Wawanesa Mutual Insurance Company v. Apostolidis, 2016 ONFSCDRS 216

Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 216

Appeal P15-00024

OFFICE OF THE DIRECTOR OF ARBITRATIONS

WAWANESA MUTUAL INSURANCE COMPANY Appellant

and

GEORGIOS APOSTOLIDIS Respondent

BEFORE: David Evans

REPRESENTATIVES: Seth Kornblum and Paul Omeziri for Wawanesa Mutual Insurance Company Patrick D’Aloisio and Alexander Voudouris for Mr. Georgios Apostolidis

HEARING DATE: February 2, 2016

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

The Arbitrator’s order of February 26, 2015, is confirmed and this appeal is dismissed.
If the parties cannot agree on the legal expenses of this appeal, a determination of them may be requested within 30 days of this decision.

August 18, 2016

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

In a decision dated February 26, 2015, Arbitrator Arbus found that Mr. Georgios Apostolidis is catastrophically impaired due to a pain disorder associated with both psychological factors and a general medical condition. The Arbitrator found this mental or behavioural disorder markedly impairs the activities of daily living of Mr. Apostolidis.

Wawanesa Mutual Insurance Company, the accident benefits insurer of Mr. Apostolidis, appeals this order on the basis that the Arbitrator failed to:

maintain internal consistency, because he rejected and then accepted an expert’s report
give sufficient reasons, especially for preferring that expert’s report over another
separate physically-related pain complaints from those caused by mental disorder
follow the accepted method for determining a marked impairment

For the reasons that follow, I reject those submissions and find that the Arbitrator’s reasons were:

internally consistent, as the Arbitrator did not first reject and then accept the report
sufficient, as his basis for accepting the report could be inferred
adequate for separating pain and mental disorder, given the disorder’s nature
informed by the relevant principles for determining the impairment, even though the accepted method was not explicitly laid out

Accordingly, the appeal is dismissed.

II. BACKGROUND

Mr. Apostolidis was injured in a motor vehicle accident on October 30, 2009. His injuries included three fractures requiring a couple of surgeries to his left ankle and leg. In addition to left leg pain, Mr. Apostolidis complained of pain in his neck, lower back and right shoulder, and breathing problems due to his nose, which had been lacerated and stitched. He was not able to return to his job as a cook. Wawanesa continues to pay income replacement benefits, contingent on his attending English as a Second Language classes. Mr. Apostolidis and his wife, Albina Dimitrova, moved from a home to a smaller apartment because of the expense and because of Mr. Apostolidis’s inability to perform the tasks he had done before.

The Arbitrator referred to the uncontradicted evidence of Mr. Apostolidis and his wife that prior to the accident he had worked up to 60 hours per week at a restaurant, did much of the heavier work around the house, and engaged in the couple’s busy social life and happy marriage. The Arbitrator reported that, regarding the effect of the accident,

Mr. Apostolidis states that his life has been turned upside down since the accident; he has been unable to work and has lost contact with his friends; he is incapable of doing any of the things he formerly did such as socializing, travelling, and spending time with his friends, including playing soccer and billiards. His wife and he have lost their intimacy, they sleep in separate bedrooms and have had no intimacy since the date of his accident. He is concerned that his wife will leave him, creating additional anxiety and depression.

Mr. Apostolidis claimed that he was catastrophically impaired under either clause 2(1.2)(f) or (g) of the SABS–1996.¹ He claimed that under clause (f) he suffered 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, resulted in a 55 per cent or more impairment of the whole person (WPI). He claimed that under clause (g) he suffered a class 4 impairment (marked impairment) due to mental or behavioural disorder (MBD).

In the result, the Arbitrator found that Mr. Apostolidis did not meet the whole-person impairment criteria under (f) but did meet the mental or behavioural disorder criteria under (g) for one class 4 impairment regarding activities of daily living. The dispute centered on the expert reports of two psychiatrists: Dr. Lionel Gerber, Mr. Apostolidis’s assessor, and Dr. Brian Hines, member of a multidisciplinary catastrophic assessment insurer’s examination. Dr. Gerber found a class 4 impairment; Dr. Hines found none.

I will touch briefly on the main points of this decision, reviewed in more depth below.

First, regarding the 55 per cent WPI issue, the Arbitrator noted that neither party’s assessors assigned a WPI of greater than 55%: Dr. Gerber found Mr. Apostolidis’ WPI would be in the range of 40 – 43%, based solely on the psychiatric issues; Dr. Ben Meikle, physiatrist and lead in the CAT IE, assigned an overall rating of 22 – 29% based solely on the leg and nose injuries (since Dr. Hines found no MBD impairment). A point of contention discussed below is whether the Arbitrator decided the WPI under (f) in combination with the MBD under (g) in the page he devoted to the WPI issue.

