Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2019 ONFSCDRS 1

Appeal P18-00030

OFFICE OF THE DIRECTOR OF ARBITRATIONS

OPTIMUM INSURANCE COMPANY INC. Appellant

and

MELINDA MUHI Respondent

BEFORE: Edward Lee

REPRESENTATIVES: George Wray for Optimum Insurance Company Inc. Ashu Ismail for Ms. Muhi

HEARING DATE: October 29, 2018

APPEAL ORDER

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

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

Edward Lee Director’s Delegate

January 21, 2019

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves the SABS–2010.¹

Optimum Insurance Company Inc. (“the Appellant”) appeals the order of Arbitrator Tanaka (“the Arbitrator”) issued April 20, 2018. In her order, the Arbitrator determined that Ms. Muhi (“the Respondent”) was catastrophically impaired.

For reasons that follow, I am rejecting the Appellant’s appeal.

II. BACKGROUND

The Respondent was injured in a motor vehicle accident on April 25, 2014, and sought accident benefits from the Appellant payable under the SABS. Disputes arose between the parties and the Respondent applied for arbitration at the Financial Services Commission of Ontario.

The arbitration hearing was conducted on the following days: November 27, 28, 29, 2017, and January 11, 12, 25, 30, 2018, and February 1, 2 5, 2018. At the conclusion, the Arbitrator determined the Respondent was catastrophically impaired because she met the definition for catastrophic impairment under two categories.

First, the Respondent had an impairment or combination of impairments that resulted in 55% or more impairment of the whole person (WPI)².

Second, the Arbitrator also determined the Respondent was catastrophically impaired because she had a Class 4 or marked impairment due to a mental or behavioral disorder.³

The Appellant seeks to overturn the Arbitrator’s decision on two grounds.

The first ground involves the Arbitrator’s early rulings on procedural issues where she allowed the Respondent to file two written reports after the commencement of the hearing.

The second ground concerns the Arbitrator’s findings which led her to conclude the Respondent was catastrophically impaired under the two different categories.

I will deal with the Appellant’s arguments as set out in the appeal materials.

III. ANALYSIS

A. The Appellant’s arguments concerning the reports filed before and during the Arbitration Hearing

This argument centers around reports submitted by both the Appellant and the Respondent on the eve of the hearing (which commenced on November 27, 2017), and during the course of the hearing itself.

In submissions, the Appellant argued the Arbitrator erred in law in the following manner:

i. she exceeded the jurisdiction of Rule 39 of the Dispute Resolution Practice Code by permitting the Respondent to file documents after the commencement of the arbitration

ii. she applied Rule 39 without finding “extraordinary circumstances”

iii. she prejudiced the right of issuer to know the case it had to meet, and to fairly respond to the case (natural justice argument)

The facts regarding the late reports filed by both parties are set out in detail in the Arbitrator’s decision where she reviews the arguments heard and rulings made.⁴ It was the Appellant who first filed new reports less than thirty days before the commencement of the hearing, contrary to Rule 39.

When the hearing started in November 2017, the Respondent requested leave to serve her own reports in response to the Appellant’s new reports. The Arbitrator granted the request, and ordered the Respondent to file her new reports no later than one week before January 11, 2018. The hearing then proceeded on November 27, 28, and 29, 2017. It was then adjourned until January, 11, 2018. In the interim, the Respondent filed her new reports, as ordered by the Arbitrator.

When the hearing resumed on January 11, 2018, the Appellant sought to exclude the Respondent’s new reports and witnesses, and to file more new reports in response to the Respondent’s responding reports. The Arbitrator did not exclude the Respondent’s witnesses, but granted the Appellant leave to file yet more reports in response to the Respondent’s new reports. The Appellant then filed more reports in response to the Respondent’s new reports.

i. Did the Arbitrator err in law by exceeding the jurisdiction of Rule 39?

The Appellant argues the Arbitrator exceeded her jurisdiction because Rule 39 simply does not permit an arbitrator to allow a party to adduce a report once the arbitration hearing has commenced.

Rule 39 of the DRPC reads as follows:

39.1 Subject to Rule 39.2, all documents, reports (including experts' reports) and assessments to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of the hearing.

39.2 In extraordinary circumstances, a party may seek an arbitrator's permission to serve a document, report or assessment on the other party for use at a hearing less than 30 days before the first day of hearing.

