found Dr. Day’s opinion more consistent with the evidence presented. Therefore, I prefer his opinion. I will outline my reasons for this preference in more detail, later in this decision in my analysis of whether Ms. Ellis is catastrophically impaired under section 2(1.2)(g) of the Schedule. However, for the purpose of a section 2(1.2)(f) analysis, I shall address the portion of their assessments that deal with Ms. Ellis’ WPI rating as a result of her mental and behavioural impairment in this section.

The overall conclusion of both doctors is as follows:

Activities of daily living

Social Functioning

Concentration, Persistence and Pace

Adaptation

Overall WPI for mental and behavioural impairment

Dr. Day

Class 3 Moderate impairment

Class 3 Moderate impairment

Class 2 Mild impairment

Class 4 Marked impairment

43%

Dr. Rosenblat

Class 2 Mild impairment

Class 2 Mild impairment

Class 2 Mild impairment

Class 2 Mild impairment

8 – 11%

Below are my concerns with the methodologies employed by both doctors in arriving at their WPI ratings for Ms. Ellis’ mental and behavioural impairment.

Dr. Day assigned a WPI rating of 43% to Ms. Ellis by utilizing Table 3 of the Guides.¹⁵ In his opinion, Table 3 provides a range of 30% to 49% for severe in almost all social and interpersonal functions. This category is analogous to a marked impairment¹⁶ .

Albeit I agree with Dr. Day’s conclusion that Ms. Ellis is markedly impaired under the realm of adaptation and that Table 3 is applicable in this case, I find that his 43% rating is not an accurate reflection of Ms. Ellis’ overall whole person impairment due to her mental and behavioural impairments. Under Table 3, Ms. Ellis would fall within the range of 30% to 49% based on Dr. Day’s finding that she is markedly impaired under the domain of adaptation. Dr. Day assigned the higher end of the scale being 43% without an explanation as to how he arrived at this number. Dr. Day appeared to have taken into consideration only the domain of adaptation where he opined that Ms. Ellis was markedly impaired in arriving at this conclusion. Given that his opinion was that Ms. Ellis was moderately impaired in two other domains (Activities of Daily Living and Social Functioning) and mildly impaired in the realm of Concentration, Persistence and Pace, I find that a more reliable approach would be to consider Ms. Ellis’ level of impairment in all the other domains in assigning a number. Therefore, I do not find this approach reliable and I reject this rating.

Dr. Rosenblat, on the other hand, assigned a WPI rating to Ms. Ellis for her mental and behavioural impairments by utilizing the California method.¹⁷ In assigning a WPI rating for Ms. Ellis’ mental impairment, Dr. Rosenblat expressed concerns with the use of Table 3 at Chapter 4, Page 142 of the Guides because Chapter 4 applies to neurological disorders. In addition, Dr. Rosenblat opined that Table 3 only considers social and interpersonal daily functions. He further opined that Table 3 significantly underestimates the impairments defined in Chapter 14. He therefore proposed the use of the GAF to WPI conversion table as described in the Schedule for rating permanent disabilities under the Labour Code of The State of California. In Dr. Rosenblat’s opinion, the conversion table was the most reasonable means of determining mental and behavioural WPI. In utilizing the California method, Dr. Rosenblat assigned a WPI of 8 – 11% to Ms. Ellis.

The California method has been rejected by Arbitral jurisprudence here at FSCO¹⁸ because it is not recommended by the Guides and it appears to be unique to the state of California. In any event, in this case, I am not persuaded that Dr. Rosenblat’s conclusion based on the use of this table is an accurate reflection of Ms. Ellis’ overall level of impairment due to her mental and behavioural impairment. Therefore, I reject his impairment rating.

Ms. Ellis’ WPI rating based on her mental and behavioural impairments:

There does not appear to be a standardized methodology for assigning WPI ratings for mental and behavioural impairments under the Guides. Arbitral jurisprudence has found that in the absence of a standardized methodology in the Guides for assigning WPI ratings for mental and behavioural impairments under the Guides, adopting a flexible approach will result in the most fulsome and true picture of an individual’s impairments.¹⁹ I agree with this line of reasoning.

