Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 338

FSCO A13-005263 and A13-002265

BETWEEN:

TAMMY KECK Applicant

and

SOVEREIGN GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Irvin H. Sherman

Heard: In person at Hamilton, Ontario on April 5, 6, 7, 8 and 11; June 20, 21 and 22, 2016 and written submissions received September 27, 2016

Appearances: Mr. Allen Wynperle participated on behalf of Ms. Tammy Keck Ms. Jane Young participated on behalf of Sovereign General Insurance Company

Issues:

The Applicant, Ms. Tammy Keck, was injured in an automobile accident that occurred on April 5, 2011 and sought accident benefits from Sovereign General Insurance Company (“Sovereign General”) payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Keck applied, through her representative, for Arbitration of her claims 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. Did Ms. Keck sustain a catastrophic impairment as a result of the accident within the meaning of the Schedule as a result of the accident?

2. Is Ms. Keck entitled to receive income replacement benefits in the amount of $400.00 a week for the period May 22, 2012 to date and ongoing?

3. Is Ms. Keck entitled to receive medical benefits as follows:

a) Treatment Plan of Dr. Gouws, dated October 23, 2012, for psychological services, in the amount of $2,864.02.

b) Treatment Plan of Psychology Health Solutions, dated April 30, 2014, in the amount of $3,117.10.

c) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated May 1, 2012, in the amount of $2,882.12.

d) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated July 4, 2012, in the amount of $2,882.12.

e) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated July 4, 2012, in the amount of $1,992.36.

f) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated October 24, 2012, in the amount of $2,882.12.

g) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated October 24, 2012, in the amount of $1,992.36.

h) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated January 23, 2013, in the amount of $2,882.12.

i) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated January 23, 2013, in the amount of $1,992.36.

j) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated April 15, 2013, in the amount of $2,882.12.

k) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated May 7, 2013, in the amount of $1,992.36.

l) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated January 13, 2014, in the amount of $3,092.52.

m) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated January 13, 2014, in the amount of $2,118.44.

n) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated April 4, 2014, in the amount of $3,117.10. (This is an error as there is no Treatment Plan of this date that has been mediated or applied for mediation.)

o) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated June 9, 2014, in the amount of $4,546.92.

p) Treatment Plan from Stoney Creek Rehab & Wellness Centre, dated June 9, 2014, in the amount of $2,018.44.

q) Treatment Plan from Baxter Antoniazzi, dated July 17, 2012, in the amount of $2,276.82.

r) Treatment Plan from Baxter Antoniazzi, dated July 17, 2012, in the amount of $1,558.00.

4. Is Sovereign General liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Keck?

5. Is Ms. Keck entitled to interest for the overdue payments of benefits?

6. Is Sovereign General liable to pay Ms. Keck’s expenses in respect of the Arbitration?

7. Is Ms. Keck liable to pay Sovereign General’s expenses in respect of the Arbitration?

Result:

1. Ms. Keck has sustained a catastrophic impairment as defined in paragraph 3(2)(f) of the Schedule.

2. Ms. Keck is entitled to receive income replacement benefits in the amount of $400.00 per week from May 22, 2012 to date and ongoing.

3. Ms. Keck is not entitled to receive medical benefits as claimed herein.

4. Sovereign General is not liable to pay a special award.

5. Ms. Keck is entitled to interest on the overdue payment of income replacement benefits.

6. If the parties are unable to agree on the entitlement to or the quantum of expenses in this matter, the parties may request an appointment with me for the determination of same in accordance with Rules 75 to 95 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

EVIDENCE OF TAMMY KECK

Tammy Keck, the Applicant, is a married woman who resides with her husband in rural Ontario. They are the parents of a 20 year old son who sometimes resides with them.

Ms. Keck worked as a dump truck driver for approximately four years prior to the date of her accident. She worked for her husband’s trucking business hauling construction material. Her work included lifting, shovelling and record keeping. She worked upwards of 12 or 13 hours per day, usually five days per week.

Prior to this employment Ms. Keck worked as a delivery truck driver and a car jockey.

Ms. Keck left school at Grade 11. She suffered from a learning disability that required her receiving home tutoring and studying one-on-one with a teacher. She subsequently completed a one-year lab technician’s course.

Prior to her accident Ms. Keck was primarily responsible for housekeeping chores, cooking and laundry. She enjoyed gardening.

At about 2:00 p.m. on April 5, 2011 Ms. Keck was driving uphill when she blacked out and drove in the opposite lane of traffic where she collided with another motor vehicle. Her car was demolished. She was taken to the hospital by ambulance. Thirty minutes after she awoke in the hospital, she was advised by the attending physician that she would be restricted from driving for six months. She became angry at learning of this forthcoming suspension and left the hospital.

Ms. Keck claimed she suffered the following injuries in her accident:

FACE and FOREHEAD: The left side of her jaw was dislocated. Prior to the accident Ms. Keck stated that she suffered from headaches that were tolerable. Since the accident she has experienced more severe headaches which she stated are now intolerable and persistent. Her left jaw pain is getting worse. She estimated that her jaw pain was 7 out of 10 on a 10-point pain scale. Her jaw pain becomes worse when she is eating. She stated that she does not eat regularly so she may eat dinner four times per week.

Ms. Keck experiences left side neck pain which she estimated was at a level of 9 out of 10 on the pain scale. The severity of her left side neck pain has lessened since she had thoracic outlet surgery in 2015.

LEFT ARM: Ms. Keck experiences numbness in her left arm and shoulder which became more prevalent six months following the accident.

LEFT HIP: Ms. Keck began to experience pain in her left hip about one year following the accident. This pain becomes prevalent when she bends down or does a lot of walking. She classified this pain as being 7 or 8 out of 10 on the pain scale. She did not experience pain in her left hip before the accident.

BACK and LEG PAIN: Ms. Keck has experienced back and low back pain as well as pain in the left leg and foot. She rated her left leg pain as 8 out of 10 on the pain scale.

Ms. Keck experiences problems with her memory, in concentrating and sleeping. Her sleep is often interrupted and is therefore of short duration. She sometimes feels fatigued during the day stating that her head sometimes feels “a little cloudy”.

Ms. Keck stated that since the accident her mood has changed. She may become mean and upset. She often cries but does not know why she cries. She became fearful following the accident. She initially did not want to go out of her home. For the last two years she has been able to attend family social functions outside of her home. She last drove a motor vehicle prior to her right side thoracic outlet surgery in 2015.

Ms. Keck has been treated by her family physician, Dr. B. Juriansz, prior to and subsequent to the accident. She has undergone physiotherapy, massage therapy, swimming, hydrotherapy and has seen a psychologist on her doctor’s recommendation.

Ms. Keck enjoyed the psychological counselling which she stopped attending when the Insurer refused to pay for this counselling. She stated that she felt better and was in a better mood following the psychological counselling.

Ms. Keck has been treated for pain for several years both before and after the accident. She received more needles to constrain pain after the accident than she did before the accident. For many years she was treated at the Rothbart Centre for Pain Care but now attends another pain clinic.

Ms. Keck received many physiotherapy and chiropractic treatments on a regular basis. She has not received such treatments since her right side thoracic outlet surgery.

Ms. Keck takes prescribed medications to combat her pain, anxiety, depression, panic attacks and irregular sleep. She stated that these medications have often made her tired and forgetful. She would like to reduce the amount of prescribed medications she takes. She would also like to attend the De Groote Pain Clinic at McMaster University.

The Insurer has paid income replacement benefits to Ms. Keck from April 12, 2011 to May 21, 2012 when such payments were stopped by the Insurer following its medical examinations. Ms. Keck recalled being upset when Ms. Tina Cagampan, the Insurer’s occupational therapist, suggested to her to begin getting out into the community which, at that time, would cause her anxiety attacks, including passenger anxiety attacks. She admitted that she now goes out for dinner with her husband but “remains anxious” and “freaks out” when he drives.

It was the Insurer’s chiropractor, Dr. Andrew Holland, who suggested to Ms. Keck that she consult her physician regarding thoracic outlet surgery.

Ms. Keck stated that she enjoys driving trucks. She has tried on one occasion only to drive a truck since the accident, which she found to be difficult. Ms. Keck drove a car for the first four years following the accident during which times she experienced aches and pains.

It has been difficult for Ms. Keck to do those household chores that she did pre-accident. She tires easily and has to take breaks. It now takes her longer periods of time to do these chores. She is unable to take her laundry up and down the stairs. She said that she has some good days, mediocre days and some bad days since the accident.

On the good days Ms. Keck enjoys rolling balls to her dogs and colouring adult colouring books, bird watching and crocheting. She stated that she has one or two good days per week and that she has a “mediocre day” which is the day she receives her pain injections.

Ms. Keck concluded her evidence-in-chief by stating that her personal and social relationship with her husband deteriorated following her accident. This relationship has improved over the past several months. Ms. Keck’s relationship with her son also deteriorated following the accident but has recently improved.

CROSS-EXAMINATION

Ms. Keck began her cross-examination stating that she was being treated for headache pain, low back pain and knee pain prior to her accident. She was then taking prescribed medications for pain relief and depression. She stated that at the recommendation of her family physician, she has been referred to a psychiatrist and to a pain management doctor. She admitted to being diagnosed as having post-traumatic stress. She has been receiving needle injections of varying frequencies for the past 20 years in order to reduce her pain. The needles relieve her pain for about three days before recurring.

Ms. Keck received her needles for pain on the day of the accident. She attributed her blacking out at the time of the accident to her inadvertently taking a second high blood pressure pill. She had a CT scan taken at the hospital following the accident which proved negative. She was advised that she suffered from a mild concussion in the accident.

Ms. Keck did not see her family doctor for three weeks following the accident because she needed to rest and because she was in a lot of pain. She did however attend at the Rothbart Centre for Pain Care during that three-week period where she received an increased number of needles in order to combat her pain. She also received caudal needles and epidurals to combat pain. She sometimes saw 11 health professionals weekly, beginning one week following the accident.

Ms. Keck stated she sees an orthodontist in order for the orthodontist to adjust her mouthpiece that she uses to combat jaw pain, the use of which makes it more difficult for her to eat. She is undecided as to whether to undergo jaw surgery at this time for fear of nerve damage to her jaw area.

Ms. Keck stated that she does not suffer from an eating disorder. She has regained any weight she lost following her accident.

Ms. Keck is awaiting an appointment with a neurologist upon the referral of her surgeon who she last saw in September 2015. This appointment relates to nerve damage and scar tissue.

Ms. Keck fell on her left side in June 2015 as a consequence of a reaction she had from taking the prescribed medication Gabapentin. X-rays of her chest proved negative. She may require surgery at a future date regarding numbness in her left hand. She stopped going for physiotherapy in July 2015 because it would take up to 12 months for her right side thoracic outlet surgery to heal. She now exercises at home in lieu of physiotherapy.

Ms. Keck is pursuing a claim for disability payments with Canadian Pension Plan (“CPP”) because of the problems she is experiencing with her knees.

Ms. Keck uses a neck stretcher, a TENS machine, and an elastic band daily to help exercise. She also does yoga exercises. She stated that she spends up to three hours a day using these devices. She would like to do hydrotherapy whenever possible. She did not wish to drive to her yoga class because she feels uncomfortable driving.

Since June 2015 Ms. Keck is most often driven to her medical appointments by her mother-in-law or by a friend. Prior thereto she often drove to her own appointments.

Ms. Keck experienced passenger anxiety after her accident which condition does not preclude her from attending her many health-related appointments.

Ms. Keck admitted telling Dr. Friesen, a psychologist, that she took Tylenol 3 and Amitriptyline prior to her accident. She then stated she was unsure if she took the Tylenol 3 before the accident. She denied telling Dr. Friesen that her headaches were unrelated to the accident and were more tolerable prior to the accident.

Ms. Keck denied stating to Dr. Friesen that she had some short term memory problems prior to the accident. She admitted that she missed some pre-accident health related appointments because she had to attend so many of these appointments. She agreed to attend over 400 appointments post-accident. She did not receive a copy of Dr. Friesen’s report in the mail. She stated that some of the findings made by Dr. Friesen were correct. She admitted to telling Dr. Friesen that she did not experience passenger anxiety. She began to experience such anxiety since she was assessed by Dr. Friesen and in particular within the last 12 to 16 months. Ms. Keck drove a car for four years following her accident (less the six month suspension). She has not driven a car in a year. She does not know if she is now physically capable of driving. She possesses an up-to-date driver’s licence and could drive a truck if she wanted to. She admitted never being diagnosed with driver anxiety. Her passenger anxiety did not prevent her from attending her many health related appointments. She stated that her passenger anxiety has worsened over time.

Ms. Keck admitted to telling Dr. Andrew Holland, the Insurer’s chiropractor, that she tries to manage to do her housekeeping chores. It was suggested to her that she may suffer from fibromyalgia. She has, however, never been diagnosed with fibromyalgia.

Ms. Keck stated that she experiences tension, cluster and migraine headaches, which occur with varying degrees of frequency and severity. The migraine headaches became more frequent post-accident. The number of tension headaches which began post-accident are now getting smaller. She experienced cluster headaches pre-accident. Her headaches are controlled by medication.

Ms. Keck had arthroscopic knee surgery pre-accident that was caused by her truck driving. She had surgery for benign tumours pre-accident. She also suffered from a loss of hearing that she stated was unrelated to her headaches.

Ms. Keck experienced TMJ problems pre-accident. Her left jaw was dislocated since the accident which compelled her to use a bite plate.

Ms. Keck was diagnosed in 2011 with squamous cell cancer in the leg which condition is now better.

Ms. Keck stated that her health was improving with physiotherapy but the extent of the improvement has diminished since the Insurer stopped funding her physiotherapy. She denied she was being over-treated with physiotherapy.

Insurer’s counsel showed Ms. Keck a copy of a disability certificate (OCF-3) that Ms. Keck signed, which was prepared by her family doctor who wrote that Ms. Keck did not suffer from a complete inability to perform the essential tasks of employment.