I reject the Appellant’s argument. Rule 39.2 allows a party to seek an arbitrator’s permission to serve document for use at a hearing “… less than 30 days before the first day of hearing.” The plain and simple reading of this provision is that a party may obtain an arbitrator’s permission to serve a document after a hearing commenced, because that would be “less than 30 days before the first day of hearing.”

Rule 39 does not state that a document can never be adduced at a hearing once the hearing has commenced. Therefore, I find no error in law or excess of jurisdiction in the Arbitrator’s decision to permit the Respondent to serve a document on the Appellant after the hearing had commenced.

ii Did the Arbitrator err in law by applying Rule 39 without finding “extraordinary circumstances?”

The Appellant’s second argument is that the Arbitrator allowed the Respondent to serve a document less than thirty days before the first day of hearing “… in the absence of any evidence of extraordinary circumstances” (as required under Rule 39.2).

It is accepted law that arbitrators are generally accorded a wide discretion in the conduct of their proceedings. Rule 39 of the DRPC sets out the parameters of the discretion granted to an arbitrator to determine what documentary evidence may be adduced at an arbitration hearing.

In the instant case, the Arbitrator provided a detailed analysis and reasoned discussion of the production issues argued at the onset of, and during the arbitration hearing.⁵ In her discussion, she mentions both parties had submitted reports outside of the Rule 39 timelines, and that the Appellant had served two new reports on the “… eve of the Hearing.”⁶

Although the Arbitrator did not explicitly mention “extraordinary circumstances” when she allowed both parties to file late reports, I do not find this necessarily amounts to an error or law. In fact, the transcript specifically demonstrates the Arbitrator considered “extraordinary circumstances” when she made her rulings about these late reports.⁷

Further, the finding of extraordinary circumstances is a question of fact, not law. A party may appeal an arbitrator’s order to the Director only on a question of law.⁸ As demonstrated in her decision, the Arbitrator considered the facts relevant to her case. She noted that it was the Appellant who first sought to adduce new reports on the “eve of the Hearing” (outside the Rule 39 deadlines). She allowed the Appellant’s reports, and then permitted the Respondent to file reports in response, reasoning that the Respondent had previously not attempted to produce any new reports, knowing that it was outside the delay of Rule 39.⁹

I will have more to say about the Arbitrator’s balancing of rights in the next section, but I find the Arbitrator applied the appropriate considerations and made findings of fact to allow new reports from both parties. Thus, I find no error of law in her decision to apply the exception of Rule 39 to allow the parties to adduce their reports after the expiry of the usual delay.

iii Did the Arbitrator prejudice the right of the Appellant to know the case it had to meet, and to fairly respond to the case?

The Appellant argues the Arbitrator prejudiced its right to know the case it had to meet and to fairly respond by allowing the Respondent to file new reports after the commencement of the hearing.

The Arbitrator addressed these questions of natural justice and procedural fairness in her decision at pages 5 and 6:

On January 4, 2018, the Applicant had served a report from psychiatrist Dr. Leslie Kiraly, in response to Optimum’s Psychology Assessment Report by Dr. Christopher Hope, and an addendum report by Dr. Gallimore. 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 [to the Respondent to file another report].

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 28.¹⁰ [Italics mine]

I find no error in law in the Arbitrator’s decision to allow the Respondent to file reports after the Appellant filed its own new reports. As shown above, the Arbitrator permitted the Appellant a further opportunity to file a further report to respond to the Respondent’s reports.¹¹

Nor do I accept the Appellant’s argument that the reports of the Respondent fundamentally altered the nature of the claim advanced on behalf of the claimant or that impairments under mental and behavioral issues had not been an issue because the Respondent’s application for arbitration had initially set out the WPI criterion as the basis of the claim for catastrophic impairment.

As determined by the Court of Appeal in Kusnierz v. Economical Mutual Insurance Company,¹² the 55% WPI determination is a “catch-all provision” where it is permissible and even appropriate to allow a claimant to assess and combine psychological impairments of mental and behavioral disorders with physical impairments to arrive at a final calculation of “whole person” impairment. Therefore, an evaluation, consideration, and assessment of mental and behavioral disorders under chapter 14 of the Guides could be expected even in cases where a claimant has only sought a determination under the 55% WPI category.