Of the two approaches suggested by both doctors, I prefer the use of Table 3 of Chapter 4. I find that given the evidence, utilising table 3 in this case, results in a more fulsome and accurate reflection of Ms. Ellis’ level of impairment. For reasons that I will discuss later in this decision, I agree with Dr. Day’s categorization of Ms. Ellis’ level of impairment in each of the four domains.

In assigning a WPI rating to Ms. Ellis under Table 3 of Chapter 4, I have taken into consideration the level of severity of her impairment under all four domains. I find that taking the average of all the ratings would reflect a more accurate representation of the extent of Ms. Ellis’ level of impairment as a result of her mental and behavioural impairments.

Under Table 3 of Chapter 4, Ms. Ellis’ impairment levels would be analogous to the following:

Impairment Description

% impairment of the whole person

Mild

0 – 14

Moderate

15 – 29

Marked

30 – 49

Extreme

50 – 79

For the purpose of conducting this analysis, my categorization of Ms. Ellis’ impairment level under the four domains is set out in the table below²⁰.

Domain

Impairment Level

Impairment Rating

Activities of daily living

Moderate

29%

Social functioning

Moderate

29%

Concentration, Persistence and Pace

Mild

7%

Adaptation

Marked

42%

If I take the average of all these numbers, I arrive a WPI of 26.75%. Rounded up, the number becomes 27%. Given the fact that Ms. Ellis is moderately impaired in two spheres and mildly impaired in one sphere, I find this number a more accurate reflection of Ms. Ellis’ overall WPI based on her mental and behavioral impairments. Therefore, I assign a WPI of 27% to Ms. Ellis for her mental and behavioural impairment.

Conclusion under section 2(1.2)(f)

Ms. Ellis suggested a number of ways with which I could arrive at a WPI of 55% or more for her. The majority of those suggestions presuppose that I accept Dr. Day’s 43% WPI for Ms. Ellis’ mental and behavioural impairments. Having rejected this rating, I do not find these suggestions useful in the circumstance. Ms. Ellis also suggested that I combine various ratings using the tables in Chapter 4 of the Guides. Were I to accept this suggestion, Ms. Ellis’ WPI would be well over 55%.

Aside from utilizing Table 3 of Chapter 4 for the purpose of assigning percentage ratings for mental and behavioural impairments, I do not find Chapter 4 applicable in this case because it specifically deals with permanent impairments resulting from dysfunction of the brain, brain stem, cranial nerves, spinal cord, nerve roots and peripheral nerves.²¹ I find that in the absence of any evidence to support any impairment to Ms. Ellis’ nervous system, the tables in this chapter are not applicable.

Therefore, having assigned a WPI of 27% for Ms. Ellis’ mental and behavioural impairment and also accepted Dr. Oshidari’s 20% WPI for Ms. Ellis’ physical impairment, using the combined tables chart at page 322 of the Guides, Ms. Ellis’ overall WPI is 42%. I find therefore, that Ms. Ellis is not catastrophically impaired under section 2(1.2)(f) of the Schedule.

Has Ms. Ellis suffered a catastrophic impairment under section 2 (1.2)(g) of the Schedule?

The Law:

Section 2(1)(1.2)(g) of the Schedule states that:

1.2 a catastrophic impairment caused by an accident that occurs after September 30, 2003 is:

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

Evidence and Analysis:

There was a general consensus among the examiners that Ms. Ellis’ functional limitations were in part on account of her pain. Guarantee asserted that her pain was due to her physical injuries and had no relationship to a mental or behavioural disorder caused by the accident. Therefore In order to determine whether Ms. Ellis is catastrophically impaired under section 2(1.2)(g), it is necessary to answer the following questions:

· Has Ms. Ellis suffered a mental or behavioural disorder as a result of the accident?

· Is Ms. Ellis’ mental or behavioural disorder is a contributing factor to her pain?

· Has she suffered at least a marked impairment due to the mental or behavioural disorder?

Has Ms. Ellis suffered a mental or behavioral disorder?

