Neutral Citation: 2017 ONFSCDRS 199

FSCO A14-005620

BETWEEN:

RONALD HAMILTON

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Charles Matheson

Heard: In person at Hamilton, Ontario on May 1-5, 2017 and via Teleconference on May 26, 2017

Appearances: Mr. Paul Barrafato, Lawyer, participated for Mr. Ronald Hamilton Mr. Jeffery Crannie, Lawyer, participated for Dominion of Canada General Insurance Company

Issues:

The Applicant, Mr. Ronald Hamilton, was injured in a motor vehicle accident (“MVA”) on July 15, 2011. He applied for and received statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Hamilton applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Did Mr. Hamilton sustain Catastrophic (“CAT”) Impairment within the meaning of the Schedule as a result of the accident?
Is Mr. Hamilton entitled to receive a weekly Income Replacement Benefit (“IRB”) in the amount of $400.00 from July 22, 2011 to date and on-going?
Is Mr. Hamilton entitled to payments for housekeeping and home maintenance services of $100.00 per week, commencing July 15, 2013 to date, and on-going?
Is Mr. Hamilton entitled to payments for the following Cost of Examinations: a) $4,834.93 for an OCF-18, dated September 19, 2012, for cognitive and learning therapy; b) $1,800.00 for an OCF-18, dated August 1, 2013, for a CAT assessment review as submitted by Dr. Koch; c) $2,034.00 for an OCF-18, dated August 1, 2013, for a CAT collating report as submitted by Dr. Koch; d) $2,034.00 for an OCF-18, dated August 1, 2013, for an essential clinical tasks report as submitted by Dr. Koch?
Is Mr. Hamilton entitled to interest for the overdue payment of benefits?
Is Dominion liable to pay Mr. Hamilton’s expenses in respect of the arbitration?
Is Mr. Hamilton liable to pay Dominion’s expenses in respect of the arbitration?

Result:

The Applicant did not sustain a CAT Impairment as a result of the July 15, 2011 accident.
The Applicant is not entitled to IRBs as a result of the July 15, 2011 accident.
The Applicant is not entitled to receive payments for housekeeping and home maintenance services of $100.00 per week, commencing July 15, 2013 to date, and on-going.
The Applicant is entitled to the total payment of $2,000.00 for the three OCF-18s, dated August 1, 2013, submitted by Dr. Koch. The Applicant is not entitled to $4,834.93 for the cognitive and learning therapy OCF-18, dated September 19, 2012.
The Applicant is entitled to interest for the overdue amount, in accordance with the Schedule for the overdue payment of benefits.
Should the parties become unable to resolve the issue of expenses, they shall subsequently schedule an Expense Hearing before me in accordance with the provisions of the Dispute Resolution Practice Code (“DRPC”).

EVIDENCE AND ANALYSIS:

Table of Authorities Considered

Statutory Accident Benefits Schedule - Accidents on or after September 1, 2010, O. Reg. 34/10

Dispute Resolution Practice Code, Fourth Edition, 2014

American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993

The Dominion of Canada v. Chambers, 2013 ONSC 6122

Kusnierz v. Economical Mutual Insurance Company, 2011 ONCA 823

Pastore v. Aviva Canada Inc., 2012 ONCA 642

Cyr and State Farm Mutual Automobile Insurance Company (FSCO Appeal P15-00026, May 20, 2016)

Shuttleworth and Peel Mutual Insurance Company (LAT 00013/AABS, April 21, 2017)

Grewal and AIG Commercial Insurance Company of Canada (FSCO Appeal P14-00032, August 13, 2015)

Hensworth and State Farm Mutual Automobile Insurance Company (FSCO A10-002095, March 18, 2013)

Cowans and Motors Insurance Corporation (FSCO A09-003237, October 15, 2010)

R.J. and Dominion of Canada General Insurance Company (FSCO A12-001233, September 17, 2013)

Breadner and Co-operators General Insurance Company (FSCO A15-005120, January 2017)

Background

The Applicant was 62 years old at the time of the subject MVA on July 15, 2011. The Applicant considered himself a healthy robust individual who was in excellent shape, with the exception of his asthma. The Applicant enjoyed an active life prior to the MVA with an active social and recreational calendar as he was a certified diver and a certified triple A level hockey coach for older teenagers. The Applicant completed grade 11, with some post-secondary education certificates for coaching and the sale of cars.

The Applicant has worked his entire career in car repairs and sales, all of which required some manual labour, and customer service. At the time of the MVA, the Applicant was considered a senior salesperson that was in control of buying and selling cars throughout Ontario auto auctions on behalf of his employer. His employer would pay for said vehicles and split the profit and loss with the Applicant once the vehicles were refurbished and resold or leased. The Applicant was compensated by a $2,000.00 per week salary draw, which was later deducted from his actual earned income. This was done to provide the Applicant with a steady income as the fiscal year would have high and low sales cycles during any one year.

The Applicant was involved in a second MVA on August 28, 2014.

Decision

The parties raised two Preliminary Issues at the beginning of the Hearing, which I shall deal with first.

Preliminary Issue #1

The Applicant moved to adjourn the proceedings so that the Arbitration could be heard in the fall of 2017 in conjunction with a second CAT determination Hearing regarding the August 2014 MVA.

