Mohammad Fallahi v. Aviva Canada Inc., 2017 ONFSCDRS 56

minicounsel

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 56

FSCO A14-006456

BETWEEN:

MOHAMMAD FALLAHI

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Edward Lee

Heard: June 6, 7, 8, 9, 10, 13, 14, 15, and 16, 2016, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: David R. Neill for Mr. Fallahi Robert H. Rogers for Aviva Canada Inc.

Issues:

The Applicant, Mohammad Fallahi, was injured in a motor vehicle accident on August 1, 2008. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Mr. Fallahi also sought a determination that he was catastrophically impaired. The parties were unable to resolve this dispute through mediation, and Mr. Fallahi 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:

Is Mr. Fallahi catastrophically impaired in that he suffers an impairment that, in accordance with the AMA Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder?
Is Mr. Fallahi catastrophically impaired in that he suffers an impairment or combination of impairments that, in accordance with AMA Guides, results in 55 percent or more impairment of the whole person?

Result:

Mr. Fallahi is not catastrophically impaired in that he does not suffer an impairment that, in accordance with the AMA Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
Mr. Fallahi is not catastrophically impaired in that he does not suffer an impairment or combination of impairments that, in accordance with AMA Guides, results in 55 percent or more impairment of the whole person.

EVIDENCE AND ANALYSIS:

1. Is Mr. Fallahi catastrophically impaired in that he suffers an impairment that, in accordance with the AMA Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder?

Arbitral case law has determined that to be catastrophically impaired under this criterion, the applicant needs to have suffered a marked or extreme impairment in at least one of the four areas or aspects of functioning listed at page 301 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”)²

These four areas or aspects of functioning are as follows:

(1) Activities of daily living

(2) Social functioning

(3) Concentration persistence and pace

(4) Adaptation

(a) Opinions of the Two Assessors:

In Mr. Fallahi’s case, the assessments of mental and behavioural disorders were performed by Dr. D. Becker (psychologist and member of the Omega team, appearing on behalf of the Applicant), and by Dr. W. Gnam (psychiatrist and member of the Centric Health Assessment team, appearing on behalf of the Insurer).

Both assessors arrived at similar diagnoses for Mr. Fallahi. Dr. D. Becker diagnosed him with Major Depressive Disorder, Single Episode, Moderate to Severe, Anxiety Disorder not Otherwise Specified, and Pain Disorder Associated with Both Psychological Factors and a General Medical Condition at the present time.³

Dr. Gnam diagnosed Mr. Fallahi with Depressive Disorder Not otherwise Specified (Differential diagnosis: Major Depressive Disorder, single episode chronic), Pain Disorder Associated with both Psychological factors and a General Medical condition, Anxiety Disorder Not otherwise Specified (features of PTSD) and Specific Phobia.⁴

The experts’ assessments of Mr. Fallahi’s impairments under the four areas of functioning described in the AMA Guides were also similar, but with one significant difference.

Dr. Gnam described Mr. Fallahi’s levels of impairments in the four areas as follows:

Activities of daily Living: MILD TO MODERATE

Social Functioning: NIL TO MILD

Concentration, pace and persistence: MILD

Adaptation: MILD TO MODERATE⁵

Dr. D. Becker described his levels of impairments in the four areas as follows:

Activities of daily Living: MODERATE

Social functioning: MODERATE

Concentration, persistence and pace: MODERATE

Adaptation: “… appears to evidence at times as low as a Class 3 moderate impairment and at other times as high as a Class 4 marked impairment.⁶ [Italics mine]

According to Dr. Gnam, Mr. Fallahi had not suffered a marked or extreme impairment in any of the four aspects, and accordingly, he was not catastrophically impaired in this category.