Second, over about three pages under the heading “Marked Impairment due to Mental or Behavioural Disorders,” the Arbitrator considered the criteria under clause (g), which requires at least a class 4 or marked impairment due to an MBD.

The Arbitrator briefly reviewed the expert reports. Dr. Hines found Class 1, or no impairment, in the four areas of functioning that are rated, namely: activities of daily living (ADL), social functioning, concentration and adaptation. However, based on a diagnosis of a pain disorder associated with both psychological factors and a general medical condition, Dr. Gerber found Mr. Apostolidis to be catastrophically impaired because he met the criteria for a Class 4 marked impairment in the activities of daily living.

The Arbitrator reviewed the role of pain as part of a mental or behavioural disorder, as explained by Dr. Gerber, and he cited Pastore v. Aviva Canada Inc., 2012 ONCA 642, and Mujku and State Farm Mutual Automobile Insurance Company (A10-002979, January 14, 2013) for taking a cumulative, multidisciplinary approach that includes pain from the general medical condition if connected with the diagnosed mental disorder.

The Arbitrator then considered whether the impairment of Mr. Apostolidis’s activities of daily living attain a marked level. He cited the ADLs listed in the Guides, noted that “Mr. Apostolidis’ evidence includes potentially all of the items mentioned above as being unable to be performed as a result of his injuries,” and found that “Dr. Gerber’s summary clearly meets the ADL limitations sufficient to signify a Class 4 marked impairment.”

The Arbitrator noted that Mr. Apostolidis’s lack of intimacy with his wife added to his stress, and he found the surveillance did not contradict Mr. Apostolidis’s evidence.

The Arbitrator reviewed the contrary opinion of Dr. Brian Hines, psychiatrist, who concluded that Mr. Apostolidis did not have any MBD that would meet the class 4 threshold as a result of the accident.

The Arbitrator ended his discussion of the MBD segment by simply stating that he chose “to give greater weight to the medical evidence of Dr. Gerber rather than that of Dr. Hines with respect to ADL.” He then added a few lines about the difficulty Mr. Apostolidis had with attending the English as a Second Language classes before concluding with his finding that Mr. Apostolidis is catastrophically impaired due to the class 4 impairment in ADL.

III. ANALYSIS

Wawanesa submits that the Arbitrator’s reasons were internally inconsistent because he implicitly rejected Dr. Gerber’s opinion when determining the WPI did not meet the 55% threshold but then accepted his opinion when determining the MBD.

Did the Arbitrator contradict himself regarding Dr. Gerber’s opinion?

First, Wawanesa submits that, even though he did not specifically say so, the Arbitrator must have combined Mr. Apostolidis’s mental and behavioural disorder with his physical impairments when arriving at the Whole-Person Impairment of less than 55%. It reasons that, while the Arbitrator did not refer to relevant case law on the point, he was aware of cases such as Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 and Kusnierz v. Economical Mutual Insurance Co., 2011 ONCA 823, [2011] O.J. No. 5908. These cases confirm that even if an applicant does not fully meet the criteria for (g), MBD impairments under (g) can also be combined with physical impairments to arrive at a combined WPI under clause (f) of the SABS.

Second, Wawanesa submits that in combining (f) and (g) for the WPI, the Arbitrator implicitly rejected Dr. Gerber’s opinion. It reasons that, since Dr. Gerber assigned a WPI of 40–43% based on the mental and behavioural component, this figure combined with the other assessors’ WPIs of the physical components would have necessarily lead to a WPI in excess of 55%. Since the Arbitrator did not reach that conclusion, he found the psychological impairment should be rated at 0%, implicitly rejecting Dr. Gerber’s opinion. He therefore erred in the MBD portion of the decision by accepting Dr. Gerber’s opinion that Mr. Apostolidis had a marked impairment.

I do not find that convoluted submission persuasive.

