Erik O'Brien v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 230

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 230

FSCO A15-003782

BETWEEN:

ERIK O’BRIEN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Charles D. Matheson

Heard:

In person in St. Catherines, Ontario from May 29, 2017 to June 2, 2017 and by teleconference held on June 26, 2017

Appearances:

Ms. Lesley Parsons, lawyer, participated for Mr. Erik O’Brien

Mr. Talaal Bond, lawyer, participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Erik O’Brien, was injured in a motor vehicle accident (“MVA”) on August 21, 2008 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. O’Brien, through his representative, 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 the Applicant sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is the Insurer liable to pay Mr. O’Brien’s expenses in respect of the Arbitration?
Is Mr. O’Brien liable to pay the Insurer’s expenses in respect of the Arbitration?

Result:

The Applicant sustained a catastrophic impairment as a result of the accident.
The Applicant is entitled to interest, however, as there are no overdue payments of benefits in dispute, no interest is payable.
Should the parties become unable to resolve the expenses issue, they shall subsequently schedule an Expense Hearing before me in accordance with the provisions of the Dispute Resolution Practice Code (“DRPC”).

EVIDENCE AND ANALYSIS:

Legislation and Case Law considered

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

Pastore v. Aviva Canada Inc., 2012 ONCA 642

Pastore v. Aviva Canada Inc., ONSC 2164

M.R. and Gore Mutual Insurance Company (FSCO A09-001224, December 23, 2010)

Nadesu and Zurich Insurance Company Ltd. (Commercial Business) (FSCO A09-001538, May 27, 2015)

Jaggernauth and Economical Mutual Insurance Company, 2010 CarswellOnt 12559 (FSCO)

Leach and Intact Insurance Company, 2011 CarswellOnt 12559 (FSCO)

Ellis and Guarantee Company of North America (FSCO A12-001073 & A12-004644, April 13, 2015)

M.G. and Economical Mutual Insurance Company (FSCO A09-002443, November 23, 2012)

Decision

The Applicant is a 37 year old married man who was working as a systems operator at a municipal water treatment plant at the time of the MVA. He and his wife were in the process of moving into their renovated home and expecting their first child at the time of the MVA. The Applicant was doing the renovations himself, with help from friends and family. The Applicant self-identifies as an alcoholic, who has been sober about two years prior to the MVA.

The Applicant returned back to work six months after the MVA. The work shifts were modified at first until he returned back to a full 12 hour shift, working alone in a large plant setting. The Applicant left his attempted return to gainful employment some two years after his initial return to work.

The Applicant and his wife now have four children.

Issues

Did the Applicant sustain a catastrophic impairment within the meaning of the Schedule as a result of the MVA?

The issue in dispute in this Arbitration is whether the Applicant has suffered an impairment that qualifies under the Class 4, or Marked Impairment level, in at least one of the four spheres.

The parties agree that the burden to establish entitlement for this benefit falls upon the Applicant.

The parties agree that the Applicant’s Whole Person Impairment (“WPI”) Rating is not a relevant consideration in this proceeding. I am instructed by the parties to turn to the question of whether the Applicant has an impairment that significantly impedes useful function, further to Chapter 14 of the American Medical Association Guides to the Evaluation of Permanent Impairment (“Guides”). The parties suggest that this restricts the enquiry to symptoms relating to mental or behavioural disorder.

This Application for Catastrophic Determination is made pursuant to paragraph 2(1.1)(g) of the Schedule, on the basis of a catastrophic impairment due to a mental or behavioural disorder which reads as follows:

(g) subject to subsections (2) and (3), 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.

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

Class 1

Class 2

Class 3

Class 4

Class 5

No Impairment

Mild Impairment

Moderate Impairment

Marked Impairment

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

(Underlined for emphasis)

The parties agree to the following:

The Applicant’s catastrophic assessment was carried out by Dr. Levitt and his associate, Dr. Deffendall, psychologists;
The Insurer’s report was carried out by Dr. Kiraly, psychiatrist; Ms. Ranu Singh, Occupational Therapist; and Dr. Khan, physiatrist;
Dr. Khan’s report focuses on the Applicant’s physical capabilities and not the symptoms resulting from his psychological conditions;
Dr. Howard Platnick, G.P., assigns a WPI rating to Dr. Khan’s report;
Dr. Platnick merely regurgitates the conclusions in Dr. Kiraly’s report;
As it relates to WPI, Dr. Khan’s and Dr. Platnick’s conclusions are not relevant on the issue at hand; and
The focus of this Tribunal is then on the issues at hand and is between the report of Dr. Levitt and the reports of Dr. Kiraly and Ms. Ranu Singh.