Dr. D. Becker’s opinion was more equivocal. The significant departure was in her conclusion in regard to Adaptation, where Dr. D. Becker determined Mr. Fallahi’s impairment was “at times as low as class 3 and at other times as high as class 4.” [Italics mine]

Nonetheless, Dr. D. Becker never expressly opined that Mr. Fallahi was catastrophically impaired under this category. In her Addendum Report, she stated that it was up to the trier of fact to determine if her assessment under the Adaptation category was “sufficient to meet the threshold for Catastrophic Impairment.”⁷

Accordingly, I must decide which of these two opinions is more probative as Dr. Gnam states that Mr. Fallahi is not catastrophically impaired, but Dr. D. Becker suggests that I might apply her conclusions to determine that Mr. Fallahi is indeed catastrophically impaired under this category.

(b) Analysis of Dr. D. Becker’s and Dr. Gnam’s Opinions:

First, it is important to note a distinction between some of Dr. Gnam’s ratings and those of Dr. D. Becker’s. Mr. Fallahi submitted that Dr. Gnam’s ratings were as ambiguous and equivocal as those of Dr. D. Becker’s, because Dr. Gnam determined Mr. Fallahi to be “NIL TO MILD” in social functioning, and “MILD TO MODERATE” in the Adaptation area.

In testimony, Dr. Gnam clarified his ratings by saying that he had determined Mr. Fallahi fell exactly at the intersection of the two descriptors listed in the Guides (i.e. between MILD and MODERATE). Thus he placed Mr. Fallahi at the midpoint of these two classes, and differentiated this from Dr. D. Becker’s rating which found that Mr. Fallahi was “at times as low as Moderate and at other times as high as Marked.”

I accept Dr. Gnam’s explanation and understand his rating to mean that he has assessed the subject as falling exactly at the precise point in between the two ordinal descriptors. In contrast, Dr. D. Becker’s rating simply states that Mr. Fallahi was “… at times as low as class 3 and at other times as high as class 4.”

Having differentiated those ratings of the doctors, I found that overall, Dr. Gnam’s opinion was more convincing and probative than the opinion of Dr. D. Becker. I make this determination for the following reasons:

First, In addition to Dr. D. Becker’s ambiguous and equivocal determination in Adaptation, I found the probative value of her report was generally weaker because much of it was predicated on an erroneous factual base. For instance, Mr. Fallahi had reported to virtually every assessor, including Dr. D. Becker, that he had been working at one and sometimes two jobs at the time of his accident, as a pizza maker (as many as 20-25 hours per week), and as a kitchen cabinet maker (as many as 70-80 hours per week).

In testimony he repeated this claim, but in cross-examination it was determined that his employment at the pizza parlour had ended approximately nine months before his accident. Further, he also had no documentation whatsoever to support his claims that he had ever worked as a cabinet maker, and he gave no explanation for the absence of documents.

Not only was Dr. D. Becker misinformed about his work status at the time of the accident, but she also believed and noted that he had effected a return to work at the pizza parlour between 2012 and 2013⁸, and had worked there for “about a year”. In testimony Mr. Fallahi confirmed that he had not returned to work. Another witness, Mr. R. Farah (who had worked with Mr. Fallahi at the pizza parlour and helped him find that job), confirmed this fact.

Second, Mr. Fallahi was also a poor historian in regard to his personal relationships. In testimony, he stated that he had met his current girlfriend, Seema Syed, sometime between June and December 2012, and they dated for the first two years, but the relationship gradually intensified and became the serious relationship they now had. Dr. D. Becker reported that when she interviewed him on May 13, 2014, he had been in one “casual relationship” since the accident, but he was no longer involved in that relationship at the time of the interview and was not interested in “finding a partner.”⁹

Nevertheless, at the hearing, it was determined that Mr. Fallahi had, in fact, listed Ms. Syed as a second driver on his car insurance in as early as 2012.¹⁰ I agreed with Aviva’s submission that a person in a “casual relationship” would likely not list that other person as a second driver on his car insurance.

Further, there was no doubt that Mr. Fallahi’s relationship with Ms. Syed continued and intensified (if it had not already been serious) after the time of the first report conducted by Dr. D. Becker. Nonetheless, there was no mention of this more intensive relationship in Dr. D. Becker’s second report¹¹ of August 2015. For whatever reason, Dr. D. Becker simply had no knowledge of this important relationship.