First, I agree with the statement in Jaggernauth and Economical Mutual Insurance Company, (FSCO A08-001413, December 20, 2010), that “If an insured person proves that they suffer from a marked or extreme mental or behavioural impairment under clause (g), they will be deemed to be catastrophically impaired and there is no need to refer to clause (f).” The court in Desbiens only included an MBD as part of the WPI under (f) because the plaintiff suffered only moderate and not marked impairments. As the Arbitrator found Mr. Apostolidis had a marked impairment under clause (g), it was not necessary to combine (f) and (g). In addition, Wawanesa misstates the law in its submission that Desbiens stands for the proposition that a claimant’s rating for psychological impairment under (g) should be combined with the rating for physical impairments under (f). However, as noted at para. 212 of Desbiens, Spiegel J’s conclusion that Mr. Desbiens sustained a WPI catastrophic impairment was reached without regard to any psychological impairment that he may have suffered as a result of the car accident. There is thus no presumption that the Arbitrator had to initially combine psychological impairments with the physical to arrive at a conclusion about the WPI. In this case, since the Arbitrator only determined the extent of the MBD after considering the WPI, I find he could not have considered including the MBD in the WPI.

Second, I find no clear indication in the WPI portion that the Arbitrator considered combining (f) and (g). While the Arbitrator cited p. 300 of the Guides with its warning about assigning percentages to impairments and Huang and Primmum Insurance Company, (FSCO A10-001094, April 20, 2012) for the proposition that assigning percentages can be somewhat arbitrary, this does not mean he must have been thinking of combining (f) and (g). I find he was only making a general comment about the difficulty of assigning percentages in general, not about combining (f) and (g).

Wawanesa submits that the Arbitrator must have been thinking about the combination of (f) and (g) in his conclusion regarding WPI where, after noting the ranges assigned by Dr. Gerber and Dr. Meikle, the Arbitrator found there was:

no evidence sufficient to meet the threshold of an impairment or combination of impairments resulting in a 55% or more impairment of the whole body.

Although the Applicant’s medical evidence appears to substantiate that there is an impairment of the whole person of 55% or more, I am not convinced that there is substantive evidence to support this position. I do accept the evidence of the Insurer’s experts, notably Dr. Meikle, who assigned various numbers to the Applicant's injuries, none of which came close to the 55% threshold, and prescribed an overall rating of 22 - 29% WPI. None of the evidence dealing with the WPI is sufficient to meet the threshold of an impairment or combination of impairments resulting in a 55% or more impairment of the whole person.

Wawanesa places special weight upon the Arbitrator’s reference that he was not convinced of “substantive evidence” that Mr. Apostolidis’s impairment reached the 55% level. However, I find the Insurer is reading too much into it to say that the Arbitrator had therefore gone through all the necessary steps in considering whether to combine (f) and (g) and had thereby rejected Dr. Gerber’s opinion. It also makes no sense when the Arbitrator went on for several pages under the MBD portion to consider the evidence and specifically accept Dr. Gerber’s opinion.

Accordingly, I find that the Arbitrator did not combine (f) and (g) to arrive at a WPI figure. I find the Arbitrator simply made separate rulings for clauses (f) and (g) and never had to make a ruling about combining them. Therefore, I find there was no contradiction in his findings.

I will now consider Wawanesa’s submission that the Arbitrator failed to give sufficient reasons.

Did the Arbitrator give sufficient reasons?

Wawanesa’s second major ground of appeal is that the Arbitrator failed to give sufficient reasons to permit appellate review, in particular by giving greater weight to Dr. Gerber’s medical evidence over that of Dr. Hines without explanation, by referring to the problems Mr. Apostolidis had in attending English as a Second Language courses without tying them to the marked impairment, and by only assessing some activities of daily living.

Regarding the weight the Arbitrator gave to the respective expert reports, it would have been preferable for him to say outright why he preferred Dr. Gerber’s over Dr. Hines’s. As noted in Lawson v. Lawson, 2006 CanLII 26573 (ON CA), where an order is made without adequate reasons, unless the reasons are implicit or patent on the record, an appellate court has no access to the underlying reasons for the order and cannot afford it deference. However, I find the Arbitrator did provide implicit reasons for preferring Dr. Gerber’s evidence because the reason he preferred one report over another can be easily inferred in the context of this case. The context is the drastic opposition of the expert views of Mr. Apostolidis’s MBD impairments – class 4 versus none – and the Arbitrator’s own findings that Mr. Apostolidis did suffer impairments. The Arbitrator set out the two findings of the experts, alluded to the role pain plays in Mr. Apostolidis’s mental and behavioural issues as explained by Dr. Gerber, and found that the insured does indeed suffer an MBD. Since he found that Mr. Apostolidis suffered impairments, as did Dr. Gerber, it naturally follows that he preferred Dr. Gerber’s view. If Dr. Hines had found at least some form of impairment, such as class 2 or 3, instead of no impairment at all, then more explanation by the Arbitrator would have been required, a point I return to below regarding the activities of daily living. But where the Arbitrator was faced with such diametrically opposed views, I find his preference for Dr. Gerber’s evidence, given his own finding that Mr. Apostolidis suffered an impairment due to the disorder, was reasoned.