The Insurer submits that the key issue in this proceeding is the degree to which the mental and behavioural disorder impairs the Applicant’s life. This Tribunal must decide, essentially:

(a) Are the Applicant's mental and behavioural impairment levels compatible with some but not all, useful functioning (Class III Impairment, non-Catastrophic)?

(b) Do the Applicant’s mental and behavioural impairment levels significantly impede useful functioning (Class IV impairment, catastrophic)?

The Insurer argues that there is clear evidence that the Applicant’s level of functioning fits best with a Class III or Moderate Impairment, thereby leading to a conclusion that the Applicant did not suffer a catastrophic impairment.

The parties agree that:

the Applicant’s symptoms have now become chronic and entrenched;
the Applicant now uses and relies on a cane for assistance; however, a cane has not been prescribed by any doctor or health practitioner;
the Applicant is licensed to grow his own cannabis; and
the Applicant consumes 20g of cannabis daily.

The Applicant argues that the Guides urge for a robust methodology as the results of such a thorough assessment will be the most accurate and the most in line with reality, and Dr. Levitt’s approach is the most consistent with this robust approach. Dr. Levitt employed five methods of assessment before rendering his opinion, including (1) file review; (2) diagnosis; (3) behavioural observations; (4) collateral interview; and (5) robust testing.

The Applicant continues to argue that Dr. Levitt provided a thorough and detailed analysis of the Applicant’s life and came to a confident and unequivocal conclusion that the Applicant’s impairments are Marked in all four domains, namely;

Activities of Daily Living;
Social Functioning;
Concentration, Persistence and Pace;
Deterioration or decompensation in work or a work like setting.

The Applicant submitted that Dr. Levitt’s analysis and conclusions are most consistent with the evidence provided by the witnesses for the Applicant.

The Applicant argues that Ms. Singh concedes that she cannot provide a diagnosis or causation opinion(s) regarding psychological injuries, meaning that she cannot provide an opinion relating to function on the basis of the Applicant’s mental or behavioural disorder. Ms. Singh is limited to give a “snap shot in time” assessment report of the Applicant’s function based on his physical injuries.

The Applicant argues that comments made by Ms. Singh in her report also point to bias. She floats terms in her report such as “self-limiting” and “self-restricted” and “true functioning” when discussing the Applicant’s physical capabilities vs. his subjective complaints. Ms. Singh seems somewhat perplexed by the fact that there is a gap between the Applicant’s demonstrated physical abilities (where there are almost no physical limitations in movement) during her brief assessment compared to his subjective complaints of his daily life functions. This is despite the fact that she knows to a certainty that the Applicant has been diagnosed with psychological illnesses which provide the clear explanation for his reduced level of useful function. The Applicant concludes and argues that Ms. Singh must be ignorant to the effects of psychological injuries on a person or she is deliberately feigning confusion in her conclusions where she floats the idea that the Applicant is not credible.

Finally, the Applicant suggested that Ms. Singh’s occupational therapist report is flawed and I should give little or no weight to this report, because she did not conduct any collateral interviews, her report lends little or no credence to the Applicant’s subjective complaints, and no specific cognitive testing was conducted. Further, she based her results solely on her observations alone, and based her conclusions on the fact that the Applicant can still drive and continues to have some leisure activities with his children. The Applicant asserts that the glib and convenient conclusions of Ms. Singh totally disregard the impact that depression and fatigue have on one’s ability to deal with stressful situations, despite her testimony to the contrary.

In regards to Dr. Kiraly, the Applicant argues that Dr. Kiraly’s report relied heavily on Ms. Singh’s report and as such is flawed to that extent. The Applicant argues that in several instances, the doctor simply relied on Ms. Singh’s findings and opinions when formulating his own opinion, or at times provides no opinion of his own and only refers to her report. Further, Dr. Kiraly spent 90 minutes assessing the Applicant in contrast to Dr. Levitt, who took 14 hours over five days. The Applicant’s position is that Dr. Kiraly did not perform as robust an assessment as did Dr. Levitt.

