Financial Services Commission of Ontario

Neutral Citation: 2018 ONFSCDRS 83

FSCO A16-004303

BETWEEN:

M. M.¹ Applicant

and

OPTIMUM INSURANCE COMPANY INC. Insurer

DECISION

Before: Lynda Tanaka, Arbitrator

Heard: In person at ADR Chambers on November 27, 28 and 29, 2017 and January 11, 12, 25, and 30, and February 1, and 2, 2018 and at the office of Borden Ladner Gervais in Toronto on February 5, 2018

Appearances: M. M. participated Ms. A. Ismail, counsel for the Applicant Mr. George Wray, counsel for the Insurer

Issues:

The Applicant, M. M. (the "Applicant"), was injured in a motor vehicle accident on April 25, 2014 and sought accident benefits from Optimum Insurance Company Inc. ("Optimum"), payable under the Schedule.² The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative applied for arbitration at the Financial Services Commission of Ontario under 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.

The parties resolved several of the issues which formed part of the original Application for Arbitration. Specifically, there is no longer any dispute with respect to medical benefits for services provided by Mills Psychological Professional Corporation. It is agreed that the housekeeping and attendant care benefit claims must clear the hurdle of the Applicant being found to be catastrophically impaired before the quantum and other entitlement issues can be addressed. Similarly, the dispute concerning travel expenses is dependent on the issue of catastrophic impairment but the quantum and the incurring of those expenses is not in dispute. Therefore the following are the issues in this Hearing:

1. Did the Applicant sustain a catastrophic impairment within the meaning of the Schedule?
2. Is the Applicant entitled to attendant care benefits in the amount of $1,259.39 per month from April 25, 2014 to date and ongoing?
3. Is the Applicant entitled to payments for housekeeping and home maintenance services for the amount of $100.00 per week from April 26, 2014 and ongoing?
4. Is the Applicant entitled to payment for the cost of travel for $1,440.00 for travel expenses to Oshawa Physiotherapy and Rehabilitation Centre?
5. Is Optimum liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
6. Is the Applicant entitled to interest on overdue benefits?
7. Is either party entitled to its expenses of the Arbitration?

Result:

1. The Applicant did sustain a catastrophic impairment within the meaning of the Schedule.
2. The Applicant is not entitled to attendant care benefits in the amount of $1,259.39 per month from April 25, 2014 to date and ongoing.
3. The Applicant is not entitled to housekeeping and home maintenance services in the amount of $100.00 per week from April 26, 2014 and ongoing.
4. The Applicant is entitled to payment for the cost of travel for $1,440.00 for travel expenses to Oshawa Physiotherapy and Rehabilitation Centre.
5. Optimum is not liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant.
6. The Applicant is entitled to interest on any overdue benefits.
7. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

LEGISLATION AND LEGAL FRAMEWORK

At the date of the accident, the provisions of the Schedule defined "catastrophic impairment" in Section 3(2), and the case before me deals with the definition in subsections 2(e) and 2(f) as follows:

For the purposes of this Regulation, a catastrophic impairment caused by an accident is,...

(e) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993,³ results in 55 per cent or more impairment of the whole person; or

(f) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

Subsection 6 is relevant. It provides that an impairment that is sustained but not listed in the Guides is deemed to be "the impairment that is listed in the document that is most analogous to the impairment sustained by the insured person".

The Guides specified in the Schedule were published 21 years prior to the accident and there has been a more recent edition published but the legislation has not been changed. The evidence establishes that some health care professionals do not adhere strictly to the 4th edition specified by the Schedule. Similarly with respect to the Diagnostic and Statistical Manual for Mental Disorders ("DSM-III-R") which provides the diagnoses for mental illness the edition specified in the Guides is long out of date. For instance, Dr. Zakzanis, the neuropsychologist called by Optimum, testified that he uses the more modern DSM edition which reflects more current research in significant respects.

With respect to the benefits claims for attendant care and housekeeping, the relevant provisions are sections 3(7)(e) and (8) of the Schedule which provide:

3.(7) For the purposes of this Regulation,...

(e) subject to subsection (8), an expense in respect of goods or services referred to in the Regulation is not incurred by an insured person unless,

(i) The insured person has received the goods or services to which the expense relates,

(ii) The insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(A) did so in the course of employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person.

Arbitrator Huberman described the role of the arbitrator as follows:⁴

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

PRELIMINARY ISSUES

The issue of catastrophic impairment ("CAT") was added November 17, 2017 by the Pre-Hearing Arbitrator. The OCF-19 was signed by Dr. Melanio Catre⁵ on March 30, 2017 and submitted along with the Applicant's CAT reports to Optimum on April 13, 2017. The Optimum assessors assessed the Applicant and the reports were finalized in late September 2017. The last date for service of documents and reports under the Dispute Resolution Practice Code ("DPRC") was October 29, 2017. The Optimum reports were served on the Applicant in early October, in sufficient time to meet the 30 days required for service of reports under the DRPC. The Hearing was scheduled to commence November 27, 2017 and the parties were instructed that the Hearing Arbitrator would deal with the four additional days needed to accommodate the CAT issue. Optimum served further reports on the eve of the Hearing, specifically an Addendum Report by the Otolaryngologist⁶ and an Executive Summary Addendum Report⁷ which included a revision to the WPI impairment rating.

Optimum brought a formal motion to exclude evidence of the Applicant consisting of certain expert witnesses⁸ and their reports. The Applicant had not produced any addendum reports at that time because she could not meet the 30-day production requirement under the DRPC. The Applicant now sought the opportunity to provide such reports.

I ruled for reasons given orally that the order that Optimum sought was not granted and I granted the Applicant leave to serve and file Reply reports not less than one week prior to the recommencement of the Hearing scheduled for January 11, 2018.

The Hearing proceeded on November 27, 28 and 29, 2017.

At the resumption on January 11, Optimum brought a motion seeking an order that Dr. Christopher Gallimore, the author of the Executive Summary to the Applicant's CAT Reports, be barred from testifying and further that the two reports which had been served in accordance with my order of November 27, 2017 not be permitted nor the authors permitted to testify. On January 4, 2018, the Applicant had served a report from psychiatrist Dr. Leslie Kiraly,⁹ in response to Optimum's Psychology Assessment Report by Dr. Christopher Hope,¹⁰ and an Addendum Report by Dr. Gallimore.¹¹ Optimum also sought leave to file a further Addendum Report prepared by its psychologist, Dr. Hope, in response to Dr. Kiraly's Report Exhibit 24 which had been served in accordance with my order of November 27. Leave was granted.

I ruled that the Optimum's motion to bar Dr. Gallimore from testifying was brought too late. The best resolution to allow procedural fairness for both parties was to permit the reports and testimony (if required) to be filed as part of the record subject to Optimum's ability to file an Addendum report responding to Dr. Kiraly's Report for which leave had been granted. Dr. Hope's Addendum Report was served in accordance with my order and was marked as Exhibit 28.

EVIDENCE AND ANALYSIS:

The following witnesses testified:

1. The Applicant;
2. Witness P, a personal friend of the Applicant and certified personal care worker;
3. Dr. Victor Liao, M.D., Family Practitioner;
4. Patrick T Beedling, M.A., Psychotherapist;
5. Dr. Paul J. Robinson, Ph. D., C. Psych;
6. Lani Legasi, OT;
7. Dr. Christopher H. Gallimore, BSc (Hons) MSc, M.D., FRCSC, Orthopedic Surgeon;
8. Farah Hammed, OT;
9. Dr. Leslie Kiraly, MD, F.R.C.P. (C), Psychiatrist;
10. Dr. Robert Adam, B.Sc., M.D., FRCSC, Ophthalmologist;
11. Dr. Christopher Hope, Ph.D., C. Psych., Psychologist and Neuropsychologist;
12. Dr. Mohamed Khaled, M.D., Physician;
13. Dr. Dimitri Dimitrakoudis, M.Sc., M.D. FRCPSC, Neurologist;
14. Dr. Yuri Marchuk, M.D., Physiatrist; and
15. Dr. Earl Magder, D.D.S.

The Applicant is a 29 year old woman with a college education. She originally obtained a certificate in events management with a career goal of becoming an event planner. This career would have involved the Applicant being well-organized, dealing with multiple tasks simultaneously, and dealing with the public. Her career goal changed due to personal losses, and she had started the one year program in medical office administration at Durham College at the time of the accident.

While she was at college for both her initial two year certificate course and the medical office administration course, she worked 10 to 12 hours every two weeks at a local Dairy Queen and full-time during the summer college breaks. She had started with Dairy Queen at age 14 and became a manager, supervising crew members who were predominantly high school students. Her summer jobs were more demanding as she managed two stores. She was responsible for the management of the stores and for the human resources issues and safety of her crew. She had to engage the help of the police on more than one occasion due to customer misbehaviour. She was involved in hiring and firing of staff as well as managing and scheduling them and being responsible for the physical assets and business operations at the locations. She became involved in hiring for other locations than her own and for training new crew members.

For a period of time, she had a contract data entry position with the Municipal Property Assessment Corporation in Oshawa where she worked during the day and also did evening work at the Dairy Queen.

