Neutral Citation: 2017 ONFSCDRS 285

FSCO A15-004052

BETWEEN:

BRIAN GAVIN

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Louise Barrington

Heard: In person at the offices of ADR Chambers, 18 King Street East, Toronto, on August 8, 9, 10 11, and written submissions completed on August 25, 2017

Appearances: Mr. Bradley Duby, Lawyer for Applicant Mr. Jamie Pollack, Lawyer for Insurer

The Applicant, Mr. Brian Gavin, an Ontario resident, was injured in an accident in the state of Georgia, U.S.A., on May 14, 2011, while a passenger in a motor vehicle. He sought accident benefits from Coachman Insurance Company (“Coachman”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Gavin, 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 Mr. Gavin sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?
Is Coachman liable to pay Mr. Gavin’s expenses in respect of the arbitration?
Is Mr. Gavin liable to pay Coachman’s expenses in respect of the arbitration?

Result:

As a result of the accident, Mr. Gavin has sustained a catastrophic impairment within the meaning of the Schedule.
As requested by the Parties, this decision is final save as to expenses. In the event that the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, pursuant to section 282(1) of the Insurance Act, the parties or one of them may request an appointment with me for determination of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Mr. Gavin was 48 years of age when he flew from his home in Toronto to Atlanta, Georgia at the invitation of a friend he had met through work. On the way to the friend’s home from the airport, he was dozing in the front passenger seat, wearing his seatbelt, when he suffered serious injuries in a motor vehicle accident. He underwent surgery in Atlanta, then was repatriated to Toronto for more surgeries, treatment, and recuperation. After a long convalescence, and continuing treatment, Mr. Gavin continues to suffer from multiple ailments, both physical and mental. He can no longer work and his life has changed appreciably.

The Issue

There is no argument as to the fact that the Applicant at the time of the accident was insured under a policy issued by the Insurer. Both parties agree that Mr. Gavin’s injuries were serious and that he has not attempted to exaggerate the extent of his disability or his pain. The Applicant claims that his impairments qualify as catastrophic under the Schedule. The Insurer disagrees. The sole issue in dispute in the present case is whether Mr. Gavin sustained a catastrophic impairment as a result of the accident.

The Law

The Applicant has the burden of proof to show on a balance of probabilities that the impairment he has suffered is catastrophic and that the impairment was caused by the motor vehicle accident. Where the experts differ, it is the arbitrator’s task to evaluate the testimony of each and to decide which evidence is to be preferred, then use that evidence to resolve the legal issue. The Schedule is a remedial statute for the protection of consumers; it must therefore be interpreted in a remedial manner – to assist an injured person in accessing benefits.²

The arbitrator’s task is to consider and evaluate the experts’ findings along with other evidence with respect to the impairments, choose those which seem most persuasive, and to use judgment in arriving at a conclusion as to whether on a balance of probabilities Mr. Gavin’s impairment reaches the 55% bar.

In the landmark case of Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735, Justice Spiegel set out the approach to be taken in assessing catastrophic impairment: “It is in accordance with the Guides to assign percentages to [the Applicant’s] psychological impairments and to combine them with his physical impairments in determining whether or not he meets the definition of catastrophic impairment…”.³

The AMA Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”) recognize the significance of physicians’ discretion in evaluating impairment: “If in spite of an observation of a test result the medical evidence appears not to be of sufficient weight to verify that an impairment of a certain magnitude exists, the physician should modify the impairment estimate accordingly, describing the modification and explaining the reason for it in writing.”⁴

(a) What constitutes a catastrophic impairment under the Schedule?

In the absence of paralysis, amputation, blindness or coma, the Applicant must prove that his impairment meets the criteria of section 3(2)(e) or (f). Both parties agree that there is insufficient evidence to establish a Class 4 or 5 impairment under subsection (f) as none of the experts consulted rated Mr. Gavin’s psychological impairments in Class 4 or 5. Mr. Gavin bases his claim on subsection (e), “an impairment or combination of impairments that in accordance with the AMA Guides… results in 55 per cent or more impairment of the whole person”. In evaluating the level of impairment, the Schedule directs medical assessors to be guided by the AMA Guides. Experts for both sides relied on the AMA Guides but arrived at dissimilar conclusions.

(b) Was the Applicant’s impairment caused by the motor vehicle accident?

If the Applicant’s impairment is found to be 55% or more, the Applicant must also establish on a balance of probabilities that his impairment was caused by the motor vehicle accident. Over twenty years ago the Supreme Court of Canada decided that if an accident has made a material contribution to the person’s impairment, or has worsened a pre-existing impairment, then the impairment was directly caused by the accident and the sum of the impairments’ impact upon a person’s function should be evaluated. The accident is responsible for the totality of the impairments if it has caused a material impact to a pre-existing impairment.⁵ An arbitrator considering the notion of causation from this perspective may arrive at a different conclusion from that of a medical expert who is considering possible multiple causes and their respective contributions to a patient’s impairment. For this reason, the arbitrator cannot simply adopt expert opinion(s), but must assess the medical and other evidence from the legal perspective. This involves consideration of all the evidence including the medical evidence, while also focusing on the Applicant’s pre-accident and post-accident levels of functioning and activities, as well as potential future deterioration.

