Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 247

Appeal P16-00017

OFFICE OF THE DIRECTOR OF ARBITRATIONS

GUARANTEE COMPANY OF NORTH AMERICA Appellant

and

SEGRID CUMBERBATCH Respondent

BEFORE: David Evans

REPRESENTATIVES: Rose Bilash for Guarantee Company of North America A. Fabio Longo for Mrs. Segrid Cumberbatch

HEARING DATE: March 10, 2017

APPEAL ORDER

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

The Arbitrator’s Order of January 28, 2016 is confirmed and this appeal is dismissed.
If the parties are unable to agree about the legal expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

September 21, 2017

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Guarantee Company of North America appeals the order of Arbitrator Mutch dated January 28, 2016, that Mrs. Segrid Cumberbatch, Guarantee’s insured, is catastrophically impaired within the meaning of the SABS–1996.¹

Guarantee submits that when the proper legal test is applied and the evidence is considered in that context, Mrs. Cumberbatch’s various abilities lead to the conclusion that she is not catastrophically impaired.

However, I find that the Arbitrator did apply the proper legal test and that it is not my role to make my own findings on the evidence in substitution of his findings.

II. BACKGROUND

Mrs. Segrid Cumberbatch was injured as the result of a motor vehicle accident on May 22, 2008.

The Arbitrator agreed that prior to the accident Mrs. Cumberbatch was a busy, high functioning individual – a newly-married pregnant churchgoer, volunteer, homemaker, and data entry clerk. Since the accident, she suffered pain and depression, lacked motivation, avoided social situations, and had trouble concentrating and remembering things. She was not able to return to work, discontinued most of her volunteer activities, and only returned to church sporadically from 2012 on. After her son was born about five months after the accident, she had mostly stayed home to take care of him. She testified that she struggled to initiate and complete household tasks and inconsistently cared for herself, like bathing, washing her hair and brushing her teeth.

The sole issue at the hearing was whether Mrs. Cumberbatch sustained a catastrophic impairment due to a mental or behavioural disorder, and specifically whether her impairment in the adaptability domain was moderate or marked.

The Arbitrator noted the definition of catastrophic impairment (CAT) under s. 1.2(g) of the SABS: an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”), results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. The only domain at issue was deterioration or decompensation in work or work-like settings, sometimes referred to as adaptability. The Arbitrator set out the relevant impairment levels chart from the Guides,² emphasizing the difference between moderate impairment – impairment levels compatible with some, but not all, useful functioning – and marked impairment – impairment levels significantly impede useful functioning.

The Arbitrator then quoted directly from the Guides on the Adaptability domain:

Deterioration or decompensation in work or worklike settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks.

Dr. Zakzanis, neuropsychologist, thought that the impairment in the adaptability domain was marked, while Dr. Rosenblat, psychiatrist, thought it was only moderate. The Arbitrator noted that their diagnoses were similar regarding depression, anxiety and a pain disorder. The only question was of degree.

The Arbitrator then went through the medical evidence in more detail.

Dr. Zakzanis found that Mrs. Cumberbatch was significantly impeded from functioning independently. Considering that, in his opinion, one’s function in the adaptability domain is characterized by the degree to which one can sustain independent function, he found her impairment marked. The Arbitrator noted that Mrs. Cumberbatch herself testified that she cannot function “day to day” without the support of a psychologist, a marriage counselor, physiotherapist, chiropractor and a speech pathologist.

Similarly, Elyse Freedman, Occupational Therapist, thought that Mrs. Cumberbatch’s impairment was marked because her pain limited her task completion and could affect her ability to focus for lengthy periods of time, which, as the Arbitrator noted, also accorded with Mrs. Cumberbatch’s evidence.

As for Guarantee’s evidence, the Arbitrator noted that Mrs. Cumberbatch was assessed by Dr. Rosenblat, psychiatrist, and Laura Youm, Occupational Therapist, at Centric Health Medical Assessments.