Ms. Keck admitted that she did not see Dr. Juriansz for the accident-related health problems she is and has been experiencing. Notwithstanding this statement Dr. Juriansz wrote, “In my opinion, the MVA has contributed to the majority of her current disability and ongoing complaints.”

Ms. Keck has been recently referred to a neurologist for arm and leg pain. She has been referred by her family physician to a psychiatrist for post-traumatic stress symptoms. She also received prescriptions for puffers and antibiotics from Dr. Juriansz.

Prior to her accident Ms. Keck assisted her husband by doing “the paperwork” associated with his trucking business. Since the accident she has not been involved with this type of work because she cannot concentrate. Ms. Keck received a salary from her husband’s firm when there was money available to pay her.

Ms. Keck successfully renewed her licence to drive a truck three years ago. She has not driven any type of motor vehicle in over one year. Notwithstanding her not driving a truck since the accident (except for one time) Ms. Keck became upset and did not want to talk about trucks at the Hearing because it was “My favourite thing in the whole world, and I always wanted to be a truck driver since I was little”.

Ms. Keck admitted that she experienced knee, neck pain and lower back pain when she started to drive heavy trucks three years before the accident. She had the truck seat modified to assist physically in driving the truck. She stated that her doctors never told her to stop driving a heavy truck because it was too demanding. She was off work twice in or about 2008 when she underwent surgery on both knees.

Ms. Keck stated that her jaw pain had resumed. Her pain subsides when she gets used to using her mouth piece that permits her to eat. She rated this severe jaw pain as 7 or 8 on the 10-point pain scale. The jaw pain lasts for a few hours following the orthodontist tightening her mouthpiece. Her pain lessens following her receiving pain needle injections. Massage therapy helps reduce her neck pain. The intensity of the neck pain has increased since the date of the accident.

While Ms. Keck has experienced numbness in her right hand and in her left arm and fingers since the accident, she did not tell her family doctor about this numbness because “he would not know how to deal with this”. She told her chiropractor about the numbness. The numbness significantly dissipated following her thoracic outlet surgeries. She continues to experience numbness in the last two fingers of her left hand.

Ms. Keck experienced left hip pain post-accident for which she sought chiropractic treatment. The bruising to the hip disappeared sometime after the accident. Ms. Keck did not have her hip X-rayed nor did she tell her family doctor about the left hip pain.

Ms. Keck experienced mid back pain following her accident. She stated that the pain on her right side has now reduced by 60%. Her left side pain continues on a level of 8 to 10 on the 10-point scale, which is where it was following the accident. This pain initially lessened but then increased in intensity when Ms. Keck’s physiotherapy treatments were terminated by the Insurer.

Ms. Keck says she experienced post-accident problems initially with the left leg and now with both legs. She has a burning sensation from her groin to her feet. She was treated for this issue at her pain management clinic. She now wants to see a neurologist regarding this pain. She complained about the pain in her legs following her second thoracic outlet surgery in 2015.

With respect to her memory and ability to concentrate, Ms. Keck noticed problems in this area about two years post-accident. She believes that her medications have not affected her ability to concentrate. She stated that she felt lost when she did not receive psychological counselling, which represented a “big part” of her social life.

Ms. Keck stated that her anti-depression medications help reduce her backaches. She often cries and has panic attacks. She was not tearful pre-accident. She stated that there has been no improvement in her mood which is getting worse. She feels that the side effects of her medications makes her feel bad “like a zombie”. She would like to see a psychologist for her depression and mood symptoms.

For some time following her accident Ms. Keck’s relationship with her son and husband deteriorated. This relationship has improved in more recent times. Ms. Keck also enjoys a good relationship with her mother-in-law.

Ms. Keck stated that she has a small degree of familiarity with the use of a computer. She stated that she cannot do word processing because of the problems she experiences with her hands. She used the computer pre-accident.

Ms. Keck has not tried any other type of work since the accident because of the pain she is experiencing and because of her poor memory and inability to concentrate. She stated that one of her physicians, Dr. Horock, told her that he did not think she would get better. No other doctor has told her this.

EVIDENCE OF DR. DIANA VELIKONJA, Ph.D.

Dr. Diana Velikonja, Ph.D. gave expert testimony on behalf of Ms. Keck. Dr. Velikonja is a neurological and clinical psychologist. She is experienced in catastrophic assessments from a neuropsychological perspective under the Schedule.

Dr. Velikonja began her examination-in-chief by referring the report entitled “Psychological Report for Determination of Catastrophic Impairment”² she co-authored with Dr. Denise Milovan, a clinical psychologist. In the preparation of this report Dr. Velikonja interviewed Ms. Keck, reviewed Ms. Keck’s health-related documentation and her performance history. She also reviewed the results of six psychological tests Ms. Keck took at her request.

Dr. Velikonja stated upon testing Ms. Keck she found the results of the validity tests administered to Ms. Keck to be valid. There was no evidence of malingering. Ms. Keck responded to the questions put to her in a consistent, open and genuine manner.

Dr. Velikonja opined that according to the Diagnostic and Statistical Manual of Mental Disorders (4th edition) (the DSM-IV-Tr.), Ms. Keck met the diagnostic criteria for:

Axis I: Clinical Disorders That May Be a Focus of Clinical Attention:

. Major Depression, Single Episode, Unspecified (296.20)

. Generalized Anxiety Disorder (300.02)

. Adjustment Disorder, With Mixed Anxiety and Depressed Mood (309.28)

Axis II: Personality disorders/Mental Retardation:

. Deferred

Axis III: General Medical Conditions:

. Physical pain symptoms

Axis IV: Psychosocial and Environmental Problems:

. Inability to participate in physically related pre-MVA recreational and leisure activities

. Inability to resume activities of daily living to pre-MVA levels of engagement

. Inability to resume pre-MVA work

Axis V: Global Assessment of Functioning:

. GAF = 41-50 (Serious symptoms; serious impairment in social and occupational functioning)

With the classification changes found in the updated DSM-V, the above diagnoses correspond to a similar DSM-V diagnosis of Major Depression, Single Episode, Unspecified (296.20, F32.9), Generalized Anxiety Disorder (300.02, F41.1), and Adjustment Disorder, With Mixed Anxiety and Depressed Mood (309.28, F43.25).

Catastrophic Impairment Criteria Series relates to an impairment or combination of impairments that according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”), 4th edition, 1993, results in 55% or more impairment of the whole person. Dr. Velikonja found that:

As a result of the MVA of 05 April 2011, Ms. Keck sustained a combination of mental, emotional, and behavioural impairments that resulted in:

1. Activities of Daily Living – 29% of whole person impairment (Chapter 4, Table 3)

2. Social Functioning Setting – 29% of whole person impairment (Chapter 4, Table 3)

3. Concentration, Persistence and Pace – 20% of whole person impairment (Chapter 4, Table 2)

4. Deterioration or Decompensation in a Work or Work-like Setting – 40% of whole person impairment (Chapter 4, Table 2)

When determining an overall rating for mental and behavioural impairment, the highest rating is used.

In summary, it is determined that as a result of the MVA of April 5, 2011, Ms. Keck had sustained a combination of mental, emotional, and behavioural impairments resulting in a 40% impairment of her whole person.

With respect to Criteria 8, Dr. Velikonja wrote:

Criteria 8:

According to the SABS, a catastrophic status is met if the (OCF-19) category (8) criterion ‘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’ can be applied.

As a result of the MVA of 05 April 2011, Ms. Keck sustained a combination of mental, emotional, and behavioural impairments that resulted in:

1. Activities of Daily Living – Class 3, moderate impairment (Chapter 14)

2. Social Functioning Setting – Class 3, moderate impairment (Chapter 14)

3. Concentration, Persistence, and Pace – Class 3, moderate impairment (Chapter 14)

4. Deterioration or Decompensation in a Work or Work-like Setting – Class 4, marked impairment (Chapter 14)

When determining an overall rating for mental and behavioural impairment, the highest rating is used.

Dr. Velikonja recommended that Ms. Keck receive psychological treatment and intervention, occupational therapy and physical exercise.

Dr. Velikonja concluded her report by opining that: “Based on Ms. Keck’s current level of functioning a return to gainful employment is not recommended at the present time and the possibility exists that she may be unable to resume her previous [employment] in the foreseeable future.”

Dr. Velikonja stated that Ms. Keck was assessed by a multidisciplinary catastrophic assessment team that consisted of the late Dr. S. Garner, psychiatrist, Drs. Milovan and Velikonja, and Mesdames Asma Malik and Maria Ross, occupational therapists. The reports of Dr. Garner, dated August 7, 2014, and Mesdames Malik and Ross, dated October 9, 2014, also form part of Exhibit 1.³

This catastrophic assessment team conferred by teleconference on September 12, 2014 and ultimately and arrived by consensus that, (a) with respect to criteria 7, Ms. Keck exhibited a whole person impairment rating of 52 percent and, (b) with respect to criteria 8 that only with respect to class IV adaptability Ms. Keck had a marked impairment.

Dr. Velikonja, upon receiving the independent psychiatric examination of the Insurer’s psychiatrist, Dr. Mitchell Spivak,⁴ dated March 27, 2015, wrote a rebuttal report, dated February 4, 2016,⁵ where she stated:

In the psychiatric evaluation conducted by Dr. Spivak, the mental status examination he conducted lacked the integration any [sic] reported objective measures (i.e., formal measures of cognitive status or emotional symptoms) to evaluate Ms. Keck’s mood and cognitive status. This examination was based only upon his review of her behavioural presentation. It would appear that based upon this limited review of her status and examination a diagnosis of Adjustment Disorder with Depressed Mood was made. Dr. Spivak did not discuss the differences in diagnoses arrived at in his report compared to that of other assessors (Dr. Marino, 14 February 2013 Adjustment Disorder with Mixed Anxiety and Depressed Mood and Passenger Anxiety; Dr. Friesen, Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia – situational type passenger; Drs. Milovan and Velikonja, Adjustment Disorder and Mixed Anxiety and Depressed Mood, Generalized Anxiety), as well as and including the observations of his own co-assessor, Ms. Cagampan, who described Ms. Keck as having significant passenger anxiety, the need for her to use relaxation techniques and her anxiety related to going out into the community. He did describe her reporting passenger anxiety but there was no evidence of any exploration of these symptoms other than Ms. Keck not describing panic attacks, which does not provide clarity as to whether her symptoms of anxiety were appropriately explored in the context of the clinical examination. Therefore, there is no evidence that Ms. Keck’s anxiety based symptoms were adequately considered nor was there any discussion regarding the differences in the diagnosis he provided with those found in the reports of previous assessors and that of his co-assessor. This would suggest that anxiety was not adequately considered in the context of her symptoms and disability ratings. The limited mental status assessment appears to indicate that a very limited clinical examination was provided and thus relevant symptoms may have been missed.

In summary, Dr. Velikonja opined that the rating provided by Dr. Spivak under-represented Ms. Keck’s disability. Ms. Keck’s psychological condition could have been exacerbated by the medications she was taking. Dr. Velikonja however found that Ms. Keck did not exhibit any significant functional problems pre-accident by reason of her taking prescribed medications.

In October 2013, Dr. Wael Hanna, in his thoracic surgery clinic note, recorded that Ms. Keck’s past medical history included a diagnosis of fibromyalgia. Dr. Velikonja was unable to comment on this note. She then stated she was also aware that Ms. Keck had two knee surgeries but was unaware if Ms. Keck had any knee surgeries post-accident.

Dr. Velikonja wrote at page 9 of her report that Ms. Keck has become emotionally labile and that she cries more easily than before. Ms. Keck does not get the same enjoyment out of things as she did pre-accident. In its consideration of the emotional labile issue, Ms. Keck’s catastrophic team spoke to Ms. Keck’s husband.

Dr. Velikonja knew Ms. Keck drove to some of her (Ms. Keck’s) appointments with her (Dr. Velikonja). She made no notes about Ms. Keck’s driving avoidance or passenger anxiety or of the number of times Ms. Keck drove or was a passenger each week.

CROSS-EXAMINATION

On cross-examination Dr. Velikonja stated that she initially did the file intake, reviewed the file, did a preliminary analysis of Ms. Keck’s file, decided what to do and what the issues were. She discussed future plans and communication issues with the catastrophic assessment team. Dr. Velikonja did not make a notation as to how long her interview with Ms. Keck lasted. She stated such interviews usually take between 1.5 and 2 hours.

Dr. Velikonja reviewed Ms. Keck’s list of prescriptions both pre- and post-accident. She noted Ms. Keck’s lasting pain and sleep medications were consistent with the information given her in this regard by Ms. Keck. She stated that Ms. Keck received narcotic medications post-accident. She was unaware of Ms. Keck taking any psychotropic medications that were of significance for neuropsychology purposes.

Dr. Velikonja was not concerned that Ms. Keck took Tylenol 3 which may not have been found in Ms. Keck’s medical records. Ms. Keck took Percocet pre-accident. Dr. Velikonja stated that this prescription regime may have indicated that Ms. Keck was in greater pain than otherwise indicated from her medical records. Ms. Keck took whatever medication that was recommended for her to take. At the time of her interview Ms. Keck presented in a clear, coherent manner.

Dr. Velikonja stated that her professional concern related to the anxiety Ms. Keck experienced as a driver and passenger. It was, she stated, “more about the quality of the experience”. Dr. Velikonja looked for such things as whether Ms. Keck avoided extra driving. Ms. Keck only discussed her being nervous while driving in a car.

With respect to Ms. Keck’s activities of daily living (“ADL”), Dr. Velikonja wrote that Ms. Keck has been attempting to take an active role in re-engaging in the pre-accident ADL and to return to her typical level of functioning. Ms. Keck has been unable to overcome the impact of her injuries and the psycho-affective and cognitive changes emanating therefrom.