Prior to the accident, the Applicant had an active social life. She enjoyed going to the gym three or four times a week and playing soccer. She had played volleyball and was going to start playing on a team. She has a boyfriend with whom she enjoyed camping trips, trips to Canada's Wonderland, concerts and festivals, going to the beach, both as a couple and with friends. She had a very close relationship with her best friend from public school and, while keeping her part-time job and staying up on her school work, the Applicant provided active support to a friend going through an ongoing difficult personal situation.

At home, she helped with laundry, dishes, cooking, looking after her own room and bathroom. She lived with her parents and younger brother and appears to have had close family relationships.

Prior to the accident she had lost a family member in a car accident and another committed suicide following on that accident. Since the accident, she has also lost a friend in a car accident fatality and expressed difficulty in accepting that she is alive and her friend is dead.

The Accident

The Applicant was driving her aunt's car with three passengers. Her mother and younger brother were in the rear passenger seats. Her aunt was in the front passenger seat. She stopped at an intersection and, after determining it was safe to do so, she entered it. Her vehicle was T-boned from the left with the main point of impact being the rear half of the car. The car was spun around and left the travelled portion of the road.¹² She hit her head and awoke to find the seat belt interfering with her ability to breathe. Her left knee was jammed between the door and the steering wheel. She looked in the rear of the car and her brother and mother appeared to be dead. The impact of the collision was so severe that, among the three passengers, the injuries included fractures of large and small bones, loss of consciousness and internal injuries. Her brother's injuries were so severe that he was transported to a regional trauma centre by air ambulance. The Applicant suffers flashbacks of the accident triggered by the smell of gasoline, the sense of wind coming from behind (due to the rotors of the air ambulance) and sometimes a glance at a certain angle at her mother or brother.

She spent three days in the critical care unit and another two days in the hospital. There was blood in her urine. She started walking again with a walker in the hospital and she was given medication for her pain and nausea. With respect to her head injuries, she hit her head on the door frame hard enough to cause black eyes and swelling visible without aid.¹³ She lost sensation in the area of her left forehead and continuing back past her hairline and she remains conscious of a resulting discolouration of her facial skin and the slight indentation in her upper left forehead above the eyebrow. She suffered other injuries including strains and sprains to her neck and entire back, and to both shoulders, her jaw, left hip and knee.

She testified that she remains in pain but gets temporary relief from physical treatment and canniboid treatment. Her right shoulder has limited range of motion.

On an ongoing basis, she has left eye pain for which she has not yet been successful in getting treatment.¹⁴ She suffers from chronic migraines and there is no break in her constant headaches. With the migraines and anxiety, she suffers from diarrhea as well as vomiting and nausea. She suffers from pain and audible clicking in her right jaw and she avoids eating food that is chewy and crunchy and prefers chewing on her left side.

Her anxiety and its symptoms have become worse and the experience of testifying was clearly stressful. She testified that she was so anxious that she did not go outside during the weekend prior to the commencement of the Hearing. She cried frequently during the course of her testimony, even though she used breathing techniques to attempt to remain calm. The assessors' reports consistently reference her crying in the course of the examinations whether she is being assessed for Optimum or on her own behalf. She has had and continues to have ongoing issues with sleep, falling asleep and remaining asleep.

She has expressed suicidal ideation to her psychotherapist,¹⁵ family doctor¹⁶ and to an assessor retained by Optimum.¹⁷ On one occasion she developed a plan and started to act on it. She testified that she could not go through with it because she knew it would hurt her parents because she had seen the hurt caused by suicide of another family member. The suicidal ideation appears to have returned in mid-2017 when she shared with the Occupational Therapist retained by Optimum to assess her functioning that she used to think that suicide was selfish but she had changed her thinking.¹⁸ She does suffer from her relentless pain and a sense that there is no purpose to her continuing to live. Not surprisingly given her age, she would also like to get on with her life, live with her boyfriend, get back to work and start her own home, rather than living with her parents.

She continues to suffer from pain in her right shoulder which is her dominant side. She cannot lift her hand to reach for things high on shelves and, in the witness stand, she appeared to limit the movement of her right hand when gesticulating. She needs the assistance of someone else, usually her mother and sometimes her friend Witness P, to style her hair in a way other than a simple style that requires little care. She has left shoulder pain radiating down to the ring finger of her left hand. She has back pain which was eased while she was having physiotherapy. She has difficulty using stairs. She described her memory as awful. She has difficulty forming sentences and forgets the topic in mid-sentence. She has learned to use her phone to provide cues for her memory.

Her anxiety controls her life. It manifests in shakes, cold sweats, diarrhea and vomiting, which she is unsuccessful in controlling. She is not left alone. She has zero confidence and cannot be in large crowds. She testified that she has not driven since the accident other than to try once. She has passenger anxiety as well and cannot sit on the left side of the vehicle.

She is assisted in her sleeping problems by the use of canniboid which has been provided on a referral from her family doctor by Cannabinoid Medical Clinic.¹⁹

She suffers from tinnitus and is sensitive to sound as well as to light. She wore ear plugs in her ears for part of her evidence, something she says she does to mitigate the adverse impact of what she perceives as loud noises.

After the accident she did not return to work at Dairy Queen. She was unable to return to college as originally scheduled but, after a time delay, she completed her course at college with the assistance of special accommodation to allow her more time and a quiet place to write her exams as well as additional months to complete the courses. She reduced her course load so that she only attended 2 hours per day Monday, Wednesday and Friday. Her parents drove her to the college and picked her up each time she attended. She isolated herself at college, as she felt she was identified as "the accident girl" and was under undesirable scrutiny as a result. After completing her college course successfully, she did not return to work of any sort. She has not worked since the accident.

Her social life is constrained by her anxiety and her ongoing pain. Her outings are undertaken in the context of her pain, and the availability of a place to sit if it becomes too much for her and she is overwhelmed. She is still with her boyfriend but the relationship, according to Mr. Beedling, is under some strain. It appears that they both find it hard to make joint plans on which they can agree and which they can afford, with her ongoing disability. She does not like the crowded venues that they used to enjoy and is not physically able to enjoy the camping and other activities such as going to the gym. She no longer dresses in a stylish a manner and, according to her friend, Witness P, she no longer uses her makeup or styles her hair as capably or extensively as previously. She dresses casually and for comfort, and she expressed terrible sadness and self-doubt about herself, as she enjoyed stylish clothes, fashion and makeup before the accident. While she provided important support to Witness P when she was going through a difficult personal time, it is now the Applicant that has required important support from her friend.

Her family doctor has recommended that the Applicant take up volunteer activities, a step that would allow her to re-enter gradually into broader social interaction outside her family and close friends as well as give her confidence to start work again. She testified that she has "no idea" how she would start to find such opportunities.

With respect to her relationship with her family, she appears to have been close to her family and since the accident she has had to rely on their help for household tasks that she used to perform, for meal preparation for anything other than a simple meal, occasionally for personal care and for transportation. There have been stresses in the relationship and she testified that she is more irritable than she was. They do not leave her on her own. Mr. Beedling (who has provided many months of one on one psychotherapy for the Applicant) testified that the Applicant has shared with him that there are difficulties in the relationship and she has disputes with her boyfriend and her parents. The Applicant testified that at home she mainly stays in her room.

In assessing this witness and her functioning, it is important to remember that her decision to enter the intersection resulted in almost killing her younger brother and seriously injuring her mother. Prior to this accident there was no reason to suspect that the usual course of life, of education followed by job/career, independence and setting up a household with a life mate would not reasonably quickly be part of her life. That expectation is no longer valid either at all or within a time limit that the Applicant can see.

All of the family continued to live together as the mother and brother (and the Applicant) recovered from their respective injuries with the assistance of an older brother and the father of the family. The Applicant testified and told her psychotherapist and the Optimum assessor Dr. Robinson that she isolated herself in her room and did not want to bother others with her issues in her recovery. In the course of the assessment by the Occupational Therapist Ms. Javasky, the Applicant only told her about her suicidal ideation when they were outside the house where her brother could not hear the discussion. Also, when she cried in the course of the assessment outside the house, she refused to go back in until she had calmed down so as not to cause distress to her brother.²⁰

It was no secret to Optimum that the Applicant's injuries included psychological issues. The adjuster noted on March 12, 2015 (almost one year post accident) that the Applicant felt responsible for the accident (and severe injuries to her family members) and felt a lot of guilt²¹. A couple of months later, the adjuster notes:

This poor girl is still feeling alot (sic) of guilt surrounding this mva.²²

Issue 1 - Did the Applicant sustain a catastrophic impairment within the meaning of the Schedule?

I note that the OCF-19, the Application for catastrophic impairment designation²³ was made on the basis only of subsection 3(2)(e), a 55 per cent or more whole person impairment ("WPI"). The evidence of Dr. Kiraly and his report refer to subsection 3(2)(f) as well and I will deal with the Application on that basis as well.

There is no issue as to the cause of the Applicant's impairments. The issue is whether or not the extent of the impairments and the impact on her functioning is such as to bring her within the definition of catastrophic impairment.