Concerning Wawanesa’s second point, namely the Arbitrator’s allusion to Mr. Apostolidis’s frustration with the English as a Second Language classes, I find this is simply obiter.

Regarding the third point, namely the Arbitrator’s alleged failure to fully discuss the activities of daily living, Wawanesa submits that the Arbitrator did not explain why he only assessed some of the ADLs in determining whether Mr. Apostolidis suffered a marked impairment. The Arbitrator stated:

In order to qualify Mr. Apostolidis’ impairment as a catastrophic impairment, it is required that his activities of daily living attain a marked level of impairment. The Guides state that “activities of daily living include, but are not limited to, self-care and personal hygiene; eating and preparing food; communication, speaking and writing; maintaining one’s posture standing and sitting; caring for the home and personal finances; walking, travelling and moving about; recreational and social activities and work activities.”

After setting out this list, the Arbitrator then went on to note the difficulties with walking, standing, sitting, sexual function, social life, yard work and long trips:

The Guides, on page 294, include a list of activities, including sexual function, sleep and social or recreational activity. Mr. Apostolidis’ evidence includes potentially all of the items mentioned above as being unable to be performed as a result of his injuries. It is clear that prior to the accident, Mr. Apostolidis performed all of these functions but, as a result of the accident, his activities in these areas are severely limited. Certainly, walking, standing, and sitting for any prolonged period have been severely restricted. Dr. Gerber, in summarizing Mr. Apostolidis’ ADL limitations, enumerates all of the things that Mr. Apostolidis can no longer do, including walking, sexual functioning, social life (and lack thereof), and his inability to do any yard work, or go on long trips. Dr. Gerber’s summary clearly meets the ADL limitations sufficient to signify a Class 4 marked impairment.

The Arbitrator then discussed the evidence about the lack of intimacy causing stress, and then he found the surveillance did not contradict the evidence overall.

Wawanesa submits that in not reviewing all activities of daily living, the Arbitrator left an open question as to whether Mr. Apostolidis’ impairment was consistent with some useful functioning and so his impairment would be classified as only moderate or class 3. Wawanesa notes that Mr. Apostolidis continued to perform some ADLs after the accident.

However, this was essentially a finding of fact. The Arbitrator had before him evidence of the extent of Mr. Apostolidis’s impairment. He also accepted the opinion of Dr. Gerber as set out in Dr. Gerber’s summary that Mr. Apostolidis met the Class 4 criterion. The fact that the Arbitrator did not refer to every possible ADL in his decision does not mean that he failed to consider them, and to infer that those unmentioned did not rise to the level of a Class 4 impairment is conjectural. Furthermore, as the Guides point out, an assessor is to assess not just the number of activities that are limited, but the overall degree of restriction or combination of restrictions. Thus, an applicant may be able to perform some ADLs yet still be found to suffer a catastrophic impairment: see Fournie and Coachman Insurance Company, (FSCO A07-000297, February 12, 2010). To return to the point made above about the stark choice between the expert opinions, this was not a case like Jaggernauth where the choice was between markedly impaired or moderately impaired, so a close analysis was required. Here, the choice was between markedly impaired or unimpaired, so a briefer analysis sufficed, given that Dr. Gerber’s opinion prevailed.

I find no error in the Arbitrator’s consideration of the ADLs.

I will now turn to Wawanesa’s submission that the Arbitrator did not distinguish pain complaints from the mental or behavioural disorder.

Regarding this issue, Wawanesa submits that the Arbitrator drew the wrong conclusions from the relevant legal principles and failed to apply them to the evidence. The Arbitrator’s discussion on separating pain from mental disorder is brief:

In his catastrophic psychiatry assessment report, Dr. Gerber explains the role pain plays as a mental disorder for Mr. Apostolidis. He explains that “psychological factors, including depression, how bothered he is at his inability to function and how helpless he feels at ever getting better, play an important role in the severity and maintenance of his pain.” Dr. Gerber further states that “Mr. Apostolidis meets criteria for the diagnosis of pain disorder associated with both psychological factors and general medical condition.” Pastore v. Aviva Canada Inc.² stated that “a cumulative approach must be used to consider pain in the realm of physical and mental disorders.”