In its written submissions, Counsel for the Insurer pointed out that the role of the adjudicator is not simply limited to picking one side’s theory or expert opinion over that of the other side. An arbitrator, like a judge, must act as a judge, not a rubber stamp. He also quoted Arbitrator Huberman‘s comment in Taylor and Pembridge Insurance⁶ stating,

[T]he trier of fact has the responsibility to try to accurately express and estimate all of the impairments…sustained as a result of the accident, and then to determine whether the insured person, on a balance of probabilities, has sustained a catastrophic impairment… The adjudicator must weigh expert evidence and determine its probative value. Like all other evidence, expert testimony must be given only the weight it deserves - no more, no less. The adjudicator may accept the expert evidence, reject it, or accept part of it and reject other parts of it... Adjudicators decide cases, experts do not.

To assess impairment involves a comparison of the Applicant’s situation and abilities prior to the accident and the reduction or deterioration of that situation and his abilities after the accident, with the difference known as the whole person impairment (“WPI”). The WPI may result from one or more different types of impairment, which are combined to reach the combined WPI required by section 3(2)(e). The combination calculation is not a simple addition but a calculation method producing values n the Combined Values Chart at page 322 of the AMA Guides.

Mr. Gavin produced evidence from a number of medical specialists, as did the Insurer. In some areas the experts’ observations were quite close. But specialists for the Applicant and for the Insurer reached different conclusions in evaluating the data. The experts who testified on Mr. Gavin’s behalf concluded that his combined WPI was between 62% and 71%. On the other hand, the experts supporting the Insurer’s position testified that Mr. Gavin’s WPI rating fell between 48% and 51%.

Although the ranges of disability reported by the two parties’ experts were not far apart, they fell on opposite sides of the 55% bar established by the Schedule. In making their calculations some specialists also disagreed on the question of what caused some aspects of Mr. Gavin’s impairment.

Pre-accident history

At the Hearing Mr. Gavin testified as to his lifestyle before and after the accident, as did his wife, Brid. Born in Dublin, Ireland, the Applicant trained as a machinist, but was unable to find work in his chosen field. In 1989, in search of work as a machinist, he immigrated to Canada with Brid and their young daughter. Within a few weeks of their arrival, Mr. Gavin found a full-time machinist job on the night shift with Noma Cable, later known as Southwire. Within a year, he became lead machinist, and worked for the same company for over 21 years, until the date of the accident. He testified at the Hearing that he loved his job and it was very important to him; aside from the paycheque, he enjoyed the physically heavy work, the responsibility and the friendships with his fellow workers.

Mr. Gavin stated that much of his social life revolved around work. He worked overtime frequently, but outside work he was a talented shuffleboard and snooker player, enjoying a game and “a pint” with coworkers at the end of the day. He also volunteered at the Stouffville Legion, attended church services regularly with his wife and participated in the annual Poppy campaign. Despite his weight, which he put at 340 to 350 pounds before the accident, he was very active and liked to fish, play golf, walk and swim.

Mr. Gavin’s medical condition before the accident was mostly unremarkable and not disputed. Mr. Gavin is a very large man, 6 feet 7 inches tall, and weighed at least 340 pounds at the time of the accident. Aside from a broken foot in his teens and a minor car accident in 2010, there was no evidence that he had suffered pre-accident physical or psychological problems, although he was using a CPAP machine to assist with sleep apnea. He testified that he was a smoker - about half a pack of cigarettes a day - until the accident. He enjoyed a drink and there are some indications in evidence that prior to the accident he may have drunk to excess. He admitted to being overweight prior to the accident, but said his health was good. He worked at a heavy but satisfying job without problems and there was no pre-accident evidence of alcohol-related disease or diabetes. He testified that he had never previously found it necessary to seek help for any emotional difficulties.⁷

The Accident of May 14, 2011 and its aftermath

At the Hearing, Mr. Gavin recalled that he was dozing in the passenger’s side when he awoke to the screaming of his friend who had lost control of the vehicle. The Jeep left the road, rolling over several times before landing on the passenger side. His friend was able to climb out of the vehicle leaving the Applicant trapped in the car. Mr. Gavin testified that when the car came to rest, he found his arm bent over his head unnaturally, the seatbelt had tightened during the crash and was crushing his ribcage area, and the bones from his lower left leg were protruding from the skin. The driver was screaming, urging him to get out, as the car was about to explode.