When asked by Insurer’s counsel, if it would be important for Dr. Velikonja to record any improvement in Ms. Keck’s condition, Dr. Velikonja responded that Ms. Keck did not have a noticeable lack of improvement in her condition. From an anxiety/depression perspective, Ms. Keck’s symptoms were worsening. Dr. Velikonja only saw Ms. Keck once and that was in August 2014. She did not know if Ms. Keck’s symptoms had improved since then.

Dr. Velikonja stated that Ms. Keck’s relationship with her husband “is now fine” and that her relationship with her son and mother-in-law had improved. When asked by Insurer’s counsel if this was not an improvement in Ms. Keck’s condition, Dr. Velikonja responded that this improvement was “not a huge factor in our ratings”. Ms. Keck reported in August 2014 that there was no change in her appetite or weight.

Dr. Velikonja stated that Ms. Keck’s judgment is good and that she did not report any problems with decision making.

Ms. Keck has experienced some gynaecological issues which Dr. Velikonja stated were not a source of stress pre-accident that precluded Ms. Keck from functioning. Dr. Velikonja denied that she should have explored these issues more fully, stating that issues such as sexual intimacy relates to behaviour and that Ms. Keck and her husband were, at the time of her interview, not communicating well with each other and were being “disconnected with each other”.

Dr. Velikonja wrote at page 9 of her report that Ms. Keck reported no history of any learning disability or attention related problems in school. Dr. Velikonja however recorded at page 8 of the report that Ms. Keck told Dr. Zulfiqar, a psychologist, in a report, dated December 1, 2011, that Ms. Keck had been diagnosed with dyslexia at a young age and that she struggled academically. Dr. Velikonja stated that this conflict was not significant because Ms. Keck subsequently took some courses in psychology where she got a 92% average.

Dr. Velikonja stated that this conflict in evidence regarding schooling does not always speak to issues of credibility.

Dr. Velikonja did not perform any cognitive testing on Ms. Keck that related to attention and memory because, in her opinion, this type of testing would not have yielded additional significant information for her professional purposes. Such informative issues were, in her opinion, secondary to Ms. Keck’s presenting emotional issues. People with chronic pain, taking prescribed medications and experiencing stress may sometimes show secondary cognitive inefficiency in relation to attention, memory and decision making. This was not the case here.

Dr. Velikonja stated that she also reviewed the notes and records of Dr. Denise Milovan, Dr. Juriansz, and two pages from the Rothbart Centre for Pain Care in addition to the documentary report given to her.

Dr. Velikonja acknowledged that some of the medical reports she reviewed were inaccurate as to the amount of time that Ms. Keck was experiencing headaches. This conflicting information did not change her opinion that Ms. Keck has been experiencing pain for a substantial period of time pre-accident.⁶

Dr. Velikonja stated that Ms. Keck did not mention to her that she experienced pain from a snowmobile accident in which she was involved 12 years earlier.

Dr. Alfonso Marino, a psychologist, who conducted an independent psychological examination of Ms. Keck, in a treatment and assessment plan, dated February 14, 2013, recorded that a review of Ms. Keck’s medical records, her self-reported symptoms and her description of her accident scene were consistent with mild traumatic brain injury.⁷ The hospital physician who attended to Ms. Keck post-accident reported that Ms. Keck suffered from amnesia not yet determined following her accident. Dr. Velikonja disagreed that Ms. Keck suffered from a mild brain injury following her accident. She noted Ms. Keck had a Glasgow Coma Score (GCS) rating of 15/15 and the CT of her head was normal. Dr. Velikonja opined that Ms. Keck has anti-grade amnesia whereby the brain did not consolidate information relating to the accident.

Dr. Velikonja stated that Ms. Keck suffered a mild head injury as a result of her accident. She was unable to state if this had a continuing effect on Ms. Keck. This injury, in her opinion, is highly amenable to brain recovery. If Ms. Keck suffered from a more severe brain injury her physicians would have taken her off any psychiatric medication she was taking. Dr. Velikonja stated that a mild brain injury might be a factor in the assessment of psychological functioning. She could not tell if this were so or to what extent in this case.

With respect to category 7, Dr. Velikonja stated that her team found that Ms. Keck had a whole body impairment rating of 52% while adding, “Fifty-two percent is not 55%.”

EVIDENCE OF MS. ASMA MALIK, OT

Ms. Asma Malik is an Occupational Therapist who qualified as an expert witness in this occupation. Ms. Malik is experienced in catastrophic assessments from her professional perspective.

Ms. Malik co-signed with the director of her clinic, Ms. Maria Ross, the “Medico-Legal Occupational Therapy Catastrophic Impairment Assessment Report”, dated October 9, 2014, written following Ms. Keck being assessed by Ms. Malik.⁸

Ms. Malik and Ms. Ross also co-signed a rebuttal report⁹ entitled the “Medical Legal Catastrophic Assessment – executive summary report, dated October 16, 2014”, that was co-authored by the other health professionals on Ms. Keck’s assessment team.

Ms. Malik interviewed Ms. Keck for one hour on August 11, 2014. Ms. Keck then participated in a situational assessment that lasted 2.5 hours. This assessment is designed to challenge Ms. Keck in a new social setting in order to get an objective assessment of function.¹⁰

A situational assessment is a process of gathering, synthesizing and analysing functional information obtained when Ms. Keck took various standardized tests and work situations that took place in various work or social environments. Ms. Malik states that she assessed Ms. Keck’s total function according to the assessment and having regard to Ms. Keck’s physical, mental and psychological impairment.

Ms. Malik spoke to Ms. Keck by telephone subsequent to the situational assessment. She also interviewed Ms. Keck’s husband, Joe Di Julio, and consulted with Dr. Velikonja.

Ms. Malik stated that Ms. Keck suffered an anxiety attack during her interview at which time Ms. Keck trembled, stuttered and took medication.

Ms. Malik reviewed Ms. Keck’s diagnosis and impairments as noted by Dr. Garner, a physical medicine and rehabilitation specialist, and the neuropsychological report prepared by Drs. Milovan and Velikonja. Ms. Malik noted Ms. Keck’s presenting symptoms of pain, problems with sleep, emotional problems and cognitive problems. She also considered Ms. Keck’s pre-accident social and vocational level of functioning.

After describing and evaluating the various occupational therapy testing that Ms. Keck underwent, Ms. Malik reported that, with respect to criterion 8 of the AMA Guides, Chapter 14, as follows:

1. Activities of Daily Living – moderate to marked impairment. This impairment level was compatible with some but not all useful functioning and marked impairment levels that significantly impeded useful functioning.

2. Social Functioning – moderate impairment which indicated that Ms. Keck’s impairment was defined as being compatible with some but not all useful functioning.

3. Concentration, Persistence and Pace – moderate to marked impairment.

4. Adaptation to Work or Work-like Settings – Ms. Keck’s level of impaired functioning in the previous domains, combined with her performance during the situational assessment, indicate that she would be markedly impaired in this domain. Ms. Keck’s functional limitations with respect to her daily living activities, community or social functioning, managing interpersonal relationships and her limitations associated with traveling in a vehicle due to severe anxiety would all be barriers that would significantly impede useful functioning in this domain. Ms. Keck’s mental and behavioural impairments would affect her ability to tolerate and cope with stresses common to the work environment, including attendance, making decisions, scheduling, completing tasks, and interacting with others on a regular and consistent basis. She would likely deteriorate further and withdraw from the situation. Hence Ms. Keck’s impairment levels would significantly impede useful functioning in this category and are compatible with marked impairment.

Ms. Malik opined that at the time of her assessment, Ms. Keck was not gainfully employable in any job.

Ms. Malik referred to the Executive Catastrophic Assessment report for which she was one of the assessors who determined the nature and extent of Ms. Keck’s presentation. She confirmed that Ms. Keck’s whole person impairment rating was 52%. The consensus of this catastrophic assessment team was that Ms. Keck had a moderate to marked impairment rating for ADL, concentration, persistence and pain and a marked impairment under the adaptation category.

Ms. Malik next referred to the rebuttal report that she co-authored and which referred to the assessment performed on behalf of the Insurer’s catastrophic assessment team by Ms. Tina Cagampan, OT.

Ms. Malik stated Ms. Cagampan assessed Ms. Keck at her home that was in a comfortable environment. Ms. Malik had assessed Ms. Keck in a work-related and social environment. Ms. Keck declined to go out into the community with Ms. Cagampan who, alternately, walked with Ms. Keck for 10 minutes. Ms. Malik feels that this was done in an “accommodating and client-centered manner”.

Ms. Malik stated that the home assessment done by Ms. Cagampan did not challenge Ms. Keck who would be less anxious at home and who avoids going out into the community. She felt that Ms. Cagampan should have assessed Ms. Keck outside of the home.

Ms. Malik noted that Ms. Cagampan did not rate Ms. Keck’s functional impairment in the four domains found in chapter 14 of the AMA Guides. In Ms. Malik’s view, the data obtained by Ms. Cagampan “is left open to interpretation and the occupational assessment is inconclusive”.¹¹

In cross-examination Ms. Malik stated that she did not do any cognitive testing on Ms. Keck. She stated that Ms. Keck tries hard but “pays for it later”. She has both good and bad days. Ms. Malik did not know how often Ms. Keck cleaned her house or had people over for dinner.

Ms. Keck appeared anxious and overwhelmed at her assessment which Ms. Malik stated took place on the worst day of the week for Ms. Keck, which is the day before Ms. Keck received her pain injections.

Ms. Malik stated that she did not intentionally schedule to assess Ms. Keck on one of her bad pain days. Ms. Malik knew that Ms. Keck was taking pain medications but did not know what pain medications Ms. Keck was taking at the time of her assessment. Ms. Malik never asked if Ms. Keck was heavily sedated. Ms. Keck presented with a headache at the time of her OT assessment. Ms. Malik stated that it was up to Ms. Keck to tell her if she could continue with the testing. Ms. Malik did not know that Ms. Keck was to receive her pain injections the day following the assessment. Ms. Keck told Ms. Malik that she was taking medication for migraines and pain but was otherwise “high functioning” pre-accident. Ms. Keck did not tell Ms. Malik of her knee surgery. Ms. Malik did not extensively review Ms. Keck’s pre-accident medical condition.

Ms. Malik knew of Ms. Keck’s passenger anxiety. She knew that Ms. Keck was often driven to many of her health-related appointments by close family members or a friend. Ms. Keck sometimes drove herself to these appointments. She did not drive to the grocery store or for social settings.

Ms. Malik stated that the situational testing she performed on Ms. Keck was unrelated to truck driving and to Ms. Keck’s pre-accident employment.

Ms. Malik never asked Ms. Keck if she had worked in a factory or at an office pre-accident.

Ms. Malik did not record how long she spoke to Ms. Keck’s husband except that “it was a fairly long conversation”. Ms. Malik knew that Ms. Keck did not have a social problem with her son pre-accident.

Ms. Malik stated Ms. Keck had to order a lunch as part of the situational testing which is something that she had never done before and for which she appeared nervous. She never asked Ms. Keck if she ever prepared a budget or if she had any prior learning disabilities such as dyslexia. Ms. Malik knew that it would be difficult for Ms. Keck to prepare a budget were she to be dyslexic. Ms. Malik then stated that this lack of knowledge about dyslexia was not an important factor in her assessment of Ms. Keck because she has flexibility in assigning various tasks and tests to her patients. In this case, the tests chosen for Ms. Keck were designed to see how she can relate to people and her ability to multitask.

With respect to her assessment of Ms. Keck’s impairment rating, Ms. Malik based her assessment of ADL on the subjective information she received from Ms. Keck and her husband as well as from the results of the situational testing she administered to Ms. Keck. Ms. Malik agreed that the test results would probably have been better were Ms. Keck tested on a day when she was feeling better.

Ms. Malik’s assessment of the concentration, persistence and pace factors was based on the results of the situational testing and not on Ms. Keck’s interaction with other people. Ms. Malik noted Ms. Keck’s difficulty in handling stressful telephone calls. Ms. Keck was, however, able to appropriately order pizza.

Ms. Malik’s assessment of the adaptation domain was based on the results of her assessing of the other three domains, the subjective information she received from Ms. Keck and the result of the situational testing.

Ms. Malik acknowledged Ms. Keck kept her appointments with her despite her experiencing passenger anxiety. Ms. Malik was unable to describe any limitations regarding Ms. Keck’s passenger anxiety.

Ms. Malik conceded that she did not record in her report that Ms. Keck was not gainfully employable. She did not conduct a vocational assessment for Ms. Keck. Despite this, she stated that Ms. Keck’s condition would likely deteriorate further.

Ms. Malik did not agree with Insurer’s counsel who suggested to her that Ms. Keck’s condition was “a snapshot of one day”. She stated that she stood by her opinion that Ms. Keck’s condition will likely deteriorate in the future.

Ms. Malik stated that she played no role in the rating of the whole body assessment (criterion 7).

With respect to her rebuttal report, Ms. Malik stated that Ms. Cagampan did a number of tests that she did not perform on Ms. Keck. Her opinion was that some of the tests administered to Ms. Keck by Ms. Cagampan were not required for a mental and behavioural assessment. She acknowledged that the tests administered by an occupational therapist on a patient are dependent upon the experience of that occupational therapist. There was no need to test Ms. Keck on her worst day of the week. It was speculative, in her opinion, to state that Ms. Keck’s test results would have improved had she been tested on a day where she felt better.

Ms. Malik stood firm in her opinion that Ms. Cagampan gathered information from her testing without rating or analysing the four domains of functioning and arriving at a conclusion.

Ms. Malik stated that Dr. Spivak integrated the data compiled by Ms. Cagampan into his report. She felt that it was necessary for the occupational therapist to arrive at a rating for catastrophic assessment purposes. She stated, (a) Ms. Cagampan’s report did not refer to Ms. Keck’s mental and behavioural conditions and, (b) the integration of functional data was missing from her report.

In re-examination Ms. Malik stated if a person has a marked impairment, such person is not gainfully employable. Ms. Keck’s passenger anxiety would be a limitation on her functioning were she unable to receive drives from close family members and a friend.