In Pastore, it states that, “the Guides acknowledge how difficult it is to separate out pain from physical causes and suggest a multi-disciplinary approach.”

The Arbitrator in Mujku v. State Farm³ stated that “because the mental disorder itself involves pain and includes pain associated with general medical condition, it is certainly reasonable to include pain from the general medical condition to the extent that pain is connected with the diagnosed mental disorder.”

Wawanesa submits that in the ensuing paragraphs in the decision, already cited above, the Arbitrator simply noted the ADL impairments that supported a conclusion of marked impairment without separating physical causes of pain from the behavioural or mental impairment. Instead, he incorrectly took the case law to stand for the principle that physical sources of pain should automatically be taken into account. Rather, Wawanesa submits, Pastore stands for the proposition that there must be an attempt to factor out physical sources of pain from the mental or behavioural disorder and then, only when it is not possible to do so, should a cumulative approach be adopted. Here, it submits, the Arbitrator did not determine if the impairments were caused by physical sources of pain and, if so, to what extent they were due to physical pain rather than a mental or behavioural disorder. Wawanesa submits that the Arbitrator was only entitled to take a “cumulative approach” after finding it was not possible to remove the physical sources of pain from those related to the mental or behavioural disorder.

In Pastore, the court at para. 63 summarized the passage of the Guides discussing pain and mental disorder:

This passage states that because it is rare for pain to be a symptom only of a mental disorder, such pain must be carefully assessed. In order to determine whether pain is a symptom of a mental disorder, the assessor needs to remove from consideration, to the extent possible, any physical causes. In difficult and borderline cases, the Guides direct that this should be done using a multi-disciplinary approach… The Guides acknowledge how difficult it is to separate out pain from physical causes and they suggest a multi-disciplinary approach. That approach was taken, but the assessors were not able to factor out physical causes of pain and therefore took a cumulative approach.

However, the passage indicates that it is the assessor who needs to remove from consideration, to the extent possible, any physical causes of pain. In this case, Dr. Gerber did attempt to separate the physical and mental causes of the pain. He reviewed the other medical reports, thus taking a cumulative approach, and noted that the reported pain symptoms were not fully explained by the general medical clinicians. Accordingly, he wrote, there had to be more than merely physical explanations for the pain symptoms described by Mr. Apostolidis and his wife. For instance, at pages 37 and 38 of his June 2013 report, Dr. Gerber goes through the steps leading to his diagnosis of a chronic pain disorder associated with both psychological factors and a general medical condition under the DSM-IV-TR. In particular, he notes that although the General Medical Condition is the sole cause of the pain symptoms, psychological factors – including Mr. Apostolidis’s depression, how he is bothered by his inability to function, and how helpless he feels at ever getting better – play an important role in the severity and maintenance of the pain. Dr. Gerber also notes that the pain was not better accounted for by another psychiatric diagnosis. In addition, he found that Mr. Apostolidis has a chronic major depressive disorder.

This was the same diagnosis found in Pastore, as noted at para. 57 of the decision: “The arbitrator had found that Pastore was diagnosed with a disorder recognized in the DSM-IV-TR: pain disorder associated with both psychological factors and a general medical condition.” The court went on to state at para. 68:

Because the mental disorder itself involves pain and includes pain associated with a general medical condition, in this case it is certainly reasonable to include pain from the general medical condition to the extent that such pain is connected with the diagnosed mental disorder.

Thus, as was reiterated in Mujku, the Court of Appeal ruled in Pastore that if pain due to purely physical injuries cannot be factored out, insureds are not required to show that their impairment is due solely to mental or behavioural disorder. The Court approved the Director’s Delegate’s finding that, in determining whether impairment was due to mental or behavioural disorder, there was no statutory requirement to dissect the mental disorder into constituent parts.

Accordingly, I find the Arbitrator was entitled to take a cumulative approach in light of the diagnosis of Dr. Gerber, which he accepted, so he was not required to go through every impairment from walking through social life and sexual functioning to determine which part of the impairment was physical and which part was due to the disorder.

Finally, I turn to Wawanesa’s submission regarding the method used by the Arbitrator to reach his conclusion.

Did the Arbitrator fail to follow the accepted method for determining a class 4 MBD impairment?

Wawanesa submits that while the Arbitrator set out evidence, he did not refer to the three-stage process for making the determination of a class 4 MBD impairment or make explicit findings related to them.