The Arbitrator noted that the key to Dr. Rosenblat’s conclusion of only mild or moderate impairment in all domains was Mrs. Cumberbatch’s fulfillment of her role as primary caregiver of her son, born shortly after the accident. However, the Arbitrator gave this opinion less weight because of incomplete facts. For instance, Dr. Rosenblat was unaware that Mrs. Cumberbatch’s mother had provided her with assistance and emotional support for a five-month period just before the assessment, that her church attendance and participation was a fraction of what it was, and that her attendance to personal hygiene and household chores was irregular.

The Arbitrator then considered Mrs. Cumberbatch’s credibility, considering that there was some conflict with what she told Dr. Rosenblat regarding the last points mentioned. He accepted her explanation that she presented a more positive picture of her functionality to avoid intervention by child welfare authorities. He also noted that her distress during the hearing and need for breaks showed the need for accommodation and was consistent with other evidence of assessments terminated for similar reasons. He found Mrs. Cumberbatch credible.

As for Ms. Youm, she also completed an in-home functional assessment and a situational assessment of Mrs. Cumberbatch shortly after the five-month maternal visit. The Arbitrator found that Ms. Youm’s assessment corroborated other evidence of Mrs. Cumberbatch’s difficulty following through and completing tasks without structure and support.

The Arbitrator then turned to his analysis. First, he noted a couple of complications, like the visit by Mrs. Cumberbatch’s mother, and the birth of Mrs. Cumberbatch’s son. On the first point, he found that the palliative effect of the mother’s visit around the time of the assessments meant the assessors got an unrealistically positive view of Mrs. Cumberbatch’s post-accident life. On the second point, the Arbitrator found that, while her son’s birth would have affected her activities, Mrs. Cumberbatch would have returned to work and to her regular church attendance shortly afterwards but for the accident.

Next, the Arbitrator turned to the “clumsiness of the nomenclature” in defining catastrophic impairment because of the overlap among the domains. He agreed with the observation of Arbitrator Sapin, as set out in Ms. M.G. and The Economical Mutual Insurance Company,³ that the descriptions of “moderate,” “marked” and “extreme” impairment are part of a continuum, writing:

One can only assume that a marked impairment means that the individual is impeded in more than just “some” useful functioning. Taken together with the description of adaptability, I can only conclude that a marked impairment would mean that an individual would, more often than not, (although not all of the time) fail to adapt to stress in work or work-like settings and fail to maintain activities of daily living, including social relationships and the completion of tasks.

The Arbitrator then noted that, as stated in Desbiens v. Mordini,⁴ the focus of the analysis in the area of adaptation is on the psychological stress tolerance of the individual. He then cited from the Guides, emphasizing independence, sustainability, and the idea of the overall degree of restriction or combination of restrictions:

The Guides state that:

a) Any limitations in these activities should be related to the mental disorder rather than to other factors and the quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability;

b) It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision and direction;

c) What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.(Emphasis added)

The Arbitrator proceeded to examine Mrs. Cumberbatch’s functioning using terms taken directly from the description in the adaptability domain. The pre-accident background provides a necessary point of comparison and must be assessed when considering post-accident function. The Arbitrator considered aspects of Mrs. Cumberbatch’s life including personal care and homemaking, marriage, participation in Church and volunteering, social life, parenting, and work and night school.

Under the heading “Difficulty Maintaining Activities of Daily Living,” the Arbitrator considered personal care and homemaking. Under personal care, he found that, while she had no problems before the accident, at the time of the hearing Mrs. Cumberbatch had not brushed her teeth for one month, for instance. He also accepted that she stopped caring for her hair after the accident and had only been to the hairdresser twice since the accident, when she used to go every six weeks. He found that Mrs. Cumberbatch was significantly impeded in routinely carrying out her self-care tasks. Under homemaking, he accepted her testimony that, for instance, from being the primary homemaker, she was now forgetful, let laundry and dishes pile up, and could not do prolonged shopping. He rejected Dr. Rosenblat’s statement that Mrs. Cumberbatch could completely manage her household and chores because he did not have a complete picture, not being aware of her difficulties or of the assistance provided by her husband and son.