EVIDENCE OF DR. MITCHELL SPIVAK, M.D.

Dr. Mitchell Spivak, a psychiatrist, gave expert evidence on behalf of Sovereign General. Dr. Spivak was a member of the Insurer’s catastrophic assessment team who wrote a psychiatric report on Ms. Keck following his examination of her.

Counsel for Ms. Keck objected to the production of this report on the ground that receipt of this report into evidence would constitute a denial of natural justice. The thrust of this submission is based on the allegation that the section 44 independent psychiatric examination report¹² authored by Dr. Spivak did not address with any specificity what information he received from the documentation he received from the Insurer’s catastrophic assessment team in order to complete this report. Ms. Keck accordingly did not receive notice of what information Dr. Spivak derived from the documentation he received.

I find there has been no breach of natural justice. Ms. Keck was fully informed of the information Dr. Spivak received before writing his section 44 report. Dr. Spivak, at page 2 of his report, wrote: “Please refer to the Appendix for a complete list of documents received and reviewed.” This included a review of the ambulance call report, eight surgical reports, three radiology reports, three specialists’ reports, the clinical notes and records of Dr. Brian Juriansz, 22 OCF forms, correspondence, his team reports, and the executive summary report prepared by Ms. Keck’s catastrophic assessment team.

The issue here is the comprehensiveness of Dr. Spivak’s report. There is no doubt that Dr. Spivak is a qualified psychiatrist familiar with catastrophic assessments. The sole issue relates to the weight to be given to Dr. Spivak’s report. There is no evidence of bias. Dr. Spivak gave credible evidence. There is no reason to doubt that he reviewed the documentation that he stated he did.

Dr. Spivak stated that he did not review Dr. Velikonja’s report until the day he gave his evidence at this Arbitration Hearing. He “zeroed in” or concentrated on the psychological and psychiatric evidence.

Ms. Keck also submitted that Dr. Spivak’s report be excluded from evidence because of litigation privilege. The report was prepared by Dr. Spivak who knew his report may be used for purposes of litigation. Documents prepared for the dominant purposes of obtaining legal advice or pending litigation or for gathering evidence for that allegation are privileged. See General Accident Assurance Company v. Chrusz, 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321 (C.A.).

Dr. Spivak’s report was prepared at the behest of the Insurer pursuant to the provisions of section 44 and section 45 of the Schedule. The predominant purpose of this report is to determine whether from the Insurer’s perspective the Applicant’s impairment is a catastrophic impairment.

Both Ms. Keck and the Insurer knew at the time they obtained their reports relating to catastrophic impairment that the catastrophic impairment issue may be arbitrated. Indeed the first Application for Arbitration in this matter was filed on April 30, 2013 being a date prior to the date of Dr. Spivak’s psychiatric report.

To permit the Applicant the right to file medical and other health related documents in support of her claim for a determination of catastrophic impairment and to deny the Insurer the reciprocal right is unfair and would deny the Insurer of its right to defend this claim. Dr. Spivak’s report is accordingly not protected by litigation privilege.

Dr. Spivak interviewed Ms. Keck. He found that her mood was depressed; her insight and judgment appeared intact. He diagnosed Ms. Keck as having an adjustment disorder with depressed mood, maladjustment to a stressor or a reaction to a stressor that is exaggerated.

With respect to whole person impairment, Dr. Spivak found that:

…with respect to activities of daily living Ms. Keck suffered from a mild impairment; with respect to socialization, Ms. Keck exhibited mild to moderate impairments; with respect to concentration/persistence/pain, Ms. Keck demonstrated mild to moderate impairments; and, with respect to adaptation, Ms. Keck demonstrated mild to moderate impairments.

In Dr. Spivak’s opinion Ms. Keck presented as having an impairment of 15 to 20%, which is in the lower range of moderate impairment.

With respect to section 3(2)(f) of the Schedule (criterion 8), Ms. Keck did not exhibit a Class 4 impairment (marked impairment) or a Class 5 impairment due to mental or behavioural disorder.

CROSS-EXAMINATION

In cross-examination Dr. Spivak admitted he never has testified in an Ontario court. He spent up to 3.5 hours reviewing the records in this case. His interview with Ms. Keck lasted about one hour. Following this interview he dictated his draft (but not final) report. He spent approximately 5.5 hours in gathering information prior to writing his final report.

With respect to his report, Dr. Spivak stated that he wanted to show the reader how he got to his conclusions which included the information he regarded as being important. He did not detail in his report the findings or evaluations of other health professionals who saw Ms. Keck. His report did not include the results of any work evaluations and whether the impairments Ms. Keck exhibited would have an effect on her ability to work.

Dr. Spivak stated that the results of psychological testing are a useful tool. He does not administer such tests, which is the purview of the psychologist. Psychiatrists, he stated, conduct a personality assessment inventory (PAI), which yielded internally valid results. Any testing done by the Insurer’s catastrophic assessment team yielded reliable answers.

Dr. Spivak reviewed the executive summary report¹³ prepared by Ms. Keck’s catastrophic evaluation team. He did not have the reports of Dr. Scott Garner, Dr. Velikonja or Ms. Malik available to him at the time he wrote his report. He conceded that it may have been useful were he to have read the results of the situational assessment prepared by Ms. Malik. Nonetheless, Dr. Spivak stated that his opinion would not have changed had he read these reports.

Dr. Spivak did not interview any member of Ms. Keck’s family or her friends. He did not verbally communicate with the other assessors on the Insurer’s catastrophic assessment team. He could not recall if Ms. Cagampan spoke to Ms. Keck’s husband. Dr. Spivak only reviewed the documentation provided him by Total Rehabilitation Management (“Total”) on behalf of the Insurer. He stated that any information relayed by Ms. Keck’s husband to Ms. Cagampan would have been useful to him and may have impacted his final conclusions.

Dr. Spivak did not know how Total received the documentation it sent to him or if Total gave him all of its documentation relating to Ms. Keck. Although he read Ms. Cagampan’s report, Dr. Spivak stated that he did not find any information in that report that should be part of his report. The information he received from Ms. Cagampan’s report did not significantly alter his medical opinion in relation to Ms. Keck.

Dr. Spivak stated that Ms. Keck experienced pain and had perceptions of pain which was a limiting factor relating to her ability to drive a truck. Psychological factors are always relevant to the perception of pain which subject falls under the domain of the psychologists. Dr. Spivak stated that, from a psychiatrist’s perspective, Ms. Keck suffered from a somatic symptom disorder with predominant pain.

With respect to ADL, Dr. Spivak stated that the assessment of this domain included an assessment of social dysfunction as well as impairments relating to sleep and travel. Dr. Spivak acknowledged he did not specifically refer to these three areas in his consideration of the ADL domain. Ms. Keck stated to him that she tried not to leave her home. Dr. Spivak stated he did not regard this as meaning that Ms. Keck was fearful of leaving her home and entering unfamiliar environments. He felt he did not pursue this issue because he had enough information available to him when considering the ADL domain.

Dr. Spivak did not refer in his report to the difficulties Ms. Keck had in sleeping. He stated that this was an oversight. He was cognizant of Ms. Keck’s problems with sleep, which behaviour was incorporated into his consideration of the ADL domain. He stated that he would have commented on the sleep issue had he believed this issue gave rise to a psychiatric problem.

Dr. Spivak stated that the ability to communicate was an important factor under the social functioning domain such that it would have been helpful if he had received information from Ms. Keck’s husband.

With respect to the concentration persistence and pain domain, Dr. Spivak agreed with Ms. Keck’s counsel that it would be useful for him to have reviewed information relating to Ms. Keck’s work settings. He did not have such information available to him when he made his assessment of catastrophic impairment. Dr. Spivak did not then have work related information available to him from other members of the Insurer’s catastrophic assessment team.

Dr. Spivak stated that the fourth domain – adaptation – relates to decomposition in work-like settings. It also relates to the failure to adapt to stressful situations.

Dr. Spivak did not refer to any examples of factors relating to sustained concentration and persistence in his report. He stated that an assessor may choose to consider such factors in the exercise of his discretion. He stated: “There has to be a discretion in evaluating. An assessor must look at context.”

Dr. Spivak did not consider how Ms. Keck related socially with the public and with co-workers because he felt this topic was not worth pursuing. A psychiatrist, he stated, would focus on the psychiatric aspects of Ms. Keck’s ability to drive and not on her physical ability to drive. He did not consider the memory factor under the adaptability domain but referred to it under the heading concentration because this factor is relevant for truck driving but not for driving a car. The “easily distractible” factor was considered “much like the concentration factor”. Dr. Spivak also did not refer to Ms. Keck’s ability to show up to her personal schedule nor to her ability to leave her home without supervision.

Dr. Spivak stated that he could not answer the question if Ms. Keck were subjected to stressors at work would her mental or behavioural health deteriorate.

With respect to his diagnosis of adjustment disorder with depressed mood, Dr. Spivak said that he could not properly address the question of Ms. Keck’s ability to work because she is precluded from working by reason of her perception of pain.

Dr. Spivak stated he only considered Ms. Keck’s post-accident condition. He did not evaluate the extent of her perception of pain. He knew there was “some suggestion” Ms. Keck suffered from pain pre-accident. He stated Ms. Keck gave a reasonable account of her health and there was no information to suggest otherwise.

EVIDENCE OF DR. ANGELO FRASINA, DC

Dr. Angelo A. Frasina gave expert evidence in his capacity as a chiropractor having experience in assessing and treating patients with musculoskeletal impairments and disability. He is the clinical founder/director of the Stoney Creek Rehab & Wellness Centre.

In the four-year period prior to 2015, Dr. Frasina estimated that Ms. Keck received “a few hundred” treatments at his clinic. He last saw Ms. Keck on February 20, 2015 but has spoken to her six or seven times by telephone since then. He authored a report relating to Ms. Keck, dated January 27, 2016, at the request of Ms. Keck’s counsel.¹⁴

Dr. Frasina saw Ms. Keck as a patient from February 2001 until June 2002. He next saw her on June 8, 2011 and continued thereafter for four years.

Dr. Frasina found that Ms. Keck suffered from neck and mid and lower back pain. He diagnosed her as having a Whiplash Associated Disorder (WAD III) that has a neurological component attached to it. In his report Dr. Frasina recorded that Ms. Keck was operated on for her left side thoracic outlet syndrome in March 2014 and right side thoracic outlet syndrome in April 2015.

Dr. Frasina referred to Ms. Keck’s pre-accident and post-accident presentation that included his comments on her current psychological condition.

In summary, Dr. Frasina found as follows:

Ms. Keck is not able to return to work at this time. Her condition has deteriorated and there has been an increase of symptoms in her neck, arms. There is decreased function in her arms and hands with paresthesia, numbness and tingling. She would not be able to drive her truck for even short periods of time and aside from pain limiting her driving, her arm weakness would cause safety concerns in truck manoeuvring. Her mental condition would also make it very unlikely that she would be able to sustain multiple tasks and concentrate on driving truck as an occupation.

Ms. Keck has a limited educational background and would have to retrain in order to attempt future employment. She has ongoing physical impairments and is deteriorating.

Due to her financial limitations and her psychological impairments, she has decreased daily activities, decreased social interactions and she is very limited with interpersonal relationships. All these traits would impact her ability to sustain any gainful employment at this time. I cannot foresee her being able to focus in order to be retrained and embark on different work goals or occupations that would have to retrain both technically and educationally. She would not be able to handle the physical and mental work load. Although her truck driving occupation is rated at a medium level under the NOC classifications [National Occupational Classifications] it is highly improbable that she could sustain full time duties even in light work. She is not able to sit or stand for prolonged periods of time and she can definitely not focus for long periods of time to continue with simple jobs that are low functioning. In my opinion, she is permanently disabled. Her physical and psychological prognosis is poor. She requires ongoing multidisciplinary medical treatment, monitoring and periodic diagnostic testing of her neurological impairments.

Dr. Frasina referred to the treatment assessment plan (OCF-18) that he completed on May 1, 2012¹⁵ which related to proposed chiropractic treatment that was designed to improve Ms. Keck’s range of motion, and to decrease the swelling in her spine. Ms. Keck, he stated, participated in the proposed treatment but not in the frequency as recommended.

In his treatment and assessment plan, dated July 13, 2012,¹⁶ Dr. Frasina recommended continued chiropractic treatment with the same treatment goal as indicated in the May 1, 2012 treatment and assessment plan. The treatment and assessment plan, dated July 4, 2013,¹⁷ recommended that Ms. Keck receive massage therapy. The treatment and assessment plan, dated October 24, 2012, was similar to the two earlier Treatment Plans relating to chiropractic treatment.

Dr. Frasina repeated that Ms. Keck sometimes underwent the treatments as recommended but at a reduced frequency than recommended. Ms. Keck sought the reduced treatment because she was uncertain if the Insurer would pay for the recommended treatment and because she may be personally responsible for paying for this treatment.

The treatment and assessment plan, dated January 13, 2014, referred to whiplash associated disorder (WAD III), tension-type headaches, sprain and strain of thoracic spine and of the lumbar spine. This was the first time WAD III was referred to since the Treatment Plan, dated May 1, 2012.

Dr. Frasina stated that his treatment and assessment plans were reasonable and necessary in view of Ms. Keck’s presenting condition.

The treatment and assessment plans, dated June 9, 2014 and January 17, 2014, were partially approved. The June 9, 2014 plan was approved for $4,546.92, of which the Insurer paid $1,972.52. The January 17, 2014 plan was for $2,018.44, for which the Insurer approved payment of $646.16.

Dr. Frasina concluded his examination-in-chief by stating that he had several telephone calls with Ms. Keck subsequent to his last appointment with her. He found that her speech was slurred. She stated she was heavily medicated; she was sleeping more often and she did not go out of her home. Dr. Frasina found that Ms. Keck did not appear to be her “usual sharp, sarcastic self”. She was also unable to go on social outings. Dr. Frasina stated that Ms. Keck benefited from the treatments she received at the Stoney Creek Rehab & Wellness Centre. He found her to be an accurate historian.