In fact, the Arbitrator noted in her decision¹³ that the Appellant’s own expert, Dr. Khaled, recognized that Kusnierz 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, but Dr. Khaled took the position that because of the psychological assessment, such a combined rating “… could not be advanced at this time.”

In addition, even if the Appellant had somehow been surprised by evidence in the Respondent’s reports relating to mental and behavioral disorders, the Arbitrator accorded the Appellant full and ample opportunity to seek an adjournment and or to present its own new evidence and reports to meet this evidence. As the Arbitrator noted, “Optimum objected strenuously to Dr. Kiraly’s report, that of the only psychiatrist, but it could have obtained its own in order to adjust this claim fairly.”¹⁴

The Appellant filed more reports to respond to what it contended was a new ground for the catastrophic determination. I find no error in law in the Arbitrator’s decision to consider both the WPI and the mental and behavioral criteria set out in the SABS.

Further, the Arbitrator’s balancing of the rights of the parties finds support in decisions such as Certas Direct Insurance Company and Gonsalves.¹⁵ In that case, the Divisional Court held as follows:

The arbitrator had a wide discretion to ensure a fair hearing. Neither the Dispute Resolution Practice Code, first edition updated October 2003, (the Code) nor Practice Note 9 can interfere with that overreaching responsibility. Although the arbitrator did not specifically refer to the provisions of the Code to Practice Note 9, the finding of fact by the arbitrator was sufficient to explain why those provisions were not germane to the issue she was deciding. [Italics mine]

In the instant case, the Arbitrator explained her decision-making process in allowing new reports into the evidence. Having first permitted reports from the Appellant, she then allowed the Respondent to file reports in response, always bearing in mind the issue of procedural fairness.¹⁶

Thus, I reject the Appellant’s argument that the filing of the new reports from the Respondent somehow prejudiced the right of the Appellant to know the case it had to meet or to respond fairly to the case.

B. The Appellant’s arguments concerning the Arbitrator’s findings regarding catastrophic impairment

Many of these arguments amount to little more than attempts to argue the case a second time, or to challenge factual determinations and evidentiary assessments made by the Arbitrator. Again, it is not my role to re-hear, re-weigh, or re-assess evidence an arbitrator has already heard at first instance.

I will commence with the argument regarding mental and behavioral disorders as a determination of this main issue renders most of the other points moot.

a. Did the Arbitrator err in law by failing to properly interpret and apply Chapter 14 of the AMA Guides in providing a WPI rating from a Mental and Behavioral Perceptive?

First, the Appellant re-argued the Arbitrator’s decision to enter the reports of Doctors Gallimore and Kiraly, and to include mental and behavioral disorders as a basis for a catastrophic determination. This argument, based on the denial of natural justice, is repeated from the previous section, and I have already rejected it for reasons given.

Second, the Appellant argued the reports of Doctors Gallimore and Kiraly were “fundamentally flawed,” “[did] not assist in providing a WPI rating,” and “[could not] be relied upon.” The Arbitrator considered and assessed the reports of these two doctors. Her detailed analysis of the evidence on mental and behavioral disorders and why she preferred the evidence of Doctors Kiraly and Gallimore over the evidence of experts called by the Appellant are found at pages thirty and following of her decision.

In a lengthy discussion, she noted Dr. Kiraly’s evidence was supported by other assessors, witnesses, and the overall history of the Respondent’s impairments and treatments. She pointed out deficiencies in the evidence and analysis of Dr. Hope and other experts called by the Appellant.

These were the Arbitrator’s determinations of credibility, and reasoned assessments of the probative value of conflicting evidence. There was evidence to support her findings, and I find no error in law in her acceptance and reliance on the reports and evidence produced by the Respondent. I see no reason to intervene in her determinations.

Third, the Appellant challenged the conclusions of Dr. Kiraly and Dr. Gallimore based on the lack of information with respect to functional limitations, but I reject this argument. The Arbitrator detailed the various sources of evidence on which she based her decision.¹⁷ She made reasoned findings about why she preferred the Respondent’s experts over those of the Appellant, such as Dr. Hope and Dr. Khaled.¹⁸ The Arbitrator had evidence of significant psychological impairment from Dr. Liao, Dr. Kiraly, Mr. Beedling, Dr. Robinson, and Dr. Mills.¹⁹ I find no error in law in the Arbitrator’s acceptance of the methodology of Dr. Kiraly and Dr. Gallimore, and the evidence she determined was credible and probative.

