Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 71

FSCO A16-004323

BETWEEN:

ADEL HARB

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Arbitrator Charles Matheson

Heard: In person on October 23-27 and November 13-16, 2017 and January 8, 2018 and by teleconference on January 21, 2018 with written submissions completed by March 5, 2018

Appearances: Mr. F. McNally, Lawyer, for Mr. Harb Mr. D. Murray, Lawyer, for Allstate Insurance Company of Canada Mr. T. Bond, Lawyer, for Allstate Insurance Company of Canada

Issues:

The Applicant, Mr. Adel Harb (the “Applicant”), was injured in a motor vehicle accident on July 6, 2012. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada (the “Insurer”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Harb, 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:

1. Did the Applicant sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?

2. Is the Insurer liable to pay the Applicant a special award?

3. Is either party entitled to its expenses in respect to the Hearing?

Result:

1. The Applicant sustained a catastrophic impairment as a result of this accident.

2. The Insurer is not liable to pay the Applicant a special award.

3. Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing before me in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Preliminary Issue Motion

The Insurer brought a motion to dismiss this arbitration proceeding with costs, if requested.

Arguments

The Insurer argues that this case is for a catastrophic determination, without any other specified benefits being sought in support of the catastrophic determination, which in the Insurer’s opinion precludes the Applicant from pursuing this issue at arbitration.

The Insurer relies upon Mandamin and Pafco Insurance Company² (“Mandamin”), where the arbitrator dismissed that case on the principles also found in the Ontario Court of Appeal decision of Machaj v. RBC Insurance Company,³ which followed the Divisional Court in The Guarantee Company v. Dong Do et al.⁴ The arbitrator agrees with the Courts in that there is a distinction between catastrophic impairment status and a claim for specified benefits to which a person is entitled if found to have suffered a catastrophic injury. The arbitrator notes that Do establishes that a denial of a designation of catastrophic impairment is not a benefit, therefore its denial does not invoke the two-year limitation period under the Schedule. The arbitrator then concludes that being awarded a catastrophic designation, because it would not have any immediate impact on the benefits of the applicant, “the question is merely academic or moot and need not be answered.”⁵

The Insurer argues that a catastrophic determination in this case would be moot as there are no benefits in dispute.

The Insurer argues that the case of Haripersaud and State Farm Mutual Automobile Insurance Company⁶ (“Haripersaud”), speaks to the jurisdiction of an arbitrator in regards to automobile insurance benefits. The Insurer suggests that this case confirms that arbitrators are creatures of statute, with no general or residual jurisdiction. An arbitrator's jurisdiction derives from sections 279, 280 and 281 of the Insurance Act (the “Act”).⁷ As such the arbitrator’s key task is to resolve all disputes in respect of an insured person’s entitlement to accident benefits, or the amount of benefits to which the insured is entitled.

The Insurer argues that because the catastrophic designation is not a benefit itself, it is outside an arbitrator’s jurisdiction to make such determination in the absence of a specified benefit because it would be the same as issuing a declaration, which the Insurer argues, is outside the jurisdiction of an arbitrator. Thus the Insurer argues that I am restricted to making rulings as to the entitlement or quantum of a specified benefit only, otherwise I would be making a declaration of rights and or declaratory relief. The Insurer argues that declaratory relief is considered equitable relief and under the Courts of Justices Act⁸ only the Court of Appeal and the Superior Court have this exclusive right.

In regards to prejudice, the Insurer argues that I should follow Arbitrator Leitch in Alper and State Farm Mutual Automobile Insurance Co.,⁹ and decline making a decision on the stand-alone issue of catastrophic determination. In this decision the arbitrator was concerned that a determination of catastrophic impairment, “in effect, amounts to a stand-alone declaration as opposed to a determination of entitlement to benefits. Administrative tribunals and Small Claims Courts cannot issue declarations having any force beyond their own proceedings; that jurisdiction belongs exclusively to the higher courts.”¹⁰ The arbitrator continued in stating at paragraph 10 of his award the following:

I understand why catastrophic impairment is sometimes perceived as a distinct issue; indeed, I was prepared to describe it as a preliminary issue in this case. But catastrophic impairment and issues of entitlement frequently overlap, as they do in this case, because the Schedule makes catastrophic impairment a condition of entitlement to extended attendant care benefits, housekeeping expenses and medical and rehabilitation benefits. Moreover, the Schedule does not equate catastrophic impairment with ultimate entitlement to any of those benefits. A finding of catastrophic impairment is necessary to establish extended entitlement but it might not be sufficient.

The Insurer concedes, however, that an arbitrator does have jurisdiction to rule on a catastrophic determination, but only when it is linked to the entitlement to a specified benefit. The Insurer argues that there are no barriers before the Applicant in order for him to pursue benefits that exceed the non-catastrophic limits. The Applicant does not need to have a pre-approved catastrophic determination, prior to applying for said specified benefits, therefore the Applicant should not be allowed to proceed with this case.

The Insurer argues that the proper way for an applicant to apply for a catastrophic determination is to apply for benefits that are above the non-catastrophic level at the Licence Appeal Tribunal (“LAT”). Once the Insurer denies the claimed specified benefit which exhausts or exceeds the non-catastrophic level the Applicant may proceed with the denied specified benefit and the catastrophic determination.

The Applicant seeks that the Insurer’s motion be dismissed with costs. First the Applicant argues that at the time of the mediation, several medical benefits were in dispute, which were settled, leaving the single issue of catastrophic impairment determination in dispute.

The Applicant agrees that he had the option to take the Insurer to court for a declaration as the Insurer suggests, however, the Applicant had the right to choose the cheaper and quicker dispute resolution forum. The Applicant relies in part on the Court of Appeal decision in Liberty Mutual Insurance Co. v. Fernandes¹¹ (“Fernandes”), where it was found, as the result of the provisions of the statute,(the Insurance Act)¹² that the Superior Court did not have sole jurisdiction to determine whether an insured person has sustained a catastrophic impairment. The Applicant chose arbitration instead of court because the Applicant did not want to face the possibility of paying the Insurer’s costs in the event that he was not successful. The Applicant also wanted the issue decided inside four years from the date of the application to the courts. On this point the Applicant argues and relies on McArthur v. Canada,¹³ where the Court of Appeal recognizes that the Superior Court’s sole jurisdiction in certain matters has been “ousted” by provisions of statutes such as the Act.¹⁴ The Applicant relies on paragraph 13 of McArthur v. Canada, which specifically cites Fernandes and recognizes it “removes the jurisdiction of the Superior Court to determine whether an insured person sustained catastrophic impairment as the result of a motor vehicle accident.”¹⁵

The Applicant argues that if the logic of Mandamin is followed it would eventually set up a two tier dispute resolution process, where the Applicant would be punished with costs, if unsuccessful, in attaining the catastrophic impairment determination.

The Applicant argues that Mandamin is wrongly decided and is not binding on me. The arbitrator erred in concluding that a catastrophic impairment designation on its own is moot or academic. The Applicant argues that there is a direct impact on the Applicant’s entitlement to statutory accident benefits that flow from this determination.

It is impractical and inefficient if an applicant has to wait until his non-catastrophic monetary limits are exhausted prior to submitting his arbitration application for a catastrophic determination. The Applicant submits that the only barrier in the Schedule to a catastrophic determination is a two-year waiting period prior to making such an application to the Insurer. The Applicant may be catastrophic prior to exhausting the non-catastrophic limits which may be beyond the two-year limitation period.

The Applicant argues that Haripersaud also stands for the proposition that an arbitrator has to answer all questions that must be answered as per the applicant’s entitlement to benefits and other issues that may affect those benefits. In her decision, Delegate Naylor found that an arbitrator finds his or her jurisdiction in subsection 279(1) of the Act, which is to resolve all disputes in respect of an insured person’s entitlement to accident benefits, or the amount of benefits to which he or she is entitled. Delegate Naylor further confirms that subsection 282(3) reads as follows: “The arbitrator shall determine all the issues in dispute, whether the issues are raised by the Insured person or the Insurer.” (Bold and Italics for my emphasis.)

Further, the Applicant argues that arbitrators have the residual jurisdiction to answer all questions that pertain to an applicant’s benefits, and catastrophic determination is in effect the first step to receiving enhanced benefits of the highest tier of benefits available to insured persons. Any other approach, the Applicant submits, is too restrictive, and is prone to abuse by insurers.

Decision on the Motion

I agree with the Insurer that catastrophic determination is not a benefit, and there is a clear distinction between status and a benefit. Reaching the status of catastrophic impairment does not in itself determine entitlement to any specified benefit. It is only a gateway to entitlement to the highest tier of enhanced benefits under the Schedule.

I am not persuaded that an arbitrator appointed under the Act¹⁶ does not possess the jurisdiction to decide all disputes in respect of an insured person’s entitlement to accident benefits, or the amount of benefits to which he or she is entitled. I agree with Delegate Naylor when she confirms that subsection 282(3) specifically speaks to and allows an arbitrator to “determine all the issues in dispute, whether the issues are raised by the insured person or the insurer.”