Under the heading “Continuing Social Relationships,” the Arbitrator found that Mrs. Cumberbatch went from a happy marriage to one with major marital problems. She went from attending church twice per week, involvement in two volunteer associations and an active social life to no church attendance for four years and then only on an infrequent basis, very limited volunteer involvement, and a limited social life. He found that she was significantly impeded in maintaining continuing social relationships.

Under the heading “Decompensation in Work or Work-Like Settings,” the Arbitrator first dealt with parenting. He noted Dr. Rosenblat’s opinion that parenting a small child was a work-like activity. The Arbitrator set out the ways Mrs. Cumberbatch felt she was limited in her ability to care for her son, such as forgetting to do basic routine tasks like meeting her son at the bus stop at a scheduled time. He noted that while Dr. Rosenblat thought Mrs. Cumberbatch could not have fulfilled her role as the primary caregiver of a child born shortly after the accident if she was more than moderately impaired, Dr. Zakzanis emphasized that she was impeded in her parenting functions, not precluded from exercising them. The Arbitrator found that Mrs. Cumberbatch was significantly impeded in adapting to the stressful circumstances of caring for her son.

Next, the Arbitrator discussed employment and night school. He found it significant that Mrs. Cumberbatch, who had a very solid employment history at a job she enjoyed, had been unable to return to that job or to continue as an office manager for her husband’s construction business. He also noted that Mrs. Cumberbatch had not been able to return to the night school business programs, despite having done well in three courses. Accordingly, with regard to paid employment and assisting her husband in his business, he found she was a motivated individual who was diligent in her work and who was making an effort to upgrade her skills. He found Mrs. Cumberbatch was significantly impeded in those activities.

The Arbitrator noted that while surveillance at some points showed Mrs. Cumberbatch was quite active, this was taken during an optimal period when the mother was visiting, while at other points she behaved in a way consistent with her demeanour at the hearing. The Arbitrator found the surveillance did not suggest she was higher-functioning than she had portrayed.

In conclusion, the Arbitrator noted Guarantee’s reference to the abilities Mrs. Cumberbatch had shown, like driving, visiting the Caribbean, caring for her son, and taking the initiative to seek medical attention, schedule rehabilitative activities and marital counselling, and arrange the renewal of marital vows with her husband.

However, the Arbitrator found that this did not override the evidence showing that, even with support, Mrs. Cumberbatch was impeded in her day to day activities and in what ought to be regular, routine activities:

I do not think that the activities that the Applicant engages in are merely “mundane” or that she is necessarily living in a “sheltered, narrow and confined world” comparable to that described in the case of M.D. and Aviva Canada Inc.⁵While many of the aspects of childrearing could be termed mundane, the overall management and decision-making involved in effective parenting is complex and demanding. At the same time, when one compares her pre-accident life with her life now, it is indeed significantly restricted, and, to use the words of Arbitrator Rogers, “dramatically reduced…in terms of responsibilities and social contact”.⁶

Some things the Applicant did prior to the accident, such as being employed, she cannot do at all. It is not insignificant that she has managed to provide her son with adequate care. At the same time, she has difficulty consistently performing routine tasks, such as remembering to meet him at the bus, which could have serious consequences. Other activities, such as church and volunteer work, she has cut back dramatically. Some routine activities, such as self-care and housework, are done on an erratic and inconsistent basis. This is a dramatic change from her pre-accident self. She is unable to adapt to stressful circumstances. While the Applicant is clearly capable of some useful functioning, I believe she is significantly impeded in performing most of the tasks she did prior to the accident. I find that, as a result of the accident, she has suffered a marked impairment and is, therefore, catastrophically impaired within the meaning of the Schedule.