On cross-examination, Dr. D. Becker agreed that knowledge of the nature and quality of personal relationships was relevant to an assessment of mental and behavioural disorders and the Global Assessment of Functioning.

Third, Dr. D. Becker’s opinion was weakened in that she did not have the benefit of a functional evaluation of Mr. Fallahi to aid her assessment, especially in the area of Adaptation. Dr. D. Becker wrote that such functional assessments were potentially quite advantageous when conducting mental and behavioural assessments,¹² and stated in testimony that they could provide “valuable information” and be a “wonderful addition”. Dr. Gnam stated he always sought a functional evaluation as they were especially important for assessments in the Adaptation category.

In contrast, Dr. Gnam did have the benefit of an occupational therapist’s report that assessed Mr. Fallahi’s functional abilities for approximately nine hours over the course of two days.¹³ During that period, Mr. Fallahi was observed and evaluated by a trained occupational therapist on community outings, interacting with third parties, and while performing tasks required by the assessor. Dr. Gnam applied those findings in making his conclusions in the Adaptation and other categories.

Although Dr. D. Becker only briefly mentioned the functional evaluations in either of her written reports, she criticized those functional assessments at the hearing as having been too simplistic, insufficient, and too short (only 4.5 hours long each). She criticized Dr. Gnam for relying on those reports. She also criticized Aviva for not funding a functional assessment for Mr. Fallahi, which resulted in Mr. Fallahi being disadvantaged when seeking to prove his case.¹⁴

I did not agree with either of her criticisms. First, the treatment plan submitted by Mr. Fallahi proved that Mr. Fallahi’s own assessors (Omega Group) had never requested a functional evaluation for Mr. Fallahi.¹⁵ Second, I did not find Dr. D. Becker’s criticisms of Dr. Gnam’s usage of the report well-founded. Dr. Gnam stated he had reviewed the reports and they had been properly conducted. He applied them in assessing Mr. Fallahi in the four spheres and the Adaptation category.

Dr. Gnam recognized that it was impossible to place Mr. Fallahi in his previous work environment for a forty-hour period, but the functional evaluations could and did provide a simulation of those conditions, allowing a trained assessor to evaluate Mr. Fallahi’s abilities over two 4.5 hour sessions.

According to Dr. Gnam, those functional evaluations demonstrated Mr. Fallahi could make decisions, complete some tasks, and handle a good number of tasks without deterioration. This information aided Dr. Gnam in determining that Mr. Fallahi’s impairment was Mild to Moderate in the Adaptation category.

Without the benefit of functional evaluations (an omission that she herself emphasized), Dr. D. Becker, had to rely on Mr. Fallahi’s own declarations and statements made during interviews to determine his functional capacity. This lessened the probative value of her report given that Mr. Fallahi was an extremely poor narrator of his own history, consistently misstating his work history and providing incomplete answers in regard to his personal relationships.

According to Dr. D. Becker, “[Mr. Fallahi’s] functioning appears to have diminished in the last year as his mood has deteriorated and pain has increased.”¹⁶ Nonetheless, on cross-examination, she admitted that she had not verified any functional changes in Mr. Fallahi’s abilities, and in fact, had not asked him about his changes in his functional performance. Further, when interviewing him, she had specifically asked whether “his mood ha[d] changed since participating in a Psychiatric Assessment with Dr. Gnam who conducted the Catastrophic Impairment Assessment for Centric Health.”¹⁷

Dr. D. Becker did not provide any examples of how Mr. Fallahi’s functional abilities had changed. She did opine that Mr. Fallahi became more depressed and late in a day, became more disabled, but had no evidence that anyone had ever witnessed such changes in his abilities.

I found these problems in the factual base applied by Dr. D. Becker, and the lack of any objective verifiable evidence in regard to Mr. Fallahi’s actual functional capabilities detracted from the probative value of her reports and evidence.