I am persuaded that Ms. Ellis has suffered a mental or behavioural impairment. This was the opinion of almost every examiner who assessed Ms. Ellis’ psychological condition.²²

Is Ms. Ellis’ mental or behavioural disorder a contributing factor to her pain?

Ms. Ellis’ Position:

Ms. Ellis’ position is that her pain has a psychological component to it and that the medical evidence supports this position.

Guarantee’s Position

Guarantee’s position is that Ms. Ellis’ pain is related to the annulus tear, bulging lumbar disc, exacerbation of pre – existing degenerative disc disease and chronic lateral cutaneous nerve pain and not psychological factors. Guarantee further submits that the overall medical evidence points to an objective basis for Ms. Ellis’ uncontrollable low back left thigh and lower extremity pain and that there is not enough evidence to support Ms. Ellis’ position that there are psychological contributing factors to her pain.

For the reasons that follow, I find that there is sufficient evidence to support the fact that Ms. Ellis suffers from a Pain Disorder driven by both psychological and physical factors.

Most of the physical medical examiners were of the opinion that there was a component to Ms. Ellis’ pain which they could not explain physically hence they opined that it was psychologically driven. For example, Dr. Oshidari who is a physiatrist and formed part of the LifeMark multidisciplinary catastrophic assessment team, noted in his report²³ that Ms. Ellis was in some distress from pain and that her emotional condition was somehow contributing to her physical restrictions. Dr. Deans, an orthopedic surgeon who saw Ms. Ellis on November 27, 2006 in his report dated December 8, 2006²⁴, noted that Ms. Ellis’ state had deteriorated and that psychogenic non-organic factors were at play. In a subsequent post-104 Multidisciplinary Insurer Examination report dated September 28, 2012²⁵, Dr. Deans reiterated that his previous opinion on December 8, 2006 remained unchanged and that Ms. Ellis’ condition appeared to be worsening. Dr. Townley,²⁶ an orthopedic surgeon, opined that as a result of the accident, Ms. Ellis developed chronic pain syndrome that now affects her lower back, neck and bilateral shoulders. He stated further that Ms. Ellis is physically and emotionally crippled by the pain that she experiences on a daily basis.

Rhonda Nemeth, a psychologist who assessed Ms. Ellis as part of the Multidisciplinary post 104 Insurer Examination, in the report of September 28, 2012²⁷ diagnosed Ms. Ellis with a pain Disorder Associated with both Psychological Factors and a General Medical Condition.

Guarantee submits that these opinions should be considered with caution as in the absence of an updated MRI, it is possible that the cause of Ms. Ellis’ worsening symptoms is the progression of the annulus tear and disc bulge. Therefore, all possible somatic factors have not been eliminated. This is a theory which I am not prepared to accept in this case in the face of all the medical evidence presented and especially in the absence of any medical opinion suggesting the need for an updated MRI. Ms. Ellis went through numerous investigations by various professionals and most of them opined that Ms. Ellis suffers from a pain disorder driven by both physical and psychological factors.

Chapter 14 of the Guides deals with Mental and Behavioural disorders. The authors of the Guides, acknowledge that establishing that pain is or is not a symptom of a mental impairment may be a difficult and complex task (my emphasis). Pain that presents only as a symptom of a mental disorder is rare. The Guides further recommend the following guidelines for determining whether pain is a symptom of a mental impairment. The first of which has been rightly identified by Guarantee.

1. All possible somatic causes of the pain have been eliminated by careful, comprehensive medical examinations.

2. Some significant emotional stressor has occurred in the patient’s life that may have acted as a triggering agent and the stressor and the pain have occurred in a reasonable sequence

3. Evidence exists of a mental disorder other than a conversion – related one, and the pain may be a symptom of the former.

In applying the recommendation of the Guides in Chapter 14, I find it pertinent to apply the guidelines in its totality and not in isolation of each other.

In this case, it is evident that Ms. Ellis did experience a significant emotional stressor (the index accident) which was the triggering agent to her pain.²⁸ The evidence also supports the fact that the stressor and the pain have occurred in a reasonable sequence. In fact there is no dispute about this. There is also no dispute that Ms. Ellis does have a mental disorder other than a conversion disorder although there is no consensus on the nature of the mental disorder or to what extent it impacts her functionality. In addition, the fact that most of the assessors opined that psychological factors might be at play with regard to Ms. Ellis’ pain is sufficient to satisfy the third condition above that the pain may be a symptom of the mental disorder.