In fact, no explosion occurred, and when the rescue team arrived they were able to extricate the Applicant, despite his large size and weight and serious injuries, using the Jaws of Life to cut the vehicle away from him. He was transported first to a local medical centre, and then, in view of the gravity of his injuries, to Atlanta Medical Centre. There, the doctors performed open reduction internal fixation procedures on his left lower leg and his right elbow. He was later transported to his Ontario home where it was impossible to care for him properly. After two weeks he was admitted to Markham Stouffville Hospital for three weeks, and then to St. John’s Rehabilitation Hospital in July 2011.

According to his testimony at the Hearing and medical records, he underwent two separate major surgeries, to his right arm and to his left lower leg. Over the following months the Applicant graduated from bed to wheelchair for three months, and then began to walk with the assistance of two canes for two months, and then a single cane. Doctors at St. John’s discovered atrial fibrillation. He suffered from shortness of breath and in his words, “I was a mess.” Limited to a sedentary lifestyle while recovering, he testified that he gained 100 pounds in 2014 and then lost the weight with the help of a programme at Humber in 2015. At the time of the Hearing, approximately six years post-accident, he was still using a cane, and demonstrated some discomfort while remaining seated during the long days of the Hearing. Both the Applicant and his wife testified that the cane is necessary except in their home where there are railings or furniture available for him to grab for support. He continues to suffer from his arm and leg injuries and will probably need replacement surgery to his right elbow, although he has been advised to delay this as long as possible.

Medical records corroborate Mr. Gavin’s testimony that both his shoulder and leg surgeries were complicated by separate infections. His leg wounds took a couple of years to heal and the scars are still tender and fragile. He developed significant edema in his left leg as well as less serious swelling in the right leg. For this condition he wore full-leg compression stockings until they no longer fit him when he gained and then lost weight. He needs to keep his feet elevated as much as possible because of swelling. Since the accident he has developed plantar ulcers due to lack of sensation in his left leg and foot, and wears a special boot to prevent the ulcers from getting worse. He is still taking pain medication daily. Doctors investigating chest pain while he was at St. John’s discovered atrial fibrillation.

Mr. Gavin and his wife testified at the Hearing as to the deterioration in his physical condition, abilities and his enjoyment of life since the accident. He continues to see his family doctor and physiatrist Dr. Rado; the latter testified at length during the Hearing. Specialised treatment for his wounds continues, as do regular visits to his chiropodist. Mr. Gavin and his wife testified that for his personal care including bathing, grooming, dressing, wound care and toileting hygiene, Mr. Gavin relies on his wife. Mrs. Gavin prepares the family meals and assists her husband with exercises and skincare. Psychotherapy, interrupted by the retirement of his treating psychologist, is to continue once a replacement psychologist is appointed at St. John’s.

The Applicant described the emotional effects of the accident as “devastating”. Suddenly he was fearful, had no confidence, was frequently terrified as a passenger in a car, felt worthless and angry. These feelings, combined with the financial stress of losing his livelihood, caused tensions with his wife and daughter. Prior to the accident, using the CPAP machine he was sleeping six to seven hours per night. Today, he testified he is “lucky” to sleep four hours a night. His mental state was not improved by the closing of the Southwire plant. He had already been told he would never work as a machinist again, but still considered that as his place of work: “[t]here was a place for me. When it closed, that disappeared.” After the accident many work friends visited him at first, but over the years they have gone their separate ways and he has lost touch with most of them. Since the accident Mr. and Mrs. Gavin have taken a number of trips by plane and by car, to attend a friend’s wedding in Jamaica, and to visit relatives in Ireland. On those trips Mrs. Gavin did the driving as Mr. Gavin was unable to do so. On one trip, in September 2013, the Applicant ended up in a Dublin hospital due to chest pains. Doctors at Jervis Medical Centre in Dublin observed atrial fibrillation and a healed left rib fracture, as well as degeneration of lumbar spine.⁸

Mrs. Gavin testified that she continues to help her husband with showering and personal hygiene, although he has learned to use his left hand for shaving and feeding himself. Before the accident Mr. Gavin worked a lot, but did some things around the house such as gardening, garbage and dishes. Now he cannot do any of these things except “polish a bit”. He wakes very early. He drives his daughter to work. He is generally confined to the ground floor of the house due to difficulty with stairs. Asked on cross-examination about her husband’s alcohol consumption she testified that she would not say he had been a big drinker; the doctors got it wrong. But she finds her husband changed since the accident: “He’s more of a homebody now. He used to go out. We used to get together with our friends. He gets angry now; he’s different. It doesn’t take much to set him off. I stay quiet. It can be a strain on our relationship.” They used to attend church together on Sundays when Mr. Gavin wasn’t working, but seldom go now: “We’ve lost a bit of our faith.” She described trips to Jamaica and to Ireland and France which they did enjoy together, but she had to do the driving as he wasn’t physically able to do it.