The Applicant argued that there would be a risk of inconsistent findings between two different Arbitrators and also argued that the costs of calling the same doctors to two different Hearings on identical issues would be punitive to the Applicant and possibly also to the Insurer.

The Applicant argued that a single Arbitrator would provide significant cost savings with a single consistent award.

The Insurer argued that its CAT reports for the second MVA had not been completed. The OCF-19 for the August 2014 MVA was not provided to the Insurer until late January 2017, and as a result, CAT Impairment was not even in dispute, and has yet to be added to the October 2017 Hearing.

The insurer argued that a CAT determination must be attached to a single MVA and not to the accumulation of MVAs; therefore, it would be improper to have two CAT determination Hearings being heard at the same time, especially where the second CAT determination had not presently been brought into dispute.

The Insurer relied upon the Ontario Superior Court decision Dominion v. Chambers. I agree with Justice H.A. Rady who found that the wording of ss. 3(1)(6) of the Schedule was consistent with the wording of the OCF-19 and that the word “accident” is to be considered singular in nature, which led him to conclude it also means that a CAT Impairment determination must be linked to a single accident. Paragraph 46 in Chambers reads as follows:

…In my view, the SABS instead contemplate that an application for the catastrophic impairment will focus on a single identified accident, and inquiry whether that particular accident transformed a claimant’s situation into one of catastrophic impairment….

Finally, in my view, it is premature to assume that the parties are going to be able to complete their respective assessments in time for a second Arbitration just five months from now, especially when CAT determination is yet to be disputed. To expose the parties to the risk of another adjournment in October 2017 as FSCO is winding down by December 31, 2017, would be inappropriate, in my view.

Therefore, for the above reasons, the adjournment request was denied.

Preliminary Issue #2

The Applicant motioned to exclude the Document Briefs sent to him by the Insurer and received on April 18, 2017, some 15 days after the 30-day deadline as contemplated by the DRPC. The Applicant relies upon the FSCO decision Cyr and State Farm, where the Arbitrator excluded all of the Applicant’s documents from the Arbitration.

Further, the Applicant requests that should the documents of the Insurer be excluded, then in turn, the expert witnesses of the Insurer shall be excluded from testifying about its respective reports.

The Insurer suggests that the purpose of Rule 39 of the DRPC is to prevent a party from being ambushed at trial or Arbitration. The Insurer suggests that all the documents in its brief have been in the possession of the Applicant since the adjustment of the file permitted. This statement went unchallenged by the Applicant.

I agree with the Insurer that Rule 39 of the DRPC was designed to prevent any surprises at Arbitration, and to ensure disclosure of information in a timely manner.

As the Applicant was in possession of all the documents contained within the Insurer’s brief, there were no surprises. This is in contrast to Cyr, where the Applicant did not provide one single document in response to the Insurer’s numerous requests during the two years of the alternative dispute resolution process.

In my view, the late service in this case was a minor variance in which I could remedy as per Rules 1 and 81 of the DRPC, which read as follows:

RULE 1.1 These Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.

RULE 81.1 Subject to the requirements of the Insurance Act and the Statutory Powers Procedure Act, the adjudicator may on such terms as he or she considers just:

(a) set aside any time limit set out in these Rules for doing any act, serving any notice, filing any document or holding any hearing. (b) decide that any Rule does not apply in respect of a proceeding.

Therefore, for the reasons above, I allowed the Insurer’s briefs to be submitted to the Hearing and by extension, the witnesses the Insurer wished to rely upon were permitted to testify.

Issues

1. Did Mr. Hamilton sustain a CAT Impairment as a result of the accident within the meaning of the Schedule?

The Applicant sought a CAT determination as a result of the July 15, 2011 MVA.

The applicable section of the Schedule reads as follows:

(2) For the purposes of this Regulation, a catastrophic impairment caused by an accident is, (a) paraplegia or quadriplegia;

(b) the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg;

(c) the total loss of vision in both eyes;

(d) subject to subsection (4), brain impairment that results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

(e) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(f) subject to subsections (4), (5) and (6), 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.

Both parties conducted CAT assessments. The results of the assessments are captured in the following table:

Applicant’s Assessor and Specialty	Percentage Assigned	Percentage Assigned	Insurer’s Assessor and Specialty
Dr. Romeo Vitelli, Psychologist/Neuropsychologist	Mental Status – 14% Emotional/Behavioral – 14% (not included in the WPI)	Mental Status – 14% Emotional/Behavioral – 0%	Dr. Konstantine Zakzanis, Psychologist/Neuropsychologist
Dr. Michel Rathbone, Neurologist	Right Greater Occipital Neuralgia – 5% Minimal Impairment of Equilibrium – 5%	Right Greater Occipital Neuralgia – 5% Minimal Impairment of Equilibrium – 5%	Dr. F. Farhadi, Neurosurgeon
Dr. Jacques Gouws, Psychologist	ADLs – moderate Social – moderate Concentration – marked Work – marked Overall – 55%	ADLs – none Social – none Concentration – none Work – none Overall – 0%	Dr. Stanley Debow, Psychiatrist
Dr. Dinesh Kumbhare, Physiatrist	Left Shoulder – 1% Right Shoulder – 3% Overall Upper Extremities – 2% Lumbosacral – 5% Cervicothoracic – 5%	Left Shoulder – 1% Right Shoulder – 0% Overall Upper Extremities – 1% Lumbosacral – 0% Cervicothoracic – 0%	Dr. Julian Mathoo, Physiatrist
Lesya Dyk, OT	ADLs – moderate Social – mild Concentration – marked Work – marked	ADLs – not rated Social – not rated Concentration – not rated Work - not rated	Jessica Oh, OT
Dr. Roberta Koch, Chiropractor	OVERALL COMBINED RATING - 69%	OVERALL COMBINED RATING – 16%	Dr. J. Castiglione, Physician