It was evidenced by Dr. Kiraly during his testimony that he did not conduct any collateral interviews of family or friends as did Dr. Levitt, and admitted the importance of same. The Applicant argues that Dr. Kiraly intensified and magnified Ms. Singh’s mistake of not conducting collateral interviews, which significantly affects and compromises the conclusions reached in his catastrophic report.

The Applicant argues that when assessing the Applicant’s cognitive deficiencies, Dr. Kiraly used what Dr. Levitt described as ‘screens’. Dr. Levitt’s testimony on this point was that screens are not sophisticated testing and it is easy for individuals to do well on screens thus, conclusions from screening are not as reliable. Screens generally provide an idea of what might need to be explored further. As Dr. Levitt testified that he undertook the WAIS-IV, which is referenced in the Guides, his testing concluded that the Applicant’s processing speed is impaired. He advised that this would not be picked up on simple screens. Dr. Levitt’s opinion was that better testing, not screening, was available to determine cognition, which Dr. Kiraly chose not to do. Dr. Levitt testified that he undertook six hours of cognitive testing and his conclusions assisted him in determining that the Applicant’s cognition was compromised. This was consistent with the Applicant’s subjective complaints and his family’s concerns.

Finally, the Applicant argues that Dr. Kiraly’s catastrophic report should be given little or no weight in that when asked in cross-examination why the Applicant’s psychological diagnoses were not referenced in his conclusions, his response was “he had a good interview”, which is contrary to the robust enquiry into the whole person perspective adapted by the Guides.

I note the following as turning points in the Hearing which provided guidance to me in coming to my award, which are as follows:

The Applicant and the lay witnesses who testified on behalf of the Applicant were genuine, consistent and believable. The veracity and conviction of their evidence is not in question;
During his testimony Dr. Kiraly spontaneously upgraded his report’s conclusions. He increased three domains from Mild to Moderate levels, when comparing the two reports in hindsight;
When asked about his definition of “significantly impedes useful functioning” when determining where to place a client in terms of a Class 3 versus Class 4 Impairment, the doctor stated he thinks “all” useful functioning should be impeded. In reaching this conclusion, he then relied upon the fact that the Applicant looks after one or two of his children at a time for short times, the Applicant can and continues to drive, and participates in family functions. As these are useful functions, he concluded the Applicant is not significantly impeded in all of his functions.
Dr. Levitt’s report touches on the significance of Chapter 15 (Pain) criteria. He notes that the pain intensity is Moderate and the pain frequency is best described as constant. On page 26 of his report, the doctor writes the following:

Pain remains entrenched despite treatment, and further significant improvement is not expected.

Pain assessment findings and broader psychological assessment findings are integrated into a formulation of impairments due to mental and behavioural disorders that follows the method set out in Chapter 14 (Mental and Behaviour Disorders) and Chapter 15 (Pain) of the 4th edition of the AMA Guides. Impairment ratings are provided below according to the four functional classes described in Chapter 14.

In my view, when reading the Guides, an assessment of impairment must look at “useful function” in all four domains, but must also take into account chronic pain (when diagnosed, as in this case) and its effects on useful functioning as well. In my view, chronic pain is not the same pain that is rated in Chapters 3 to 13 of the Guides. Therefore it is appropriate to combine Chapters 14 and 15 when making this assessment as “double counting” is not occurring. When calculating where an Applicant fits best (Class 3 vs. Class 4), one must expect that there is some level of useful functioning in more than one domain, otherwise the Applicant would be in Class 5. I point out that the definition wording of a Class 4 Impairment found in the Classification of Impairments Due to Mental and Behavioral (psychological) Disorders chart as listed in the Guides at p. 301, notes the following: Class 4 “impairment levels significantly impede useful functioning”. The word “all” has not been included within that statement. For these reasons, I find the Applicant has sustained a catastrophic impairment due to the MVA.

Is the Applicant entitled to interest for the overdue payment of benefits?

Given that the parties have acknowledged that the Applicant has not quite exhausted his non-catastrophic entitlements and that there are no outstanding medical treatment plans before me in this Arbitration, there is no interest owed to the Applicant as a result of this Arbitration.

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.

August 28, 2017

Charles D. Matheson Arbitrator

Date