The Guides also recommend that determinations about difficult and borderline cases should be made through a multidisciplinary, multispecialty approach in which physicians who are knowledgeable about the different body systems are involved as needed.²⁹

As stated above, Ms. Ellis was assessed by a wide variety of assessors most of whom concluded that there is a psychological component to her pain. I find therefore on a balance that there is sufficient evidence to support Ms. Ellis’ position that she suffers from a Pain Disorder associated by both Psychological Factors and a General Medical Condition.

What is the impact of that mental or behavioural impairment on Ms. Ellis’ functionality?

The Psychological Assessments:

As stated earlier, Doctors Day and Rosenblat conducted catastrophic assessments on Ms. Ellis. Dr. Day opined that Ms. Ellis is markedly impaired in the realm of adaptation. Dr. Rosenblat, on the other hand opined that Ms. Ellis is mildly impaired in the realm of adaptation. I heard testimonies from both doctors, and for the reasons that follow, for the most part, I prefer Dr. Day’s opinion.

First and most importantly, Dr. Day’s categorization of Ms. Ellis’ impairments under the four domains was more consistent with the evidence presented.

Second, Dr. Day conducted a more elaborate amount of psychometric testing which encompassed validity testing while Dr. Rosenblat only conducted a limited amount of psychological testing during the second assessment. Overall, Dr. Rosenblat’s results were more subjective than Dr. Day’s because his observations of Ms. Ellis, were largely from the first assessment which were based on his clinical formulation of Ms. Ellis. Under cross examination, Dr. Rosenblat conceded that conducting a more extensive psychological testing would increase the likelihood of obtaining higher validity scales. I find that in a complex case such as this, an extensive psychological testing would be of assistance in obtaining more objective test results.

Third, Dr. Rosenblat opined that Ms. Ellis’ functional limitations were due to pain attributable to her physical problems and were not psychological in nature. I find it pertinent that he specifically noted that Ms. Ellis’ pain-related impairments must be rated by other assessors and not considered as mental and behavioural impairments. As stated earlier, Ms. Ellis was assessed by a wide variety of other assessors some of whom were Insurer Examiners³⁰ and they differed in opinion from Dr. Rosenblat.

I find that Dr. Rosenblat’s ultimate conclusion as to his categorization of Ms. Ellis’ impairment under the four domains was affected by his opinion that there were no psychological contributing factors to her functional limitations.

Has she suffered at least a marked impairment due to the mental or behavioural disorder?

Analysis of Ms. Ellis’ impairment levels under the four spheres:

To the extent that Ms. Ellis is not markedly impaired in the realms of Activities of Daily Living, Social Functioning and Concentration, Persistence and Pace, both doctors reached a consensus. I agree with both opinions. The main bone of contention was Ms. Ellis’ level of impairment in the realm of adaptation. However for the purpose of conducting a whole person impairment (WPI) analysis under section 2(1.2)(f) of the Schedule, I shall characterize Ms. Ellis’ level of impairment under the four domains and assign a percentage rating for each domain using Table 3 of Chapter 4.

The Guides at page 301 classify impairments as follows:

Area or aspect of functioning

Class 1: No impairment

Class 2: Mild impairment

Class 3: Moderate impairment

Class 4: Marked impairment

Class 5: Extreme impairment

Activities of daily living Social Functioning Concentration Adaptation

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Activities of Daily Living:

These include activities such as self-care, personal hygiene, communication, travel, sexual function, sleep, and social and recreational activities. The Guides state that under this category, what is assessed is not simply the number of activities that are restricted, but the overall degree of restrictions or combination of restrictions.³¹ I find overall that Ms. Ellis is restricted in most of the aspects of activities of daily living namely sleep, travel, social and recreational, sexual function, self-care and personal hygiene.