III. ANALYSIS

Guarantee’s submissions reflect a complete misunderstanding of the role of an appeal. Its submissions are full of detailed analyses of various medical reports, as well as allusions to oral evidence – in the absence of a transcript. It submits that I should review the exhibits myself to see whether a fact found could not have been so found in all the circumstances, and even consider what it says was the testimony of Mrs. Cumberbatch. However, to support this approach, Guarantee relies on old cases involving accidents from the early 1990s. Those cases were decided under the previous versions of s. 283(1) and s. 283(4) of the Insurance Act. Subsection 283(1) used to provide that a party to an arbitration could appeal the order of the arbitrator to the Director. However, in 1996, s. 283(1) was amended to restrict appeals to a question of law. Subsection 283(4) used to provide that the Director could determine the appeal on the record or by way of a rehearing of all the issues before the arbitrator or partly on the record and partly by way of rehearing as the Director in his or her opinion may decide. The current s. 283(4) makes no reference to a rehearing, and provides only that the Director or his delegate may determine the appeal on the record or in such other manner as the Director may decide, with or without a hearing.

Further, while Guarantee submits that the phrase “or in such other manner as the Director may decide” in s. 283(4) allows me to adduce additional evidence beyond the record, there is no case law supporting Guarantee’s position, as it has never been read that way, nor do I read it that way. This subsection speaks to the process of an appeal, not the substance, providing that delegates have considerable leeway in conducting an appeal.

While older cases like Kasap and Allstate Insurance Company of Canada, (OIC P96-00071, March 13, 1998) were cited to me, in which the test for disturbing factual findings was a “serious error,” that is no longer the test. Lombardi and State Farm Mutual Automobile Insurance Company (FSCO P01-00022, February 26, 2003), which applied the principle from Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201, held that an appellate review of findings of fact based on an independent albeit limited appellate reassessment of the reasonableness of the findings of fact made at the first instance, is not appropriate. In our system, I may only review errors of law. As set out in Lombardi, errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. The vital distinction is between conclusions that there was “no evidence” to support a finding and a mere “insufficiency of evidence” to support a finding. (As will be seen shortly, Guarantee’s submissions largely rely on a submission that the Arbitrator misdirected himself on the legal principles.)

Accordingly, as has been said many times since the 1996 amendments, it is not an appeal delegate’s job to weigh the evidence. The Divisional Court in Kanareitsev v. TTC Insurance Company Limited, 2008 CanLII 26262, affirmed that a Director’s Delegate must not try the case de novo or simply substitute his or her views for those of the arbitrator. Thus, even if it was appropriate to consider Guarantee’s hearsay version of what Mrs. Cumberbatch testified to at the hearing, this would at best go to a question of weight. However, I do not weigh evidence. Therefore, any submission that this or that piece of evidence shows one thing or another is irrelevant on appeal as long as there was evidence upon which the Arbitrator relied. The proposition behind all of Guarantee’s submissions, namely that I should review all the exhibits, including the medical reports and videotapes, as well as the untranscribed oral evidence, and make my own findings of fact, is therefore mistaken, and its submissions are largely misbegotten on that account.

With respect to the Arbitrator’s alleged errors of law, Guarantee first submits that the Arbitrator improperly imputed quantitative concepts and formulas into the definition of marked impairment contained in the Guides. Second, it submits that, based on this misconstrued interpretation of marked impairment, the Arbitrator misapprehended, failed to fully consider and/or erred in processing all of the evidence relevant to the issue of the Respondent’s level of impairment. It relies upon Keljanovic Estate v. Sanseverino (2000), 2000 CanLII 5711 (ON CA), 186 D.L.R. (4th) 481 for these latter propositions. However, Waxman specifically overruled Keljanovic regarding an appellate review of findings of fact. Beyond that, an alleged failure to consider evidence was discussed some years ago in State Farm Mutual Automobile Insurance Co. v. Movahedi, [2001] O.J. No. 5099, in which the Divisional Court noted that the Delegate had applied the “serious error” Kasap test I mentioned earlier, and then reviewed how it was applied:

2 The Delegate defined her role at p. 4 of her decision. She limited her function to determining whether the arbitrator “made some serious error, such as ignoring material evidence, considering irrelevant factors or reaching findings that are unsupported by the evidence.”