The Applicant's evidence provided a breakdown of the WPI done by Dr. Gallimore in two options reflecting different percentages within the ranges provided in the Guides as follows:

Impairment	Option 1	Option 2
Head injury	14%	7%
Olfaction	5%	5%
Headaches	5%	5%
Cervical Spine	5%	5%
Thoracic Spine	5%	5%
Lumbar Spine	5%	5%
Left Knee	2%	2%
Left Hip	2%	2%
Right Shoulder	9%	9%
Left Shoulder	2%	2%
Left TMJ	5%	5%
Skin	9%	5%
Medication	3%	3%
Mental Behavioural	14%	14%
Total WPI	59%	54%

In his Executive Summary, Dr. Gallimore recommended that a psychiatrist, a neuropsychologist and an occupational therapist conduct assessments as there appeared to him to be areas of impairment not addressed. He relied on the file information including but not limited to the Chronic Pain Assessment by Karmy Chronic Pain Clinic²⁴ and the Psychological Assessment by Dr. Robinson giving the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. Gallimore provided the follow opinion:

Chapter 14 [of the Guides] notes domains of Activities of Daily Living, Social Functioning, Concentration and Adaptation, under which ratings are provided. Although there is a significant impairment reported, for the purpose of an estimate rating, [M. M.] presents between a Mild and Moderate level. Table 13 Chapter 4/142 notes Mild to be 1-14% and Moderate to 15-29%. In this case without a proper mental and behavioural evaluation, a conservative score of 14% could be applied.²⁵

Optimum's impairment assessment is set out in the Executive Summary prepared by Dr. M. Khaled dated September 29, 2017²⁶ and the Executive Summary Addendum dated November 15, 2017.²⁷ Optimum's breakdown of impairments totalling 41% was sent to the Applicant's counsel in the letter by Pinnacle Adjusters Group²⁸ as follows:

Physiatry 13% Neurology 17% Ear Nose and Throat ("ENT") 5% Neuropsychology 14%

Dr. Christopher Hope opined that it was not possible to give an accurate percentage estimate from a Mental Behavioural Disorder. Dr. Khaled could not give a numerical impairment class rating under Criterion 8. A significant area of difference in the WPI of the parties is that Optimum has included no rating under the heading "Mental Behavioural".²⁹ Both parties include 14% under headings of "Head Injury" in Dr. Gallimore's opinion and under "Neuropsychology" based on the report and opinion of Dr. Zakzanis. Dr. Gallimore included a further 14% under "Mental Behavioural" and Dr. Zakzanis agreed that the Mental Behavioural impairments are different than the neuropsychological impairments which relate to her head injury and resulting cognitive impairments.

The ENT analysis was undertaken by Dr. J. Mendelsohn in July 2017 and his report was finalized September 29, 2017. His opinion was that he could not provide a rating for the hearing loss until he had the audiogram. In his summary he wrote:

It does appear that [the Applicant] has some tinnitus...Regarding the dizziness, she has no objective findings on clinical examination today but this is not uncommon...appropriate vestibular testing has not been performed nor has she been referred to a treating otolaryngologist...She describes a decreased ability to smell and taste. She feels this on the left hand side...It is possible to get nerve damage based on a shearing effect of the olfactory nerve at the time of a motor vehicle accident.³⁰

He opined that tinnitus and the presence of hearing loss may impair speech discrimination and therefore an impairment percentage up to 5% may be added to impairment for hearing loss when assigned. He opined that a 0% impairment rating should be assigned for her vertigo as it does not appear to be interfering with her activities of daily living.

An Addendum Report was issued by Dr. Mendelsohn³¹ rating the Applicant's impairment under ENT as 0% following on his review of audiograms dated August 12, 2015, some 2 years prior to his rating. Because the audiograms showed her hearing to be within normal limits for the major speech frequencies and normal middle ear pressures and compliance, he gave her a 0% rating.³² Therefore, less than two weeks prior to the commencement of the Hearing, Optimum's rating was reduced to a total WPI impairment of 38%.³³

In the Addendum Executive Summary, Dr. Khaled amended the WPI impairment to reflect the Addendum issued by Dr. Mendelsohn. Therefore the Optimum position includes no rating given for the Applicant's tinnitus or dizziness or her loss of smell. It also does not include any rating for her sensitivity to light and noise.

In his Addendum Executive Summary, Dr. Khaled went on to deal with an issue of a non-physical impairment rating under Criterion 8 which relates to Mental Behavioural Disorder in a paragraph as follows:

An Appeals Decision regarding Kusnierz has advanced the ruling that it is reasonable to combine a non-physical impairment rating under Criterion 8 or a non-physical impairment rating under Criterion 7 with a physical impairment rating under Criterion 7. This Appeals Decision is consistent with the previous Desbiens Decision. This requires that the categorical rating under Criterion 8 be converted to a numerical rating. Based on the findings of the Psychology Assessment, a combined rating cannot be advanced at this time.³⁴

The onus is on the Applicant to prove on the balance of probabilities that her WPI totals 55% or more or that she meets the requirement of a Class 4 impairment.

There was frequent reference to the text of the Guides in the evidence and the parties provided me with some of the chapters for review as part of their submissions. I find certain statements to be particularly relevant to this case. On the issue of the importance of medical history, at page 2/8 the Guides provide as follows:

Knowledge of the course of an individual's medical condition over time is essential in reaching an understanding of the individual's health status. ...Having complete information about the impairment will enable a reviewer to determine whether or not a claim makes sense and to approach the question of disability and economic loss in a logical and systematic fashion. (Emphasis added)

The Guides set out the three steps of a medical assessment of impairment in Section 2.2. The first step is an accurate documentation of the clinical status of the individual. The second step is analyzing the history and the clinical and laboratory findings to determine the nature and extent of the impairment or dysfunction of the affected parts or system. The third step is comparing the results of the analysis with the criteria specified in the Guides for the particular body part, system or function.

This comparison is distinct from the preceding clinical evaluation and need not be performed by the physician who did that evaluation; rather any knowledgeable person can compare the clinical findings with the Guides' criteria and determine whether or not the impairment estimates reflect those criteria. (Emphasis added)

Much of the evidence and the core of the dispute relates to the impairment rating for Mental and Behavioural Disorders. In Chapter 14, the Guides specify that the history of the disorder is part of the medical evaluation. The basic principles, according to the Guides, are a) the diagnosis which is a factor to be considered in assessing severity and possible duration but not the sole criterion, (b) identifying motivation for improvement, and (c) assessment of the impairment requiring a thorough review of the history of the impairment, its treatment and attempts at rehabilitation. The Guides note at page14/291 that in the Social Security Administration regulations, the inability to work is a key concept. The diagnosis of impairment is to be done under the DSM-III-R which calls for a multiaxial evaluation. Evidence of mental impairment comes from the individual, and the level of functioning which may vary considerably over time can be observed in historical records that include treatment notes, hospital discharge summaries, and rehabilitation progress notes. The taking of standardized tests requires concentration, persistence and pacing, and the description of the test results as well as objective findings and what occurred during the testing is evidence to be considered. The Guides address the four aspects of functional limitation. Fitness for work is an element in each of the four areas. The fourth area is "Deterioration or decompensation in work or worklike settings" and is described as repeated failure to adapt to stressful circumstances such that the individual may withdraw and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks.³⁵

The Guides also address the issue of the effects of medication and that where the symptoms are attenuated by medications the limitations that persist should be used as measures of the impairment's severity and side effects of medication should be considered in evaluating the overall severity of the impairment and ability to function. The evaluator may need to provide an impairment estimate for the drug's side effect.

The Guides in the same chapter address the assessment of impairment due to pain, especially where the complaint exceeds what is expected on the basis of medical findings. Mental illness may distort the perception of pain and pain may be part of a somatic delusion in a patient with a major depression or a psychotic disorder but it also notes that establishing that pain is or is not a symptom of mental impairment may be difficult and complex.

The physician should recognize that anxiety and depression almost always magnify pain, and vice versa.³⁶

In the chapter on Mental Behavioural Disorders, the Guides do not use percentages for mental impairment. On page 14/301, it uses Classes 1 to 5 with Class 4 being a Marked Impairment where impairment levels significantly impede useful functioning in the four areas or aspects of functioning. Class 3 is Moderate Impairment where the impairment levels are compatible with some, but not all useful, functioning.

The Guides set out why it did not use percentages in this edition where it had in the past.

Translating these guidelines for rating individual impairments on ordinal scales into a method for assigning percentage impairments, as if valid estimates could be made on precisely measured interval sales, cannot be done reliably. One cannot be certain that the difference in impairment between a rating of mild and moderate is of the same magnitudes as the difference between moderate and marked...

In those circumstances in which it is essential to make an estimate, the ordinal or numeric scale might be of some general use...