The Applicant asserts that the combined physical impairments produce a total Whole Person Impairment (WPI) percentage of 32% under s. 3(2)(e) of the Schedule. The Applicant admits that this in itself does not meet the 55% threshold for CAT Impairment; however, under 3(2)(f) the Applicant was found to have two domains deemed as marked impairments. The Applicant submits that with the marked impairment ratings, he crossed the threshold for CAT Impairment with a WPI percentage of 69%.

The Applicant relies upon the Ontario Court of Appeal’s decision Kusnierz v. Economical, and its methodology of combining the physical and psychological impairments in order to reach the 69% WPI.

Further, the Applicant argues that the Court of Appeal in Pastore v. Aviva found that a marked impairment in one of the four domains of functioning as defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) is sufficient for a finding of CAT Impairment. The four domains of functioning are:

Activities of Daily Living
Social Functioning
Concentration, Persistence and Pace (also referred to as Task Completion)
Deterioration and decompensation in a work or work like setting (also referred to as Adaptation)

I note that the Classification of Impairments Due to Mental and Behavioral (Psychological) Disorders chart is found in the AMA Guides at p. 301, which reads as follows:

Class 1: No Impairment	Class 2: Mild Impairment	Class 3: Moderate Impairment	Class 4: Marked Impairment	Class 5: Extreme Impairment
No Impairment is noted	Impairment levels are compatible with most useful function	Impairment levels are compatible with some, but not all, useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning

In regards to the two class 4 or marked impairment ratings as submitted by Dr. Gouws on behalf of the Applicant, the first marked impairment is Domain 3 – Concentration, Persistence and Pace. Dr. Gouws suggested that the criterion of this domain refers specifically to task completion, under Chapter 14 of the AMA Guides. Dr. Gouws writes in this domains summary:

based on his self-report and observations of him during this assessment, as well as the information obtained in the clinical records, I would deem that Mr. Hamilton meets the AMA Guides, Chapter 14 definition of having a Marked Impairment (Class 4) in that his impairment level significantly impede useful functioning in this domain [sic].

The second marked impairment was in Domain 4 - Deterioration or Decompensation in Complex Work or Work-Like Settings. Dr. Gouws suggests that this domain focuses on repeated failures to adapt to stressful circumstances, such as withdrawing from situations, or experiencing exacerbation of mental dysfunction, such as psychological decompensation, difficulties maintaining activities of daily living, problems with social relationships, difficulties with completing tasks, problems interacting with supervisors and peers, and reduced stress tolerances. Dr. Gouws writes in this domains summary:

based on his self-report and observations of him during this assessment, as well as the information obtained in the clinical records, I would deem that Mr. Hamilton meets the AMA Guides, Chapter 14 definition of having a Marked Impairment (Class 4) in that his impairment level significantly impede useful functioning in this domain [sic].

The Insurer argues that with respect to Domain 3 - Concentration, Persistence and Pace, difficulties in this domain would include trouble returning to work. The Applicant’s evidence shows he continued to work a few days post-MVA to present date. The Insurer suggests that the Applicant’s evidence of a significant decline in business prior to these assessments being concluded is not consistent with his tax returns. The Insurer argues that as a commission-based employee, the Applicant would not make increasing amounts of money year-over-year if he was not buying and selling significant numbers of vehicles. It was not until after the August 2014 MVA that the tax returns started to decline, at which point the Applicant had turned 66 years of age. The Insurer argues that if Dr. Gouws rates this domain as marked, on the basis that the impairment significantly impedes (emphasis added) useful functioning, it is very difficult to reconcile with his income levels that kept increasing post-MVA. The Insurer submits that the Applicant most likely has a mild impairment in this domain.

In regards to Domain 4 - Deterioration or Decompensation in Complex Work or Work-Like Settings, the Insurer pointed out that Dr. Gouws indicates that this refers to repeated failures to adapt to stressful circumstances. Dr. Gouws indicates that the Applicant demonstrates symptoms consistent with moderate problems in adaptation and then inexplicably gives him a marked rating in this category too. The Insurer submits that the evidence does not even support the moderate symptoms Dr. Gouws indicates, and that the proper rating would be either no impairment or mild impairment.