I also agree with the Applicant’s argument that the Court of Appeal recognizes that within the realm of insurance benefits the courts do not have sole jurisdiction to make a catastrophic determination.

Therefore, I remain unconvinced that a finding of catastrophic determination is of itself declaratory or equitable relief, because the determination is a status determination and not a specified benefit entitlement determination. The catastrophic determination only opens a gate to further enhanced specified benefits and is not an automatic monetary award per se. In my view, it is a question that needs to be answered prior to the determination of whether a specified benefit is reasonable and necessary.

Further, in my view, if the legislature had wanted more barriers for an applicant to hurdle prior to applying for a catastrophic determination, in terms of the timing of an application, or any other prerequisites, it would have done so by explicit language in the Schedule or the Act, and it has not done so.

For the above reasons I dismiss the motion, and will address costs after the Hearing is completed should the parties be unable to agree upon same.

Mid-Hearing Motion #1

Upon closing his case and prior to the Insurer calling Dr. Sharma, an orthopaedic surgeon, the Applicant objected to the doctor taking the stand in order to testify.

The Applicant argues that the doctor did not assess the Applicant for a catastrophic impairment, but opined on the Applicant’s income replacement benefit (“IRB”) issue. This case is only about a catastrophic determination, under mental and behavioural issues. There is no relevance to Dr. Sharma’s testimony or in other words there is not a relationship with the doctor’s expertise and the issues in dispute. There is no probative value to his testimony, which may be prejudicial to the Applicant. The Applicant is unsure as to the intention of this witness’ testimony. Thus the evidence as it relates to the issue in dispute is unknown to the opposing party.

The Applicant argues that all non-relevant evidence should be excluded.

The Insurer argues that there is no prejudice in this instance and the fact that the Applicant does not know what the relevance of his evidence is, is not in itself prejudicial to the Applicant. The Applicant has the doctor’s reports and the diagnosis and the conclusions of the reports. The Insurer argues that the Applicant suffers from a constellation of symptoms, as has been already evidenced in this Hearing, according to the Guides¹⁷: chronic pain under Chapter 15, a closed head injury under Chapter 4, and not just the narrow issue of mental and behavioural issues under Chapter 14. Therefore the Insurer argues it has the right to bring this case to the attention of the trier of fact and present its case as it sees fit. The Insurer argues that the Applicant best fits Criterion 7 and not Criterion 8.

The Applicant replies that Dr. Sharma did not have any expertise in chronic pain. This is subjective and goes to the credibility of the Applicant which cannot be allowed as the doctor did not ask the correct questions to the Applicant directly.

The Insurer argues that Dr. Sharma is not being called for credibility issues alone, but he has tracked the Applicant’s physical condition, and the Insurer wants to argue this case on that basis. Further the Insurer suggests that it will not be asking for a whole person impairment (“WPI”) rating from the doctor, which has not been provided in the doctor’s report.

Decision

In the interest of fairness to the Insurer, I will allow the witness to testify to his reports and the implications of those reports on the Insurer’s perspective of this case. In my view, the Insurer also has the right to present its best evidence for its best defense. This of course does not have an impact on the Applicant’s ability to present his case as he ultimately has the burden of proof of entitlement.

Mid-Hearing Motion #2

During the examination of the Insurer’s expert, Dr. Sharma, counsel for the Insurer and Dr. Sharma recognized that his final report was not the report that the doctor had dictated or submitted to the service provider known as “CVE”.

The Insurer moved that I allow the correct version of the report in as evidence despite the late service.

Arguments

The Insurer argued that under Rule 39.3 (c) of the Dispute Resolution Practice Code (the “Code”), I may allow the evidence due to extraordinary circumstances. This section reads as follows:

39.3 The hearing arbitrator will determine the relevance, materiality, and admissibility of evidence submitted at the hearing, but will not admit evidence at a hearing that: (c) was not served on the opposing party in accordance with Rules 39.1 and 39.2, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.

The Insurer argues that the only explanation it or Dr. Sharma can offer is that the third party service provider, who polishes the doctor’s formatted reports and submits them to the Insurer for dissemination, somehow and inexplicably changed vital sections of his report. Unfortunately, this has just been discovered and is out of the control of either party or the doctor. The doctor testified that he does not see the finished product prior to it being sent out to the parties. The doctor dictates the report, it is transcribed, and he then reviews it, makes any adjustments and then approves it for the proper formatting and the auto-signature to be applied. The doctor admitted it has not been his practice to review final reports in their final format in the past.

The Applicant argues that I should not allow the new report into evidence, for three reasons: first, the Code does not permit it, second, he has already objected to the doctor’s evidence, and third, it is not consistent with the principles of natural justice as he has been taken by surprise and/or ambushed. He is unable to properly cross-examine the witness. The Applicant has not been able to request the doctor’s notes and records in order to understand his evidence.

The Insurer’s remedy to the Applicant’s concerns of prejudice is to adjourn the Hearing, for two weeks, in order for the Applicant to read any documents he may want to review in order for him to properly cross-examine the doctor.

Decision

In my view, extraordinary circumstances are situations that appear as a surprise, and the surprise is out of the control of the parties. This is the case before me today. Essentially, CVE submitted a false report that negatively impacted on the Applicant, as the Insurer relied on this report in determining benefits the Applicant may have been entitled to, to one degree or another. This is verified by Insurer’s counsel. This issue was discovered on the day, just hours prior to the commencement of this proceeding and was reported immediately thereafter.

For the reasons above I adjourned the Hearing, after the doctor’s examination-in-chief had been completed, for two weeks, in order for the Applicant to properly prepare his cross-examination.

Background

At the time of the accident, the Applicant was married with two children, one and a half and three years old respectively, and was employed as a full-time hair dresser and manager of a hair salon. The Applicant and his family were residing in a two-bedroom apartment at the time of the accident. The Applicant had immigrated to Canada from Lebanon, in 2008 on a permanent basis, with his wife.

The Applicant had a previous accident in 2009, and another accident in May 2016, which are not the subject of this arbitration.

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

The Applicant’s Testimony

The Applicant testified that he had heart health issues since birth and underwent surgery in Lebanon to rectify his issues without further complications.

In regards to his 2009 accident the Applicant testified that he had lost some time from work but eventually returned to full-time work over an 18-month period. He had suffered from some neck and lower back aches and pains, which were treated with physiotherapy. He was fully recovered from this accident without complications of any kind prior to this subject accident.

In regards to his pre-accident activities, the Applicant testified that he equally shared all household duties and chores with his wife. Making meals, laundry and all other household chores are included in his assessment of the various duties he and his wife shared.

In regards to his pre-accident parental and recreational activities the Applicant testified that he was an active parent with his children and participated in social events such as gathering of friends in the park for barbeques where he would play soccer with friends and his children. He would also participate in pick-up soccer games once or twice a week with his social circle of friends. Further on a weekly basis he would visit friends for dinner after work or have friends over for dinner, where he enjoyed preparing Lebanese dishes for the meal.

In regards to his relationship with his wife and children prior to the accident, the Applicant testified that he had a loving and affectionate relationship with both his wife and children; it was “fantastic”. He enjoyed a wide circle of friends who also had children who were the same age as his children. In particular his family befriended an elderly neighbour who spent a lot of time with his family until her death in 2016.

In regards to his education, the Applicant testified that he had not completed high school and had dropped out during grade 9, to help his parents financially as he has six other siblings.

In regards to the subject accident, it occurred while his wife was driving him and the family to the park for an outing. His vehicle was T-boned on his side of the vehicle. His vehicle was damaged to the point that he and the children had to exit the vehicle from the driver’s side. He took the children to the hospital right away, but didn’t experience any pain until later, as he was worried about his children’s and wife’s injuries. He went to see his doctor three days post-accident.

In regards to his post-accident issues the Applicant testified that he went to his family doctor shortly after the accident, as he began to experience symptoms of headaches, vomiting, and shoulder and neck pain, along with swelling in his leg. He realized that his mood was more on the irritable side, as too much noise would trigger his anger. The frequency of the pain in his arms/shoulders and his knee/leg was constant. He began treatment at Apollo Physiotherapy Center in August 2012. He realized that the physical pain was worse in cold weather, so he began using a lot of Bengay to help with his symptoms.

In regards to his treatments, the Applicant testified that he tried chiropractic treatment but it was unpleasant. He stopped treatment as his back pain put him in the hospital for two weeks. He also tried massage therapy but he was in too much pain to lay on his stomach for prolonged periods. However, acupuncture in September 2013 seemed to help with pain relief. The pain symptoms started to get worse as the Applicant continued to work after the accident, then the doctor gave him a two-week leave of absence. The Applicant’s family doctor then arranged for some MRIs and further x-rays, and prescribed some anti-inflammatory and anti-depression drugs. The imaging occurred in December 2012 and showed some disc damage in the L4-L5 area with gaps in the discs and the MRI on the shoulders showed some nerve issues and damage, which was verified later in 2016. The Applicant was referred to Dr. Kapur, a neurologist, and Dr. McKee, an orthopedic surgeon, who diagnosed the Applicant with depression, chronic pain and a spinal disorder.