The use of percentages implies a certainty that does not exist, and the percentages are likely to be used inflexibly by adjudicators, who then are less likely to take into account the many factors that influence mental and behavioural impairment.³⁷ (Emphasis added)

Medical Treatment and Diagnosis and Functioning

There is no dispute that the Applicant suffers permanent impairments as a result of the accident and little dispute as to the diagnosis of those impairments. There appears to be agreement that there is permanent impairment that impacts her function along the length of her spine, her left knee, her left hip and her shoulders. There is disagreement on Dr. Gallimore's ratings for TMJ, Skin, Headaches and Medication.

There is no dispute that the Applicant suffered a mild brain injury. As a consequence of the numerous severe sprains and strains in various joints including her back and a WAD II, she has Chronic Pain Syndrome, Posttraumatic Stress Disorder, and Post-Concussion Syndrome. She has been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood by two highly qualified psychologists, Dr. John Mills and Dr. Paul Robinson who also diagnosed her with Somatic Symptom Disorder with Predominant Pain.

There is considerable evidence as to the Applicant's impairments psychologically and the impact on her functioning as she has been assessed by occupational therapists and psychologists as well as by a psychiatrist. Her family doctor has also been providing treatment for her depression and anxiety. I was provided with the assessments by Dr. Jon Mills, Psych D, PhD, C, Psych, ABPP, who supervised the work of Patrick Beedling who has provided the Applicant with over 77 separate psychotherapy sessions. Mr. Beedling testified as to her assessment, her therapy and her ongoing needs. Dr. Mills' assessments of the Applicant's impairments and progress are set out in his reports which form part of the OCF-18s submitted for approval of psychotherapy.³⁸ In each instance psychometric testing was done prior to the preparation of the report and a comparison with previous testing results was done. Progress in any areas of concern and the changing nature of her priorities as well as the focus of treatment are set out in each report.

In the Psychology Assessment Report dated July 10, 2014, Dr. Mills diagnosed the Applicant with Adjustment Disorder and with Mixed Anxiety and Depressed Mood Disorder. In the Psychological Progress Report dated November 19, 2014 Dr. Mills documented progress and indicated that the Applicant appeared motivated to address her accident related difficulties. His report noted that she exhibited symptoms of depression including low mood, low energy levels and diminished self-confidence. While she had made progress, Dr. Mills continued his recommendation for further psychotherapy as the clinical analysis continued to indicate significant signs of depression and anxiety disorder and adjustment disorder.

In addition to Dr. Mills' reports, I was provided with four assessments by Dr. Paul J. Robinson on retainer by Optimum. Dr. Robinson is part of the same group of medical practitioners who prepared the catastrophic impairment reports but he was not used on that retainer. Dr. Robinson's reports were done for Optimum for the purpose of assessing the Applicant's entitlement to income replacement benefits and for approval of psychotherapy treatment plans which were submitted by Dr. Mills and discussed above. Dr. Robinson assessed the Applicant on three separate occasions, June 8, 2015,³⁹ February 8, 2016⁴⁰ and June 27, 2016.⁴¹ In each assessment, Dr. Robinson did psychometric testing including validity tests. He identified some evidence of over reporting by the Applicant which caused him to approach use of the test results with caution. He did, however, expressly note that the evidence could also be interpreted as being the result of the Applicant simply being overwhelmed by the psychological issues she is facing.⁴² He also notes in his Robinson Report #1 that the Applicant has lost two friends, one to death in a motor vehicle accident and the other to an unknown cause (likely heart disease) and that these may be complicating her recovery from the accident.⁴³ Dr. Robinson notes the medication that the Applicant was using at the time of each assessment and it is notable that in Robinson Report #3 he notes that she has recently started taking Paxil, an antidepressant medication.

In Robinson Report #4, Dr. Robinson notes that the Applicant is getting better. She has in the past had significant anxiety difficulties as a pedestrian but in June 2016 that was over. At page 11 he notes: "She maintains however that people misunderstand her."

Dr. Robinson found the treatment plans submitted by Dr. Mills to be reasonable and necessary and the issue concerning payment for the treatment plans has been resolved by the parties, with Optimum agreeing to pay for them.

The Applicant describes her life as one that is very limited. She cannot work and does not drive; she isolates herself and her pain is constant. Optimum's position is that the Applicant is not so isolated and impaired as she presents in her evidence.

Optimum argues that the fact that the Applicant returned to college about six months after the accident is evidence that she recovered from her injuries sufficiently to resume her former activities and therefore her functioning is not adversely impacted by her impairments. The evidence does not support that position. Prior to the accident, the Applicant's activities of daily living while at college and while working were significantly different than after the accident, and the table below provides a comparison of the activities of daily living during the pre-MVA and post-MVA period. She was in midstream of a course at Durham College at the time of the accident and, except for the aspect of living away from home and commuting on weekends, the description of her life at Fleming College which she attended earlier for the event planner certificate illustrates her independence in her activities of daily living prior to the accident.

Pre-MVA At Fleming College	Post-MVA At Durham College
Lived away from home; commuted home on weekends driving herself	Lives at home, parents drove her to school; not driving
Worked part-time on weekends and summer breaks	Unable to work
Participated in team sports	Unable to participate in team sports
Worked out at the gym three times per week	Undertook physical treatment for injuries
Active social life with friends and had long-term intimate relationship with boyfriend	Social life limited by physical pain and endurance, anxiety; social circle limited to few friends and boyfriend; felt herself identified at college as "the accident girl"; some isolation from family members who were injured in the accident because of feelings of guilt.
Success at full-time school work required no accommodation.	Accommodation in the form of limited work load (40%), with quiet smaller space for test writing and extra time for assignments and tests. Attended only two hours per day, three days per week. Required support of a friend to assist her during the day at college.

Optimum also relies on the fact that the Applicant's intimate relationship with her boyfriend remains intact after the accident. There is one note in the family doctor's records of August 4, 2016⁴⁴ of an issue that the Applicant brought to her doctor's attention but her evidence did not support there being any issue other than some disagreements between her and her boyfriend. The Guides address Sexual Functioning in Section 4.3f, The Nervous System, and identify physical criteria for impairment that may result, for instance, from spinal cord or other neurologic system disorders. There is no allegation that this is an area of impairment and no indication in the Guides that not being impaired in this area allows us to draw any conclusion about the impairment or functioning in other areas. I give no weight to Optimum's argument.

Further, Optimum relies on that fact that the Applicant went on a trip to a family destination wedding in the Caribbean after the accident. The Applicant testified that she resisted going on the trip, and she vomited and cried and her sleep was disrupted in the days prior to the trip because of her anxiety. Her friend, Witness P, provided corroborating evidence of the anxiety the Applicant shared in phone calls to her friend in the days prior to the departure. The Applicant was a bridal attendant at the wedding and she fulfilled that role but isolated herself in her room during some social events. She was not able to engage in the activities with her own age group which were too physically demanding, and, because of her inability to drink alcohol because of the medications she was taking, she did not go to social events where there was alcohol consumed.

Her taking the trip is consistent with the findings of the assessors that she is physically able to function in many aspects. There are consistent reports in the evidence that during assessments the Applicant will shift her weight as she is seated to obtain postures where she is comfortable when she must be seated for extended periods, so the flight itself would be manageable. The Applicant's psychological impairments, however, clearly impacted her functioning in this social setting. The history of this trip is consistent therefore with the assessment that this emotionally fragile woman is not able to adapt to changes and function effectively. If anything, this trip confirms the view that psychologically this woman's impairments significantly impede her functioning.

A key element in the Applicant's engaging in activities of daily living as she did before the accident is whether or not she has resumed driving. Optimum expresses doubts that the Applicant is not driving. She testified that she does not drive, where she enjoyed driving before the accident. There is no surveillance evidence of her driving and no witness was called to contradict her evidence. There is some evidence that after the accident she did attempt to return to driving. She admitted in her testimony that she tried to drive her boyfriend's truck out of the family driveway and could not due to her driving anxiety. In the In-home Assessment by the occupational therapist in September 2014 on behalf of Optimum,⁴⁵ it was noted that the Applicant advised that she had returned to local driving and that the Applicant seemed very motivated to increase her independence.⁴⁶ Dr. Robinson noted in Robinson Report #1⁴⁷ that she had attempted to drive for a few minutes but found that she was too fearful. This situation was unchanged in his subsequent report.⁴⁸

In Exhibit 39, an undated single page document entitled "The Upper Extremity Functional Index (UEFI)", there is a question concerning difficulty with "8. Driving" and the answer is "A little bit of difficulty". The Applicant denied that this was her document and could not identify it. The document is also found in Exhibit 44A, Clinical Notes and Records which includes information from the Rothbart Centre for Pain Ltd. Exhibit 39 is reproduced in the file four pages after a two page document entitled "Neck Disability Index". In this two page document, the Applicant was asked to give information on how neck pain has affected her everyday life activities and to check off one box of six in each section. The questions range from low effect to high effect. Under the heading "Driving" the response checked off is "I can't hardly drive at all because of pain in my neck". Additional information is noted "*Also because of other pain". The statement "I can't drive at all" is not checked off. This document is not dated and it follows imaging reports and correspondence so it is not possible to determine if Exhibit 44A includes a single file or is an amalgam of the files at the Oshawa Physiotherapy and Rehabilitation Centre where the Applicant obtained treatment, or even if the file remains in chronological order. Some of the documents included are dated as late as January 19, 2015 and others much earlier. Exhibit 44A indicates on its first page that the patient referral to the Rothbart Centre for Pain Ltd was 2015/01/08 and was for neck pain.