The Insurer argued that the Applicant does not show repeated failure. In fact, he shows marked persistence in continuing to adapt to work and his elite hockey coaching duties. The evidence shows the Applicant did not withdraw from situations due to psychological factors but quit scuba diving due to pressure headaches and golf due to vertigo, both of which are physical issues rated elsewhere. The Applicant continued on with virtually every other main activity in his life. The Insurer submits that there is no evidence of problems with social relationships. The Applicant and his wife continue to have a good relationship and socialize with friends, although perhaps less often than before. There is no evidence that the Applicant’s problems completing tasks, such as building a patio, have anything to do with psychological impairment as opposed to physical impairment, which is already rated elsewhere.

Further, the Insurer argues that in regards to the above-listed matters that demonstrate impaired functioning, the only factor that may be present in this case is some avoidance of social situations, as the Applicant indicated that he does not socialize as much as before. The reason for same appears mainly to do with cognitive functioning and fatigue, as opposed to a true psychological standpoint alone. But Dr. Gouws again somehow rates the Applicant with a moderate impairment and inexplicably extends it to be marked.

The Insurer also argues that Dr. Gouws’ report has significant flaws. The largest flaw is that Dr. Gouws essentially deals almost exclusively with cognitive issues that the Applicant is suffering from, as opposed to psychological issues. Dr. Gouws’ report is almost exclusively based on the Applicant’s self-report and his test answers, all of which are subjective.

Finally, the Insurer argues that there is a further flaw in Dr. Gouws’s methodology in that the AMA Guides, on p. 293, encourages doctors to obtain information from medical and nonmedical sources and to conduct collateral interviews as an additional aide in gathering additional information, but Dr. Gouws decided not to do so, despite both Dr. Baxter and Mrs. Hamilton indicating that they would have co-operated in a collateral interview. The Insurer argued that the fourth domain should also be rated as mild.

I agree with the Insurer and I am unconvinced that the areas of marked impairment are indeed marked.

After listening carefully to the Applicant’s testimony and his wife’s collaborating testimony I can plainly see the deficits the Applicant is struggling with, however I am unable to reconcile these deficits with a person who has impairment levels that significantly impede (emphasis added) all of his useful functioning in either of the two listed domains.

After reviewing all of the Applicant’s assessors and treating doctor’s various records and reports, who all rate the Applicant’s impairments, if any, as mild or low-level moderate, I still cannot understand Dr. Gouws’ thought process on how he was able to make the leaps from a mild rating or a low-end moderate rating up to a marked rating. I observe that in both domains that Dr. Gouws ended up rating the Applicant as marked, he first indicates the reasoning and observations for a moderate rating, and makes that very conclusion. He then continues to reiterate the previous paragraphs and then comes to the conclusion that the Applicant is now marked. This makes no sense to me.

I can only speculate that Dr. Gouws’ reasoning is the inclusion of how chronic pain plays a role in the Applicant’s life, as Dr. Gouws adds a Chapter 15 segment in his CAT report, which went without scrutiny or comment by either party. Dr. Gouws concludes that the Applicant has a marked impairment under Chapter 15, as well.

I note it is uncontested that:

The AMA Guides are incorporated into the Schedule;
The AMA Guides takes a holistic approach to patient diagnosis;
The AMA Guides rates pain for specific body modalities within Chapter 3 to 13;
The AMA Guides include Chapter 14 for Mental and Behavior Disorders;
It is acceptable through jurisprudence that Chapter 4 can be used in conjunction with Chapter 14 when determining a WPI rating;
The AMA Guides include a specific Chapter 15 for Pain;
The AMA Guides also recognizes that there may be factors and/or diagnoses not specifically specified in the Guides per se that influence patients’ ratings;
The AMA Guides, by including Chapter 15, recognizes that chronic pain and its accumulative effect is different from the pain rated within Chapters 3 to 13.

I will address and comment on chronic pain later in this decision.

In regards to Domain 3 - Concentration, Persistence and Pace, I can agree that the Applicant is functioning below his expected intellectual and cognitive functioning within his instant or flash- recall abilities, and that these impairments are compatible with most but not all (emphasis added) of his useful functioning. Clearly a moderate rating in my view. Clearly, the evidence shows that he completes tasks, but not at the speed he once did.

In regards to Domain 4 - Deterioration or Decompensation, again, Dr. Gouws comes to the conclusion that the Applicant has moderate problems with adaptation on p. 30 of his report, which states:

From a psychological standpoint, Mr. Hamilton demonstrates symptoms that would be consistent with moderate problems in adaptation to stressful and challenging situations related to emotionally-based factors. His diminished mood, irritability, anxiety and adjustment issues are secondary to pain, physical limitations, as well as post-concussional symptoms as a result of the MVA. His irritability, frustration and sadness were clearly seen in our examination. Consequently, there is evidence that he has deteriorated mentally and cognitively as he continues to have difficulties engaging in some of the activities of daily living as already noted.

In my view, the evidence shows that the Applicant continues to adapt to changes in his workplace and in his social and recreational circles. As per the Applicant’s testimony, a single outburst of anger at a waitress does not show that he is unable to control himself. Continued and sustained driving for work, along with his coaching players and managing assistant coaches, in my view, clearly demonstrates his cognitive issues do not interfere with all (emphasis added) of his functional abilities.

For these reasons, I find the domains of Concentration, Persistence and Pace, along with Adaptation, are properly rated as moderate, and not marked for the purposes of calculating his WPI.