CROSS-EXAMINATION

Dr. Frasina began his cross-examination by referring to his clinical notes and reports for the 2001-2002 period when he first treated Ms. Keck. He stated that in 2001 Ms. Keck’s predominant problem was pain in the lower left leg and lower back. At that time she did not suffer from neuralgia or sciatica nor did she feel any numbness or tingling. She also suffered from headaches. He noted that her headache pain decreased over time and that she reduced by one-half the number of Tylenol with codeine pills she took daily. Ms. Keck was able to return to work following an illness.

Dr. Frasina stated that as of January 27, 2015 Ms. Keck was “unable to work at this time”.¹⁹ He admitted that he was not a specialist in vocational rehabilitation. He made this statement about one year after he last treated Ms. Keck.

Dr. Frasina stated that the Insurer paid for those Treatment Plans he prepared for Ms. Keck from June 8, 2011 until May 1, 2012 when the Insurer arranged for a section 44 examination that was conducted by Dr. Holland, DC. Dr. Frasina received a copy of Dr. Holland’s section 44 report wherein Dr. Holland stated that Dr. Frasina failed to identify “objective findings of ongoing MVA related injuries, further clinical based therapy is not supported.”²⁰

Dr. Frasina stated that by 2012 Ms. Keck told him that her condition had improved 50 to 60 per cent but that she still complained of neuralgia.

Dr. Frasina received a copy of Dr. Holland’s section 44 report, dated May 23, 2013.²¹

Dr. Frasina stated Ms. Keck owes his clinic $25,640.30 plus interest for treatments and documentation the clinic rendered her from May 1, 2012 until February 24, 2016. He admitted treating Ms. Keck “on spec” hoping that the Insurer would pay his account in due course. He did not think that he could try to collect this account from Ms. Keck. He insisted that if he thought Ms. Keck needed treatment then he would help her despite the Insurer denying the Treatment Plans.

EVIDENCE OF DR. ANDREW HOLLAND, DC

Dr. Andrew Holland gave testimony on behalf of the Insurer as an expert in chiropractic rehabilitation therapy and assessment.

Dr. Holland saw Ms. Keck on four occasions.

Dr. Holland first saw Ms. Keck on August 30, 2012 when he assessed her as part of his section 44 independent chiropractic examination treatment and assessment plan (OCF-18) review.²² The purpose of this assessment was to determine if the treatment and assessment plan (OCF-18) completed by Dr. Frasina, dated July 4, 2012, was reasonable and necessary.

Upon his review of the information given him by the Insurer and his assessment of Ms. Keck, Dr. Holland opined, “Despite abundant and appropriate clinic activity and passive therapy, Ms. Keck continues to remain asymptomatic. Based on a review of file documents and the results of today’s assessment … further clinic based therapy is not supported. The OCF-18 in question was stated to be not reasonable or necessary.”

In arriving at his opinion Dr. Holland obtained information regarding Ms. Keck’s personal/social history, her functional status, her pre-existing medical history, her medications, the accident history, the medical treatment Ms. Keck received to date, her presenting complaints, and the results of his physical examination.

Dr. Holland examined Ms. Keck more than one year post-accident. She was found to have received chiropractic therapy, massage therapy and physiotherapy twice per week. She had also seen a psychiatrist, her family doctor and a knee specialist. She was doing yoga exercises at home. She had attended a pain clinic on a regular basis for more than ten years.

Ms. Keck presented with complaints relating to headaches, neck pain, TMJ problems, left shoulder and upper back, hip and knee pain. She also had difficulty sleeping.

Dr. Holland found that Ms. Keck’s range of motion of the cervical spine was within functional limits with reports of end range pain with rotation. It was assessed as being between 75 to 80 per cent.

Ms. Keck’s strength was stated as being less than optimal with weakness noted. There were no negative neurological findings. Ms. Keck experienced no spasms.

Dr. Holland found that Ms. Keck, one year post-accident, remained symptomatic. Her condition did not warrant further clinic based therapy. Ms. Keck told Dr. Holland that she was 60% improved at that time.

Dr. Holland stated that the issue of Ms. Keck’s chronic pain was within the domain of a physician and not a chiropractor.

Dr. Holland stated that he could not identify any neurological impairment that would cause Ms. Keck’s condition to be classified as WAD III (Whiplash Associated Disorder III).

Dr. Holland next saw Ms. Keck on May 23, 2013 for a section 44 independent chiropractic examination.²³ The purpose of this examination was to opine on whether the two treatment and assessment plans, OCF-18, dated April 15, 2013 and May 7, 2013, respectively, were reasonable and necessary.

Dr. Holland found these two Treatment Plans were neither reasonable nor necessary. He wrote:

Despite abundant clinic based therapy, Ms. Keck continues to remain symptomatic. She reports additional areas of pain during today’s assessment and presented with subjective and objective signs of left sided thoracic outlet syndrome. Based on a review of file documents and the results of today’s assessment, further clinic based therapy is not supported. The goods and services outlined in the OCF-18s in dispute are not reasonable and/or necessary. Ms. Keck is encouraged to follow-up with her family physician and allied medical practitioner’s [sic] regarding further medical management of her symptoms. She reports she continues to be medically managed by her family physician, chronic pain physician, physiatrist with and an [sic] upcoming neurological examination.

Dr. Holland found on this occasion Ms. Keck presented with more pain in the right upper limb and in both ankles. Ms. Keck told him that she had not worked since the motor vehicle accident and that she may not work again. She reported limitations in her ability to do housekeeping and in some aspects of her personal care for which she received help from her husband. She continued to see her chiropractor and she now attends a sleep clinic. She was referred to a neurologist. She enjoyed walking with her friend. She walked further in warm weather than she did in cold weather.

Ms. Keck was thus found to have reported “additional symptoms since the first TOC [thoracic outlet surgery] which was not a good sign.” Her presenting symptoms were suggestive of a neurologic problem. Dr. Holland concluded that Ms. Keck suffered from a whiplash injury that he classified as WAD II.

The third independent chiropractic examination relating to Ms. Keck was conducted on July 8, 2014.²⁴ The purpose of this assessment was to determine if the treatment and assessment plans (OCF-18) completed by Dr. Angelo Frasina, DC, each dated June 9, 2014, were reasonable and necessary.

Dr. Holland opined that in each case the goods and services proposed by Dr. Frasina were partially reasonable and necessary in view of Ms. Keck’s then presenting condition. This independent chiropractic examination was conducted more than one year after the second ICE was conducted.

Ms. Keck was found to have reported the same symptoms as she did earlier except for pain in the right arm and ankle. Ms. Keck had undergone left side thoracic outlet surgery in March 2014. Dr. Holland found that Dr. Frasina’s recommendation of 50 treatments over an eight-week period was excessive. Ms. Keck needed time to recover from her surgery. Dr. Holland recommended 16 thirty-minute sessions of massage therapy and 16 lower leg chiropractic assessments.

Dr. Holland conducted a Functional Abilities Evaluation (“FAE”) under section 44 of the Schedule on January 7, 2015 in order to determine Ms. Keck’s current lack of functioning with respect to catastrophic determination.²⁵ This assessment encompasses 58 pages and was submitted for review by the Insurer’s catastrophic assessment team. This assessment was conducted following Ms. Keck’s left side thoracic outlet surgery. She was at that time limited by her surgeon from lifting anything above 10 pounds.

Dr. Holland found that Ms. Keck had greater strength at the time of his first assessment than she did at the date of the FAE. Ms. Keck continued to have limitations post-surgery. She exhibited shaking in her hands and legs.

Dr. Holland recorded that Ms. Keck demonstrated a reliable effort during her FAE.

Dr. Holland did not draw any conclusions in his report. He deferred to the medical specialists involved in the Insurer’s catastrophic determination of her. He concluded his examination in chief by noting that Ms. Keck had attended between 430-450 appointments at the Stoney Creek Rehab and Wellness Centre.

CROSS-EXAMINATION

Dr. Holland in cross-examination stated that Ms. Keck was a consistent historian throughout her four visits to his office.

Dr. Holland conducted each range of motion test three times in order to assure accuracy. Ms. Keck’s functional (or useful) range of motion was found to be 75-80% of normal.

Ms. Keck’s counsel referred to the range of motion data and pointed out measurements that showed that Ms. Keck’s range of motion was less than normal. For example, under extension Ms. Keck presented with 30^o^ range of motion and left side range of motion 10^o^. Normal range of motion is 50^o^-60^o^.

Ms. Keck’s strength measurements were most often measured at three out of a maximum of five points.

Dr. Holland stated that the FAE testing is but a snapshot in time to objectively document a person’s physical ability. Such testing is designed to predict such ability over an 8-hour day.

Ms. Keck’s counsel next referred Dr. Holland to his ratings on the various physical tests performed by Ms. Keck. Examples of such testing include such tests as carrying, reaching, handling, manual handling, fingering, manual fingering, dynamics and lifting wherein Ms. Keck’s rating was most often well below the industrial standard rating for such tests. Ms. Keck experienced pain during most of these tests. She was unable to complete the balance test.

Ms. Keck also experienced a panic attack at the completion of the FAE. That was stated by Dr. Holland to be an unfortunate and unusual result of such testing.

Dr. Holland did not remember that the results of the FAE were not incorporated by any of the Insurer’s four catastrophic assessors in their reports. The catastrophic executive summary report did not refer to the FAE.

Dr. Holland found that Ms. Keck was straightforward and candid with him except for the FAE where he found her to be less straightforward.

With respect to the section 44 examination, dated July 8, 2014, Dr. Holland recorded that Ms. Keck has a guarded prognosis. He stated his diagnosis is consistent with Ms. Keck’s car accident. He found her past medical history may have prolonged her symptoms as did the development of the thoracic outlet symptomology. This, he stated, made her vulnerable to a prolonged recovery. He stated that Ms. Keck had reduced strength in the left upper limbs and altered sensation together with signs of carpal tunnel syndrome.

Ms. Keck exhibited signs of thoracic outlet symptoms in the right upper limb and was limited in the rise of her left (dominant) upper limb. He anticipated this to be a temporary situation. He recommended that Ms. Keck consult a physician regarding the thoracic outlet symptomology.

In his section 44 report, dated August 3, 2012, Dr. Holland noted most people recover from soft tissue injury within four months but Ms. Keck is experiencing a prolonged recovery. Her ongoing pain was due to the motor vehicle accident.

In re-examination, Dr. Holland stated that Ms. Keck’s deviation from the industrial standard rating in certain testing he performed on Ms. Keck was due to her being less straightforward. He would have expected a better forward reaching test result than with the result of the overhead reaching test which was not the case here. Of all of his testing he did, Dr. Holland found only four of her test results were marginally unreliable.

EVIDENCE OF MS. TINA CAGAMPAN, OT

Ms. Tina Cagampan, OT, was qualified to give expert evidence with expertise in mental health from an occupational therapy perspective. She is the author of the section 44 Catastrophic Impairment – In-Home Occupational Therapy Assessment Report, dated March 27, 2015, prepared for the Insurer.

Ms. Cagampan met Ms. Keck at the latter’s home for three hours on January 2, 2015. In her evidence she reviewed Ms. Keck’s medical, employment and personal history. Ms. Keck, she stated, was unable to drive a pick-up truck at the date of the interview and has not worked since her accident.

Ms. Cagampan found that Ms. Keck was able to manage her personal care except that she was unable to do activities that led to her raising her arm above her head such as doing her hair or putting on a winter coat. Her husband helped her in that regard. Ms. Keck could do light housekeeping chores that included cleaning the bathroom and toilet. She did not use any assistive devices. She took breaks while doing certain tasks. She stood on a pedestal that made it easier for her to use the washing machine. She was able to ride the lawn mower.

With respect to functional complaints, Ms. Cagampan recorded that Ms. Keck had difficulties in the following areas:

(a) tasks involving bilateral upper extremities such as pushing, pulling, lifting and carrying;

(b) reaching above shoulder level;

(c) stooping and bending;

(d) mobility, decreased balance on stairs and uneven ground;

(e) fine motor and grip strength in the left arm;

(f) decreased sleep; and

(g) anxiety.²⁶

On a typical day post-accident Ms. Keck arose at 11:00 a.m. She would take what she needed from the second floor of her home to the first floor because she does not like to climb stairs. She could do certain exercises such as yoga and rolling a ball to her dogs. She would use a computer for an hour at night. She took rests during the day. She also did light housekeeping chores.

With respect to physical testing, Ms. Keck displayed decreased range of motion in the bilateral shoulders and wrist extension while experiencing pain in the shoulders, and discomfort in her neck and left wrist. She could touch each finger with her left thumb but this movement was slow and lacked control.

With respect to Manual Muscle Testing Ms. Keck achieved a four out of five rating in her bilateral shoulder and a similar rating in all other muscle groups. Muscle tremors with resistance was noted. She reported pain and tenderness in all muscle groups.

Ms. Keck’s grip strength was weak with her strength considerably below the average expected of persons of her age and gender.

Ms. Cagampan found with respect to Ms. Keck’s cognitive abilities that Ms. Keck was orientated, tangential in conversation and easy to direct. She could follow multi-step commands. Her rate of speech was normal and she was able to recall and use cognitive strategies taught by her psychologist when she gets upset.

Ms. Cagampan administered the Montreal Cognitive Assessment Test (MoCA) to Ms. Keck who scored 23 out of 30 placing her in the category of mild cognitive impairment. Ms. Keck became upset and reactive when she experienced difficulty while completing attendant care testing and other tasks.

Ms. Keck declined to go out in the community with Ms. Cagampan. Instead she agreed to walk around her property with Ms. Cagampan who found that Ms. Keck was independent and slow in descending stairs during which she held onto a post. She walked slowly on uneven ground. She once used a knee brace for longer walks or alternately clung onto her husband if support was not otherwise available. She appeared to walk in an independent manner for 10 minutes. She also could climb her pick-up truck with the aid of a step that was attached to the truck.