Some of the more specific evidence with regard to activities of daily living, is as follows:

i. Self-Care and Personal Hygiene:

Ms. Ellis is currently unable to shower unless her common law partner Mr. Blaind is home to provide assistance for her to get in and out of the shower. She can go for days without showering. She is currently unable to bend down to put on her socks and requires assistance from Mr. Blaind to put on her winter boots, bra and shoes. She is able to sit on the bed and dress up. She uses a commode for toileting and is sometimes unable to get to the commode on time and has an accident. Ms. Ellis is not impaired in the areas of feeding and meal planning. She is able to make light meals. With regard to her housekeeping tasks, Ms. Ellis is unable to do anything that requires bending and is unable to do laundry activities because they are located in the basement and the stairs are too steep for her to climb.

ii. Communication:

Ms. Ellis is able to initiate and follow conversations. Most of the assessors reported that Ms. Ellis was able to communicate with them during the assessments.

iii. Travel:

Currently, Ms. Ellis ambulates outside her house using a scooter. She uses a walker for support sometimes. She has difficulty negotiating stairs and can stand for short periods of time and then take short breaks. Susan McNab,³² an occupational therapist who conducted an Insurer Examination on behalf of Guarantee, noted Ms. Ellis’ standing and walking tolerance within the home was no greater than ten minutes. In addition, she observed that Ms. Ellis’ stair-climbing was quite slow and awkward. Ms. Ellis has been able to travel four times since the accident to Florida and Dominican Republic in the company of her siblings.

iv. Sexual Function

Ms. Ellis is currently unable to have sex with her partner because it takes too much energy.

v. Sleep

Ms. Ellis’ sleep pattern varies from three hours of sleep per night to no sleep at all due to pain. Most assessors reported that Ms. Ellis complained of having difficulty sleeping.

vi. Social and Recreational Activities

Ms. Ellis described herself as very outgoing prior to the accident. She particularly enjoyed bowling, karaoke and pool. She ran a small handy man business with her partner prior to the accident. Since the accident, she no longer goes on outings because it has become very exhausting and painful. She can do light grocery shopping with her scooter.

Based on the evidence, I find it sufficient to conclude that Ms. Ellis’ overall limitations under this realm are compatible with some but not all useful function enough to place her on the higher end of the moderate range. Therefore, I find a percentage rating of 29% appropriate in the circumstance.

Social Functioning:

This aspect refers to an individual’s ability to interact appropriately and communicate effectively with other individuals. Activities such as a person’s ability to get along with family members, friends, neighbours, grocery clerks, landlords or bus drivers are taken into consideration when assessing a person’s level of impairment under social functioning.

The evidence suggests that Ms. Ellis’ social life has changed quite considerably from before the accident. She has gone from someone who was quite social before the accident to somebody who can go for months without leaving the house. For example, the evidence is that Ms. Ellis was a very outgoing individual prior to the accident. Her job as a Personal Support Worker required her to interact with clients. Since the accident, she has become angry because of her dependence on others. Her relationship with her partner has diminished because his drinking has increased because he is coping poorly with the changes in Ms. Ellis’ life since the accident. Mr Blaind in his testimony, described Ms. Ellis as “not being there” Dr. Rosenblat opined that some degree of the strain in the relationship between Ms. Ellis and Mr Blaind is secondary to Ms. Ellis’ mental and behavioural impairment. Ms. Ellis has been able to maintain a good relationship with her siblings since the accident and has kept one friend. She testified that she no longer has a typical day and that days and hours do not mean anything to her anymore and no longer goes on recreational outings. I find on a balance that Ms. Elis is moderately impaired in the realm of social function and her overall limitations put her on the higher end of the moderate range. I find a percentage of 29% appropriate in the circumstance.

Concentration, Persistence and Pace:

This category, also referred to as task completion refers to a person’s ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings.

Overall, Ms. Ellis’ ability to concentrate and remember information has not changed significantly since the accident. She is able to read books and has no difficulty concentrating on the computer or television. Both Doctors Day and Rosenblat agree that Ms. Ellis is mildly impaired in this area. I agree and find that Ms. Ellis’ impairment level in the realm of concentration, persistence and pace is compatible with most useful functioning placing her in mild range. I find a percentage of 7% appropriate in the circumstance.