In regards to his psychological issues, the Applicant stated that during his return to work attempts he experienced angry outbursts with his clients. He noticed he was having good and bad days both physically and emotionally. His shoulders and back were sore and when clients became demanding, he became argumentative. He was getting depressed because he felt that he had lost his life, he had no dreams and he started to dislike himself, as he felt that his family was falling behind financially on a daily basis. This was compounded by his marital issues as his wife was wanting to separate from him as his mood was fluctuating and the family finances were getting hard to manage. He acknowledges that his inappropriate anger outbursts were focused on or towards his wife if she asked him to simply help around the house. The Applicant stated that he was feeling more isolated as time went on, as he was in constant invisible pain throughout his whole body. His sleep patterns were being interrupted with flashbacks and nightmares, which impacted his eating habits. The Applicant suggested that as he spiralled into depression he slowly began to have motivation issues, in so far as he didn’t want to move out of bed, clean himself, cook or shave. His wife had to assist him with his personal hygiene as time went on.

In regards to his employment, the Applicant did return to work for about a month after the accident, on a part-time basis. Prior to the accident the Applicant stated he was working 50 to 60 hours per week. His duties were to wash, colour, cut and blow dry clients’ hair, but he found that he was taking too many breaks during and in between each client following the accident, which was putting pressure on his fellow employees. The added time spent on each client also impacted whether clients would return for a hair styling because he was taking too long, which he felt added more pressure on him retaining his employment status. The Applicant suggested that he was making mistakes at work, giving the wrong cut or colour to clients. The Applicant suggests his doctors told him to stop working because of the shoulder and leg pain being experienced, and his arms were swelling. The Applicant verified that he was eventually suspended from his employment.

In regards to his post-accident social life, the Applicant stated that he no longer plays any sports, including soccer, and he no longer runs. He no longer enjoys large gatherings with friends in the park, or conversations with multiple friends, because he cannot follow the conversations, and he feels the noise of the children is distracting to him. The Applicant suggests that he does not enjoy cooking anymore because of the pain he experiences while preparing meals. As a result he only has one or two friends that he continues to see, when they come to see him. The family rarely goes out for something to eat at restaurants, where they would go out at least once a week with friends prior to the accident. He no longer plays with the children in the park as he finds it difficult to supervise the children, let alone participate with them. Further, the Applicant testified that he has moved himself into the garage, as he has a TV there and he is able to turn down the lights, close the door for quiet, and he can smoke cigarettes and marijuana without disturbing the children and smelling up the rest of the house.

In regards to his post-accident relationship with his wife, the Applicant mused that he is no longer the person that she married. Their relationship has been stressed since his money has run out after he lost his job. He believes that she is ignorant about the pain he is in and has no empathy. When she points out his shortfalls it embarrasses him and the conversations eventually break down with yelling and screaming. He states that she moves out of the house from time to time so she can get a break from him. Their intimacy routine has changed significantly, as he has lost interest. It hurts him to lie flat on his back. By November 2015 the Applicant’s wife told him she was ready for a divorce: then she left with the children and went back home to Lebanon, returning to Canada in July 2016 after her father passed away. The Applicant said that when he thinks of this situation, the low point in his life, he begins to cry uncontrollably. The Applicant states that he and his wife would not speak for days, but today, they continue to live together without interruption and continue to work on their relationship.

Under cross-examination the Applicant stated that he did not obtain a licence to cut hair as required by Ontario law; he just worked as an apprentice under someone who had a licence.

The Applicant disclosed that he has a condition known as Thalassemia minor, which is a blood condition identifying that he has extra white blood cells. However, the Applicant maintains that this condition is not a disease or disability. He disagrees with any doctor who suggests this condition causes him to be tired or fatigued on its own.

In regards to Dr. Darhiwiesh, the Applicant’s family doctor, an April 6, 2010 OHIP summary entry shows osteoarthritis. The Applicant had no recollection of any treatment for arthritis from this doctor.

The Applicant confirmed and clarified that he received 50-60 hours of pay on a bi-weekly full-time basis, as he only got paid for the hours when work was being performed.

The Applicant testified that he elected not to take anti-inflammatory drugs due to his health concerns about how the medication would react with his heart. He agreed that there wasn’t any recorded documentation that reflects any doctor that raised any potential health risks or side effects when the anti-inflammatory drugs were prescribed.

The Applicant maintained his belief that the pain in his side and his kidneys was as a result of the accident, in that his kidney stone, suffered in 2013, was a result of the drugs he was given as a result of the accident.

The Applicant maintained that laser therapy helped reduce the pain and swelling in his shoulders, and that physiotherapy helped to increase his function, in that he was able to interact with his family at a pain level of 5 out of 10, instead of 8 out of 10. Massage therapy also helps with his symptoms of swelling, which in turn gives him pain relief and more function on good days. The Applicant suggests that he is trying to reduce or stop taking narcotics for pain with the use of marijuana. He takes the narcotics as the swelling dictates. The Applicant stated he was not able to use marijuana regularly as he does not have the money to do so, but he has used narcotics and marijuana at the same time. The Applicant maintains that all his medications and treatments helped in certain degrees on a daily basis, and relieve his symptoms, which in turn help his functioning.

In regards to his application to Canada Pension Plan for benefits, the Applicant stated he applied for benefits in 2016, but was denied. He has not appealed that decision.

In regards to the Ontario Disability Support Plan, the Applicant testified that he did not remember making an application for benefits; he only remembered getting support from the Trillium Program for his prescription drugs.

Dr. A. Moustgaard’s Testimony (Neuropsychologist)

Dr. Moustgaard testified on behalf of the Applicant as the original diagnosing and treating neuropsychologist. The doctor gave the initial diagnosis of the Applicant pre-catastrophic determination. The doctor testified to the veracity of her first report dated July 10, 2013.¹⁸ The Applicant was originally referred to the doctor by the Applicant’s legal representative. The doctor summarized her findings on page 4 of her report. The doctor diagnosed the Applicant with pain disorder associated with both psychological and general medical issues and anxiety disorder with mixed anxiety and depressed mood. However, the doctor suggested that the Applicant was failing to adjust to his new situation.

The doctor opined that quantitatively the Applicant scored within the moderate range in cognitive, emotional and physical or somatic scale. Emotionally the Applicant was feeling profoundly sad, without any suicidal ideations. She found that the Applicant was in the above average range of a normal population in depression. The doctor suggested that the Applicant, within her sessions, was pre-occupied with pain and when coupled with his depression, the Applicant was unable to function at the same level socially or recreationally as he did prior to the accident.

The doctor made recommendations for further treatment from the Insurer, which were eventually accepted. Treatment began shortly thereafter in July and through to September 2013. In regards to her clinical notes and records,¹⁹ the doctor pointed out that the Applicant was having a hard time dealing with situations that were outside of his control or understanding which issue(s) in turn triggered his anger. Thus withdrawing from those situations was his defense mechanism. It was the doctor’s opinion that the Applicant needed to recognize these triggers and learn new strategies in order to deal with these situations. The September 2013 clinical notes and records note for the first time that she was seeing more mood swings, lower motivation and a decrease in concentration in completing tasks.

In regards to her second report,²⁰ dated January 15, 2015, which was an update of the Applicant’s mental status, it shows that the doctor had changed her diagnosis of the Applicant to a Major Depression Disorder and a Somatic Symptom Disorder. The doctor noted that his test results in mood and anxiety had worsened to a severe state from the previous results of moderate. The Applicant’s pain test results could not be interpreted properly at that point in time, as all the answers were in the severe range and off the validity scale. However, pain still remained a primary issue for him. The doctor noted that in this time frame, the Applicant continued to manifest different physical symptoms, in that he had swelling of his arms and hands, narcotics were not being taken and his energy levels had fallen off. The doctor opined that the Applicant was no longer suffering from an adjustment disorder as the symptoms of depression were now severe. Further, the Applicant’s sleep disorder had worn him down to a state of chronic depression.

During cross-examination the doctor agreed that it would have been helpful (from a causation perspective) to know that the Applicant had complained to the hospital cardiologist three weeks prior to the accident that he suffered frequent headaches and was diagnosed to have suffered chronic pain from 2009 accident, and he also suffered fatigue from Thalassemia minor.

Zena Harb’s Testimony (Applicant’s Wife)

Ms. Harb testified that she was the wife of the Applicant and through her testimony verified earlier evidence the Applicant had already stated: where they met, when they married, their children’s ages and behaviours, and that he had always been a hairstylist throughout their relationship. She also verified that the Applicant was hurt in a previous 2009 accident but had fully recovered for a length of time prior to this subject accident.

Ms. Harb testified that in 2012 after she finished her maternity leave, and started to look for work, both she and the Applicant would share all duties equally, in that the Applicant would do whatever was needed at that moment, even after his workday was completed.