With respect to the four domains referred to in Criteria 8²⁷ Ms. Cagampan recorded:

ACTIVITIES OF DAILY LIVING

Ms. Keck was able to manage the majority of self-care tasks with the exception of activities that involved above shoulder movement. She ascertained limitations in such activities as self-care, housekeeping, communication, ambulation, travel sleep or recreational activities due to decreased range of motion, anxiety, pain and decreased cognition.

SOCIAL FUNCTIONING

Ms. Keck tended to isolate herself. She was only comfortable with her husband, son and treating health professionals.

CONCENTRATION, PERSISTENCE AND PACE

Ms. Keck did walk in her home environment. She had more difficulty adjusting outside her home where she sometimes experienced panic attacks. Ms. Keck has not returned to work since the accident. She was able to concentrate throughout the 3 hour interval with Ms. Cagampan and declined a rest break. She later reported that she took a four hour nap after the assessment. She was tangential at times but could easily be directed back to the topic. She was able to attend to Ms. Cagampan despite the television being on behind her.

ADAPTATION

Ms. Keck reported that she experiences panic attacks that may be triggered by a conversation topic, expectations of herself or being out in public. She will take medication, practise deep breathing exercises or be calmed by her husband upon whom she relies to accompany her to public places and social events.

Ms. Cagampan concluded her report by writing:

In summary, from an occupational therapy perspective, the claimant’s overall performance on the functional and cognitive screening using the MoCA is indicative of no significant cognitive limitations which would substantially impact her ability to function and participate in her pre-MVA daily activities. Ms. Keck also does not demonstrate a substantial physical inability to perform her pre-accident activities of daily living.

Ms. Cagampan did not provide any assessment ratings.

CROSS-EXAMINATION

Ms. Cagampan stated in cross-examination that her OT assessment was the first such assessment that she prepared for catastrophic assessment purposes. She focussed on Ms. Keck’s functionality which was based on what she saw. She reviewed the reports prepared by the Insurer’s catastrophic team. She did not change her report as a result of reading these reports.

Ms. Cagampan was unaware that Dr. Spivak found that Ms. Keck met the DSM(IV) criteria for a pain disorder. She likewise was unaware that Dr. Spivak indicated that psychological factors were an important part of Ms. Keck’s perception of pain and was a limiting factor with respect to her occupational functioning.

Ms. Cagampan was asked by Applicant’s counsel if these aspects of Dr. Spivak’s assessment were important matters for her to know. Ms. Cagampan answered: “I do functional reports. I do not diagnose mental health issues.” She conceded it would be beneficial for her to know the outcome of any well-established psychological tests that may have been administered to Ms. Keck, especially the results of any psychological tests administered close to the date of her OT assessment.

Ms. Cagampan did not have Dr. Velikonja’s report available to her at the date of her assessment. She subsequently reviewed a summary of Dr. Velikonja’s neuropsychological report. She did not incorporate any of the information found in Dr. Velikonja’s report in her OT assessment report. Ms. Cagampan stated she did not know that Dr. Velikonja found that Ms. Keck met the criterion for a pain disorder. If she knew of this finding, she may have reached a different result on completing her report.

Ms. Cagampan found Ms. Keck’s reported medical history and most recent job descriptions were consistent with the information she read regarding Ms. Keck.

Ms. Keck’s husband, Mr. Di Julio, was present for the first hour of Ms. Cagampan’s assessment. He often validated the information his wife told Ms. Cagampan.

Ms. Cagampan did not formally interview Mr. Di Julio. She gave him opportunities to answer questions that she put to him. Mr. Di Julio agreed with the information his wife told Ms. Cagampan with respect to her change of mood and how their personal relationship changed post-accident.

Ms. Cagampan stated she did not have a copy of the AMA Guides, Ch. 14. She was not familiar with the manner in which mental assessments are to be carried out under these guidelines. She was familiar with Ch. 14 of the AMA Guides only from an OT perspective.

Ms. Cagampan did not ask Mr. Di Julio if he periodically checked in with or called his wife while he was absent from their home. She did not ask him if Ms. Keck needed help with self-care activities or could safely operate a vehicle. She did not specifically ask the husband what efforts he made to help his wife in the community.

Ms. Cagampan agreed with Ms. Keck’s counsel that Ms. Keck isolated herself by remaining at home where she got comfort from her dogs which helped reduce her anxiety and feelings of sadness. This conduct she stated was a symptom of mental and behavioural impairment. Mr. Di Julio would cue Ms. Keck when they were around people in an effort to quell her anxiety.

Ms. Cagampan stated there were multi-factorial aspects to Ms. Keck’s difficulty with sleeping such as anxiety, age and pain level that, over time, were related to mental and behavioural impairments.

Ms. Cagampan stated that she had a good rapport with Ms. Keck who was cooperative with her. Ms. Keck took prescribed medication about an hour into the interview.

With respect to grip strength, Ms. Cagampan found that Ms. Keck, who is left hand dominant, had a left hand grip strength of 7.7 pounds compared to the average of 62.3 pounds. The right hand grip strength was 18.7 pounds as compared to the average of 70.4 pounds. She was 73% below average in this category. Ms. Keck cried during the grip strength testing which, in Ms. Cagampan’s opinion, could be an indicia of mental or behavioural impairment or condition.

Ms. Keck’s shoulder strength was found to be below the normal range. She exhibited muscle tremors during part of her physical testing. She stopped participating in the testing whenever she felt pain.

Ms. Keck also experienced difficulty and cried when she took the MoCA test. Ms. Cagampan stated she tried to reduce Ms. Keck’s stress level during the test. Ms. Keck was unhappy when she performed this test.

Ms. Cagampan stated that the MoCA test results revealed that Ms. Keck suffered mild cognitive impairment which could impact functional limitation and relate to such factors as memory, concentration, word finding and focus. Factors such as anxiety, depression and fatigue could have an impact on cognitive abilities.

Ms. Keck was able to climb on board a large truck found on her property with the help of her husband. She had difficulty opening and closing the truck doors. Ms. Cagampan did not test Ms. Keck’s ability to shift gears or steer the truck. She stated that Ms. Keck felt overwhelmed on a prior occasion when she tried to drive the truck. Ms. Keck declined taking Ms. Cagampan for a drive in the pick-up truck or in another truck.

Ms. Cagampan stated that Ms. Keck’s reluctance to go out into the community was symptomatic of a mental or behavioural impairment. She attributed Ms. Keck’s reluctance to go out into the community related to Ms. Keck’s anxiety and pain.

With respect to her report on the four domains of functioning, Ms. Cagampan stated she did not include Ms. Keck’s reduced sexual functions under the ADL section. She admitted however that sexual activity is an important issue under this or any one of the four domains.

Ms. Cagampan did not mention that when commenting on the adaptation domain that Ms. Keck was taking anxiety medication that helped her cope. She stated Ms. Keck’s lack of desire to go on community activities to be a choice rather than a failure. She noted that she could not comment on Ms. Keck’s ability to work or cope in a work-like setting because she did not see Ms. Keck in such a setting.

Ms. Cagampan played no part in the preparation of the Insurer’s catastrophic executive summary report.

EVIDENCE OF DR. VICTORIA AVRAM, ORTHOPAEDIC SURGEON

Dr. Victoria Avram gave evidence as an expert in orthopaedic medicine. Dr. Avram authored the section 44 Independent Orthopaedic Examination²⁸ (undated) prepared at the behest of the Applicant. The purpose of this examination was to assess whether Ms. Keck qualified for income replacement benefits.

Dr. Avram reviewed the documentation given her on behalf of the Insurer as noted in Appendix 1 of her section 44 report. She also obtained a medical history from Ms. Keck who presented with myofascial pain and left neck, mid-back pain, temporomandibular (TMJ) pain, left side as well as intermittent stinging in both hands from the elbows distal particularly at night. Dr. Avram recorded that Ms. Keck was able to do most of her ADL but with significant discomfort to the neck. Dr. Avram’s medical examination of Ms. Keck lasted approximately one half hour.

Dr. Avram noted that Ms. Keck “agreed to answer questions honestly and that she did not detect any deception.”

Dr. Avram diagnosed Ms. Keck as suffering from a “soft tissue injury to the muscles around her upper cervical spine as well as pain in the thoracic region of her spine.” Dr. Avram diagnosed the neck injury as a myofascial strain. She was unable to rule out any significant pathology until she saw the results of the MRI to Ms. Keck’s thoracic spine and cervical spine. She did not feel that there was any significant musculoskeletal impairment caused by the injuries that Ms. Keck sustained to the motor vehicle accident.

Dr. Avram concluded that she did not find Ms. Keck to be substantially disabled from performing the essential tasks of her job.

CROSS-EXAMINATION

In cross-examination, Dr. Avram confirmed her clinical impression of Ms. Keck’s medical condition. She stated that were there to be subsequent changes in Ms. Keck’s medical condition she may have to change her opinion on Ms. Keck’s medical condition. She stated that if a patient presents with no organic pathology, the patient could have some disability but would not genuinely be disabled from an orthopaedic perspective. The pain, she stated, is not in and by itself evidence of a disability from an orthopaedic perspective. She stated that it is possible for symptoms to vary over time.

Dr. Avram stated that she was unable to offer a diagnostic opinion regarding the stinging sensation Ms. Keck felt in her arms from the elbow down.

Dr. Avram did not contact any of the other health professionals who saw Ms. Keck. Her opinion was based on the information she had at the date of her examining Ms. Keck.

Dr. Avram stated that with respect to a patient presenting with thoracic outlet syndrome she would defer to the physician involved with thoracic outlet surgery because in 2011 she was not professionally involved in treating patients with the need for such surgery.

EVIDENCE OF DR. BEN MEIKLE, M.D.

Dr. Ben Meikle gave expert evidence as a psychiatrist experienced in performing catastrophic assessments. He authored the catastrophic assessment report prepared on behalf of Sovereign General upon his review of the information submitted to him by those health professionals who assessed Ms. Keck on behalf of Sovereign General.²⁹

Dr. Meikle has never met, and thus never medically examined, Ms. Keck.

With respect to section 3(2)(e) of the Schedule (Criteria 7), Dr. Meikle opined that Ms. Keck’s accident-related impairments corresponded to an overall 30-34% impairment rating of the whole person that does not thereby meet the 55% threshold necessary to establish catastrophic impairment.

With respect to section 3(2)(f) of the Schedule (Criteria 8), that requires an assessment of mental and behavioural impairment, Dr. Meikle opined that Ms. Keck did not meet the criteria for a Class 4 (Marked) or Class 5 (Extreme) mental and behavioural impairment within any of the four spheres of function.

With respect to Criteria 7, Dr. Meikle stated that the AMA Guides (14th ed.) relate to objective findings only and do not relate to subjective findings with few exceptions.

Dr. Meikle referred in his opinion to the AMA Guides Newsletter for July-August 2006: 1-9 where it states: “There is no notable impairment for controversial or ambiguous disorders such as myofascial pain syndrome, fibromyalgia and disputed neurogenic thoracic outlet syndrome.” Dr. Meikle wrote that as a result of the accident Ms. Keck suffered the following conditions:

• Head injury / Concussion

• Post-traumatic migraine

• Posttraumatic vestibulopathy

• Soft tissue injury to the cervical spine (WAD I to II)

• Myofascial strain to the thoracolumbar spine

• Temporomandibular joint soft tissue injury

• Pre-existing Chronic Pain Syndrome / Fibromyalgia syndrome with increased symptoms post-accident

• Adjustment Disorder with depressed mood

With respect to the headaches that Ms. Keck suffers from, Dr. Meikle stated that the AMA Guides do not permit an impairment rating to be applied to headaches in the absence of associated impairments to the spinal nerves.

Dr. Meikle wrote: “In summary our assessment team determined that Ms. Keck has accident related mental and behavioural impairment, which is unlikely to be related to brain injury and is predominantly (if not solely) due to psychiatric illness.” He noted that Ms. Keck’s neurological assessment determined that Ms. Keck sustained a mild head injury/concussion as a result of the accident and that this degree of brain injury would not be expected to result in persistent mental or behavioural impairment and could be considered to be a “minor contributing factor” to Ms. Keck’s persistent mental and behavioural impairment.

The Criteria 8 assessment rating was performed by the psychiatrist, Dr. Spivak, who had also considered the report prepared by the occupational therapist Ms. Cagampan. Dr. Spivak wrote:

Occupational Therapy assessment observed Ms. Keck has multiple physical and psychological symptoms. There is no finding of significant cognitive limitations which would substantially impact her ability to function and participate in her pre-MVA daily activities. Ms. Keck also does not demonstrate a substantial physical inability to preform [sic] her pre-accident activities of daily living.

Psychiatry assessment determined the accident precipitated the development of psychiatric illness and Ms. Keck meets diagnostic criteria for Adjustment Disorder with depressed mood.

Dr. Spivak determined that Ms. Keck’s degree of mental and behavioural impairment resulting from the accident corresponds to the following rating:

Sphere/Impairment CLASS 1 CLASS 2 CLASS 3 CLASS 4 CLASS 5

Level NONE MILD MODERATE MARKED EXTREME

ACTIVITIES OF DAILY X

LIVING

SOCIAL FUNCTIONING X

CONCENTRATION,

PERSISTENCE & PACE X

ADAPTATION X

OVERALL/GLOBAL

IMPAIRMENT X

Ms. Keck accordingly did not meet the requirements found in Criteria 8 for catastrophic impairment according to the Insurer.

CROSS-EXAMINATION

In cross-examination Dr. Meikle stated that in making assessments under chapter 14 of the AMA Guides assessors should have full knowledge of an applicant’s mental and behavioural disorders. A clear, accurate and complete report is essential to support a rating under these guidelines. An evaluation of mental and behavioural impairment must take into account variations in the level of function throughout time. It is important to get information over a sufficiently long period of time prior to the date of the chapter 14 assessment. This information includes treatment notes, hospital records, evaluations, work evaluations and progress notes, work related assessments, as well as the results of standardized psychological testing.