3 The Delegate criticized the arbitrator's findings of credibility on the basis that some of the findings were based on factual errors or failed to consider all the evidence. Not reciting all the evidence does not mean the arbitrator failed to consider it. We find there was ample evidence before the arbitrator to support his findings of credibility as described in his decision.

As should be obvious from the concluding paragraphs of the Arbitrator’s decision cited above, he was well aware of the evidence that Guarantee relies on to submit that Mrs. Cumberbatch’s impairment was only moderate. However, he weighed that evidence and reached the conclusion that the impairment was marked. Assuming he did not misdirect himself throughout, there was ample evidence to support his conclusion.

That really leaves only the issue of the Arbitrator misdirecting himself, as noted earlier.

In stating that the Arbitrator improperly imputed quantitative concepts and formulas into the definition of marked impairment contained in the Guides, Guarantee focuses on a paragraph I cited above, in which after noting that the descriptions of “moderate,” “marked” and “extreme” are on a continuum, the Arbitrator stated that a marked impairment means that the individual is impeded in more than just “some” useful functioning. He stated that, taken together with the description of adaptability, he concluded that a marked impairment would mean that an individual would, more often than not, (although not all of the time) fail to adapt to stress in work or work-like settings and fail to maintain activities of daily living, including social relationships and the completion of tasks.

Guarantee submits that this means the Arbitrator reduced the assessment of marked impairment to a quantitative formula: does the individual fail to adapt to particular situations more than 50% of the time, but less than 100% of the time? It submits that this approach excludes any contextual or qualitative assessment of impairment but reads in a specific, narrow definition into a general concept. It further submits that such an interpretation is incompatible with the language of the Guides, which state at page 301 that a moderate impairment does not imply a 50% limitation in useful functioning.

However, the Arbitrator was applying a contextual or qualitative assessment, since he specifically considered the description of adaptability and had cited what the Guides say about it. He adopted the reasoning of Arbitrator Sapin in the decision of Ms. M.G., namely that the descriptions of moderate, marked and extreme impairment are part of a “continuum.” I do not see how the Arbitrator’s statement in this case derogates from that idea of a continuum. In passing, I note that I had specifically approved of the approach taken in Ms. M.G. in Allstate Insurance Company of Canada and T.S., (FSCO P11-00032, September 25, 2014). As Arbitrator Sapin stated in Ms. M.G., in between category 3 (“impairment levels are compatible with some, but not all, useful functioning,”) and category 5 (“impairment levels preclude useful functioning”), there is category 4: “impairment levels significantly impede useful functioning.” In this case, the Arbitrator specifically found at various points throughout his decision that in the different activities he considered, Mrs. Cumberbatch’s useful functioning was significantly impeded. He was applying the test for category 4. In doing so, he never applied any percentages to arrive at those conclusions, but took an overall view, while not inappropriately emphasizing independence, sustainability, and the idea of the overall degree of restriction or combination of restrictions, criteria taken directly from the Guides.

Accordingly, I do not find the Arbitrator misdirected himself by applying a quantitative conception of the test for marked impairment.

Beyond that, as already noted, Guarantee’s submissions consist of a highly granular review of the evidence, always ending with the conclusion that the Arbitrator erred by applying a quantitative conception of the test. It submits that when the proper legal test is applied and the evidence is considered in that context, Mrs. Cumberbatch’s various abilities lead to the conclusion that she was not catastrophically impaired in the realm of adaptation.

However, since I have found that the Arbitrator did not misdirect himself, and since it is not my role to weigh the evidence, I find it is not necessary for me to engage in that kind of close review of the evidence or the detailed submissions regarding it.

As set out in the concluding paragraphs from the decision quoted above, the Arbitrator was well aware of the abilities Mrs. Cumberbatch had shown. However, he weighed that evidence against the evidence of her restrictions and made a number of findings that her impairment levels significantly impeded useful functioning. What Guarantee is really seeking from me is to reach my own conclusions on the evidence, but that is not my role. The Arbitrator applied the correct principles and made the necessary findings.

Accordingly, the appeal is denied, and the Arbitrator’s order is affirmed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.