Pastore at para. 6 summarized the three-stage process of an assessment under (g) as follows:

Chapter 14 of the Guides sets out a three-stage process for evaluating catastrophic impairment based on mental disorder using four categories of functional limitation and five levels of dysfunction. The first stage is diagnosis of any mental disorders, followed by the second stage where the impact on daily life is identified. The third stage is assessing the severity of limitations by assigning them into the four categories and determining their levels of impairment.

Thus, the dispute in this case is resolved by answering the following three questions:

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

While the Arbitrator did not specifically list these stages, I find that he did address them. In that sense, the principles from Pastore informed his decision.

Regarding the first stage, Wawanesa submits that the Arbitrator did not make an explicit finding that Mr. Apostolidis sustained a pain disorder associated with both psychological factors and a general medical condition and major depression considering all the evidence presented, including the competing medical reports, the testimony, and the video surveillance.

However, as noted above, the Arbitrator did prefer the report of Dr. Gerber, and cited his conclusion that Mr. Apostolidis met the criteria for the diagnosis of pain disorder associated with both psychological factors and a general medical condition. The Arbitrator did not find the surveillance detracted from that finding, he referred to the evidence of the only two witnesses at the hearing (Mr. Apostolidis and his wife), and he did not find the competing report of Dr. Hines persuasive. I find that the Arbitrator did make a finding that Mr. Apostolidis sustained an MBD as a result of the accident after considering all the evidence.

On the second stage, Wawanesa submits that although the Arbitrator found Mr. Apostolidis had impairments with respect to his ADLs, he made no attempt to determine whether these impairments were due to a mental or behavioural disorder. I have already discussed this point above. Furthermore, he specifically made findings about the impact of the impairments on Mr. Apostolidis when he referred to the ADLs listed in the Guides and then stated: “It is clear that prior to the accident, Mr. Apostolidis performed all of these functions but, as a result of the accident, his activities in these areas are severely limited.” I treat his use of the phrase “It is clear that” as a synonym for “I find that.”

On the third stage, Wawanesa submits that while the Arbitrator found that Mr. Apostolidis had a marked impairment, he did not define marked impairment or explain how the impairment related to that definition. However, the Arbitrator did find that Dr. Gerber’s summary of Mr. Apostolidis’ ADL limitations “clearly meets the ADL limitations sufficient to signify a Class 4 marked impairment.” While the Arbitrator did not go through the definition himself, he accepted the report of Dr. Gerber. Dr. Gerber in turn did define marked impairment in accordance with the AMA Guides, as set out on p. 48 of his June 19, 2013 report. On that page, Dr. Gerber compared and contrasted Class 3 moderate impairment against Class 4 marked impairment, and concluded that the impairment levels were more accurately described as significantly impeding useful functioning, and therefore met the criteria for Class 4.

Thus, to paraphrase what the Court of Appeal said at para. 37 in Lawson, although the Arbitrator did not articulate the legal principles for which he had regard when making his determination that the respondent suffered a Class 4 marked impairment, it is clear from his reasons that his findings are based on the applicable legal principles.

Accordingly, I find that the Arbitrator did follow the accepted method for determining that Mr. Apostolidis suffers a Class 4 impairment due to a mental or behavioural disorder.

Again, to emphasize the point I made above, the Arbitrator was making a determination of catastrophic impairment that involved contrasting two completely opposed psychiatric assessments, only one of which he preferred. While the Arbitrator should have said so explicitly, I find the reason for his preference is clearly inferable from the rest of the decision, and his preference was not contradicted by his finding regarding the whole person impairment. Given the nature of the diagnosis, it was not necessary for the Arbitrator to go through every activity of daily living and determine whether it was pain alone that caused any impairment regarding that activity. Finally, the Arbitrator applied the principles from Pastore by going through the three stages of the assessment, albeit sometimes in only a sentence or two.

It should also be remembered that this was a relatively simple case, as there were no pre-existing conditions, nor any suggestion of post-accident stressors unrelated to the accident. By way of contrast, in Mujku, Mrs. Mujku had a significant pre-accident history of mental health issues and unrelated post-accident stressors set out in a multitude of reports. Accordingly, it took a dozen pages to go through the three stages. Here, although the Arbitrator’s decision in this case is terse and could have more explicitly set out the relevant principles and the findings, I do not find this rises to an error of law.

Therefore, the appeal is dismissed and the Arbitrator’s order is affirmed.

IV. EXPENSES

If the parties are unable to agree about the legal expenses of this appeal, a determination of them may be requested within 30 days of this decision and in accordance with Rule 79 of the Dispute Resolution Practice Code.