Impairment

At the time of the Hearing, approximately six years post-accident, the Applicant’s testimony and medical records included the following complaints:

plantar ulcers and pain in left foot, ankle and shin
reduced range of motion of left ankle
left hip and knee pain
lower back and rib pain
right elbow pain and significantly reduced range of motion
right shoulder pain
headaches
chronic pain
sleep disturbances
passenger anxiety in a motor vehicle
depression
cognitive impairment.

In support of his claim, Mr. Gavin called upon a number of experts to submit reports. The experts considered different types of disorder or complaint in assessing Mr. Gavin’s level of impairment: physical impairment, including musculo-skeletal damage, respiratory difficulties and skin disorders; and psychological impairment. The Applicant presented catastrophic assessments conducted in 2013 and 2014 and 2016, to show that his impairment exceeded the 55% WPI bar, with a range of 62% to 71%. Dr. Rado, the physiatrist who has been treating Mr. Gavin since the accident, completed an OCF-19 in August 2014⁹ and Counsel for the Applicant submitted it along with specialist reports to the Insurer. At the Hearing, Dr. Rado and Dr. Bacal, a psychologist, testified. Reports from Dr. Mate, respirologist, Dr. Paula Gardner, psychologist, Dr. Sekyi-Otu orthopaedic surgeon, Dr. Sawa, neurologist, and Dr. Dos Santos, chiropractor, also were in evidence, but these experts were not called to testify.

On the other hand, Coachman’s position is that Mr. Gavin has failed to show evidence to demonstrate on a balance of probabilities that he has sustained a catastrophic impairment within the meaning of the Schedule as a result of the accident. The Insurer relies on the evidence of Dr. Prendergast, a psychologist, and Dr. Oshidari, a physiatrist, and Dr. Fitchett, a cardiologist, all of whom testified at the Hearing, and physiotherapist Dr. Yip, whose report was filed, but who did not attend the Hearing. Their findings led to a conclusion that Mr. Gavin’s level of WPI was in a range of 48% to 51% and thus did not meet the required standard for a catastrophic impairment.

Psychological disorders

Dr. Bacal, the psychologist who submitted reports on behalf of the Applicant, testified at the Hearing as to Mr. Gavin’s level of WPI. He did not bring his clinical notes with him, testifying that he was not asked to bring notes with him, and relied while testifying on his reports. He agreed to supply his clinical notes later during the Hearing, but neither counsel referred to these after the doctor’s testimony was complete. Counsel for the Insurer pointed at the time lapse (5 to 6 months) between Dr. Bacal’s examination in the date of his first report, inviting the arbitrator to find that the delay might have affected his recall of Mr. Gavin’s case. In assessing Dr. Bacal’s testimony during the Hearing, I found him to be a credible witness.

Dr. Bacal examined Mr. Gavin in November 2013 and wrote three reports, in 2014, 2016 and an update in 2017. He described the screens used to measure truthfulness and to detect dissimulation or malingering. He noted no history of depression prior to the accident. After a full day of investigations with the Applicant, he diagnosed Mr. Gavin with Major Depressive Disorder (including adjustment disorder, stress disorder with a phobia, in partial remission, post-traumatic stress disorder, and features of a chronic pain disorder with psychological factors). Together these produced mild to moderate Class 2 and Class 3 impairments in the four spheres of functioning. Dr. Bacal concluded that the Applicant’s condition was largely attributable to the accident. He originally assigned a WPI score of 20 to 22% based on psychological impairment. In his 2016 report, he found a deterioration in the Applicant’s condition, with Mr. Gavin (corroborated by his wife) reporting that he had become more ill-tempered, impatient, easily annoyed and reactive, and still depressed because of the lack of improvement in his physical condition. Dr. Bacal summed up his review of the other experts’ reports from both sides, and his own most recent findings, saying that Mr. Gavin had had no improvement at all in his physical, psychological or functional status. He found that the Applicant had deteriorated even further and continued to feel disabled and frustrated as a result of his ongoing symptoms - pain, reduced mobility and chronic depression. Dr. Bacal revised his score to 26% to 29%. Having reviewed the reports of Dr. Prendergast, Dr. Oshidari, Dr. Fitchett and others, he stated that they did not lead him to reconsider or modify the opinions and conclusions in his previous reports.

Under cross-examination, when presented with evidence of Mr. Gavin’s holiday travel, as well as concerns regarding the health of Mr. Gavin’s daughter, which had been included in the reports of psychologist Dr. Paula Gardner but were not mentioned in his reports, Dr. Bacal pointed out that these pieces of information could not have altered his first report as they became available only after it was completed. He did acknowledge that if the information regarding travel and the daughter’s problems were accurate, it might have caused him to reconsider “to some extent” but insisted it would not alter his main conclusion. He added that even if the information caused a reduction of a few percent, it would not take Mr. Gavin out of the Moderate score or even into the lower end of the Moderate Score he had assigned. At the Hearing he said,

Does this change the main conclusions? There are elements contributing to the psychological issues - his daughter’s problems; they could have been transient or could have been potential contributors. But it does not change the main conclusion. This was a person who appeared to function just fine. Suddenly he’s involved in a serious, terrifying accident and now he has problems. In this context problems with the daughter, or the fact that he was able to travel does not significantly alter my opinion. It does not change the picture.