Ms. Harb stated her version of the social and recreational activities that her family and the Applicant participated in before the 2012 accident and also verified that the Applicant had no sleep issues and that their intimate relationship was very good.

Ms. Harb stated that the Applicant started to feel the effects of the accident within days of the accident, and he was always in pain. This is when she realised that her life had changed. Ms. Harb stated that she had to become the family pharmacist in 2015 because she noticed that the Applicant was starting to overmedicate as he was taking medications for pain and sleep, as well as anti-depressants. Ms. Harb stated that she felt helpless and tried to help him by motivating him to get out of bed and do something. Also since 2015 but prior to the 2016 accident the Applicant was always angry and rude to everyone.

After the subject accident Ms. Harb stated that the Applicant began smoking marijuana and more than two packs of cigarettes per day. He was quick tempered but cried when confronted about his anger and hurtful language or actions. The Applicant was no longer being social. When friends would visit their residence, the Applicant would retire to other rooms. At this time in her relationship, Ms. Harb and the Applicant do not speak for weeks at a time. Divorce has been on her mind, but she cannot do this because of the children. Further, today the Applicant does very little around the house, he is not sleeping regularly, and he wakes her up every time he gets up and has a cigarette. The Applicant is still unable to cope with the children. He brings them to her workplace and tells her to leave early because he cannot cope with them. The Applicant’s sister came to help with the children but the Applicant started to argue with her as well. Ms. Harb stated there is no longer any intimacy between her and the Applicant.

During cross-examination Ms. Harb denied that the Applicant suffered from any chronic pain prior to the subject accident, and was not able to explain why some doctors would have reported same in their reports. Ms. Harb denied that she was not serious about her threat, during heated arguments with the Applicant prior to the 2009 accident, about divorcing him.

Mr. S. Ferland’s Testimony (Occupational Therapist)

Mr. Ferland testified for the Applicant as his assessing Occupational Therapist (“OT”) for this accident. Mr. Ferland was also the Insurer’s assessing OT for the 2009 accident. In the first 2009 report²¹ he concluded that the Applicant, at this conjuncture in time, suffers a substantial inability to perform his pre-accident Housekeeping and Home maintenance (“HH”) activities. Mr. Ferland then reviewed his second IE OT report,²² where he concluded that the Applicant had recovered and no longer suffered a substantial inability to preform his pre-accident HH activities, with no further recommendations for further treatments.

Mr. Ferland then reviewed his first OT report²³ for the 2012 accident. The purpose for this report was for the determination for Attendant Care benefits. In this report Mr. Ferland quotes the findings and diagnoses of Dr. Smith’s Chronic Pain Assessment²⁴ as he attempted to capture all issues relevant to his OT point of view. Dr. Smith was quoted as finding:

1. Chronic Pain Syndrome (mixed muscular skeletal, neuropathic and headache components), associated with: a. Sleep disruption b. Psychological /emotional disturbance
2. Possible traumatic brain injury
3. Headaches a. Cervicogenic and probable migraine components b. Possible post-traumatic c. Other to be determined
4. Chronic Musculoskeletal neck pain due to: a. Mechanical, possible facetogenic pain b. Myofascial pain c. Possible disco-genic or radicular pain
5. Chronic Musculoskeletal bilateral shoulder pain due to a. MRI proven tendinopathy, possible left SLAP lesion
6. Chronic Musculoskeletal low back pain due to a. Sacroiliac joint pain-right and left b. Mechanical, possible facetogenic, pain c. Probable radicular disco genic pain
7. Neuropathic pain-left trapezius and arm.

Mr. Ferland also quoted Dr. Moustgaard’s July 10, 2013 diagnosis to add to the physical issues the Applicant was suffering. Mr. Ferland noted that the Applicant had more bad days than good days as far as his daily activity levels went.

Mr. Ferland came to the conclusion that the Applicant required assistance with self-care functions, and could not engage in and perform, in any meaningful way, his HH activities. The Applicant hired someone to do this for him. Further Mr. Ferland concluded that the Applicant is unable to perform core caregiver activities for his two young children.

Mr. Ferland then disclosed that he has been providing occupational therapy to the Applicant since October 13, 2015. Mr. Ferland authored a progress report²⁵ shortly after therapy began. In this report an outline of the five principles of treatment he would follow was provided. A foldable shopping cart and a mattress were requested. Mr. Ferland opined that treatment progress was limited and the Applicant was in psychological crisis and the treatments were about mitigating decompensation on a daily basis.

Mr. Ferland authored a second report.²⁶ He testified that he noticed and observed that the Applicant was declining and at his lowest point at this juncture. The Applicant was now separated from his wife and children, which meant that he required help in regards to his Attendant Care needs with meals, bathing, and laundry.

Mr. Ferland authored a series of OT reports culminating in his December 2016 report,²⁷ which was the third Attendant Care assessment. The resulting Form 1s continued to build and exceed $3,880.70 per month. During this timeframe throughout 2016 Mr. Ferland confirmed the further deterioration of the Applicant, where he could no longer deal with cooking beyond heating something up in a microwave. He testified that the Applicant smelled and was unshaven, and tremours were now evident in his hands. He testified that some of his therapy occurred in the Applicant’s bedroom as the Applicant did not want to leave his bed. Mr. Ferland summarized that he did not recognize any improvements in the Applicant’s level of functioning from his perspective.

Under cross-examination Mr. Ferland agreed that as of his December 2016 report the Applicant had a significant downturn in symptoms. This report was the first time that the Applicant remained in bed for the interview. Mr. Ferland agreed that further stressors for the Applicant were when his wife and children moved back into a common home, the family moved into a larger house, and the May 2016 accident; all of these impacted on his mental status by December 2016.

Mr. Ferland did not think it was relevant that the Applicant was reporting similar issues in 2009 as he was reporting during the 2012 accident because his reports in 2015 were five years removed from the 2009 accident and not relevant to him at that time.

Dr. T. Ricci’s Testimony (Psychologist)

Dr. Ricci testified on behalf of the Applicant, as the Applicant’s assessing and treating psychologist. The doctor authored a catastrophic impairment assessment report²⁸ under Criterion 8 of the Schedule dated February 26, 2016.

Within her catastrophic report Dr. Ricci reviewed the previous reports which related to the Applicant’s psychological profile, including the reports of Dr. Moustgaard. Dr. Ricci notes the Applicant’s decline from July 2013 to January 2015. Dr. Ricci also recognized that the second Psychiatrist Assessment Report of the Insurer’s assessor, Dr. Suddaby,²⁹ and the Psychiatric Assessment Report of the Insurer’s assessor, Dr. Waisman,³⁰ were similar in that both doctors diagnosed the Applicant with Somatic Disorder, predominantly pain, persistent, and a persistent major depressive disorder separately within the summer of 2015.

At the time of her assessment the doctor opined that the Applicant’s physical treatments brought him to a plateau and he maintained this level of function and pain. The Applicant was unable to sustain strategies for pain management because of his moods swings. The Applicant was severely depressed at this time. The doctor opined that severe depression can be displayed outwardly with actions such as punching walls, yelling, or screaming, which was the Applicant’s outlet for his frustration with his situation, and which is consistent with motor vehicle accident victims.

In regards to the Applicant’s irregular sleep patterns, the doctor opined that this means that he is not coping well with his situation. The doctor suggests that this can be seen within any of the occupational therapists’ reports such as Mr. Landry’s Insurer’s catastrophic assessment report³¹ where there are good and bad days. On good days the Applicant has some function and on bad days he has little or no function. Without proper structure and proper sleep the Applicant cannot manage his pain, which has now become his primary focus.

Dr. Ricci made a diagnosis³² of:

• Major Depressive disorder, moderate to severe,
• Unspecified anxiety disorder (general anxiety features, posttraumatic stress disorder features and vehicle-related anxiety),
• Somatic symptom disorder, predominantly pain.

Dr. Ricci made the following impairment levels, within the four spheres of functioning as follows:

• Activities of daily living – Class 4 – Marked
• Social Functioning – Class 4 – Marked
• Concentration, persistence and pace – Class 3 – Moderate
• Deterioration or Decompensation in work or work-like settings – Class 4 – Marked

In regards to the catastrophic assessment report of Dr. Scott, the Insurer’s Assessor,³³ Dr. Ricci was unable to follow how the doctor came to his mild or moderate impairment ratings as he had not provided any diagnosis within his report, which is strictly outside the normal approach for a catastrophic impairment ratings report.

Further, she was unable to see where the doctor compared his findings with those of an OT, which doesn’t allow any marriage of the physical pain and mental status. Dr. Ricci again could not follow how Dr. Scott deals with or factors pain into the mental behaviour equation, as he again did not provide a diagnosis, nor did he say pain was outside of his area of expertise. In regards to the Applicant’s daily living Dr. Ricci could not explain where Dr. Scott’s observations or conclusions came from as they do not match the findings of any other professionals or her findings.