Adaptation

In my analysis of Ms. Ellis’ impairment under section 2(1.2)(f) above, I have already assigned a WPI rating for Ms. Ellis’ level of impairment under the realm of adaptation. In this section, I shall outline my reasons for doing so and also consider whether she has suffered at least a marked impairment under this realm.

The category of adaptation refers to a person’s repeated failure to adapt to stressful circumstances. The Guides at Chapter 14 state that in the face of a failure to adapt to stressful circumstances, an individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks.³³ The Guides also presuppose that estimating the extent of permanent impairments is most effective when there is sufficient medical and nonmedical information to justify the estimate and minimize adversarial situations. Therefore, in making a determination on whether Ms. Ellis is markedly impaired in the realm of adaptation, I have taken into consideration medical and non-medical evidence with regards her functionalities before and after the accident and her limitations in the realms of activities of daily living and social functioning. I find this vital to making an overall determination in the realm of adaptation.

Prior to the accident, Ms. Ellis lived a relatively active life. She worked as a Personal Support Worker — a job which she held for about 18 years. Her duties included banking for clients, doing laundry, shopping and personal care. In the year of the accident, she was hospitalized due to an episode of Pancreatitis. However, she was able to return to work after being discharged from the hospital. Her income statements show a steady increase in the five years before the accident.³⁴ Ms. Ellis currently receives an income replacement benefit from Guarantee, a Canada Pension Plan Benefit and is dependent on her common law partner for financial support. In comparing Ms. Ellis’ life before the accident to her life after, the totality of evidence suggests a considerable loss of independence. She went from someone who was financially independent and even worked harder in the last five years before the accident to being dependent on others for an income. In addition, she is now dependent on her common law spouse for assistance with her activities of daily living (Activities which clients depended on her to perform for them in her pre‑accident job). The Guides state that adaptation includes the ability to use public transportation and travel to and from familiar places. In addition, it includes the ability to set realistic goals and plan independently of others. Ms. Ellis’ job required her to move around visiting clients. The evidence is that Ms. Ellis commuted to work and visited clients by taking public transportation. This is significant because, in my view, taking public transportation requires some level of planning and independence such as could be required for a work like setting. I find the evidence that Ms. Ellis is now dependent on a scooter for mobility outside of her house since the accident sufficient to establish that her ability to travel and use public transportation has been significantly impeded since the accident. In addition, I cannot accept that the fact that Ms. Ellis has been able to make four trips in total to Florida and Dominican Republic within a period of nine years since the accident proves that she is able to travel and is independent. If anything, I find that her dependence on her siblings for the planning and for support during the trips further confirms her inability to travel independently of others.

Ms. Ellis had a relatively healthy life prior to the accident. She suffered from diabetes and high blood pressure but she was able to manage the diabetes by diet and took some medication for her high blood pressure. Both Doctors Day and Rosenblat agree that Ms. Ellis had no prior history of a psychological impairment before the accident. Since the accident, she has developed Psychological issues sufficient to cause a strain on her relationship with her partner and keep her indoors sometimes for months. She is now unable to hug people because it is painful and is unhappy because she cannot hug her grandchildren. I find these limitations to Ms. Ellis ‘social life sufficient to establish that her social life since the accident is impeded making it difficult for her to adapt socially in a work-like setting.

Overall, after considering Ms. Ellis’ limitations in the realms of activities of daily living, social functioning, travel and the opinion of assessors that Ms. Ellis is unemployable at other jobs much less her pre accident employment, I am persuaded that there is sufficient evidence to establish Ms. Ellis’ impairment level in the realm of adaptation significantly impedes her useful function. Therefore I find that Ms. Ellis is markedly impaired in the realm of adaptation. I find a rating of 42% appropriate in the circumstance.

It is now settled law that a marked impairment in at least one of the four domains, qualifies an applicant to a designation of catastrophic impairment under Section 2(1.2)(g).³⁵ I find therefore that Ms. Ellis is catastrophically impaired under section 2(1.2)(g) of the Schedule.