The Applicant argued that if I do not accept Dr. Gouws' WPI rating of 55% (which I do not), I can use the other accepted models to convert descriptive ratings into a WPI. The first method is the use of the Global Assessment of Functioning (GAF) Score and the second method is using Table 3 of Chapter 4 of the AMA Guides in order to achieve the 55% WPI required by the Schedule to deem the Applicant catastrophically impaired.

The applicant relies upon these methods per Adjudicator Sapin in the Licence Appeal Tribunal (LAT) decision Shuttleworth and Peel.

I prefer the second methodology rather than the GAF Score, as the GAF Score is, in my opinion, a “snapshot” in time that gives a range of percentages, which are not specific enough for my purposes.

The second approach using Chapter 4’s Table 3 of the AMA Guides provides a method for rating WPI which results from emotional or behavioural impairments that are neurologically-based, but which may also have psychiatric features. Table 3 reads as follows:

Table 3 - Emotional or Behavioural Impairments

Impairment Description	% Impairment of the Whole Person
Mild limitation of daily social and interpersonal Functioning	0-14
Moderate limitation of some but not all social and interpersonal daily living functions	15-29
Severe limitation impeding useful action in almost all social and interpersonal daily functions	30-49
Severe limitation of all daily functions requiring total dependence upon another person	50-70

The Applicant argues that Table 3, given that Dr. Gouws found two marked impairments, suggests that this is grounds for finding that the Applicant’s impairments are within the severe limitation impeding useful function in almost all social and interpersonal daily functions. This level of rating gives a range between 30-49% WPI. Further, the Applicant argues that the mid-point of 40% WPI applies, as the table does not include Adaptation or Concentration.

It is the Applicant's argument that if this suggested 40% is then combined with the 32% physical rating a combined value of 59% WPI rating is achieved which meets the 55% threshold of the Schedule. I note that it is undisputed by the parties that adding the WPI percentages for both physical and emotional or behavioural impairments can be done by using the Combined Values Chart in the AMA Guides in order to arrive at a total WPI rating for the Applicant.

This leads me to the next question-does the Applicant meet the 40% WPI threshold for emotional or behaviour impairments as argued?

In my view, the evidence supports different findings on this critical issue, as I have already determined that the Applicant is suffering from a moderate impairment and absent any other evidence, this issue must be determined with a WPI found within the moderate impairment description.

I find, therefore, that the range of 30-49% WPI suggested by the applicant is excessive. In my view, the proper rating is 16% WPI, in the 15-29% WPI rating for the moderate impairment description. I take into account Dr. Vitelli’s report and Dr. Baxter’s reports and testimony that are not “snapshots” in time, but have a longer-term view of the Applicant’s on-going condition. I give no weight to Dr. Debow’s report or testimony, as he was unable to diagnose any condition the Applicant was suffering from, and thus could not provide any ratings in his one-hour interview that was conducted without any collateral interview information being used.

In regards to Chapter 15 of the AMA Guides, in my view, I need to take into account the chronic pain the Applicant is suffering as a result of the 2011 accident as noted earlier. I note that neither party commented on this segment or included it in their WPI assessment charts, above.

Dr. Gouws included Chapter 15 ratings and comments in his report, but unfortunately was very vague on where the Applicant fits into the Pain Intensity –Frequency Grid (“Grid”) on Page 310 of the AMA Guides. Nor did the doctor convert the Applicant’s placement on the Grid to a WPI rating, per se. Dr. Gouws stated on page 31 of his report, the following, in part:

…the pain is constant, aggravates easily, and in intensity is moderate to severe, and interfering with his sleep and other functions in activities of daily living. As such, it would be reasonable to rate the impact of pain as a class 4, Marked Impairment, in that his pain-related impairment levels significantly impede useful functioning.

In my view, not taking Chapter 15 into consideration would be inappropriate, as a whole person approach should be taken as suggested by the AMA Guides, and it would be wrong professionally to ignore evidence relied upon by a medical health practitioner in an Arbitration.

I am unable to make the leap into the marked impairment level as Dr. Gouws is making his determination purely on self-reporting. After reviewing reports of the Applicant’s other assessor’s and from what I personally witnessed from the Applicant’s own testimony, I am not convinced that the intensity of the pain is as severe as suspected by Dr. Gouws, nor is the frequency as often as reported. The Applicant had self-reported his sleep interruptions as improving and he was getting better sleep. Further, if the pain was indeed at a level 9 out of 10, the Applicant would have been missing work far more frequently and for longer periods of time. The evidence and testimony that the Applicant leaves work due to fatigue was reported consistently to multiple doctors and assessors.

For these reasons, the doctor is not persuasive enough for me to elevate this domain to the level of marked. On the balance of probabilities, after weighing the evidence before me, the chronic pain rating is that of a low-entry moderate level (15-29% range) or 15% WPI.

I justify the added 15% WPI in this case as being reasonable because the Applicant experiences fatigue by the end of his 5-6 hour work day. Although, not enough fatigue to prevent the Applicant from driving home or spending 3 hours for three-plus evenings a week coaching hockey practices or games which he travels to and from.