In regards to deterioration or how the Applicant reacts to stress, Dr. Ricci was unable to comment on how Dr. Scott came to his conclusion as there is little or no information on how he comes to a mild or Class 2 impairment rating. In regards to Dr. Scott’s analysis of activities of daily living and social functioning where he found the Applicant had withdrawn by 80%, but only applied a mild impairment rating, this was a mystery to Dr. Ricci, because in her opinion 80% is more significant than a mild impairment.

During cross-examination Dr. Ricci acknowledged that a diagnosis is the first step to rating an impairment and that a diagnosis is not in itself an impairment.

The doctor gave her definition of a Class 3 impaired individual within the four spheres as follows:

• Activities of Daily Living – a person who does some but not all activities without assistance,
• Social Functioning – a person does some but not all social activities with a focus on the activity frequency and the level of the activity and how interaction has changed from prior to the accident,
• Concentration, Persistence and Pace – a person who may still drive, not need reminders to take medications and remember to attend appointments, but still may have memory issues,
• Deterioration or Decompensation in work or a work-like setting – a person who may be only able to volunteer for an hour or two a couple of times per week, can maintain some sort of routine, and their psychological condition moderately impacts their new routines.

The doctor testified that the self-reported information relied upon by her for her professional opinions was verified by collateral interviews and other professionals’ reports, including occupational therapists’ reports, and that a traumatic brain injury should be rated under Chapter 4 of the Guides.

In regards to a Class 4 or Marked impairment diagnosis Dr. Ricci opined that this impairment rating would still allow for some room for a relationship to exist.

Dr. Ricci explained that she has a hard time separating or distinguishing what the Applicant can do or does not do in regards to the four spheres activities, as a result of his physical pain, because pain is also felt in the brain, which also affects his psychological processes.

In regards to the mental status portion of Dr. Scott’s report, Dr. Ricci opined that Dr. Scott mixed his observations with those things being reported by the Applicant. Further, the doctor’s observations were a snapshot in time, and observations seemed to play a larger role in his results than normally expected. Dr. Ricci suggested that observations are not symptoms.

After an extensive review of other health professionals’ reports Dr. Ricci did not have cause to change her opinion or diagnosis of the Applicant as she does not rely on other opinions to assess a client. She may check to see if her opinion was congruent with others but her opinion is based on her assessment.

Mr. Hussein Elahmar’s Testimony

Mr. Elahmar testified on behalf of the Applicant. Mr. Elahmar first met the Applicant in 2007 when he arrived in Canada, before either of them were married. The two of them became close friends as he would socialize with him three times a week. They would socialize on weekends and play soccer, watch movies or just talk over drinks after work. The Applicant became his barber.

Prior to the 2012 accident Mr. Elahmar testified that the Applicant was always presenting himself as a fit, well-dressed and groomed person, and he was very easy to get along with. He witnessed the Applicant in his busy salon with a lot of clients.

Mr. Elahmar testified that he met his wife when she came to Canada, where she joined their social group and participated in events. As the families grew the relationship continued as they would eat at each other’s homes on many occasions. He was unaware of any physical issues the Applicant had prior to his 2009 accident.

In regards to the 2009 accident, Mr. Elahmar testified that he witnessed the Applicant’s recovery from that accident and his return to full-time work in 2010.

In regards to the 2012 accident, Mr. Elahmar testified he witnessed the swollen neck and arms, as the Applicant suffered through his headaches. The Applicant appeared to be in pain and depressed. He testified that the Applicant no longer played sports or attended social outings or gatherings anymore.

He witnessed the Applicant being emotional and crying. He noticed that the Applicant had mood swings even with his children in the room, as he would yell at the children as well as his wife and him.

Mr. Elahmar testified that he stayed with the Applicant through this tough time because he was his first friend in Canada, and he regards the Applicant as his best friend. He has noticed that the Applicant’s apartment is always a mess, he is no longer properly groomed, and he is rarely out of his pajamas and robe.

Mr. Elahmar testified that he has done odd jobs around the Applicant’s house, including cutting grass, fixing his garage door, and some plumbing.

During cross-examination the witness verified that he was not coached by Applicant’s counsel in what to say, and that he was here only to tell the Commission what he saw or witnessed, and not here just to help the Applicant’s case.

Dr. S. Sharma’s Testimony (Orthopaedic Surgeon)

Dr. Sharma testified on behalf of the Insurer as to the accuracy and veracity of his reports. In the generation of his seven reports, the doctor had the occasion to examine the Applicant three times on November 7, 2012, October 1, 2014 and April 1, 2015.

The first report,³⁴ dated November 21, 2012, was to opine on whether the Applicant met the substantial inability test for his IRB; he did not. On page five of his report the doctor testified that he came to the conclusion that the orthopaedic and neurological exams were normal, although there were signs of arthritis which would cause a longer recovery period.

Dr. Sharma’s third report³⁵ and second paper review report from the examination assessment made on November 7, 2012 overturned the doctor’s earlier opinion that the Applicant did not meet the substantial inability test for the IRB being claimed as new information became known that the Applicant could not stand or extend his arms for extended periods of time.

Dr. Sharma’s fourth report,³⁶ also a paper review, reviewed the most recent MRI and a neurological assessment completed by Dr. Nguyen. In his report the doctor opines that further supervised physiotherapy will provide significant benefit to the Applicant, as the MRI multilevel discopathy is most evident at the L5-S1 joint. The doctor testified that the Applicant is likely to develop chronic pain and that his prognosis is guarded as arthritis may be the underlying cause of his pain.

Dr. Sharma’s fifth report³⁷ dated October 14, 2014 relied on his physical examination of the Applicant performed on October 1, 2014. The doctor testified that he recognized the Applicant’s lower back complaints but maintained that these were not caused by the accident, but were due primarily to degenerative related issues. He did not agree to adjust his diagnosis to a WAD 3 and lumbar disc disorder with radiculopathy as the Applicant had no objective signs of nerve root impingement.

On page 7 of his report the doctor made the recommendation that the Applicant be assessed by a chronic pain team, as the Applicant had reached maximal orthopaedic recovery, and that the Applicant’s prognosis was now downgraded to poor.

During his testimony Dr. Sharma testified he was worried about the Applicant’s growing dependence on narcotics, hence his chronic pain assessment recommendation.

In regards to Dr. Sharma’s sixth report,³⁸ a paper review based on his examination of October 1, 2014, dated January 14, 2015, he opined on three independent reports by Drs. Emad, Smith and McKee, which found that the Applicant suffered from chronic pain syndrome. The doctor maintained in his report and in his testimony that the Applicant was suffering from an underlying arthritis condition which was contributing to his current complaints.

Dr. Sharma’s last report,³⁹ dated June 9, 2015, was from his examination of the Applicant completed on April 1, 2015. The doctor noted that the Applicant described global body pain, which in the doctor’s opinion did not reflect a normal progression of a soft tissue injury. The doctor noted the Applicant was seeing a psychologist, and he was not able to complete his daily housekeeping activities at that point in time. In the doctor’s opinion the Applicant was getting worse as the Applicant was experiencing more pain that limited his movements. The doctor opined on the Applicant’s worsening pain in his neck and lower back in that the underlying reason, from an orthopaedic perspective, behind the Applicant’s worsening pain was the arthritis of the spine.

In cross-examination Dr. Sharma testified that he did not perform a catastrophic assessment on the Applicant. Further, the doctor testified that he did not assess for pain or mental or behaviour issues, as it was outside of his scope of expertise. The doctor also agreed that he does not ask in-depth questions on housekeeping or self-care or other daily activities.

In regards to osteoarthritis, the doctor opined that it can be detected in a client who does not have pain, and generally, arthritis gets worse over time, but that conclusion is speculative at best. The doctor maintained that this Applicant’s worsening symptoms were, in part, due to arthritis.

Dr. Sharma found no reason to disagree with the findings or observations of Dr. Smith’s chronic pain assessment report.⁴⁰

Mr. T. Landry’s Testimony (Occupational Therapist)

Mr. Landry testified on behalf of the Insurer and as to the validity and veracity of his catastrophic impairment report⁴¹ dated November 17, 2015. Mr. Landry did not opine on a catastrophic determination based on Criterion 8, as he deferred comment to the appropriate medical assessors.

Mr. Landry confirmed that, as an occupational therapist (“OT”), he was not able to make a diagnosis. He also confirmed that he personally performed the numerous tests on the Applicant for the purposes of this report. Further he confirmed that his conclusions within this report were based on a combination of observations and his test results.

Mr. Landry also noted and supported the notion that there were no significant medical issues prior to the 2012 accident.

In regards to the Applicant’s cognition, Mr. Landry noted that he did not observe any cognition issues; however, he did note that the Applicant’s mood was sad and he began crying when speaking about his family. The Applicant did demonstrate adequate motor control and functional mobility.

Mr. Landry testified that the Applicant experienced both good and bad days in regards to his pain. On good days he was more independent and on bad days he was consumed with pain management. In Mr. Landry’s view, the assessment day was a good day. Mr. Landry did not observe the Applicant in any social or recreational environments or sleep activities.