Further, even if I had determined the factual basis applied by Dr. D. Becker to have been reliable, I would not have agreed with Mr. Fallahi’s position, that Dr. Becker’s rating of Mr. Fallahi’s impairment in the Adaptation category should to lead me to conclude Mr. Fallahi was catastrophically impaired based on the Cumberbatch decision.¹⁸

In that decision, the arbitrator made the following comment:

Taken together with the description of adaptability, I can only conclude that a marked impairment would mean 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 [emphasis mine].¹⁹

In the present case, Dr. D. Becker did not state that Mr. Fallahi was marked more often than he was moderate. The reasoning in the Cumberbatch decision thus is not applicable to the present case.

In conclusion, I found the report and evidence of Dr. Gnam reasonable and well-founded.

I find that Mr. Fallahi is not catastrophically impaired in regard to his mental and behavioural disorders.

2. Is Mr. Fallahi catastrophically impaired in that he suffers an impairment or combination of impairments that, in accordance with AMA Guides, results in 55 percent or more impairment of the whole person?

For Mr. Fallahi to succeed under this section, he must prove he has suffered an impairment or impairments due to the accident. The impairments must then be rated in accordance with the AMA Guides. These ratings for the physical aspects (as I term them) of his impairments must then be combined with a rating for his mental and behavioural impairments to provide a combined or final Whole Person Impairment rating (WPI).²⁰ For Mr. Fallahi to be considered catastrophically impaired, this final WPI rating must be greater than 55% or more impairment of the whole person.

The parties agreed that Mr. Fallahi had suffered some impairments due to his accident. They did not, in every case, agree to the extent and severity of those impairments. Dr. Harpreet Sangha, physiatrist and member of the Omega Medical team, rated the impairments as follows:²¹

Cervical Spine: 5%

Lumbar Spine: 5%

Scarring: 0-9% (which he later narrowed to 2%)

Lower Left Extremity: 8%

Effect of medications: 3%

Headaches: 0%

Dr. Oshidari, physiatrist and member of the Centric Health team, rated the impairments as follows:²²

Cervical Spine: 5%

Lumbar Spine: 5%

Headaches: 0%

Lower Left Extremity: 6%

Effect of medications: 0%

In the next section I will assess and analyze the evidence to rate Mr. Fallahi’s impairments resulting from the following injuries: cervical spine, lumbar spine, left lower extremity, scarring, medication.

(a) What are the ratings for the physical aspects of Mr. Fallahi’s injuries?

(i) The Cervical Spine

Both parties agreed that the impairment rating for Mr. Fallahi’s cervical spine was 5%. I have reviewed the evidence and opinions adduced in regard to this impairment, and I agree with the position taken by the parties. The appropriate impairment rating for Mr. Fallahi’s cervical spine is 5%.

(ii) Lumbar Spine

Both parties agreed that Mr. Fallahi’s lumbar spine had suffered an impairment of 5%. I reviewed the evidence and opinions adduced in regard to Mr. Fallahi’s lumbar spine and agree with the position taken by the parties. The appropriate impairment rating for Mr. Fallahi’s lumbar spine is 5%.

(iii) Scarring

Mr. Fallahi has scars on his lower left ankle as a result of his fracture and the surgeries he underwent. The scars were visible, permanent, and measured 7 cm and 9 cm. Both parties agreed the scarring should be rated in accordance with Table 2 on page 280 of the Guides, and that the scarring fell under Class 1 (0-9% impairment).

Mr. Fallahi did not provide any evidence that the scars caused him functional difficulties, were uncomfortable, or were painful. He did not state that the scars were embarrassing to him or that he was reluctant to expose them in public. In fact, he provided no evidence whatsoever that they impaired him in any way.