Dr. Bacal observed that the observations and conclusions of Dr. Prendergast, the psychologist who examined the Applicant on behalf of Coachman, were quite similar, but criticised his report for its failure to consider, or to adequately consider, non-work aspects of adaptation in assessing psychological impairment.

A review of Dr. Gardner’s reports¹⁰ referred to by the Insurer’s counsel disclosed her observations of Acute Stress Disorder, marked by re-experiencing, avoidance and hyper-arousal with respect to a traumatic event. Mr. Gavin’s responses were significant in all three areas. Dr. Gardner diagnosed adjustment disorder with depressed and anxious mood and post-traumatic stress disorder, but no personality disorder. She also mentioned his concerns regarding his inability to return to full physical function and to a career that he could enjoy. Overall, she observed moderate to severe symptoms, diagnosed moderate to severe difficulties in functioning, and recommended continued psychotherapy, mood medications and liaison with other treating professionals to ensure appropriate professional management.¹¹ In 2014 she noted that because of his significant medical problems his psychological status had “taken a turn for the worse”. The ulcerations on his foot were making him upset and anxious.¹²

Dr. Prendergast, on the other hand, noted Mr. Gavin’s difficult childhood, but no substantive pre-accident psychological history. He believed that Mr. Gavin had had a generally positive upbringing. Dr. Prendergast found the Applicant to be psychologically capable, resilient, and motivated. Without taking into account Mr. Gavin’s physical impairments, Dr. Prendergast concluded that psychological impairments constituted either no impairment or a mild impairment across the four spheres of functioning. In his report of November 12, 2014 his expressed opinion was that the Applicant had “an excellent relationship with his daughter and wife, and as well he continues to maintain excellent relationships with friends.”¹³ This contrasts with testimony of Mr. Gavin, his wife and other medical practitioners about his reduced social activity, and friends who no longer came around. Dr. Prendergast did record “above average reports of depression”. He did not consider that the Applicant had any impairment in concentration, persistence or pace, and only mild impairment in other domains which “typically do not have incapacitating symptoms but likely [cause] lowered level of efficiency relative to emotional concerns…reduced self-esteem but without more intense symptoms of a major depressive disorder.” He did acknowledge that Mr. Gavin had said “he didn’t feel as sharp as he used to” but attributed that to depression and sleep difficulties. Dr. Prendergast’s diagnosis was of a persistent depressive disorder but not a major depression. He assigned a 14% to 20% WPI impairment score from a mental and behavioural perspective, noting that he was not taking into consideration any of the possible physical causes of Mr. Gavin’s impairment.¹⁴

Physical complaints

Respiratory limitations. Dr. Mate, the respirologist who assessed Mr. Gavin in 2013 and followed up in 2014,¹⁵ rated his impairment in the mild range of 10% to 25%. She settled on 10% because she assumed that a part of his impairment was attributable to smoking half a pack of cigarettes daily, obesity and alcohol consumption prior to the accident. While the Applicant and Insurer differ in their characterisations of what is “heavy” or “excessive” with respect to alcohol, cigarettes and weight, there is no argument that all three factors had been present prior to the accident.

The Insurer did not appear to take issue with Dr. Mate’s opinion, as it brought no evidence to contradict it.

Atrial Fibrillation. The Applicant had no pre-accident history of cardiac symptoms, despite being engaged in a very physical occupation involving heavy lifting. While under treatment in St. John’s in August 2011 he was diagnosed with atrial fibrillation, an irregular heartbeat which can result in shortness of breath, or stroke. The Applicant contends that it was the trauma to his ribcage by the action of the seatbelt impacting on his very heavy body as the car rolled over that provoked the atrial fibrillation. This theory was supported by some of the medical specialists who examined him. Dr. Fitchett, the cardiologist who examined Mr. Gavin in October of 2014 (when he was at his top weight of about 425 pounds), testified that the fibrillation could have preceded the accident and simply not been noticed.