If I accept all of the Applicant’s total physical impairment rating of 32% WPI and combine the emotional and behaviour rating of 15% WPI, and then add the Chapter 15 rating of 15% WPI by using the Combined Values Chart found in Chapter 18, the Applicant achieves a WPI rating of 52%, which does not meet the threshold of 55% as required by the Schedule.

Therefore, for the above reasons, I find that the Applicant did not sustain a CAT Impairment as a result of the July 15, 2011 accident.

2. Is Mr. Hamilton entitled to receive a weekly IRB in the amount of $400.00 from July 22, 2011 to date and on-going?

The applicable section of the Schedule for IRBs is Part II, s. 5, which reads as follows:

Eligibility Criteria

(1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

The insured person,

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or

ii. was not employed at the time of the accident but,

A. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

B. was at least 16 years old or was excused from attending school under the Education Act at the time of the accident, and

C. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

The insured person,

i. was a self-employed person at the time of the accident, and

ii. suffers, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of his or her self-employment.

(2) Despite subsection (1), an insured person is not eligible to receive income replacement benefits if he or she is eligible to receive and has elected under section 35 to receive either a non-earner benefit or a caregiver benefit under this Part.

Period of Benefit

(1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.

(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability; or

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

The parties have agreed that it is the burden of the Applicant to show that because of the July 15, 2011 MVA, he suffered both a substantial inability to perform the essential tasks of his pre-MVA employment and to also show that as a result of the July 15, 2011 MVA, he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience, in order to be successful in claiming an IRB.

The undisputed facts and testimony in this case that pertain to the IRB are as follows:

The Applicant advanced an IRB claim via his OCF-1;
The Applicant was a salaried employee who was on a $2,000.00 per week draw, but enjoyed a 50/50 split of profit or loss with the employer upon selling vehicles;
The Applicant missed only a few days of work, all within the first week post-MVA;
The Applicant continued to do his pre-MVA job and maintained his job title and responsibilities and pre-MVA employment status;
The Applicant’s reported gross income levels rounded to the closest thousand dollars were as follows: 2011-$109,000.00; 2012-$112,000.00; 2013-$138,000.00; 2014-$112,000.00; 2015-$80,000.00;
The test for IRBs is the person must suffer a substantial inability to engage in the essential tasks of his employment for the first two years followed by a complete inability to engage in any employment for which the person is suited by reason of education, training and experience;
The Insurer assessed the Applicant with an extensive battery of post-104 week IRB assessments, including: o Disability Analysis by Dr. Guerriero, o Physiatry Assessment by Dr. Bentley, o Neurological Assessment by Dr. Derby, o Neuropsychological Assessment by Dr. Dowhaniuk, o Psychological Assessment by Dr. Smith, o Functional Abilities Evaluation by Michelle Becker, o Vocational Analysis, Transferable Skills Analysis and a Labour Market Survey by Denys Remedios;
All post-104 IRB Insurer’s assessments concluded that the Applicant did not meet the test for post-104 IRBs;
All of the post-104 assessments were conducted in the summer of 2013 and released to the parties on September 24, 2013;
The Insurer denied the Applicant’s entitlement to IRBs effectively on October 23, 2013 via Letter of Explanation, dated October 2, 2013; and
The Insurer did not pay any money to the Applicant regarding an IRB as the Applicant’s income effectively zeroed out any amount owing.

The Applicant argues that he continues working to date, but on modified duties such that he works up to five hours per day plus taking phone calls up to 6 p.m., whereas his pre-MVA level of work included eight hours per day plus taking phone calls up to 9 p.m. on some nights. The Applicant argues that he now has modified duties because he receives help from an assistant with paper work regarding the purchases and sales of vehicles. The Applicant also argues, without any direct objective and corroborative evidence, that the number of auctions he attends has been reduced which has significantly affected his business. The average auction is five hours long.

The Applicant points out that Dr. Bentley, Physiatrist, suggests that his full recovery “is guarded at this time, given his persisting neuro-vegetative symptoms at this stage, two years post-MVA”.

The Applicant then argues that Dr. Bentley, after reviewing the various vocational reports of Mr. Remedios, came to the conclusion that the Applicant is unable to perform the alternative jobs as a result of his fatigue and attention deficits as it relates to multi-tasking when he stated:

From a purely musculoskeletal perspective, it is my opinion that Mr. Hamilton would likely be able to participate in these occupations, as they are classified as “limited” or “light” in nature. However, his post-concussive symptoms and their impact on fatigue as well as on attention deficit related to multi-tasking may affect his ability to engage in these occupations.

The Applicant submits that Dr. Smith came to the following conclusion in his report which is summarized as follows:

Neuropsychological assessment has confirmed marginally slow cognitive processing and mild difficulties in complex reasoning.

The Applicant submits that the common opinions of Dr. Bentley and Dr. Smith support ongoing entitlement to IRBs because neuro-cognitive and psychological components indicate he cannot go back to his regular duties and employment and in particular, cannot work on a full-time basis as the nature and quality of the work flows are compromised because of his neuro-cognitive and neuro-vegetative symptoms.

The Applicant relies upon the FSCO decision of Grewal and AIG where Director’s Delegate Blackman dismissed the Applicant’s Appeal, but stated the following:

[A]n accident victim’s post–accident return to work does not, by itself, determine whether he or she can perform the essential tasks of their employment. I agree.….There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it.