In cross-examination, Mr. Landry, after examining the catastrophic summary report,⁴² and Dr. Scott’s psychiatric catastrophic assessment report,⁴³ noted that his report was not mentioned or referenced in either report.

Mr. Landry testified that he did not reference any diagnoses in his report, he had no dispute with anything that was found in Mr. Ferland’s report in regards to good days versus bad days, nor did he mention the appearance of the Applicant.

Mr. Landry agreed that he looked at the Applicant from a physical perspective only, without regard to a psychological perspective, so he did not ask questions about motivation in regards to meal preparation, housekeeping and being in a work-like setting.

Dr. D. Scott’s Testimony (Psychiatrist)

Dr. Scott testified on behalf of the Insurer and as to the validity and veracity of his catastrophic impairment report⁴⁴ dated November 17, 2015.

The doctor remarked that he did not give any allowances in his ratings within the four spheres for medication the Applicant had been prescribed.

The doctor opined that the Guides are loosely written and hard to understand in terms of where to place or how to rate impairment of an individual within each of the four spheres, namely: activities of daily living; social functioning; concentration, persistence and pace; and deterioration or decompensation in work or a work-like setting. To remedy this situation the doctor testified that he uses a hybrid system where he overlaps the Workplace Safety Insurance Board (“WSIB”) psycho-traumatic and behavioural disorder scale, also known as the “Mental and Behaviour Disorders Rating Scale” (the “Scale”) along with the Guides in order to better understand where a person fits within the rating impairment structure of the Guides.

The doctor opined on his perception of a Class 3 or moderately impaired person. Generally the doctor divides the class into two levels of impairment: a lower and higher end. The lower end moderate patient usually demonstrates something more than a mild or Class 2 person, in that his or her agitation and sense of anxiety are much higher and start to interfere with some social functioning but not completely, and where his or her depressive state is still tolerable. An upper end of moderately impaired patient who is depressed or suffering from anxiety usually seeks help because they are crying all the time and they find it difficult to engage with family and friends. He opined that these people are most likely to seek help.

In regards to a Class 4 or Marked impairment, the doctor views this as the area where the patient has completely decompensated and relies upon the social structure in order to get by. In other words these are the people who cannot function without someone else’s help. They don’t take their medications on their own and they rarely go out of the house. These are the type of patients who show up in the emergency room at hospitals because they actually present harm to themselves or attempt to harm other people. The doctor testified that Marked impairment rated individuals are very sick people and of course Class 5 or extreme impairment people are usually hospitalized.

In regards to Dr. Ricci’s criticism of Dr. Scott’s report as not having any diagnosis of the Applicant, Dr. Scott opined that a diagnosis should not have any particular relevance in determining one individual’s level of impairment. He does not give a diagnosis unless he is specifically requested to do so. The doctor feels that assigning a diagnosis creates an unwarranted social stigma for the patient.

In regards to Dr. Ricci’s criticism that the doctor did not review or list previous doctors’ diagnoses or opinions Dr. Scott responded that other doctors’ opinions are not relevant for him to rely upon. He relies only on what he sees on the day of his exam.

In regards to Dr. Ricci’s criticism of not reviewing any collaborative reports such as an occupational assessment report, the doctor opined that this type of report has very little pertinence on how he sees the client at that time.

In regards to Dr. Ricci’s criticism of not discussing the Applicant’s mood or level of pain, the doctor disagreed in that he did note that the Applicant’s mood was low and that he was anxious. The doctor stated that he deferred any pain issues to those who have a speciality in that area. The doctor opined that Psychiatrists deal with mental issues, not pain.

In his report the doctor gave the following impairment ratings for the four spheres:

1. Activities of Daily Living – Mild or Class 2
2. Social Functioning – Mild or Class 2
3. Concentration, Persistence and Pace – Mild or Class 2
4. Deterioration, or Decompensation in Work or Work-like Setting – Moderate or Class 3

In cross-examination the doctor disagreed that providing a diagnosis as described within the Guides, as listed in Chapter 14, was a necessary step in assessing the degree of severity or the duration of an impairment. The doctor opined that the Guides are just that a guideline to which I may or may not adhere. The doctor maintained his position that a diagnosis in and of itself is not important and does not need to be included in a catastrophic assessment. The doctor defended his position when he suggested a diagnosis of schizophrenia does not necessarily mean that a person has an impairment.

The doctor defended his lack of references to other doctor’s documentation despite the recommended methodology of the Guides in regards to mental disorders. The only relevant information that needs to be documented is what the Applicant or client provides during the interview, unless the other doctors saw him within a very short period of time prior to his interview, as people can drastically change over a very short period of time. He noted that Dr. Ricci saw the Applicant some 6 to 8 months after he did.

The doctor opined that from his perspective all the issues that the Applicant went through prior to 2012 to the date of his report were irrelevant, including any occupational therapists’ reports. The doctor disagreed with this part of the recommendations within the Guides as well. The doctor opined that other professionals who had previously tracked the patient over time were irrelevant, as he was only concerned with the how the Applicant presented on that day at that time. The doctor was not concerned with what others saw in the past. Because this information is deemed irrelevant the doctor stated that he chose not to include it in his report.

The doctor did agree that collateral interviews with family or friends does have a great impact on his understanding of the severity of an impairment, but he did not include this information in his report because he was not asked to do this function, nor were there any volunteers showing up to his office to provide any information.

The doctor did agree that his lack of documentation did not help the reader follow how he arrived at the conclusions and ratings in his report.

Dr. Scott confirmed that he did not read or take into consideration Mr. Landry’s occupational therapist catastrophic assessment when writing his assessment, despite agreeing that the occupational therapist speaks directly to function and an OT’s report is not a standalone document. Dr. Scott suggested that the OT report is more relevant to a chronic pain component and not a mental behaviour component.

Dr. Scott was unable to explain the differences in his report to those reports of the Insurer’s assessor Dr. Suddaby,⁴⁵ and Mr. Ferland’s occupational reports,⁴⁶ which were all conducted over time and were not just a snapshot in time. Dr. Suddaby’s final diagnosis of the Applicant was as follows:

1. Persistent Depressive Disorder, Late Onset, with Melancholic Features, with Persistent Major Depressive episode.
2. Somatic Symptom Disorder, with Predominant Pain, Persistent.

Dr. Scott recognized that the above-listed professionals, including Mr. Landry’s catastrophic OT report,⁴⁷ showed a declining function of the Applicant over time, none of which was discussed or considered in Dr. Scott’s catastrophic assessment.

Dr. Scott recognized that the Applicant was working full-time, had a good relationship with his wife, and was a full-time participatory father in the upbringing of his children prior to the accident, without mental or physical functioning impairments.

Dr. Scott agreed that he did not mention the Applicant’s pain issues in his report, despite the fact that pain can affect a person’s mood, anxiety or depression. The doctor defended this position because he doesn’t explore pain frequency or pain symptoms; he only explores the Applicant’s mental status despite the apparent overlap or correlation between the two.

Dr. Scott confirmed that he did use the Scale’s definitions and examples when interpreting impairment ratings under the Guides. The doctor opined that the classes of impairment have exactly the same wording in both the Guides and the Scale. Further, examples of impairments are too limited in the Guides, but the Scale examples make it much clearer on where to place the Applicant in regards to a Class 3 or Class 4 rating. The doctor also confirmed that there is no mention that he used or relied upon the Scale to formulate his ratings in his report’s conclusions.

Arguments

The Applicant argues that the test for a catastrophic impairment (“CAT”) will be met where an individual has suffered a Marked or Class 4 impairment in one of the following four areas of functioning: activities of daily living; social functioning; concentration; and adaption. In order to determine if an insured meets the CAT definition, an assessment must be conducted in accordance with the Guides with a finding of a Class 4 impairment (Marked) or Class 5 impairment (extreme). Further, the assessor is required to use the table in Chapter 14 of the Guides called “Classification of Impairments Due to Mental and Behavioural Disorder”.

The report completed by Dr. Scott was not done in accordance with the methodology required by the Guides. His report breached basic principles of the Guides. Firstly, he did not provide a diagnosis of the Applicant’s psychological impairments. Dr. Ricci stated that, “it’s the first step… You can’t talk impairments unless you have a diagnosis”.

Secondly, Dr. Scott’s report failed to gather and incorporate evidence from different sources into his assessment. The sole source for his assessment was his brief interview of the Applicant which was simply a snapshot of him at the time of his report in October 2015. Dr. Scott made the following remarkable comments:

a) He disagreed that the Guides require that the presence of the mental disorder be documented primarily on the basis of reports from acceptable sources such as psychologists and occupational therapists.

b) He stated that the prior psychological assessments have “very little meaning” and “the psychological assessments that were done before are irrelevant”.

c) He disagreed that the data gathered during a period of particular years is particularly useful to determining impairment. He stated what matters to him is just the snapshot of that timeframe when he interviewed the Applicant.

d) He further added that he read all of the information in the medical index given to him but he did not include any of that medical information from different sources in his report because it was irrelevant to his assessment and he did not rely on it.

e) He acknowledged that his report makes no reference to the Applicant’s efforts to work. He stated that he felt that the information on those attempts was irrelevant.