Dr. Meikle did not consider the full length report prepared by Dr. Scott Garner, psychiatrist, on behalf of Ms. Keck.

Similarly, Dr. Meikle did not receive or review the report of Dr. Velikonja, the clinical neuropsychologist, or the situational assessment prepared by Ms. Keck’s catastrophic assessment team. He likewise was unaware of the information that the Insurer’s catastrophic team obtained from Ms. Keck’s husband which, he conceded, may be significant in determining lack of and severity of functioning.

Ms. Keck’s counsel referred Dr. Meikle to the various factors that go into an assessment of each of the four domains as found in chapter 14 of the AMA Guides³⁰ with which Dr. Meikle concurred subject to the caveat that chronic pain is not a psychiatric disorder, but, in some circumstances, may be used to assess pain under chapter 14.

Dr. Meikle did not remember seeing the worksite assessment report prepared for Ms. Keck by Melissa Murphy.³¹ He knew in general terms the number of hours Ms. Keck worked per week and that she used to drive a truck.

ANALYSIS

The burden of proof rests upon Ms. Keck to prove on the balance of probabilities that as a result of the accident she is entitled to the benefits to which she claims entitlement.

With respect to the expert evidence the Arbitrator must weigh such evidence and determine the weight to assign to it.

CATASTROPHIC IMPAIRMENT

Ms. Keck’s and the Insurer’s catastrophic assessment teams agreed that Ms. Keck’s present condition did not result in a whole body impairment rating of 55% such that Ms. Keck could not be considered catastrophically impaired under section 3(2)(e) of the Schedule (Criterion 7).

Ms. Keck claims that she is catastrophically impaired under section 3(2)(f) of the Schedule (Criteria 8). She must establish that her impairment results in a class 4 impairment (marked impairment) or a class 5 impairment (extreme impairment) due to a mental or physical disorder in one of the relevant domains of functioning.

It has been established since Aviva Canada Inc. v. Pastore, 2012 ONCA 288; (2012), 2012 ONCA 642, 112 O.R.(3d) 523, that an applicant need only demonstrate impairment in one of the four domains of function set out in the AMA Guides.

The four domains of functioning are, (a) activities of daily living, (b) social functioning, (c) concentration, persistence and pace, and (d) deterioration or decompensation in work or work-like setting. Domain (d) is sometimes referred to as adaptability.

The following chart defines the impairment ratings:

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 Adaption

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

[emphasis added]

The test to be applied in determining if an applicant suffers a mental or behavioural disorder that results in a marked impairment was stated in the case of Nita Mujku and State Farm Mutual Automobile Insurance Company, FSCO A10-002979, January 14, 2013, Arbitrator Rogers, as being:

(a) Did the accident cause Ms. Keck to suffer from a mental or behavioural disorder?

(b) If it did, what is the impact of mental or behavioural disorder on Ms. Keck’s daily life?

(c) What is the level of impairment?

The issue to be decided is whether Ms. Keck’s impairment made the adaptation domain as a moderate or marked impairment. For Ms. Keck to be found to be catastrophically impaired under the adaptation domain, she must prove on the balance of probabilities that her impairment levels significantly impede useful functioning.

“Significantly” does not mean “totally”. It means something more than being insignificant or more than minimal. It must be an impairment level that is large enough to be noticed. In Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 SCR 458, a personal injury case in which causation was an important issue, the Supreme Court of Canada found that a 25% contribution towards causation was significant.

Ms. Keck’s accident has significantly impeded her useful functioning in the fourth domain (deterioration or decomposition in a work-like setting).

Ms. Keck has been unable to drive a dump truck since her accident that occurred five and a half years ago. She was able to drive an automobile or a small truck for four years during which times she drove to attend her many appointments with her treating health practitioners. She has not driven for the past year. She experiences passenger anxiety. She has overcome that anxiety to a small extent because she can accompany her husband by car in order to attend family social gatherings. She has always been able to drive either as a passenger or driver to her health-related appointments.

Ms. Keck made one failed attempt to drive a dump truck since her accident. The nature and extent of Ms. Keck’s driving is less than one could reasonably expect. Ms. Keck is driven to her health-related appointments and participates in minimal social activities. For example there is no persuasive evidence of Ms. Keck and her husband taking a vacation together for the past five years or socializing elsewhere than with family on occasion.

Ms. Keck is able to perform some household chores since her accident. She needs to take rest breaks. It now takes her longer to perform these chores than it did pre-accident. She is unable to take laundry up or down the stairs. She enjoys some gardening, colouring adult colouring books and rolling balls to her dog. She remains forgetful and may be cued on occasion by her husband.

Ms. Keck is unable to concentrate as she did pre-accident. Her ability to do the paperwork associated with her driving a dump truck has significantly been impeded post-accident. She remains depressed and anxious. She has difficulty sleeping and is often fatigued.

Ms. Keck would like to be able to work as she did pre-accident. She remains frustrated at her inability to work and is jealous of her husband who is able to work in an activity she still longs to do.

Ms. Keck experiences left jaw pain when eating. She does not eat regularly. She attends upon an orthodontist to adjust her mouthpiece that she medically is required to use and which contributes to her pain.

Ms. Keck is taking medication to combat pain, anxiety, depression and panic attacks.

Since the accident, Ms. Keck has attended hundreds of appointments with the various health professionals who have been treating her post-accident. She has participated in physiotherapy, massage therapy, chiropractic and hydrotherapy treatment. She has seen a psychologist, neurologist, thoracic surgeon and other physicians.

Ms. Keck has undergone thoracic outlet surgery on her left and right sides post-accident in an attempt to alleviate pain. She regularly attends a pain clinic.

Ms. Keck has applied for CPP Disability Benefits.

Ms. Keck still experiences numbness in her left hand.

Having carefully considered the Catastrophic Assessment reports I give greater weight to that prepared by Ms. Keck’s catastrophic assessment team, which I find to be more comprehensive than the catastrophic assessment reports prepared on behalf of the Insurer.

Dr. Spivak, the Insurer’s psychiatrist, interviewed Ms. Keck for one hour. He did not detail the findings of the then health professionals who saw Ms. Keck. His report did not include the analysis of any work evaluations and whether Ms. Keck’s impairments would impact her ability to work. He did not read the full reports prepared by Dr. Garner (physiatrist), Dr. Velikonja (clinical and neuropsychologist) and Ms. Malik (occupational therapist).

Dr. Spivak said that his psychiatric opinion would not have changed had he considered these reports. This statement is speculative and is afforded little weight.

Dr. Spivak did not interview any members of Ms. Keck’s family or friends. He did not verbally communicate with the other members of the Insurer’s catastrophic assessment team. He did not know if he received from Total all of the relevant documentation that related to Ms. Keck.

Dr. Spivak did not record any information from Ms. Cagampan’s report into his written report.

Dr. Spivak stated that it was an oversight for him not to comment on the difficulties that Ms. Keck had sleeping.

Dr. Spivak in cross-examination stated that the ability to communicate is an important factor under the social functioning domain. He admitted it would have been helpful had he received the information provided to other health professionals by Ms. Keck’s husband.

Dr. Spivak stated that it would have been useful if he had considered information relating to Ms. Keck’s work setting. He did not receive such information from the other members of the Insurer’s catastrophic assessment team.

Dr. Spivak did not refer to examples of sustained concentration and persistence in his report stating that such items were discretionary. He did not consider how Ms. Keck related socially with the public and with co-workers because, in his opinion, this subject was not worth pursuing. He considered memory under the concentration, persistence and pace domain but not under the adaptability domain which relates that to Ms. Keck’s presentation in a work-like setting.

Dr. Spivak diagnosed Ms. Keck as having an adjustment disorder with depressed mood. He did not assess her ability to work by reason of her perception of pain.

Dr. Meikle wrote the Insurer’s catastrophic report from the information he received from the health professionals on the Insurer’s catastrophic assessment team. He did not interview Ms. Keck nor did he consider the reports of Drs. Garner and Velikonja.

Ms. Cagampan was unaware Dr. Spivak found that Ms. Keck met the psychiatric criterion for pain disorder. Ms. Cagampan professionally interacted with Ms. Keck at home. The issue in this case relates to the deterioration or decompensation in a work-like setting.

The Ross Rehabilitation Report found that Ms. Keck suffered from a marked impairment in the adaption domain.

Dr. Velikonja stated Ms. Keck’s return to gainful employment is not recommended. She stated that Ms. Keck cries and is emotionally labile.

Ms. Malik tested Ms. Keck in a work-like setting albeit on a day Ms. Keck experienced most pain. I find that it was merely coincidental that Ms. Malik’s testing took place on that day.

The results of Dr. Holland’s Functional Assessment evaluations are not referred to in the Insurer’s catastrophic assessment report.

Ms. Keck’s catastrophic assessment team considered and commented upon the information conveyed by the Insurer’s catastrophic assessment team.

I find on the balance of probabilities that Ms. Keck has a marked impairment (class 4) under the adaptation domain. She is thus entitled to a determination of catastrophic impairment.

INCOME REPLACEMENT BENEFITS

Ms. Keck claims entitlement to income replacement benefits in the amount of $400.00 per week from May 22, 2012 to date and ongoing.

An applicant’s entitlement to income replacement benefits arises under sections 5 and 6 of the Schedule.

To receive income replacement benefits for the first 104 weeks of disability that arose as a result of an accident, Ms. Keck must have suffered from a substantial inability to perform the essential tasks of employment. To receive income replacement benefits in the post 104-week period Ms. Keck must show she is suffering from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

In the worksite assessment prepared for the Insurer by Melissa Murphy, B.Sc., KIN, CK, Ms. Keck’s work as a dump truck driver was characterized as being at the medium strength level that demands the truck driver to exert up to 50 pounds of force occasionally and/or up to 20 pounds of force frequently and/or up to 10 pounds of force instantly to move objects.

Ms. Keck has not driven a dump truck since the accident that occurred more than five years ago. She was once helped into the dump truck by her husband but did not attempt to push or pull any levers or gears or other objects associated with dump trucks. She has not driven an automobile for the past year. She suffers from passenger anxiety.

Since the accident, Ms. Keck has never attempted to drive for work purposes. Her driving was substantially related to medical reasons.

Ms. Keck has never returned to her pre-accident level of activity.

Ms. Keck takes prescribed medications including anti-inflammatory medication for anxiety, depression, pain and sleep.

Dr. Frasina found that Ms. Keck is unable to return to work in view of her presenting condition.

Dr. Holland found that Ms. Keck experiences panic attacks. She has had ongoing pain since the accident and she is “vulnerable to prolonged activity”.

Ms. Cagampan stated in her report that Ms. Keck was unable to drive a pickup truck. She noted that Ms. Keck tends to isolate herself and is comfortable only with health professionals and her husband and son. She found Ms. Keck was reluctant to go out in the community. She was slow in descending stairs and walking on uneven ground. Ms. Cagampan found that Ms. Keck had low grip strength, arises late in the morning, experiences pain and cannot raise her arms high in order to “do her hair”. She also has difficulty stooping and bending. Ms. Keck’s “psychological factors” were an important part in Ms. Keck’s perception of pain and constituted a limiting factor with respect to occupational functioning.

Dr. Velikonja did not recommend Ms. Keck’s return to work.

Dr. Spivak stated that pain and perception of pain were limiting factors on Ms. Keck’s ability to drive a truck.

Ms. Keck experiences difficulty with memory and concentration. She tires easily. She experiences arm and hand numbness.

Ms. Keck sometimes experiences panic attacks or cries in stressful situations.

Ms. Malik stated that Ms. Keck is not gainfully employable in any job.

Ms. Cagampan found that the results of Ms. Keck’s MoCA test revealed mild cognitive impairment that could impart functional limitation.

Ms. Keck failed to meet the industrial standard in many of the functional ability tests performed upon her by Dr. Holland.

Ms. Keck gave credible evidence. The preponderance of the evidence reveals that Ms. Keck was an accurate witness and did not exaggerate her symptoms.

Dr. Garner found that Ms. Keck’s physical intolerances for sustained activity, arm use, prolonged sitting, standing, lifting, pushing and pulling preclude her tolerating her pre-accident work demands as a truck driver. She has a permanent impairment or chronic condition and it is unlikely that she will be able to return to her pre-accident job.

The Ross Rehabilitation Report found that Ms. Keck suffered from a marked impairment in the adaption domain which means that her impairments significantly impede her functioning

in a work or work-like setting.

The Insurer submitted that Ms. Keck’s failure to seek employment, or retrain for alternative employment, demonstrates a failure to mitigate.

Ms. Keck has a Grade 11 education. She had a learning disability at school and attended a special class in that regard. She successfully took a lab technician’s course many years ago but never practised in that field. Ms. Keck’s working career has involved her driving cars as a delivery truck driver, a car pooling driver or, most recently, a dump truck driver, all of which relate to her education, training and experience.

At one time Ms. Keck was able to do clerical chores relating to her husband’s dump truck business. She has been unable to do so. She has limited faculty in the use and operation of a computer. She stated that she cannot use a word processing program because of the pain she experiences. Ms. Keck has spent a substantial amount of her time since her accident seeking treatment from several health professionals. She has been taking treatment and medication for various types of pain for many years. She has reduced strength, suffers from panic attacks, cries during stressful situations, fatigues easily, and often fears going out into the community. I find it reasonable in view of the evidence before me that Ms. Keck’s health condition since the date of her accident has precluded her from seeking employment or alternative employment having regard not only to the aforementioned health concerns but also her education, training and experience.

I am satisfied on the balance of probabilities based on all of the evidence before me that Ms. Keck meets the tests entitling her to receive income replacement benefits from May 22, 2012 and ongoing. She has met the test for pre-104 week and post-104 week income replacement benefits and is thereby entitled to such benefits.