Special Award:

Ms. Ellis submits that a special award should be awarded against Guarantee for unreasonably withholding benefits. Guarantee submits that no special award is payable because, the dispute in this case is with regard to whether Ms. Ellis has suffered a catastrophic impairment and there is no way of calculating a special award. For the reasons that follow, I find that there is no special award payable in this case.

Section 282(10) of the Insurance Act states that:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

A catastrophic impairment is a designation which allows an insured entitlement to further benefits under the Schedule. In this case, there is no dispute with regards to payment of benefits. In the absence of such a dispute, I find that a special award is not payable.

EXPENSES:

The parties did not make any submissions on the issue of expenses. They are encouraged to resolve this issue on their own failing which I may be spoken to within thirty days of this decision.

April 13, 2015

Isoken Osunde Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 72

FSCO A12-001073 and A12-004644

BETWEEN:

DEBORAH ELLIS

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

ARBITRATION ORDER

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

1. Ms. Ellis has suffered a catastrophic impairment under section 2(1.2)(g) of the Schedule.

2. Ms. Ellis is not entitled to a special award.

3. There is no order on the issue of expenses. If a dispute arises, I may be spoken to on this issue within thirty days of this decision.

April 13, 2015

Isoken Osunde Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 24th Edition, 1993
3. 3Desbiens v. Mordini 2004 CanLII 41166 (ON SC), 2004 O.J. No. 4735 (S.C.J)\
4. 4EXH A15-Applicant’s Document Brief at Tabs 31 and 32
5. 5Dr. Julian Harris, Dr. Craig McInnes, Dr. Kadish, Dr. Townley and Dr. Deans
6. 6EXH A15 and R11 – Applicant’s Document Brief at Tab 19, Joint Document Brief, Volume 1 at Tab C5
7. 7EXH A2 – Applicant’s Document Brief at Tab 14
8. 8an Orthopaedic Surgeon -PROMED Evaluations
9. 9EXH A11-Tab 11 of Applicant’s Document Brief
10. 10The OCF 19 was filed by Ms. Ellis and entered as EXH A18 – Tab 10 of Applicant’s Document Brief.
11. 11Chapter 2 of the Guides
12. 12EXH R15 – Joint Document Brief, Volume 2 at Tab M2
13. 13Both reports were filed by Guarantee and entered as EXHs R 17 and R18 respectively.
14. 14Dr. Day’s report was filed by Ms. Ellis and entered as EXH A17.
15. 15Table 3 is found in Chapter 4 and particularly at Page 142 of the Guides.
16. 16See footnote 3, supra.
17. 17The California method converts a person’s GAF score directly to a corresponding WPI rating.
18. 18Jaggernauth and Economical Mutual Insurance Company (FSCO A08-001413, December 20, 2010), P.B. and State Farm Mutual Automobile Insurance Company (FSCO A09-003232, November 5, 2013)
19. 19Pastore and Aviva Canada Inc. (FSCO A04–002496, February 11, 2009)
20. 20As stated earlier, the reasons for my categorization are set out later in the section where I consider whether Ms. Ellis has suffered a catastrophic impairment under section 2(1.2)(g) of the Schedule.
21. 21Page 139 of the Guides
22. 22Dr. Day, Dr. Rosenblat and Dr. Nemeth.
23. 23See footnote 12, supra.
24. 24EXH A3 – Applicant’s Document Brief at Tab 13.
25. 25EXH R3 – Joint Document Brief, Volume 2 at Tab L5
26. 26His report was filed by Ms Ellis and entered as EXH A12
27. 27See footnote 25, supra.
28. 28This was evident in her testimony, her reporting to assessors and in the opinions of most examiners.
29. 29Chapter 14 of the Guides at Pages 297 and 298.
30. 30Dr. Oshidari, Dr. Nemeth and Dr. Deans.
31. 31Page 294 of the Guides.
32. 32Her report was filed by Ms. Ellis and entered as EXH A15
33. 33See footnote 31, supra
34. 34EXH A8 – Tab 3, Applicant’s Document Brief
35. 35Pastore v Aviva Canada Inc. (2012 ONCA 642)