The Applicant has been consistent that being a passenger causes her significant anxiety. While she may well have had the intention of returning to driving and taken steps to achieve that, the reports by Dr. Mills and Mr. Beedling are clear that desensitization therapy for this particular anxiety was not successful. Also the evidence is that subsequent deaths of people close to her, including at least one in a motor vehicle accident, are complicating her recovery. Dr. Kiraly's view is that such desensitization therapy needs to be done. I accept the Applicant's evidence that she does not drive as a result of the injuries sustained in the accident and note that, given her emotional fragility, that decision reflects a safe course of action. I am satisfied on the evidence that the Applicant suffers from driving anxiety and that it remains an impairment that interferes with her functions in that it causes her dependence on others and isolation and undermines her self-confidence. It is a significant departure from her activities of daily living prior to the accident.

Further insight in the Applicant's functioning is set out in the Catastrophic Assessment Report of the In-Home Assessment dated July 21, 2017.⁴⁹ The assessment was conducted at the Applicant's new home to which her family had moved after the accident. The purpose of the assessment was to gather subjective and objective information to determine the level of function and provide information relevant to the impairment rating. The assessment included the Applicant in her home as well as outside the home. The Occupational Therapist, Ms. Javasky, expressed her findings under the four areas of functioning: activities of daily living, social functioning, concentration, and adaptation. In the first three, she concluded that the functional limitations were compatible with some but not all useful functioning, but under the heading of adaptation, she concluded that the functional limitations significantly impede useful functioning.

I note that Ms. Javasky varied somewhat in her report the Guides' description of functional independence. She describes the fourth domain as "Adaptation" whereas the title is, as noted earlier "Deterioration or decompensation in work or worklike settings" and the domain is described as "repeated failure to adapt to stressful circumstances",⁵⁰ such that the individual "may withdraw and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks.⁵¹ I also note that embedded within each domain description in the Guides is reference to the functioning within the workplace, but Ms. Javasky did not include those words in her descriptions of the three other domains, Activities of Daily Living, Social Functioning, Concentration, Persistence and Pace. For instance, under Social Functioning, the Guides specifically refer to "work situations" involving "interaction with the public, responding to persons in authority such as supervisors, or being part of a team."⁵² That reference is not found in Ms. Javasky's description of the domain. The Applicant is not working and has been found unable to return to work due to her mental and behavioural impairments. While Ms. Javasky's insights are useful, I find that she has minimized the impairment of the Applicant's functioning by failing to address under each of the four headings the inability to return to work. Therefore her assessment of moderate impediment is an understatement in each of the three categories. I find on the evidence that the assessment should have been that her limitations significantly impede useful functioning under all four domains, the same as she found under what she called the "Adaptation" or fourth domain.

Optimum also attacks the ratings given by Dr. Gallimore concerning the rating he gave for the Applicant's TMJ impairment, her Skin impairment, Headaches and the rating for Medication. He was extensively cross-examined on the analysis he undertook, his lack of personal expertise in these specific areas, and the limitations in the Guides in attaching a rating to these areas.

With respect to the TMJ impairment, the Applicant's evidence is that she has pain in her jaw and, when she moves it, there is a clicking sound. She has a limited range of motion in the joint that impacts on her food choices. Dr. Gallimore relied on the report of Dr. Catre.⁵³ Dr. Gallimore ascribed an impairment rating of 5%. Dr. Gallimore's rating was attacked because he is not a specialist in this field and neither is Dr. Catre, but the diagnosis of TMJ impairment is not in dispute. The only issue is the extent of the impairment and the limitation on function.

Optimum relies on the evidence of a dentist, Dr. Earl Magder. He found on examination that the Applicant has audible clicking in her jaw. She has consistently complained to assessors of pain when she chews and her family doctor told her to avoid certain foods. The Applicant testified that she avoids crunchy and chewy food and any meat unless it is very tenderized. Dr. Magder indicated in his report that there is a device that can be custom fitted to the Applicant to assist in overcoming this impairment.

Dr. Magder decided that the Applicant should have a rating of 0% impairment because she did not tell him that she "limited her food to soft or semi-solid food".⁵⁴ Dr. Magder testified that she told him she avoided chewy or crunchy food and meat but she did not use the phrase that she "limited her food to soft or semi-solid food". If she had told him that, he would agree that a rating should be given. He further testified that he did not put that precise phrase in a question to her, "Do you limit your food to soft or semi-solid food?" Optimum's position is that the Applicant acknowledges eating vegetables and meat and those are crunchy.

There are many ways to prepare meat and vegetables so that they are not crunchy but rather fall within the soft or semi-solid definition, and the type of food is not, as Optimum suggests, conclusive that she is eating crunchy food. I find that if the Applicant is to be denied a rating because she did not use a specific phrase, then it is only fair that the phrase be put to her specifically in the assessment. The approach by Dr. Magder is inconsistent with the principle that the Guides is to be given a liberal interpretation as appropriate for a guide being used in a consumer protection context. On the basis of the evidence I find that Dr. Gallimore was correct to include the rating of 5% for this impairment.

The rating for Skin reflects the discolouration of the Applicant's face and scarring. The Applicant in her testimony indicated how disturbing she finds this. Optimum's position is that there is no interference in functioning due to this impairment. The wording in the Schedule refers to "a loss or abnormality of a psychological, physiological or anatomical structure or function".⁵⁵

Discolouration and scarring are an abnormality of a structure, the skin, and therefore fall within the definition of an impairment, whether or not the function is in fact compromised. Further, I find that the self-consciousness may well be contributing to this young woman's anxiety and isolation. It certainly impacted on her perception of others and how her peers saw her as "the accident girl" when she returned to college after the accident.

Dr. Gallimore stressed that the Guides do not always require interference in function in order to support a rating and I find, in this circumstance, that it is appropriate to provide a rating for skin and that to do so is not a double counting with the Mental and Behavioural Disorder rating as there is a physical, visible manifestation resulting from the accident injuries.

With respect to the rating for medications, I agree with Dr. Gallimore that it is appropriate to apply a rating to the medications, given the number of medications that the Applicant has been prescribed, the number that she is recorded as taking at any one time in the various assessments, and the length of time that she has been taking these medications. The Guides specifically acknowledge that the evaluator may need to provide an impairment estimate for side effects of medication. Also I note, for instance, that Dr. Robinson commented that her taking Paxil appeared to have had a positive effect on the Applicant's mental and behavioural impairments but he still identified significant impediments in her daily functioning including her inability to work.

Optimum also disputed Dr. Gallimore's rating for Headaches and he agreed that the Guides limit when such a rating is appropriate. Indeed the Guides discourage such a rating at all. In this case the evidence is clear that headaches have been a constant factor in this accident victim's life, and that she suffers from Chronic Pain Syndrome. That diagnosis and her evidence indicate that her headaches are interfering with her functioning. It is clear from the evidence that the edition of the Guides which is identified in the legislation is out of date; hence a later edition of the Guides acknowledges that there is room for an evaluator to use his best judgment. The Guides provide best estimates of disability and they provide room (even in the legislated edition) for the application of expert judgment within the ranges of percentage impairments provided and within the discretion of the expert applying the clinical findings in the context of the Guides. The real question is whether the ratings given capture fairly the abnormalities of structure or function that this individual has as a result of the accident. In my view, Dr. Gallimore has effectively captured the rating appropriate for these circumstances in the Applicant's functioning when it is assessed based on the detailed history provided in the various assessments that preceded the catastrophic impairment assessments and on all the evidence.

The main area of dispute is how to rate the issues facing the Applicant in both the neuropsychological field which flow from the concussion and the Mental and Behavioural Disorders identified in the assessments of the Applicant. Dr. Gallimore gave a 14% rating in the Mental and Behavioural Disorders relying on the diagnosis of Dr. Robinson discussed above. Optimum does not dispute that in the pre-and post-104 timeframes, the Applicant is entitled to income replacement benefits based on Dr. Robinson's opinion; that is, Optimum agrees that she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.⁵⁶ Dr. Gallimore provided a rating based on Dr. Robinson's opinion. Optimum submits that this is not appropriate because Dr. Robinson was not asked to rate her under the Guides; he was applying different tests than the one appropriate for this dispute. That is, however, not what the Guides provide. The Guides provide that a knowledgeable person may take the clinical findings and apply the criteria in the Guides to arrive at a rating. Therefore Optimum's objection on this ground is inconsistent with the Guides and is groundless.

The Applicant's Evidence on Mental Behavioural Disorders

The professional witnesses' oral evidence on the impairment of the Applicant under the Mental Behavioural Disorders is that of Mr. Beedling, Dr. Robinson, Dr. Hope, Dr. Kiraly and the family doctor.⁵⁷ Mr. Beedling is a psychotherapist and therefore cannot provide a diagnosis but I have the treatment plans signed by Dr. Mills who was Mr. Beedling's supervisor which do set out his opinion and diagnosis as an expert psychologist over the three years since the accident and as support for the ongoing treatment. With the exception of Dr. Hope, all the experts have had more than one occasion to assess the Applicant and therefore I must give more weight to their opinions than to that of Dr. Hope.