MEDICAL BENEFITS

There are 18 Treatment Plans in dispute. Two of these Treatment Plans relate to psychological treatment, 14 benefits relate to various treatments offered by the Stoney Creek Rehab & Wellness Centre operated by Dr. Frasina and two relate to treatments offered by Baxter Antoniazzi and Associates.

Ms. Keck submitted these Treatment Plans were reasonable and necessary because their goal was to achieve the deceleration of pain. Dr. Holland, in his Insurer’s report of August 2012, noted that with respect to medical benefits Ms. Keck achieved a 60% treatment accomplishment. Dr. Marino, the Insurer’s psychologist, stated in his report, based on his examining Ms. Keck on February 14, 2013, that Ms. Keck’s psychological condition has deteriorated since the Insurer terminated psychological treatments in 2012.

The Insurer submits that Drs. Holland (a chiropractor) and Soon-Shiong (an orthopaedic surgeon) found no justification to warrant further physical therapy and rehabilitation.

Dr. Frasina continued to treat Ms. Keck despite the denial of the Treatment Plans in issue speculating that the Insurer would pay him at some point. He stated if the Insurer would not pay him for these Treatment Plans, he would not seek payment of his account which is in excess of $25,000.00 from Ms. Keck.

With respect to the psychological Treatment Plans, the Insurer submitted that Ms. Keck felt lonely after the accident and her going to the psychologist was a big part of her life because she had no one else to talk to. The Treatment Plans relating to psychological treatment were neither reasonable nor necessary.

Ms. Keck has enjoyed seeing her psychologist. This reason is not in or by itself a reason to attend upon professionally with a psychologist. Since her psychological benefits were terminated by the Insurer, Ms. Keck has been able to improve her relationship with her son and husband. She attends some family social functions. She has a good relationship with her mother-in-law. The Treatment Plan for psychological services as referred to in issue number 2(a) and (b) is denied as not being reasonable and necessary.

Dr. Frasina stated that Ms. Keck received “a few hundred” treatments at his clinic. Dr. Holland stated that on at least two occasions Dr. Frasina prescribed more treatments than were reasonably necessary. I found the evidence of Dr. Holland to be forthright and credible. Dr. Frasina had admitted pursuing interest in prescribing Treatment Plans for Ms. Keck. He speculated that the Insurer may pay for the Treatment Plans he prescribed. In addition to the hundreds of treatments Ms. Keck received at Dr. Frasina’s clinic, Ms. Keck has attended many medical appointments with the various physicians that have been treating her since the accident. She still receives pain medications at a pain clinic weekly. Ms. Keck has attended upon 11 health professionals in one week on occasion. On the facts of this case, I find that the Treatment Plans referred to as issues 2(c) to (r) are neither reasonable nor necessary. Ms. Keck’s claim for these treatments is denied.

ANONYMITY

In a post-Hearing submissions, Ms. Keck’s counsel sought an order to the effect that Ms. Keck be referred to by her initials in my order and reasons for decision. This order was requested to protect her privacy.

Ms. Keck referred to two FSCO cases in support of her submissions relating to anonymity. The first case is Sharon A. Morabito and Liberty Mutual Insurance Company, FSCO A01-001341, January 28, 2003, wherein Arbitrator Muir denied the request for anonymity holding that Arbitration Hearings are open to the public and that FSCO decisions are public documents. While some Arbitrators have permitted anonymity to avoid revealing an applicant’s medical or health condition, the conduct of a party or witness has not been the normal ground for the anonymization of a decision. Arbitrator Muir held that Ms. Morabito’s belief that some of her business activities could prove embarrassing to her did not justify a departure from the normal public process.

In Victoria Owusu and TD Home and Auto Insurance Company, FSCO A06-001294, January 17, 2008, the parties to the Arbitration did not request an anonymous order. Arbitrator Muir permitted the non-disclosure of the names of “several third parties whose claims became central features” of the insurer’s case because otherwise it would be a gross violation of their privacy if the third parties were identified in the decision. This case is easily distinguishable on its facts from the facts of this case.

The Insurer submitted that I deny the request for the anonymity order citing Agnieszka Stepien and Security National Insurance Co./Monnex Insurance Mgmt. Inc., FSCO A13-002839, January 18, 2016, as authority for that submission.

In Stepien, supra, Arbitrator Anschell referred to section 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22 that reads as follows:

s.9 (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public.

In denying Ms. Stepien’s request for anonymity, Arbitrator Anschell stated that she had not been provided with any specific reason as to why the release of Ms. Stepien’s identity would prejudice her in seeking medical treatment in the future. There was no evidence to show how the release of Ms. Stepien’s identity would negatively impact her standing in the community.

The Insurer submitted that the Stepien case was distinguishable from the case of T.N. and Personal Insurance Company of Canada, FSCO A06-000399, July 26, 2012. In this case, Arbitrator Bayefsky permitted the identity of the applicant in that case to be anonymized given the highly sensitive nature of the applicant’s personal information. The T.N. case is also readily distinguishable from the facts of this case.

The starting point of my analysis begins with the case MacIntyre v. Nova Scotia (Attorney General), 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, where Dickson J. (as he then was) stated at p. 185 of the reasons for decision:

Let me deal first with the ‘privacy’ argument. This is not the first occasion on which such an argument has been tested in the courts. Many times it has been urged that the ‘privacy’ of litigants requires that the pubic be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.

In the case of A.B. v. Stubbs et al., 1999 CanLII 14801 (ON SC), 44 O.R. (3d) 391, the plaintiff sued his doctor for negligence in performing “sensitive” surgery on him. He sought a privacy order by invoking injunctive relief under Rule 40 of the Rules of Civil Procedure. Mr. Justice Cummings held that:

The potential for embarrassment did not in itself constitute irreparable harm. It is common for at least one party in any court action to be embarrassed by the commencement of litigation. Embarrassment is an unavoidable consequence of an open justice system. The subjective feelings of the moving party could not be the test for granting an anonymity order. Such an approach would open the floodgates for preliminary motions for anonymity orders.

While the Stubbs case relates to a court action and not an Arbitration case, the reasoning of Mr. Justice Cummings is equally applicable in an Arbitration Hearing for statutory accident benefits where most often voluminous personal, business and medical evidence is disclosed.

I find that the desirability that Hearings be open to the public on the facts of this case outweighs the desirability of avoiding disclosure of the evidence in this case. There is no persuasive evidence before me to suggest that the release of Ms. Keck’s identity would lessen her status in the community.

The request for an anonymity order is denied.

SPECIAL AWARD

Ms. Keck submits she is entitled to a special award.

Ms. Keck submits:

(a) Dr. Avram, while being a qualified orthopaedic surgeon, was not acting in the scope of her expertise when she examined Ms. Keck. She was not a physician who assesses or treats people suffering from chronic pain syndrome. Dr. Avram was of the view that people without objective organic pathology should not be considered disabled despite evidence to the contrary. Dr. Avram admitted that she had no background in assessing or treating persons with thoracic outlet syndrome.

(b) As a result of receiving the worksite assessment prepared by Melissa Murphy on behalf of the Insurer, and the results of the assessments carried out on behalf of both Ms. Keck and the Insurer, the Insurer knew or ought to have known about the requirements of Ms. Keck’s job. This information makes it clear that Ms. Keck is disabled from driving a truck or carrying out any occupation having regard to her training, education and background. The Insurer has not paid Ms. Keck income replacement benefits in four years.

(c) Both Dr. Spivak and Ms. Cagampan were completely unqualified to carry out assessments of mental and physical impairments in accordance with Chapter 14 of the AMA Guidelines. Dr. Spivak and Ms. Cagampan failed to use the methodology as outlined in Chapter 14 of the Guidelines. The Insurer did nothing to correct the failure by the Insurer’s catastrophic assessment team.

(d) The Insurer’s catastrophic assessors were severely hampered in arriving at a proper conclusion on the catastrophic impairment issue by failing to provide the assessors with the reports of Dr. Garner, Dr. Velikonja and Asma Malik.

Ms. Keck submits that the aforementioned failures by the Insurer demonstrated a complete lack of reasonable adjustment of Ms. Keck’s file.

In response, the Insurer submitted that it carefully considered all the available information throughout the handling of Ms. Keck’s claim and gave appropriate weight to the information before it in a fair and even-handed manner. The Insurer exercised sound and moderate judgment in adjusting Ms. Keck’s file. Their decisions on the file were well considered.

The Insurer has continued to pay for several prescribed medications being taken by Ms. Keck. The Insurer also funded physical and psychological treatment for a considerable period of time post-accident. It was thus submitted that there are no grounds to award a special award.

An Arbitrator has the power that arises under section 282(10) of the Insurance Act to order a special award when an insurer has unreasonably withheld or delayed payments and interest to which an insured person is entitled under the Schedule. The ordering of the special award is within the Arbitrator’s discretion.

In Plowright and Wellington Insurance Company, FSCO A-003985, Arbitrator Palmer, October 29, 1993, the Arbitrator stated that unreasonable behaviour by the insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

I find on the facts before me that the Insurer did not unreasonably withhold payments of benefits to Ms. Keck. The Insurer paid income replacement benefits to Ms. Keck until it received medical information from its health professionals indicating that Ms. Keck did not meet the test for such benefits.

Insurers are not to be held to standards of perfection.

Ms. Keck is critical of the manner in which the Insurer’s catastrophic report was completed. In writing the executive summary report, Dr. Meikle considered the assessments prepared by Dr. Spivak (psychiatrist), Dr. Soon-Shiong (orthopaedic surgeon), Dr. Mehdirata (neurologist), Ms. Cagampan (occupational therapist) and Dr. Holland (chiropractor) (FAEs). Ms. Keck’s criticism of the Insurer’s report goes to the weight to be given by the Arbitrator to the report.

The Insurer continues to pay for some of the prescribed medication that Ms. Keck is taking.

Dr. Avram’s report relates to orthopaedic findings. Her report predated Ms. Keck’s need for and subsequent surgeries for thoracic outlet syndrome. She was required to examine Ms. Keck from an orthopaedic perspective and did so.

Dr. Spivak is familiar with catastrophic assessments.

Both the Insurer’s and Applicant’s catastrophic assessors found that with respect to Criteria 7, Ms. Keck did not meet the pre-scripted whole person index of 55% in order to be determined to be catastrophically impaired.

It was the Insurer’s chiropractor, Dr. Holland, who recommended that Ms. Keck see her physicians regarding thoracic outlet syndrome.

I have found that Dr. Frasina recommended chiropractic services with a financial goal in mind. He saw Ms. Keck hundreds of times in his clinic in the four years following the accident.

Dr. Avram’s orthopaedic report was written to assist the Insurer as to whether to pay Ms. Keck income replacement benefits which it did for over one year. She stated that a patient could have some disability but would not be disabled from an orthopaedic perspective. Pain, she stated, is not evidence of a disability from an orthopaedic perspective.

I am not prepared to award a special award in the circumstances of this case.

INTEREST

Ms. Keck is entitled to interest on the overdue payment of the income replacement benefits at the rate prescribed in section 51(2) of the Schedule.

EXPENSES:

If the parties are unable to agree on the entitlement to or the quantum of the expenses in this matter, the parties may request an appointment with me for the determination of same in accordance with Rules 75 to79 of the Dispute Resolution Practice Code.

December 19, 2016

Irvin H. Sherman Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 338

FSCO A13-005263 and A13-002265

BETWEEN:

TAMMY KECK Applicant

and

SOVEREIGN GENERAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 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 Ontario Regulation 664, as amended, it is ordered that:

1. Ms. Keck has sustained a catastrophic impairment as defined in paragraph 3(2)(f) of the Schedule.

2. Ms. Keck is entitled to receive income replacement benefits in the amount of $400.00 per week from May 22, 2012 to date and ongoing.

3. Ms. Keck is not entitled to receive medical benefits as claimed herein.

4. Sovereign General is not liable to pay a special award.

5. Ms. Keck is entitled to interest on the overdue payment of income replacement benefits.

6. If the parties are unable to agree on the entitlement to or the quantum of expenses in this matter, the parties may request an appointment with me for the determination of same in accordance with Rules 75 to 95 of the Dispute Resolution Practice Code.

December 19, 2016

Irvin H. Sherman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit A1, tab 8.
3. 3Dr. Garner’s Report, Exhibit 1, tab 7; Rebuttal Report, tab 10; and Malik and Ross, occupational therapy report, Exhibit 1, tab 11; Rebuttal Report, tab 12; and Executive Summary Report, Exhibit 1, tab 6.
4. 4Volume 2, tab 28.
5. 5Exhibit 1, tab 11.
6. 6Exhibit 1, tabs 6, 7, 8.
7. 7Dr. Velikonja’s Report, p. 6.
8. 8Exhibit 1, tab 15.
9. 9Exhibit 1, tab 12.
10. 10Exhibit 1, tab 6.
11. 11Schedule 1, tab 12, p. 6.
12. 12Section 44, Independent Psychiatric Examination, 11 pages, Exhibit 2, tab 28.
13. 13Exhibit 1, tab 6.
14. 14Exhibit 2, tab 1.
15. 15Exhibit 2, tab 5.
16. 16Exhibit 2, tab 6.
17. 17Exhibit 2, tab 7.
18. 19Exhibit 2, tab 1, p. 5.
19. 20Exhibit 3, vol. 1, tab 18, p. 9.
20. 21Exhibit 3, tab 19, Vol. 1.
21. 22Exhibit 3, vol. 1, tab 18.
22. 23Exhibit 3, vol. 1, tab 22.
23. 24Exhibit 17.
24. 25Exhibit 3, vol. 2, tab 28.
25. 26Ibid., pp. 12 and 13.
26. 27Ibid., pp. 25 and 26.
27. 28Exhibit 18.
28. 29Exhibit 21.
29. 30AMA Guides, c. 14 - Mental and Behavioural Disorders, Exhibit 1, tab 12.
30. 31Volume 1, tab 4.
31. 18Exhibit 2, tabs 9-17.