In his report, Dr. Sangha of Omega Medical agreed that the scarring was well-healed and did not impair Mr. Fallahi’s function. It required no further treatment. He thus placed the scarring in Class 1 and rated it as an impairment of 0-9%. In his addendum report, he narrowed the range to an impairment of 2%.²³

Dr. Sangha gave the scarring a rating of 2%, because the scar was an “easily visible, objective impairment of the skin”, and “it does hold some degree of risk if he requires any future surgeries in and around the region of the left ankle in the future.” He also postulated that the hardware in the ankle might at some time require replacement, or cause infection itself.

Nonetheless, he also admitted that his statement about possible hardware replacement or infection was speculation, and there was no current need for such surgery. There was no evidence to suggest that Mr. Fallahi would require future surgeries.

The AMA Guides provide a very specific direction concerning scarring in the footnote beneath Table 2 on page 280:

The impact of the skin disorder on daily activities should be the primary consideration in determining the class of impairment. The frequency and intensity of signs and symptoms and the frequency and complexity of medical treatment should guide the selection of an appropriate impairment percentage and estimate within any class.

In the present case, the skin disorder had no impact whatsoever on Mr. Fallahi’s daily activities. The scars were not ‘signs’ in and of themselves, given that by definition, one must have a permanent scar to fall within this class. Here, Mr. Fallahi had no symptoms whatsoever arising from his scars. They were neither frequent nor intense. He needed no medical treatment, frequent, complex or otherwise.

Based on the evidence and the tests and direction of the Guides, I agree with opinion of Dr. Oshidari and rate the scarring at 0%.

(iv) The Lower Left Extremity

Both parties agreed that Mr. Fallahi had sustained a musculoskeletal impairment to his left lower extremity as a result of the accident. Dr. Sangha diagnosed Mr. Fallahi with an intra-articular fracture of the ankle with displacement. According to the Diagnosis Related Estimate (DRE) method, this impairment would be 8%.²⁴ Dr. Oshidari applied the Range of Motion (ROM) method and found the impairment was 6%.²⁵

Dr. Sangha testified he preferred the Diagnosis Related Estimate over the range of motion model because Mr. Fallahi reported pain on ankle manipulation and “co-contracted” on examination. Dr. Sangha stated this fear and avoidance would prevent him from obtaining a good reading with the ROM model.

Dr. Oshidari applied the range of motion method by passively flexing Mr. Fallahi’s ankle through its whole range of motion. According to him, this allowed him to overcome Mr. Fallahi’s pain inhibition, and any fear and avoidance mechanisms to determine how far the ankle could move.

Dr. Oshidari testified it was inappropriate for Dr. Sangha to have rated the ankle with the DRE method because the ankle was no longer displaced. Dr. Sangha was likely describing the pre-surgical state of Mr. Fallahi’s ankle, but not the post-surgical state. According to all evidence, including that of Mr. Fallahi’s orthopaedic surgeon, Mr. Fallahi’s ankle was not displaced post-surgery and is not displaced at this time.

According to Dr. Oshidari, the only body system where the examiner need not take surgical outcome into account is the spine. This is because the AMA Guides specifically directs examiners to ignore surgical outcome in the section dealing with the spine.²⁶

This is not the case when rating other parts of the musculoskeletal system. Dr. Oshidari pointed out that at Table 64 at page 85, under ‘hip replacement’, the heading in the category takes into consideration a ‘good result’, a ‘fair result’ or a ‘poor result’ [for the surgery]. In the same table under ‘femoral neck fracture,’ the category allows the examiner to ‘evaluate according to examination findings’ and consider whether healing had occurred in ‘Good position,’ ‘malunion’ or ‘nonunion.’ [emphasis mine]

I accept Dr. Gnam’s position that surgical outcome must be considered when rating the ankle. In fact, Mr. Fallahi’s ankle was not displaced when Dr. Sangha examined him. Dr. Cammazola, Mr. Fallahi’s treating orthopaedic surgeon, testified that Mr. Fallahi’s ankle was no longer displaced, and the surgery he performed had resulted in a perfect alignment of the fractured bone, and healing in a normal anatomical angle. No subsequent x-rays or other tests had demonstrated degenerative disease or arthritis, and arthritis, if it were to occur, would have developed by the present time.