In addition to the evidence of the psychologists above, I have the evidence of the family doctor, Dr. Liao, whose clinical notes and records were filed as Exhibit 64. Those notes and records do not appear to have been reviewed by the Optimum assessors. Dr. Liao's testimony was limited to a period commencing about a year after the accident because he only took over responsibility as the Applicant's family doctor as of that date. The family doctor who looked after the Applicant previously did not testify but her clinical notes and records were also marked as Exhibit 32. Dr. Liao testified as to his care of the Applicant. He has seen her about every three or four months. He did not refer her to a psychiatrist but followed what he believed was a usual practice with patients suffering from depression, a common part of the family doctor's workload. The patient is prescribed an antidepressant and, based on the side effects and efficacy of the drug, the patient either stays on it until no longer medically required or another drug is used. He testified that he prescribed medications including antidepressants to address her complaints. He noted her suicidal ideation in January 2016 as noted earlier and monitored her mood and her battles with depression and anxiety. He has also referred her for imaging and for review by specialists including an ophthalmologist, neurologist, and a physiatrist and finally arranged for a chronic pain assessment and ultimately referral to a canniboid specialist for her chronic pain and sleep disturbances.

I also have the evidence of the psychiatrist Dr. Kiraly and his report dated December 29, 2017.⁵⁸ Optimum objected strenuously to this evidence and submitted that he had not arrived at his conclusion that she had a marked impairment as provided under Section 3(2)(f) of the Schedule in the appropriate manner. This report was not commissioned until after Optimum had served its Addendum reports on the eve of the Hearing.

Dr. Kiraly administered psychometric tests and the results are consistent with the test results in the same tests (Beck) conducted by Dr. Mills and others who have used this testing. Dr. Kiraly specifically says that since the test results are based on subjective reporting they need to be considered in the clinical context, something Dr. Hope refused to do.

Dr. Kiraly reviewed the Applicant's activities of daily living and noted her limitations in activities due to pain and fatigue. He noted her low mood with increased irritability as well as the effect on her attention, concentration and memory. He reviewed her family and social developmental history, education and vocational history and then conducted a mental status examination. She had a panic attack in the course of the examination. He noted the chronicity of her conditions as perpetuating factors in her condition and opined that she is facing a life with chronic pain, anxiety, cognitive problems and inability to work and persistent difficulty with social and family functions. He provided a diagnosis under the Diagnostic & Statistical Manual of Mental Disorders, 4th edition,⁵⁹ under the five axes as required. He diagnosed her under Axis 1 with Major Depression, Chronic Pain due to Psychological Factor and a medical condition, Posttraumatic Stress Disorder, Generalized Anxiety Disorder, Post-Concussion Syndrome. Under Axis III he noted musculoskeletal system pains due to soft tissues and other injuries due to the accident, posttraumatic headaches and closed head injury with minor traumatic brain injury. Under Axis IV he noted severe stress due to loss of good health and role function and under Axis V he provides a GAF of 45.

As regards Catastrophic Impairment he determined that under the four main categories of Activities of Daily Living, Social Functioning, Concentration Persistence and Pace, she had a Moderate or Class 3 level of impairment and under Adaptation in Work or Work-Like Settings, she had a marked or Class 4 Level of impairment. His opinion was that overall she has a Marked or Class 4 level of impairment and that the WPI impairment under Table 3 of Chapter 4 is in the range for "severe limitations of daily functions requiring total dependence on another person". He opined that her GAF of 45 translates into 40% WPI impairment.

In his evidence he was frank in identifying that his analysis included the functional limitations of the neuropsychological area, that is, the mild brain injury.

Dr. Kiraly's diagnosis and assessment are well supported by the evidence of other witnesses. Where Ms. Javasky assessed her impairments under Activities of Daily Living, Social Functioning and Concentration, Persistence and Pace as mildly impeded, Dr. Kiraly assessed her at Moderate. His assessment of the Adaptation is consistent with Ms. Javasky's assessment.

It is the nature of the adversarial system that an arbitrator is seldom faced with clear answers to the issues. The task of Optimum's counsel was to undermine the foundation and conclusions of the Applicant's case so that it does not meet the onus of balance of probabilities. While I appreciate the difficulties that Optimum has raised with Dr. Kiraly's report, I find that his evidence is well supported by the other evidence I have including the past history of her impairments and their treatment and that his conclusion is well-reasoned. I therefore find that the Applicant does suffer from a Class IV Marked Impairment and therefore comes within the definition of catastrophic impairment.

Optimum's Evidence on Mental Behavioural Disorder

Optimum has agreed to pay income replacement benefits to the Applicant on the basis that she is completely unable to engage in any employment for which she is reasonably suited by education, training and experience, thereby meeting the requirements of section 16 of the Schedule.⁶⁰ The physiatry assessment conducted for Optimum concluded that physically she could perform the work of a manager with lifting of objects limited by weight.⁶¹ What is holding her back is her psychological impairments.⁶²

On receipt of the OCF-19, Optimum used the same firm of assessors⁶³ to respond to this claim as it had used for independent examinations throughout the accident benefits file. Dr. Khaled who is certified in assessment for the purpose of the Guides prepared a file review of the historical records of the Applicant's accident benefits claims and advised Optimum on the categories of specialization that should be engaged in responding to the OCF-19. The categories did not include a psychiatrist, even though Dr. Gallimore had flagged the desirability of obtaining that expertise in his Executive Summary that accompanied the OCF-19.⁶⁴

Included in the list submitted by Dr. Khaled was a psychologist. The assessor chosen was not the psychologist who had assessed the Applicant to advise Optimum in responding to accident benefit claims. Rather, Optimum retained two neuropsychologists, both of whom were qualified to assess both the neuropsychological impact of the mild traumatic brain injury the Applicant had suffered and the Mental Behavioural impairments. Each was assigned only one part of the assessment: Dr. Christopher Hope was asked to provide an independent assessment and rating for the Mental Behavioural impairments and Dr. Konstantin Zakzanis was asked to assess the neuropsychological impairment and give a rating for the mild traumatic brain injury.

Dr. Hope provided two reports. In his first, he refused to provide a rating because he concluded that, "in the absence of valid evidence of a significant psychological impairment that could be attributed directly to the accident in question, I give no rating". He came to that conclusion because he determined that the Applicant was over-reporting her symptoms and that the psychometric testing results that he had were not valid. I give his opinion no weight for the following reasons.

I do not share Dr. Hope's view that there is "no valid evidence of a significant psychological impairment". I find such evidence in that of Dr. Liao, Dr. Kiraly, Mr. Beedling and Dr. Robinson, and in the medical history set out in the reports of Dr. Robinson and Dr. Mills as well as in the clinical notes and records of those treating the Applicant. I reject the opinion of Dr. Hope that the Applicant is exaggerating her symptoms and could not be rated. He does not dispute that she suffers mental behavioural impairments. His information on her history was incomplete. He did not know that the Applicant had suffered other recent personal losses due to other motor vehicle accidents. Dr. Robinson did know about these losses and indicated that these were complicating factors impacting on her emotional and mental outlook. Further, when Dr. Hope reviewed in his testimony under cross-examination the questions that he believed had been answered in a manner that indicated exaggeration, the answers that he recorded during the Applicant's testing were consistent with her evidence. She could not truthfully have answered them any other way. I find the more probable explanation for the answers in the testing that is consistent with the other evidence I have is the explanation given by Dr. Robinson, that is, that the answers were indicative of an individual overwhelmed by the issues facing her.

I was also troubled by Dr. Hope's reference in his report to the Applicant making a workplace injury claim even though her injury had completely healed prior to the accident and forms no part of the issues in this case. None of the other psychologists regarded this as significant in the psychological assessment. When questioned, Dr. Hope indicated that, based on this claim experience, her answers were influenced by the potential for gain. He had no more information than that she had made the claim and the injury was resolved. His opinion that she was probably exaggerating is not supported by his speculation on this claim. I also note that his work in providing opinions is almost exclusively for insurers. In all the circumstances and given the other evidence I have, I find that his opinion and his refusal to provide a rating are not consistent with the rest of the evidence and were not appropriate in the circumstances.

Because Dr. Hope regarded the Applicant's test results as invalid he refused to provide a rating. There is no evidence that Dr. Khaled did anything else to identify a Mental Behavioural Disorder rating for her, despite the opinion of Dr. Robinson expressed on three different occasions as to the impairments suffered by the Applicant and the evidence of significant impediment to her function identified by Ms. Javasky.

Conclusion on the WPI Rating of 55% or more

I have already found that the Applicant is catastrophically impaired based on Dr. Kiraly's opinion that she has a Class 4 Marked Impairment.