Skin Disorder: Plantar ulcers and unhealed scars. Dr. Eisenberg, a wound consultant at Sunnybrook Hospital, examined the Applicant on October 24, 2016 and reported, “Mr. Gavin has neuropathic ulcers of the left foot as a result of nerve damage from the motor vehicle accident. Because of loss of protective sensation, the pressure areas on his foot are susceptible to injury because of repetitive pressure. The main treatment for these types of injuries is pressure off-loading.”¹⁶ This was in addition to major scars from the compound fracture of Mr. Gavin’s left leg, which took many months to heal and repeatedly became infected. In January of 2017 Dr. Eisenberg noted deterioration in the wound and expressed a concern that Mr. Gavin has developed osteomyelitis. Mr. Gavin wears an air cast pressure boot on the left foot to alleviate the pressure. In his report of July 4, 2017 Dr. Eisenberg expressed concern that because of the length of time since the accident it is likely that the loss of sensation is permanent and Mr. Gavin will continue to be at risk for neuropathic ulcers, which have proven extremely difficult to heal. A worst case scenario would involve lower leg amputation.¹⁷

Peripheral Neuropathy. Dr. Sawa, a neurologist, diagnosed peripheral neuropathy in November 2016, with muscle wasting, loss of sensation and reflexes in both legs, perhaps slightly worse in the left leg. This condition may result in ulcer formation as normal skin sensation is one factor which protects the skin from developing such ulcers. Although diabetes is a common cause, Dr. Sawa stated that Mr. Gavin was not known to have diabetes. Dr. Rado testified that he had no knowledge of a diagnosis of diabetes in his years of treating Mr. Gavin. Mr. Gavin also testified quite emphatically that he has never been diagnosed with diabetes. In Dr. Sawa’s opinion the condition is in part due to the accident and in part due to further trauma resulting from surgical procedures and infection. Dr. Sawa’s report stated that the lack of sensation, having not resolved in the (then) five years since the accident, is likely permanent.¹⁸

Musculo-skeletal Impairment. Dr. McKee, an orthopedic surgeon, specializes in orthopedic trauma reconstruction. He originally saw Mr. Gavin in January 2012 at the fracture clinic of St. Michael’s Hospital. Dr. McKee submitted an expert report but was not present at the Hearing. He examined and then operated on Mr. Gavin’s right elbow, and then on his left foot and ankle. In his report of December 2016,¹⁹ he stated that Mr. Gavin is still under active treatment, with physiotherapy, massage, home exercises and medications, including 2 to 4 Percocet daily and an antibiotic for the foot ulcers. Dr. McKee noted that there had been some improvement over four years, but that Mr. Gavin seemed to have “plateaued” and would likely start to experience deterioration because of post traumatic osteoarthritis. Dr. McKee considered it likely that the Applicant will require an ankle fusion and arthroplastic surgery on his elbow in the future, although he recommends doing the latter procedure at the last possible date so that the replacement joint would last for the rest of Mr. Gavin’s life.²⁰

Dr. Sekyi-Otu, an orthopedic surgeon certified in Impairment and Diversity measurement, reviewed Mr. Gavin’s files and examined him on November 23, 2016. He submitted a report at the Applicant’s request, but was not present at the Hearing. In his calculations regarding lower extremities, he used only gait impairment, which being a stand-alone measurement (not to be combined with others), gave Mr. Gavin a more generous result. He concluded that from a musculoskeletal perspective, Mr. Gavin had an impairment in the range of 42 to 53%, not in itself sufficient to justify a finding of catastrophic impairment. His calculation did not include the psychological or respiratory impairments assessed by Dr. Bacal and Dr. Mate.²¹

Dr. Rado, a physiatrist, has treated the Applicant since August of 2011, when Mr. Gavin arrived at St. John’s Rehab Centre. He prepared reports dated April 28, 2014 and July 14, 2014 including an Executive Summary co-signed by Drs. Mate and Bacal. In 2014 he recorded Mr. Gavin’s injuries as follows:

right elbow: significantly comminuted and displaced, open, right distill humorous and olecranon fracture with intra--articular involvement
left lower leg: comminuted and displaced, open, left distal tibia/fibula fracture, and left bimilleolar ankle fracture
head: ecchymosis face and forehead
torso: anterior abdominal wall contusion, chest wall contusion in the distribution of seatbelt restraints, subcutaneous hematomas; atelectasis lung bases and rib injury from seatbelt
post-accident/surgery deconditioning.

He also described Mr. Gavin’s current status, including pain, decreased range of motion, muscle atrophy in left leg, tremors, possible osteomyelitis and difficulty with ambulation, concluding that Mr. Gavin continued to have significant physical impairment and could require surgery in future. He also reviewed the list of medicines including narcotic analgesics and creams and antibiotics.

He assessed a musculoskeletal impairment (Chapter 3) WPI rating of 36-48%. This, when combined with Dr. Mate’s net respiratory impairment of 10% and Dr. Bacal’s original psychological impairment of 20-22%, skin disorders of 15-17% and the burden of treatment at 3%, the Executive Summary yielded a 52 to 62% WPI score. These figures are not simply added together, but are combined according to a formula called the Combined Values Chart in the AMA Guides. As the Applicant’s counsel pointed out, “If the lowest ratings are combined (52%) the SABS criterion is not met. If the midpoints of the ratings are combined (57%) the criterion is met. If the highest ratings are combined (62%) the criterion is met.”²²