Therefore I find that the more appropriate method to rate the ankle impairment was the ROM method. I agree with and accept Dr. Gnam’s rating of the impairment for the lower left extremity at 6%.

(v) Effect of Medications

Mr. Fallahi was ingesting many different medications to treat his conditions. The AMA Guides permit an adjustment of the whole person impairment of up to a maximum of 3% to take into account the effects of such medications.²⁷

Dr. Sangha of Omega Medical Associates testified that it was appropriate to add 3% to Mr. Fallahi’s WPI because he felt the drugs were causing many side effects including fatigue, and lack or loss of concentration. According to Dr. Sangha, the cumulative effect of these medications would impact Mr. Fallahi in such a way as to decrease his overall functionality.

Dr. Gnam agreed that the Guides permitted an augmentation of WPI due to the effects of drugs, but stated it was inappropriate to add 3% to Mr. Fallahi’s WPI. He noted that the section in the Guides on ‘Adjustments For Effects of Treatment or Lack of Treatment’, specifically refers to instances when “…the pharmaceuticals themselves may lead to impairments. In such an instance, the physician should use the appropriate parts of the Guides to evaluate the impairment related to the pharmaceutical.”²⁸

In the present case, if Mr. Fallahi’s drug intake were causing him further impairments, the next step would be to rate these impairments in the “appropriate parts of the Guide.” Dr. Gnam opined that such impairments such as fatigue, and lack or loss of concentration were most appropriately rated in the psychological examination in chapter 14 of the Guides.

I agreed with Dr. Gnam’s opinion. Based on the wording of the Guides, this is precisely where the impairments (loss or lack of concentration and fatigue) caused by the medications should be rated. To add another 3% on top of the rating Mr. Fallahi would get in the psychological examination would amount to double-counting the impairments and incorrectly exaggerate his WPI.

In cross-examination, Dr. Sangha agreed that these impairments might be indeed captured in the psychological examination, leading to a real possibility of double-counting.

I therefore do not find it appropriate to add 3% to Mr. Fallahi’s WPI for impairments such as loss of concentration and fatigue. These impairments would be captured in a rating under mental and behavioural disorders.

Nonetheless, I am prepared to allow an extra 1% for the effect of use of medications based upon Dr. Sangha’s diagnosis of Chronic Regional Pain Syndrome (CRPS) or Residual Sympathetic Dystrophy (RSD). I accept his opinion that Mr. Fallahi initially developed CRPS even though it [has] “largely resolved” and is not “severe” at this time. I accept that Mr. Fallahi’s history of CRPS would justify a rating for the effect of medications to treat this condition.²⁹

I thus allow a 1% increase in Mr. Fallahi’s WPI for the effect of the use of medications.

(b) What is the rating for Mr. Fallahi’s impairments due to mental and behavioural disorders?

As required by the jurisprudence, the next step in formulating a final WPI is to translate the impairment based on an individual’s mental and behavioural disorders to a WPI rating so it can be combined with the physical aspects of the individual’s WPI.³⁰

Neither the AMA Guides nor legislation provide guidance as to how the ordinal descriptors of the Chapter 14 mental and behavioral assessment should be translated into a cardinal or numerical value that might be added to an individual’s final WPI.

Both Dr. D. Becker and Dr. Gnam suggested the California Conversion Scale might be used to translate a Global Assessment of Functioning score (GAF) to a WPI value. This method has been variously accepted and rejected by arbitrators and courts, but I am persuaded by both sides that its use would be appropriate here.

I have already discussed in detail the findings of Doctors D. Becker and Gnam. For reasons previously stated, I found the assessment performed by Dr. D. Becker less probative and convincing than that of Dr. Gnam.