In the alternative I find that the Applicant has met the onus for establishing a WPI of 55% or more. I find that the appropriate ratings for the Applicant's impairments are provided by Dr. Gallimore in his report under Option 1. I acknowledge that the more usual format for assessing catastrophic impairment is that followed by Optimum and not the process followed by the Applicant. I note however that the process followed is not prohibited by the Guides and there is evidence from the Optimum witnesses that "a knowledgeable person" such as Dr. Gallimore can take the diagnoses and provide appropriate and accurate ratings. The main area of dispute is the Mental Behavioural. The Applicant has been the subject of extensive assessment and the Applicant's evidence as to her emotional and psychological challenges and the impact on her functions (now two plus years post-accident) are credible. In my view Dr. Gallimore's report, although brief and lacking the listing of supporting documents, addresses the process of analysis contemplated in Chapter 2 of the Guides. Dr. Khaled attacked the approach taken by Dr. Gallimore because he did not get the ratings from the individual specialists who conducted the assessments of the Applicant. Dr. Gallimore relied on the report of Dr. Catre who assessed the Applicant specifically for musculoskeletal issues as well as the reports of the specialists in neurology, chronic pain, etc. and other reports that had been generated on referral by the family doctor in his treatment of the Applicant or by counsel for the Applicant in addressing disputes concerning entitlement to accident benefits claims. The record of such assessments and examinations is voluminous and I note that not all the medical and health care professionals who have opined on the Applicant's issues testified in this Hearing, though 13 of them did.

I do not accept the ratings arrived at by Dr. Khaled for Optimum. He was an advocate for strict compliance with the wording of the Guides but failed to apply the same rigor to the work of his own team. Dr. Khaled insisted that the proper and only credible way to arrive at the ratings was to have the ratings done by the medical professionals who examined the Applicant for the purpose of the CAT determination. Dr. Adam and Dr. Zakzanis testified that they could take a diagnosis from another expert and provide a valid rating under the Guides without seeing the patient. Further, as noted above, the Guides specifically provide in Section 2.2, that "any knowledgeable person can compare the clinical findings with the Guides' criteria and determine whether or not the impairment estimates reflect those criteria." Dr. Gallimore is experienced and qualified to more than satisfy the requirement of a knowledgeable person to determine the appropriate ratings based on the clinical findings and reports of the experts who in fact assessed the Applicant.

In my view, Dr. Khaled gave Optimum the outcome it wanted. I am satisfied on the evidence that he deliberately closed his eyes to relevant information that he should have taken into account. The Guides are specific that the history of medical treatment of the patient is an essential element in the assessment and rating. Dr. Khaled included Dr. Robinson's reports in his review of the records but when there is a specific issue related to the diagnosis of Mental and Behavioural Disorder requiring ongoing treatment, Dr. Khaled simply ignores the evidence and relies solely on Dr. Hope's refusal to accept the test results as valid. In cross-examination Dr. Khaled indicated that he focused on the assessments that were done for the CAT determination. He gave little if any weight to the past history.

I find that his handling of the evidence as to the Applicant's mental behavioural impairments ignored the evidence of Dr. Robinson and Dr. Mills as well as that of the Occupational Therapist Ms. Javasky. In his testimony Dr. Khaled used every opportunity to advocate for his approach to the interpretation of the Guides which I find is not supported by the Guides themselves.

Also, I am entitled to draw adverse inferences from the failure of a party to bring forward evidence that was in the power of the party to produce. Optimum had lots of notice that mental and behavioural disorders were a factor in the Applicant's medical history and that she had been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood by its own assessor. Dr. Gallimore flagged the desirability of bringing a psychiatrist onto the assessment team. Optimum objected strenuously to Dr. Kiraly's report, that of the only psychiatrist, but it could have retained its own in order to adjust this claim fairly. Alternatively, Dr. Zakzanis was capable of undertaking the mental behavioural disorder assessment and he explained in the stand the analysis which would assess the functionality of the Applicant in terms of what was attributable to the brain injury and what was attributable to the mental and behavioural impairment. Dr. Robinson likely could have as well. By failing to take the step of securing that impairment rating, I am entitled, on the basis of all the evidence, to draw the conclusion that Optimum did not seek a further assessment because it knew it likely would support a rating sufficient to bring the Applicant over the 55% whole person impairment or alternatively of a Marked Class 4 Impairment. In a tort action, there is no obligation on an adverse party to fill in a gap, if it exists, in an opposing party's case. The onus lies on the Applicant to prove her case both in tort and in accident benefits, but, in accident benefits, there is an obligation of good faith on the part of the insurer. Optimum, in its adversarial approach to the claim for catastrophic impairment here, has failed to discharge that duty.

I therefore find that the Applicant has met her onus on the balance of probabilities to prove that she suffered catastrophic impairment as a result of the accident in accordance with the Schedule.

Issue 2 - Is the Applicant entitled to attendant care benefits in the amount of $1,259.39 per month from April 25, 2014 to date and ongoing?

To recover attendant care benefits, the Applicant must establish that she needed attendant care and that she incurred it within the definition under the Schedule. This definition was changed at the beginning of 2014 to require that to be incurred an attendant care expense must be proven by invoices from providers or, if family members or friends provide it, those persons must establish an economic loss as a result of providing the care.

Witness P is a friend of the Applicant and is also a personal care worker by profession. She testified that she assisted the Applicant immediately after the accident for one to two months and continued to assist her when she could with her hair and dressing. Witness P testified that she has seen people with fewer limitations than the Applicant get assistance but the Applicant does not. She testified that she never submitted an invoice for her work and she never lost work or pay because of her assistance to the Applicant. She would come to the Applicant's home when she had a break in her schedule of home visits to her clients.

To establish that she needs attendant care, the Applicant relies on a Form 1 prepared by the Occupational Therapist witness Legasi,⁶⁵ as well as her own evidence and that of Witness P. I also referred to the Woodstock General Hospital records⁶⁶ which indicated her limitations at the time she was released and the clinical notes and records of the Applicant's family doctor Dr. Lida Mohamadi⁶⁷ over the following year. I find that the Applicant has proven on the balance of probabilities that she needed the attendant care as set out Exhibit 46 prepared by Legasi.

Optimum had an assessment done in September 2014, some five months after the accident, and agreed to pay $409.49 per week for attendant care based on that assessment.⁶⁸ This assessment indicated assistance was required in some aspects of personal care, care for her bedroom and bathroom, meal preparation, managing clothing and laundry. These are areas where, the Applicant testified, she continues to have weakness. I find that the Applicant needed the attendant care that was outlined in this Form 1 and she was entitled to it.

The Applicant was reassessed by Optimum in March 2015 by Farah Hameed, Occupational Therapist who testified. Her report⁶⁹ concludes that the Applicant does not require any attendant care.

Ms. Hameed found that no attendant care was required. She observed the limitations in the range of motion of the Applicant's right shoulder as these are included in the Table of "Cervical & Upper Extremity Range of Motion" on page 11 of her report. The Table indicates that her right shoulder flexion and abduction were limited to 100 degrees rather than the full 180 degrees that is normal. In the Table on Demonstrated Physical Tolerances on page 10, Ms. Hameed specifically does not deal with any physical movement of the upper extremities such as reaching. While Ms. Hameed's test results clearly show that the Applicant has significantly limited range of motion in her right shoulder such that she cannot raise her extended arm and hand above her chin level, there is little text reference to the limitation. In the text, Ms. Hameed states that the Applicant has "sufficient range of motion" to complete dressing and undressing tasks and to complete all aspects of grooming and she is able to reach "the lower cupboards in her kitchen" (emphasis added).⁷⁰ Ms. Hameed confirmed in her testimony that the Applicant would not be able to reach up to kitchen cupboards above the counter level and that she had not tested to see if the Applicant could carry any weight at the height. In other words, the Applicant could not retrieve dishes or food from any surface above her neck level, as might be kept in a top freezer or kitchen cupboards.

Based on Ms. Hameed's report, Optimum determined that the Applicant was no longer entitled to attendant care benefits. I do not accept the conclusion that the Applicant no longer required attendant care and find that she needed attendant care and it was provided by her family and on occasion by her friend Witness P. I find that the assessment by Ms. Hameed minimized the challenges that faced the Applicant at the time and that continue to limit her functioning physically. Insight into the functional limitations of the Applicant is also set out in the report of Ms. Javasky referred to above. The descriptions of the individual and specific areas of physical limitation contained in Ms. Javasky's report are more consistent with the Applicant's evidence and that of Witness P as well as the assessment of Ms. Au (another Occupational Therapist), than is the assessment of Ms. Hameed. I therefore do not accept her conclusions.

Optimum disputes the claim for attendant care on the basis that the amount was never incurred. No OCF-6s have ever been submitted to Optimum. Witness P, whose profession it is to provide attendant care, never submitted an invoice. The Applicant also received assistance from family members who continue to look after meal preparation other than simple meals and most of the responsibility for cleaning and tidying her bedroom and bathroom, as well as her laundry (except for folding which the Applicant is able to do now). Through the use of assistive devices and modifying her choices of clothing and grooming the Applicant was able to assume responsibility for her personal care. She remains in need of some attendant care to fully function in all aspects.