The Applicant argues in part that Dr. Scott has failed to consider or give any weight to the following critical information from treating medical professionals:

a) Family doctor clinical notes and records; b) Treating psychologist (Dr. Moustgaard) notes and reports in 2013 and 2015; c) Treating occupational therapist (Sebastien Ferland) reports from 2014 to present.

In particular, Dr. Scott did not make any reference and give the appropriate weight to prior independent psychiatric assessments done on the Applicant by Dr. Ken Suddaby who has witnessed a significant deterioration in emotional functioning between his two reports in January 2014 and June 2015.

The Applicant relies in part on M.R. and Gore Mutual Insurance Company,⁴⁸ where the applicant applied for CAT based on mental and behavioural disorder. The arbitrator rejected the insurer’s assessments because it failed to follow the procedures mandated in the Guides. In particular the assessors failed to gather and review the clinical records of the applicant’s treating professionals. However, on the strength of other assessments, the Applicant was found markedly impaired with respect to three of the four spheres.

The Applicant continues to argue that as the only mental health professional to assess the Applicant, Dr. Scott, used the WSIB Scale. It is submitted that the Scale is not accepted for use in determining catastrophic impairment under the Schedule and it imposes a much more stringent test than the proper five-part classification set out in Chapter 14 of the Guides. Equally troubling, Dr. Scott failed to disclose anywhere in his report that he was using the more onerous and inappropriate Scale.

As a result, it is submitted that Dr. Scott’s evidence and report should be given little, or no, weight in light of the serious flaws with his report and his supporting evidence. It is the Applicant’s position that the evidence clearly points to a Class 4 impairment rating for three of the four spheres, but in particular, the sphere of “adaption” as supported by the following list of healthcare professionals:

• Dr. Moustgaard: Adjustment Disorder and Pain Disorder (July 10, 2013)
• Dr. Suddaby: Adjustment Disorder (January 27, 2014)
• Dr. Moustgaard: Major Depressive Disorder (January 15, 2015)
• Dr. Damji: Major Depressive Disorder and Somatic Symptom Disorder (December 4, 2015)
• Dr. Ricci: Major Depressive Disorder, Unspecified Anxiety Disorder and Somatic Symptom Disorder (February 25, 2016)

The Insurer argues, in part, that the Applicant and his wife have no credibility, and as a result their testimony should be disregarded in its entirety. The Applicant’s testimony about not suffering from any impairments from the 2009 accident was brought into question by the reports of Dr. Hommerson, the OHIP summary reports, and Dr. Fulup’s report, in that the Applicant was suffering from chronic pain and depression as late as May 10, 2010.

The Insurer asserts that the question of causality of the impairments is now raised. If the Applicant was not completely symptom-free from the 2009 accident, as he claimed, then this affects the baseline that the doctors relied upon in arriving at their respective diagnoses. Therefore if the diagnoses are flawed, then by extension the Classification ratings are also wrong. Thus it was not the 2012 accident that caused his catastrophic impairments, if he is deemed to be catastrophically impaired.

The Insurer argues that the Applicant should have been assessed under Criterion 7 and not Criterion 8 as it has been repeatedly acknowledged that, in assessing mental or behavioural impairment in respect of Criterion 8, an assessor is required to “remove from consideration, to the extent possible, any physical causes of pain”. The Insurer relies in part on the Court of Appeals case of Aviva Canada Inc. v. Pastore,⁴⁹ at paragraph 63, to arrive at this conclusion.

It follows that an arbitrator may and should reject the evidence of an assessor who has not attempted to remove physical causes of pain from consideration when assessing a mental or behavioural disorder. Chapter 14 of the Guides, “Mental and Behavioural Disorders” is the chapter that governs the assessment of mental or behavioural disorders and contemplates that pain may be relevant to an assessment of mental or behavioural impairments, but only in circumstances where physical findings do not adequately account for pain.

The Insurer asserts that Chapter 2 of the Guides specifically mandates that chronic pain be assessed under Chapter 15. Thus the proper application for a catastrophic impairment rating would be to calculate a percentage under the Whole Person Impairment (“WPI”) scale and not that of a Chapter 14 Class rating. The Insurer relies on the fact that Drs. McKee, Ebad, Smith and Sharma have diagnosed the Applicant with chronic pain. Further Dr. Sharma testified he believes that the Applicant’s pain is caused by his underlying condition of arthritis.

The Insurer argues that surveillance has captured the Applicant shopping, driving and entering restaurants without assistance and incident, all of which demonstrates the abilities of a person who does not suffer from a Class 4 impairment in any sphere.

In regards to the evidence of Dr. Moustgaard and Dr. Ricci, the Insurer argues that the doctors’ base lines were incorrect because: they relied upon self reporting of the Applicant and his wife, they were not informed of such things as the previous depression or the chronic pain diagnosis from the 2009 accident: that the doctors were unaware that thalassemia caused the Applicant to be fatigued: and the fact that the Applicant was not working 80 hours or more per week when the pay stubs show significantly less hours of work. Therefore, the Insurer argues if the base line is incorrect, the diagnosis derived from the baseline is also incorrect, and thus the resulting classification is also incorrect.

In regards to Mr. Ferland’s testimony, the Insurer argues that it shows that the decline in the Applicant’s condition was due to his separation from his wife and children, which has now resolved, and in any event was not caused directly by the 2012 accident. Therefore the Insurer suggests that the condition is not permanent as the couple are again residing together.

In regards to Dr. Scott’s report and testimony the Insurer argues that the doctor correctly observed that today’s standards do not rely on the diagnoses, therefore they are not important with respect to the levels of impairment. It is simply how the person is functioning that really matters. Further the Insurer argues that Dr. Scott, in not referring to other medical records, diagnoses or comments or recommendations, or findings by other medical practitioners, does not in itself show that the doctor had not read them, weighed them, or considered them, but he simply did not see the need to regurgitate them, nor did he see the need to discuss or articulate his thoughts either for or against on them as he made his own conclusions based on his observations.

Finally it is the Insurer’s position that the Scale that is used by Dr. Scott is based upon the Guides. It is merely a more exhaustive description of the different levels of Classes. Both the WSIB and the Schedule are creatures of statute. It is a maxim of statutory interpretation that legislation across fields ought to be interpreted in a consistent fashion. As such, the adoption by WSIB, a quasi-government agency, of a particular interpretation of Chapter 14, while not determinative, ought to be highly persuasive in interpreting Chapter 14 for the purposes of the Schedule.

Decision

In regards to causality, I do agree that there are a few anomalies in the historical records. However, the Insurer did not present any evidence as to the meaning or veracity of the irregular statements made in regards to the post-2009 accident. I note that the authors of the irregular statements did not testify. I note that the Insurer also did not present any evidence about how a person who suffers from chronic pain cannot recover from it over time, or for that matter for what length of time chronic pain continues to exist in a person after being diagnosed with chronic pain. The Insurer did not provide me with any evidence as the severity or frequency of the pain the Applicant was in after the 2009 accident, and that recovery from that pain was unlikely. I further note that Dr. Scott did not refer to or discuss apportionment in support of the Insurer’s assertions of one or more pre-existing condition(s).

In my view, causality is not in question as the symptoms which gave rise to the Applicant’s impairments are a direct result of the 2012 accident. I have no evidence to the contrary. The Insurer did not call any witnesses to verify the reports or notes which the Insurer suggested conflict with the Applicant’s statements. Therefore I am unable to ascertain the accuracy and veracity of these statements and what weight, if any, I should give to their meaning.

I am unconvinced that a slight variance in a doctor’s baseline ultimately nullifies a diagnosis. None of the doctors who testified agreed that their diagnoses were incorrect or that there needed to be changes made to their diagnoses because of a slight variance in their baseline.

In regards to Dr. Sharma’s evidence that he believes that the underlying pain experienced by the Applicant can be attributed to his arthritis, I remain unconvinced that all of the Somatic Symptom Disorder, with predominant pain, persistent, as diagnosed by the Insurer’s own psychiatrist in June 2015,⁵⁰ is associated solely with the arthritis. There is no direct evidence to that effect. I also note that Dr. Sharma only makes a suggestion that a possible head trauma occurred and that this went unverified, therefore, in my view, means a Chapter 4 impairment rating and subsequent WPI rating are not necessary or required.

In regards to Chapter 14 versus Chapter 15 and how the Applicant is assessed and rated, I am unconvinced that Dr. Ricci did not turn her mind to removing or teasing out the pain elements of the impairment symptoms. In fact she did suggest, in her testimony, this would have been all but impossible to do. I note the Insurer did not present an alternative process for the doctor to pursue in order to tease out the pain, nor did the expert witnesses for the Insurer proffer their solution(s) as to how they teased out the pain. I also note that Dr. Scott, the only other mental health practitioner to testify on behalf of the Insurer, did not allow for any discussion on this matter in his report, nor did he elaborate on the issue in his testimony, other than ignoring the pain issue. Accordingly, since there was not a closed head injury and the pain was perceived by the Applicant to be widespread throughout his upper body, it is my view that Dr. Ricci acted reasonably in the circumstances and the Applicant was properly assessed and rated under Chapter 14. Therefore I accept the Applicant’s application as presented.