Dr. Oshidari, the physiatrist who examined the Applicant at the request of the Insurer, also prepared an executive summary assigning overall WPI ratings. He has done over 100 Catastrophic Impairment assessments, “99% on behalf of insurers.” He assessed Mr. Gavin first on November 14, 2015 and again on January 16, 2016 He noted headaches, possibly stemming from neuralgia (nerve damage), atrial fibrillation, and a fracture of the right clavicle and of the right elbow, resulting in sensory abnormality and deceased range of motion in the upper body. He arrived at a physical impairment of 32%, which combined with the psychological impairment assessed by Dr. Prendergast produced a WPI of 42 to 46%.²³

This assessment did not take into consideration the impairment reported by Dr. Mate, which was not contradicted, nor the spinal and skin disorders reported elsewhere. Counsel for the Insurer provided an extremely useful chart at page 10 of its Post Hearing Brief, comparing the two summaries and showing where the data differed according to the choices made by each physician’s methodology.

The Applicant retained a chiropractor, Dr. Dos Santos, who reviewed the Insurer’s assessments. Dr. Dos Santos examined Mr. Gavin in November 2016, when his weight had gone down to 325 pounds. He did not testify at the Hearing, but according to his report the Insurer’s assessors were flawed, both in what was counted and how it was counted. Dr. Dos Santos concluded that the Insurer’s assessors should have found a physical impairment rating of 45% WPI, not including Dr. Mate’s respiratory rating, or the psychological impairment.²⁴

At the Hearing, Dr. Oshidari criticised Dr. Rado’s summary for double-counting, while Dr. Bacal’s report criticised Dr. Oshidari’s summary for failure to properly consider every disorder. One particular statement of Dr. Oshidari’s was, although of relatively minor influence, rather remarkable, regarding Mr. Gavin’s lower back pain. He testified that pursuant to the AMA Guides if there is a pre-existing spinal injury it stays for the duration of the patient’s life. Mr. Gavin had sustained minor lower back pain in a previous accident, which did not cause him to take time off work and which had been completely resolved within a few weeks, that is, months prior to the subject accident. According to Dr. Oshidari, a 5% lower back impairment from the resolved previous condition had to be subtracted from the 5% impairment found subsequent to the subject accident. Under cross-examination, he admitted that this did not seem to make sense and he did not understand the reason for the subtraction, but “that’s what the Guide says.”

The AMA Guides reads as follows:

[I]n apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment… Using this approach to apportionment would require accurate information and data on both impairments.²⁵

At the Hearing Dr. Oshidari appeared to say that “pre-existing” included all impairments which had existed prior to the accident, including those which were resolved prior to the accident. Given that there is no objective data regarding the first impairment, described as minor, and which had completely resolved prior to the accident, I find that this subtraction interpretation of the AMA Guides is both illogical and impossible to calculate, and should not be used for the purpose of this assessment. This leaves Dr. Sekyi-Otu’s 0-5% lower back impairment rating intact.

The Insurer suggests that Dr. Rado’s longstanding doctor-patient relationship with the Applicant has affected his impartiality in applying the AMA Guides. On the other hand, his long-term relationship with the Applicant affords him the most comprehensive insights into the patient’s history, signs and symptoms, development and prognosis.

In collating and evaluating all the measurements and using the AMA Guides, physicians do retain some discretion; perfect objectivity is impossible and professional judgment plays a part in arriving at a “final” score. The AMA Guides is for evaluating impairments, not a binding set of rules. There is no single “right” figure, but rather “ranges of impairment” which at most can be subdivided into low, medium or severe within those ranges. Thus, I make no general finding about which doctor’s data was more “accurate” but observe that in most cases, their measurements are not seriously different, the variation in conclusions arising from the individual doctors’ decisions about what to include and how to interpret those measurements.

Looking at the WPI scores from the three reports, the musculo-skeletal impairment evaluation of the lower body is where the major differences in conclusions appear. Dr. Oshidari’s WPI score, using Gait alone and with no value given for skin disorders, is 48 to 51%; Dr. Rado’s score, including other lower body impairments, is 48%to 57%; Dr. Sekyi-Otu’s score, including other physical impairments (also without the psychological impairments), is 42% to 53%. The discrepancies, which the experts agree should not normally exceed 10% among trained assessors, arise largely from the method of counting the lower extremity impairment. I prefer the approach of Dr. Rado and that of Dr. Sekyi-Otu, both of whose physical impairment scores if combined with the psychological and respiratory scores would take the Applicant over the 55% bar. Dr. Oshidari’s rigid adherence to a rule of the AMA Guides, which he admitted did not always make sense, seems contrary to the remedial interpretation to be accorded under the Schedule. I find the Applicant’s level of WPI is 55% or higher, and is therefore catastrophic within the meaning of s. 3(2)(e) of the Schedule.