The legislative amendments made to the Schedule clearly require that the attendant care costs be incurred as defined in the Schedule and in this case they have not and no OCF-6s have been submitted detailing the services provided, the time taken or the person who provided the services. Optimum is entitled to that level of detail. Therefore, the claim is dismissed.

Issue 3 - Is the Applicant entitled to payments for housekeeping and home maintenance services for the amount of $100.00 per week from April 26, 2014 and ongoing?

The Applicant submits that the housekeeping duties that the Applicant could no longer do after the accident were done by family members. The Applicant says she was never advised she could hire someone to assist with housekeeping and the Applicant's position is that under Section 3(a) of the Schedule, it can be deemed to be incurred.

Optimum submits that it is not liable for any housekeeping because it never received an OCF-6 indicating who did the housekeeping, what work was done or the period during which the work was done and the claim is made. The Applicant lived and continues to live with her parents and brother and the home is looked after by the family members, albeit with the Applicant carrying less of a load than she did before the accident. The benefit is not intended to be a windfall of cash for family members. I do not accept the Applicant's argument that she was never advised she could hire someone to assist with housekeeping. She was advised by counsel from an early stage as is clear from the record and there is no argument of impecuniosity. There is no evidence that Optimum fell short of its obligations to inform the Applicant of the coverage and benefits available to her. The claim is dismissed as not proven.

Issue 4 - Is the Applicant entitled to payment for the cost of travel for $1,440.00 for travel expenses to Oshawa Physiotherapy and Rehabilitation Centre?

The parties agreed that the determination of this issue turned on whether or not I agreed with the Applicant's position that she was catastrophically impaired as a result of the accident. I have so found and therefore she is entitled to the cost of travel expenses.

Issue 5 - Is Optimum liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?

To be successful in this award, the Applicant must establish that she is entitled to benefits that have been withheld. The only such benefits are the transportation costs in the amount of $1,440.00 which Optimum agrees should be paid if she is determined to be catastrophically impaired. This case was not about $1,440.00. It was about the availability of the additional funding for treatment. The catastrophic impairment case has moved with more alacrity than the other elements of the case with the OCF-19 being provided in April 2017, the assessments by Optimum in June and July 2017 and the addition of the issue in November 2017. Once the issue was focussed, reports came in quickly, too quickly for Optimum to agree that the process was fair.

Where I find fault with Optimum was the decision, whether by it or by its adjuster Pinnacle, to ignore the reports of Dr. Robinson and to use Dr. Hope instead. They used medical professionals who almost exclusively do work for insurers and there was clear evidence, on the part of Dr. Hope and in the advocacy of Dr. Khaled, that the assessment ratings did not assess the Applicant in accordance with its obligations to adjust the claim in good faith and in accordance with the Guides. There has not, however, been a delay in payments that would support a special award.

INTEREST

Pursuant to section 51 of the Schedule the Applicant is entitled to interest on any overdue benefits, that is, a benefit that Optimum failed to pay within the time required under the Schedule. The interest shall be calculated in accordance with the section.

EXPENSES:

At the conclusion of the Hearing the parties agreed that the issue of expenses should be addressed separately. They also agreed to a modified expedited timetable on the matter of submissions concerning a claim for expenses. In the intervening period, I was advised that all expense claims will be addressed by the Financial Services Commission of Ontario. I therefore order that if the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment for determination of same in accordance with Rules 75 to 79 of the DRPC.

April 20, 2018

Lynda Tanaka Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2018 ONFSCDRS 83

FSCO A16-004303

BETWEEN:

M. M. Applicant

and

OPTIMUM INSURANCE COMPANY INC. 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 did sustain a catastrophic impairment within the meaning of the Schedule.
2. The Applicant is not entitled to attendant care benefits in the amount of $1,259.39 per month from April 25, 2014 to date and ongoing.
3. The Applicant is not entitled to housekeeping and home maintenance services in the amount of $100.00 per week from April 26, 2014 and ongoing.
4. The Applicant is entitled to payment for the cost of travel for $1,440.00 for travel expenses to Oshawa Physiotherapy and Rehabilitation Centre.
5. Optimum is not liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant.
6. The Applicant is entitled to interest on any overdue benefits.
7. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

April 20, 2018

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1This decision is anonymized to protect the personal information of the Applicant and related persons.
2. 2The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
3. 3"Guides".
4. 4Taylor and Pembridge Insurance (2014-06-11) Huberman, FSCO A12-004886 at pages 19 and 20.
5. 5Exhibit 54.
6. 6Exhibit 21 dated November 14, 2017.
7. 7Exhibit 22 dated November 14, 2017.
8. 8Document 1.
9. 9Exhibit 24 Psychiatric Assessment Report.
10. 10Exhibit 17.
11. 11Exhibit 23.
12. 12Exhibit 60.
13. 13Exhibit 67 Photographs of the Applicant and the vehicle.
14. 14A number of the experts opined on the cause of this sensation of pulling behind her left eye but there was no consensus as to the diagnosis or the resolution.
15. 15Exhibit 52 OCF-18 dated August 3, 2017 at p. 11/12.
16. 16Exhibit 64, Clinical Notes and Records, Dr. Victor Liao 06-JAN-2016 "...had thoughts of suicide a few months ago [-] no active thoughts or ideation at this time...".
17. 17Exhibit 9 Robinson Report February 17, 2016 at p. 7.
18. 18Exhibit 12 Occupational Therapy Assessment Report Catastrophic Impairment Determination September 29, 2017, by Susan Javasky, Occupational Therapist.
19. 19Exhibit 56 is the clinical notes and records of this clinic concerning the Applicant's treatment.
20. 20Exhibit 12 at page 24 of 33.
21. 21Exhibit 66 Tab 72 Adjuster's notes page 10
22. 22Ibid at page 15 (May 6, 2015).
23. 23Exhibit 54, prepared by Dr. Melanio Catre, March 30, 2017.
24. 24Exhibit 53, Chronic Pain Assessment Report by Dr. Grigory Karmy dated August 16, 2016.
25. 25Exhibit 25 at page viii.
26. 26Exhibit 20.
27. 27Exhibit 22.
28. 28Exhibit 66, Accident Benefits Documentation, Tab 69.
29. 29Chapter 14 of the Guides.
30. 30Exhibit 19 at page 11 of 12.
31. 31Exhibit 21, November 14, 2017.
32. 32Exhibit 21 at page 2 of 2.
33. 33Exhibit 66, Tab 71, letter Pinnacle to the Applicant dated November 15, 2017.
34. 34Exhibit 22 at page 3 of 4.
35. 35At page 14/294.
36. 36At page 14/297.
37. 37At page 14/301.
38. 38Exhibit 52.
39. 39Exhibit 6 "Robinson Report #1" and Exhibit 7 "Robinson Report #2".
40. 40Exhibit 9 Report dated February 17, 2016 "Robinson Report #3".
41. 41Exhibit 10 "Robinson Report #4".
42. 42Exhibit 6, page 17.
43. 43Exhibit 6 at page 11.
44. 44Exhibit 64.
45. 45Exhibit 2 at page 5.
46. 46Exhibit 2, at page 4 of 16 and 12 of 16.
47. 47Exhibit 6 at page 9.
48. 48See Exhibit 10 at page 9.
49. 49Exhibit 12.
50. 50Guides at page 14/294.
51. 51Exhibit 12 at page 32/33 to 33/33. I note that Dr. Gallimore similarly used the title "Adaptation" for this domain.
52. 52Page 14/294.
53. 53Exhibit 26, Catastrophic Determination Orthopaedic Assessment, Dr. Melanio Catre, at page 8.
54. 54Exhibit 18 Catastrophic Impairment Determination Dental Assessment Report, September 29, 2017.
55. 55Section 3(1) "impairment".
56. 56Section 6, Schedule.
57. 57Dr. Zakzanis' evidence and expertise were also of assistance though he was limited in his evidence.
58. 58Exhibit 24.
59. 59I note that this is a later edition than the one specified in the Guides but Dr. Zakzanis indicated that he also used a later DSM edition because of the considerable update that has been done.
60. 60As advised by counsel.
61. 61Exhibit 59 Physiatry Assessment Report by Dr. Raymond Zabieliaskas, May 30, 2016. See also Exhibit 53 Chronic Pain Assessment, Karmy Chronic Pain Medical Clinic August 16, 2016,
62. 62Exhibit 10 Psychology Assessment Report, Dr. Paul J. Robinson June 27, 2016.
63. 63HVE Healthcare Assessments.
64. 64Exhibit 25 at page x under "Conclusions".
65. 65Exhibit 46 Form 1 June 19, 2014 and the Report dated July 11, 2014 Exhibit 27.
66. 66Exhibit 63.
67. 67Exhibit 32.
68. 68Exhibit 2 In-Home Assessment – Form 1 Report dated September 22, 2014 by Susanna Pui Shan Au, Occupational Therapist.
69. 69Exhibit 4 Occupational Therapy In-Home Assessment Report March 31, 2015 by Farah Hameed, Occupational Therapist.
70. 70Exhibit 4, page 7.