The Applicant relies upon the FSCO decision Hensworth and State Farm when he argues that case law supports that where an Applicant returns to work, and even where post-MVA earnings are competitive with their pre-MVA employment, benefits should not be denied. Therefore, if the Applicant were found to be entitled to IRBs from the onset of the MVA, then at age 65, the benefit would have been adjusted, and no deductions for post-MVA income would have been made after 65. Accordingly, the Applicant claims IRBs in the amount of $400.00 per week less post-MVA income from the date of the MVA to age 65, and further claims IRBs in the amount of $400.00 per week, with no deduction for post-MVA income from age 65 onward.

The Insurer argues pursuant to s. 5(1)1(i) of the Schedule, the insured person must, within 104 weeks of the MVA, suffer a substantial inability to perform the essential tasks of employment. Given that the Applicant was a commissioned salesperson whose income was derived solely from his own efforts and increased year-over-year during that 104 week period, then logically he does not meet the substantial inability test. While it is possible that he may have had some deficits at work that required assistance, any such deficits could not rise to the level of substantial inability without his income showing a substantial decrease as well, let alone an increase. It was not until after the August 2014 MVA that the Applicant’s income started to decrease, which the Insurer submits is the true reason for any decreased income.

Further, at age 65, the IRBs are adjusted according to the ramp-down formula found in s. 8 of the Schedule, namely C x 0.02 x D, where C is the weekly amount the person was entitled to receive immediately prior to age 65 and D is the number of years the person qualified. In this case, the Insurer submitted C is zero and D is 2, which formulates to 0 x 0.02 x 2, which equals zero.

The Applicant’s evidence, in my view, is that he negotiated his non-union management position with his new employer at the time of his hiring, and continues to do this job. There was no evidence that the Applicant was replacing a previous employee. There is no evidence that he has set hours of work or if he is able to work at his own pace. The Applicant’s job description made by the Applicant was extremely vague, along with the hours of work and the expectations of his employer in that regard. It was clear that the Applicant was elevated to a sort of freelance wholesale salesperson and purchaser of vehicles.

There was no evidence that the employer modified this position other than installing checks and balances to catch administrative errors within certain paperwork. In my view, this is a natural consequence of doing business at this scale, and nothing more. There is no evidence that the employer hired any person(s) to relieve the Applicant specifically, in an effort to accommodate the Applicant due to the 2011 MVA.

The evidence also shows that the Insurer did not terminate the entitlement to IRBs until after the completion of the first 104 weeks, on October 23, 2013, and only after an extensive battery of post-104 IRB assessments. The evidence is that the income during the first 104 weeks post-MVA simply zeroed out any amount that could be owing to the Applicant. There was no evidence before me that the Insurer terminated IRB entitlement during the first 104 weeks post-MVA.

In regards to Hensworth, that decision revolved around an Applicant who was working beneath her capabilities regarding employment for which she was reasonably suited by education, training or experience. The Applicant also took another position within the employer’s workplace, which was clearly for accommodation purposes, and in turn, decreased the Applicant’s workplace status and self-esteem. This is simply not the case in this situation.

I agree with the Insurer that the Applicant’s deficits or difficulties do not meet the substantial inability test. Especially with the Applicant’s reported income increasing year after year, strictly on his vehicle purchasing and sales efforts alone.

Therefore, I find that the Applicant is not entitled to IRBs as a result of the July 15, 2011 accident.

3. Is Mr. Hamilton entitled to receive payments for housekeeping and home maintenance services of $100.00 per week, commencing July 15, 2013 to date, and on-going?

It is undisputed that the Applicant did not have a transitional policy, as the policy was renewed after September 1, 2010. As such, a Housekeeping and Home Maintenance Benefit could only be paid by the Insurer if the Applicant purchased optional benefits or was deemed CAT. The Applicant did not purchase optional benefits.

In light of my earlier decision that the Applicant is not CAT, the Applicant is not entitled to receive payments for housekeeping and home maintenance services as a result of the July 15, 2011 accident.

4. Is Mr. Hamilton entitled to payments for the following Cost of Examinations:

a. $4,834.93 for an OCF-18, dated September 19, 2012, for Cognitive and Learning Therapy; b. $1,800.00 for an OCF-18, dated August 1, 2013, for a CAT assessment review as submitted by Dr. Koch; c. $2,034.00 for an OCF-18, dated August 1, 2013, for a CAT collating report as submitted by Dr. Koch; d. $2,034.00 for an OCF-18, dated August 1, 2013, for an essential clinical tasks report?

In regards to 4 a) above, Dr. Muniz-Rodriguez’s examination and treatment plan, I find the Insurer had a choice between two different service providers for essentially the same therapy. John Sullivan also submitted an OCF-18 on October 3, 2012 for cognition and learning therapy, which, after a paper review, the Insurer partially approved (8 sessions instead of 12 were approved). The Insurer essentially received two OCF-18s within 30 days of each other, and made the choice to proceed with Mr. Sullivan’s treatment plan. The evidence shows that Mr. Sullivan’s treatment plan sessions were exhausted, and further treatment plans were not submitted.