I remain unconvinced that Dr. Scott’s position that the Guides are simply a guideline for him to follow is correct. I do agree that the Guides do not specify that the recommended steps within the Guides are mandatory. In my view, the Schedule mandates health practitioners to follow the Guide’s recommendations in order to arrive at the correct impairment rating or classification. This is a legal test, as noted in Pastore⁵¹ by the Court of Appeal in 2012; it is not a medical cherry picking exercise of what the doctor wants to do or likes to do. In this case Dr. Scott was asked to do a catastrophic assessment according to the Guides as mandated by the Schedule and not by using the WSIB’s Scale.

In my view, the doctor strayed outside of the Guides and used a classification system foreign to the Schedule or the Act,⁵² which imposed higher barriers upon the Applicant to achieve an impairment rating under the Guides, thus rendering Dr. Scott’s report as significantly flawed and useless to the trier of fact. I note there is no evidence how the WSIB, which has an entirely different legislated purpose and mandate, arrived at its definitions or standards.

In my view, the position of the Applicant is the most persuasive when taking into consideration all the evidence in this case. I am unable to give any weight to Dr. Scott’s report or testimony, as Dr. Scott was the only other mental health professional to render a catastrophic impairment rating or assessment, and I remain unconvinced that his opinions and report are the most accurate in the circumstances.

Therefore, for the above reasons, I find that the Applicant sustained a catastrophic impairment as a result of this accident, as he has suffered a Marked or Class 4 impairment in one of the four spheres, being Deterioration, or Decompensation in a Work or Work-like Setting.

Is the Insurer liable to pay the Applicant a Special Award?

Arguments

The Applicant argues that an arbitrator has inherent discretion to grant a special award if the arbitrator finds that the Insurer unreasonably withheld or delayed the payment of benefits, even when a request for a special award was not made in the application for arbitration. The Applicant relies upon Waldock.⁵³ The Applicant argues that Waldock parallels the present case and a similar finding is urged and would be appropriate.

The Applicant argues that the Insurer may not treat the Applicant as an adversary whose interests may be disregarded, and that should a finding be made that an Insurer has indeed unreasonably withheld payments, a special award is mandatory. The Applicant relies upon the findings within Cowans⁵⁴ and Sinnapu⁵⁵ respectively.

The Applicant argues that the special award is warranted on the following grounds:

1. The Insurer refused to accept the CAT application based on Dr. Scott’s flawed report, as the evidence shows the doctor clearly did not follow the Guides recommendations;

2. Mr. Landry’s OT report was not provided to Dr. Scott prior to the release of Dr. Scott’s CAT report, despite the critical role it should have played as part of a CAT determination team’s assessment of the Applicant;

3. The Insurer relied upon a falsified or ghost written report of Dr. Sharma, which the Insurer had relied upon in making its decision not to accept the Applicant’s CAT application. As such the Insurer should be held vicariously liable for the conduct of a third party assessment firm it hired. The Applicant relies in part on the Supreme Court Decision in Bazley.⁵⁶

In light of these facts the Applicant requests a finding of a 50% special award on benefits that the Applicant would have been entitled to from the date of the denial on November 2015 to date.

The Insurer argues, in part, that in respect of a special award, it does not believe that there are either grounds for or a jurisdictional basis upon which a special award can be granted. Further, the Insurer objects to the argument that it ought to be held responsible for the actions of CVE. Upon becoming aware of the error it communicated that fact to the Commission. It acted honourably and reasonably in all the circumstances. It is submitted that neither the error nor the report played a role in the determination of whether the Applicant had suffered a catastrophic impairment.

Decision

I agree with the Applicant that an arbitrator has the inherent discretion to grant a special award. However, that special award is based on the monetary value of the benefits that have been deemed to have been delayed or withheld unreasonably. In this case there is not a monetary value associated with this arbitration.

I agree with the Insurer that a catastrophic determination is the primary issue before me. The catastrophic determination is a status and not a specified benefit, thus no specific monetary value can be assigned. Catastrophic determination is a gateway to an enhanced level of benefits under the Schedule; it does not provide a direct entitlement to any specified benefit(s).

Therefore, for the above reasons, the Insurer is not liable to pay the Applicant a special award.

Expenses:

Neither party made submissions on expenses. Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing before me in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

April 4, 2018

Charles Matheson Arbitrator

Date

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 71

FSCO A16-004323

BETWEEN:

ADEL HARB

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

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:

1. The Applicant sustained a catastrophic impairment as a result of this accident.

2. The Insurer is not liable to pay the Applicant a special award.

3. Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing before me in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

April 4, 2018

Charles Matheson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Motion Exhibit #1.Mandamin and Pafco Insurance Company (FSCO A14-009905, July 31, 2017)
3. 32016 ONCA 257.
4. 42015 ONSC 1891.
5. 5Mandamin and Pafco Insurance Company, (FSCO, A14-009905, July 31, 2017) page 5 of 6.
6. 6Haripersaud and State Farm Mutual Automobile Insurance Co. (FSCO Appeal, P98-00018, December 17, 1999).
7. 7Insurance Act, 1990, Chapter I.8.
8. 8Court of Justices Act, RSO 1990.
9. 9Alper and State Farm Mutual Automobile Insurance Company (FSCO, A07-002053, July 2, 2009).
10. 10Ibid. at paragraph 7.
11. 11Liberty Mutual Insurance Co. v. Fernandes, 2006 CarswellOnt 5308.
12. 12Ibid
13. 13McArthur v. Canada (Attorney General), 2008 ONCA 892, 2008 CarswellOnt 7826.
14. 14Ibid.
15. 15Ibid. at paragraph 13.
16. 16Ibid.
17. 17Ibid
18. 18Tab 21B, Exhibit 22, Neuropsychological Report dated July 10, 2013.
19. 19Tab 21A, Exhibit 23.
20. 20Tab21C, Exhibit 24
21. 21Volume 3, Tab 19D, dated September 1, 2009.
22. 22Volume 3, Tab 19J, dated February 23, 2010.
23. 23Volume 1, Tab 9B, dated June 9, 2015.
24. 24Volume 5, Tab 27, dated October 24, 2014.
25. 25Volume 1, Tab 9A, dated November 6, 2015.
26. 26Volume 1, Tab 9C, dated December 1, 2015.
27. 27Volume 1, Tab 9G, dated December 23, 2016.
28. 28Volume 5, Tab 29, dated February 26, 2016.
29. 29Exhibit 13, dated June 9, 2015.
30. 30Psychological Assessment Report dated August 4, 2015.
31. 31Volume 1, Tab 6F - Exhibit 46.
32. 32Ibid., page 15.
33. 33Exhibit 47, Volume 1 – Tab 6E, dated October 15, 2015.
34. 34Exhibit 53, Tab 19 of Volume 2 of Insurer’s Brief.
35. 35Exhibit 55, Tab 19O of the Applicant’s Brief, dated March 17, 2013.
36. 36Exhibit 56, Paper Review of MRI and Neurological assessment dated June 17, 2013.
37. 37Exhibit 57, Tab 19T of Applicant’s Brief.
38. 38Exhibit 58, Tab 19U of Applicant’s Brief.
39. 39Exhibit 59, loose leaf.
40. 40Exhibit 33, Tab 27, Chronic Pain assessment dated October 14, 2014.
41. 41Exhibit 46, Tab 6F, Catastrophic Impairment Determination, Occupational Therapist Report.
42. 42Exhibit 61, Tab 6H of Applicant’s Brief, dated November 17, 2015.
43. 43Exhibit 47, Tab 6E of Applicant’s Brief, dated October 15, 2015.
44. 44Exhibit 47, Tab 6E, Catastrophic Impairment Determination, Psychiatric Independent Medical Evaluation.
45. 45Exhibit 45 and 13, IME, Dr. Suddaby Psychiatric report dated January 27, 2014 and June 9, 2015.
46. 46Ibid.
47. 47Exhibit 46, Tab 6F, November 17, 2015, IME, Catastrophic Determination Assessment.
48. 48M.R. and Gore Mutual Insurance Company, (FSCO A09-001224, December 23, 2010).
49. 49Aviva Canada Inc. v Pastore, 2012 ONCA 642.
50. 50Exhibit 13, dated June 9, 2015, Dr. Suddaby, Psychiatrist, page 6.
51. 51Ibid
52. 52Ibid.
53. 53Waldock and State Farm Mutual Automobile Insurance Co. (FSCO A13-00 1725, November 10, 2014).
54. 54Cowans and Motors Insurance Corporation (FSCO A09-003237, October 15, 2010).
55. 55Sinnapu and Economical Mutual Insurance Co. (FSCO A09-000900, July 30, 2010).
56. 56Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534 (SCC), at paragraphs 29 and 32.