Causation

There is no dispute as to the physical injuries suffered by Mr. Gavin to his elbow and leg being directly caused by the accident. There is evidence also that the chest trauma and injuries could have been exacerbated by his size and weight. However, the Insurer contends that the Applicant’s heart condition, respiratory difficulty and psychological problems may have had other causes or may have pre-dated the accident. The Insurer points to the Applicant’s obesity, alcohol use and smoking.

Dr. Sawa, a neurologist retained by the Applicant, explored possible causes for the lack of sensation in Mr. Gavin’s left foot which has given rise to the plantar ulcers requiring him to wear a special boot. Dr. Sawa stated that Mr. Gavin has never had diabetes but alcohol might have contributed to the development of peripheral neuropathy. He states in his report,²⁶

[T]he loss of sensation below the left knee is in part due to a combination of direct trauma at the time of the accident… as well as indirect trauma secondary to edema and infection of this portion of the leg. …The reduced sensation as a result of the combination of the accident-related nerve injury and peripheral neuropathy has predisposed Mr. Gavin to develop ulcers of the skin…secondary to chronic pressure on these regions.

Dr. Sawa concluded that the loss of sensation is a result of the direct trauma caused by the motor vehicle accident. Some experts mentioned diabetes as a possible contributing factor to the development of the ulcers. Mr. Gavin denies having diabetes, and Dr. Rado who has treated him since shortly after the accident, has never been aware of any history of diabetes. While the combination of smoking, alcohol and excess weight might produce a susceptibility to diabetes, they are by no means a guarantee of its existence. I find Dr. Sawa’s assessment fair and persuasive, and consistent with the approach endorsed by the Supreme Court of Canada mentioned above. It is probable that the loss of sensation was caused by the accident, and not by pre-existing peripheral neuropathy or by diabetes. Dr. Sawa also concluded that Mr. Gavin’s headaches and numbness in his fingers was probably due to the injuries to the elbow region sustained in the accident.

The Insurer’s cardiologist, Dr. Fitchett,²⁷ noted that Mr. Gavin’s ECG exam showed atrial fibrillation and hypertension. He thought it probable that the fibrillation was present previously but not recognized before the accident. He testified at the Hearing that even without obvious symptoms, Mr. Gavin was a high-risk individual and it was “only a matter of time” before he developed fibrillation. He commented that many elderly people have irregular heartbeats. Mr. Gavin, as an obese former smoker, was a “susceptible individual”.

Dr. Fitchett’s opinion was that there was “not a true causal relationship between the accident and the atrial fibrillation.”²⁸ He agreed with Dr. Mate, the respirologist, that Mr. Gavin had significant reduction of pulmonary functions and did not disagree with her conclusions. He testified at the Hearing that, “perhaps the accident put him over, [i.e., provoked the fibrillation] I have no idea. Even emotional or psychological stress could put him over. Surgery trauma could provoke it, but if he wasn’t susceptible it would be unusual.” He did not appear to address specifically the possibility that the trauma of the seatbelt striking and cutting into Mr. Gavin’s torso - which caused a broken rib – could have been a direct cause of the atrial fibrillation.

Dr. Fitchett’s conclusion of no causation appears to be based on the premise that if Mr. Gavin was a susceptible individual, then the accident trauma could not be considered the cause of the accident, as he would have developed the fibrillation at some point with or without the accident. While this may be valid from a medical standpoint, it is not necessarily true for an analysis of legal causation. Susceptibility without any evidence of impairment is not evidence against causation. The Applicant prior to the accident functioned well; aside from sleep apnea, he had no symptoms of physical or mental problems. He was physically independent, worked, enjoyed an active social life, contributed to his domestic life and did not suffer from any known psychological problem. Since the accident, all that has changed. Even had there been a pre-existing condition (which has been suggested but not proven), the accident has aggravated it to the point that it has materialised and become an impairment. But for the accident, the symptoms which today impair the Applicant’s functions might never have appeared, or might have appeared decades later. I therefore find that the Applicant’s impairments were caused by the accident.

Conclusion

Having carefully reviewed the evidence of the Applicant, his wife, and the experts who testified on behalf of both the Applicant and the Insurer, I find on a balance of probabilities that the motor vehicle accident was the cause of a catastrophic impairment sustained by the Applicant.

Expenses of the arbitration

The Parties have jointly requested that I defer my decision on expenses until after the release of my decision on the merits of this dispute. The Parties have not submitted any evidence or argument on their expenses. I invite the Parties to agree on the allocation of expenses and on a reasonable amount for those expenses pursuant to section 282(1) of the Insurance Act, failing which either may apply to me for an assessment under Rules 75 to 79 of the Dispute Resolution Practice Code.

October 31, 2017

Louise Barrington Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

As a result of the accident, Mr. Gavin has sustained a catastrophic impairment within the meaning of the Schedule.
As requested by the Parties, this decision is final save as to expenses. In the event that the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, pursuant to section 282(1) of the Insurance Act, the parties or one of them may request an appointment with me for determination of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.