Had this treatment plan been in the proper sequence of events, I would agree with the Applicant that the treatments were indeed reasonable and necessary; however, it is not reasonable and necessary for the Applicant to proceed with the same therapy by the two different providers at the same time. For this reason, the Insurer in not required to pay this OCF-18.

In regards to the three Dr. Koch examinations being claimed, all dated August 1, 2013, the Applicant argues that the treatment plans are portions of the Applicant's CAT reports that the Insurer refused to fund namely, file reviews, essential clinical tasks, and collating.

The Applicant argues that Dr. Koch, as the clinical coordinator and impairment rater, served an extremely important part in moving the Applicant’s CAT Impairment claim forward. I agree. I also agree that a person should be reasonably compensated for work performed. The problem is, how does a clinical coordinator get paid via the Schedule for this service and what is he/she entitled to be paid for such services?

The Applicant relies on the FSCO decisions Cowans and Motors Insurance and R.J. and Dominion to support his argument that these expenses ought to be paid by the Insurer.

In regards to Cowans, I agree with the Insurer that this case was in the context of the DAC system and the use of a “primary evaluator” which is no longer used and was part of an older version of the Schedule, therefore doesn’t apply here.

In regards to R.J., I agree with the Insurer that this decision was decided under the old Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96. This decision did not consider the effect of s. 25 of the new Accident Benefits Schedule –Accidents on or after September 1, 2010, Ontario Regulation 34/10. I also note that this decision was focused on the cost of rebuttal reports, and payment thereof, in the context of an expense award.

The Insurer argues that I must follow the new Schedule and its ss. 25 and 45. I agree.

In my view, the applicable parts of these sections reads as follows:

Cost of Examinations

(1) The insurer shall pay the following expenses incurred by or on behalf of an insured person:

Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

(5) Despite any other provision of this Regulation, an insurer shall not pay,

(a) more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer; or

(b) any amount in respect of fees for preparing a future care plan, a life care plan or a similar plan or for any assessment or examination conducted in connection with the preparation of the plan.

(2) The following rules apply with respect to an application under subsection (1):

An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.

In considering the above sections of the Schedule, I find in favour of the Applicant, in part.

The evidence is that Dr. Koch participated in the preparation of the application for CAT determination, as the coordinator of the different medical disciplines that gave form and substance to the OCF-19 submitted by Dr. Cloete on June 20, 2014, under Criterion 7.

The question is whether or not the expenses of a coordinator are reasonable?

In my view, under s. 25(1)(5), a reasonable expense to be incurred is that of a coordinator, separate and apart for any other regulated health professional. I acknowledge that a CAT determination application is complex and complicated and as such, a coordinator’s role is a necessary and important component or function in the process.

The Insurer relies upon the FSCO decision Breadner and Co-operators, where Arbitrator King, in his assessment of s. 25(5)(a)’s meaning, found the following:

18 The law clearly anticipates that an assessment may include more than one report. The question is whether the scope and nature of the work done constitutes two assessments. The decision in this case turns on the facts, and the facts support a finding that only one assessment was done.

19 Note in particular:

The OCF-18 identifies a neuropsychological assessment

The documents/reports themselves:

Have the same purpose identified (a neuropsychological assessment);

Have same author were issued on the same date;

Have the same dates of examination (with the exception noted above);

The “Tests Administered” are the same; and

The results and information in the second document is incorporated by reference into the first document.

I agree with Arbitrator King.

The Insurer argued that when s. 45(2) is read together with s. 25(5)(a), one must conclude that to the extent that a physician completing an assessment or examination is assisted by others their assistance must be subsumed in the $2,000.00 cap per assessment or examination. Section 25 does not contemplate separate costs of examinations being payable for the work done by a non-assessor to assist a physician to complete a s. 45 assessment or examination. Instead, the costs are capped at $2,000.00 per assessment or examination. The Insurer submits that, based on the fact that Dr. Koch is not an assessor and did not complete an assessment or examination, her fees are not payable under s. 25 over and above the $2,000.00 per assessment or examination, which had already been paid by the Insurer.

In my view, ss. 25 and 45 can be read differently than what the Insurer argues, but I accept that only a single fee of $2,000.00 applies in this situation as outlined by Arbitrator King in Breadner.

I agree with the Insurer that if a physician has an employee or assistant in his or her office helping write the assessment, then this cost must be contained within the $2,000.00 cap. However, the coordinator is not an employee of any specific doctor. The coordinator is a unique role unto itself.

In my view, the three functions that Dr. Koch is claiming for are within the job description or scope of a coordinator, and as such, are captured within Arbitrator King’s findings, and by extension, the functions are subject to a single fee, as per s. 25(5), and is capped at $2,000.00.

Therefore, I find that the Applicant is entitled to the payment of $2,000.00 for the three OCF-18s, dated August 1, 2013, as submitted by Dr. Koch.

5. Is Mr. Hamilton entitled to interest for the overdue payment of benefits?

As a result of the above decision, the Applicant is entitled to interest for the overdue amounts regarding the $2,000.00 for the three Dr. Koch OCF-18s, in accordance with the Schedule.

EXPENSES:

Neither party made submissions on expenses. Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing before me in accordance with the provisions of the DRPC.

July 17, 2017

Charles Matheson Arbitrator

Date

Financial Services Commission of Ontario