In addition, I noted both Dr. D. Becker and Dr. Gnam cited the AMA Guides and agreed that levels of functioning should be evaluated over time, as an individual’s functioning varied over time. It was important to “… obtain evidence over a sufficiently long period before the date of examination.”³¹

Over the course of years, many psychologists and psychiatrists assessed Mr. Fallahi and provided GAF scores in regard to his functioning. Mr. Fallahi’s scores did indeed fluctuate, but Dr. D. Becker was the only examiner to ever place his GAF in a range as low as 41-50 in her report of July 2014.³² A little over a year after Mr. Fallahi’s accident, Dr. Waxer determined his GAF to be 50.³³ Dr. K. Lawson found his GAF was 60 in April 2012.³⁴ Dr. Waisman estimated it at 65 in July 2012.³⁵ Dr. Mottaghian, Mr. Fallahi’s treating psychiatrist, determined his GAF to be 50-55 in October 2014.³⁶

Dr. Gnam determined Mr. Fallahi’s GAF to be 58-60 in July 2015, and Dr. D. Decker narrowed the GAF to 43-47 in her addendum report.

Dr. D. Becker’s assessment was the lowest recorded, and was more of an outlier than the others. The evidence taken over a “sufficiently long period of time” would suggest Mr. Fallahi’s GAF was generally higher than Dr. D. Becker’s measurement. Nor did I find that his GAF was trending downward. Dr. Mottaghian’s assessment took place after Dr. D. Becker’s.

I find Dr. Gnam’s opinion was more consistent with the long term picture painted by other assessors who had provided a GAF score. This is another reason to prefer Dr. Gnam’s opinion to Dr. D. Becker’s.

Based on the California Conversion Scale, a GAF of 58-60 (the value determined by Dr. Gnam) translates to a WPI of 15%-18%.

(c) What is Mr. Fallahi’s final WPI rating when the ratings from the physical aspects of his impairments are combined with the rating for his impairments due to mental and behavioural disorders?

I will now combine the ratings from the physical aspects of Mr. Fallahi’s impairments with the rating for his mental and behavioural disorders.

I determined the ratings for the physical aspects of his impairments as follows: Cervical Spine (5%), Lumbar Spine (5%), Scarring (0%), Lower left Extremity (6%), and Effect of Medications (1%).

When these values are combined using the chart in the AMA Guides, the total of the physical aspects of his impairments is 16%. When this value is combined with the WPI rating for his mental and behavioural disorders, the total WPI for Mr. Fallahi (18% + 16%) is 31%.

This value falls far short of the 55% required in the definition of a catastrophic impairment in this category in the Schedule. I find Mr. Fallahi is not catastrophically impaired.

(d) Lay Witnesses and the Surveillance Evidence

Several lay witnesses testified at the hearing. In particular, Ms. Seema Syed spoke at length about her relationship with Mr. Fallahi, and the difficulties she had encountered trying to engage him in some of the areas and aspects of functioning listed in the table at chapter 14 of the AMA Guides. She did not dispute she had been in a serious and, at times, romantic relationship with Mr. Fallahi for some years (perhaps as early as 2012), when she was listed as a second driver on his driving insurance policy.

I found her testimony was generally consistent with the opinions provided by both Dr. Gnam and Dr. D. Becker, that Mr. Fallahi had mild to moderate, but no fully marked or extreme impairments in the four areas of functioning.

I also found her testimony was consistent with the surveillance evidence adduced by Aviva. That video surveillance showed Mr. Fallahi ambulating without a cane in the company of another person. He walked through a large retail outlet, shopping and carrying items in his hands. It showed him seated without apparent difficulty at a table. Although certainly not conclusive, this surveillance demonstrated nothing that might suggest he had a marked or extreme impairment in any of the four aspects. Again, it was consistent with the overall evidence that Mr. Fallahi had mild or moderate impairments.

EXPENSES:

The parties did not address themselves to this issue at the hearing and should seek to resolve this matter on their own, failing which they may contact the Commission in accordance with the Dispute Resolution Practice Code.

February 14, 2017

Edward Lee Arbitrator

Date