Fourth, the Appellant argued the Arbitrator should have accepted the evidence of its own expert, Dr. Zakzanis. The Arbitrator specifically addressed Dr. Kiraly’s evidence in regard to the Global Assessment of Functioning Scale. (GAF), and indicated why she found that evidence more probative than that of the Appellant’s.²⁰ She also discussed why she did not accept the evidence of Dr. Zakzanis, who stated in his testimony that he did not employ the California method [the GAF scale].²¹ Again, there was evidence to support her findings and I see no reason to intervene in her weighing of that evidence.

Fifth, the Appellant argued the Arbitrator should have also accepted the evidence of another of its experts, Dr. Khaled. This is another example of the Appellant seeking to re-try the case. The Arbitrator’s assessment of Dr. Khaled’s evidence is at pages 35-38. In this section, she reasoned why she discounted evidence from Dr. Khaled, whom she found “… was an advocate for a strict compliance with the wording of the Guides but failed to apply the same rigor to the work of his own team.”²² She found he “… gave Optimum the outcome it wanted.” She was “… satisfied on the evidence he [Dr. Khaled] deliberately closed his eyes to relevant information he should have taken into account.”²³

Once again, it is not my function on appeal to re-weigh and re-assess evidence and findings of credibility made by an arbitrator. I find no error of law in the Arbitrator’s decision to accept the evidence of the Respondent’s experts over those of the Appellant, including the evidence of Dr. Khaled and Dr. Zakzanis.

In conclusion, the Arbitrator considered and accepted the evidence of the Respondent’s experts, including that of Dr. Kiraly. She determined the Respondent had a “marked” or Class 4 impairment in one of the four functional domains. The Respondent was thus catastrophically impaired due to her mental and behavioral disorders.

I find no error in law in the Arbitrator’s conclusion. As a result, it is not necessary for me to address the rest of the Appellant’s submissions on the WPI category, but I will do so for completeness.

b. Did the Arbitrator err in law by failing to follow accepted methodology as set out in FSCO caselaw for the determination of catastrophic impairment and WPI ratings?

This argument was repeated in the Appellant’s submissions concerning the assessment of the Respondent’s mental and behavioral disorders. The Appellant argued the Arbitrator erred by not following accepted methodology as set out in “FSCO case law.” Specifically, the Appellant impugned the Arbitrator’s decision-making because she accepted the evidence of Dr. Gallimore, who according to the Appellant, took the clinical findings of others to arrive at a WPI rating.²⁴

The Appellant cited the decision of Allstate Insurance Company of Canada 16-003415/AABS 2018²⁵, from the Licensing Appeals Tribunal (“the LAT”) as authority that a multi-disciplinary approach to assessing catastrophic impairment is “necessary.”

I reject this argument. Even if the LAT set out such mandatory requirements, FSCO arbitrators are not bound by LAT decisions. Further, such a requirement would be inconsistent with those set out in the AMA Guides. The SABs simply require arbitrators to apply and make their decisions in accordance with the AMA Medical Guides, which include the following requirements for determinations of catastrophic impairment and WPI:

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, results in a 55 per cent or more impairment of the whole person; or²⁶ [emphasis mine]

Thus, the stipulation placed on an arbitrator in the constituent legislation is that the determination on WPI be made in accordance with the AMA Guides. There is no mention that WPI must be determined by a multi-disciplinary approach. Nor is it necessary for the evaluator to be the person who calculates the impairment rating.

In fact, the Arbitrator cited the very passage from the Guides which supported and substantiated her decision to accept the ratings given by Dr. Gallimore, who based his ratings on reports of other assessors:

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 that criteria.²⁷ [Italics mine]

Therefore, I find no error of law in the methodology accepted by the Arbitrator for determining catastrophic impairment WPI ratings.

c. Did the Arbitrator err in law by providing an impairment rating under Chapter 9 of the AMA Guides due to smell?

The Appellant argued the claimant had not presented any evidence of functional limitation because of her decreased sense of smell, and this precluded any rating for this impairment. The Appellant cited the AMA Guides as authority for this proposition, but I find this is an incorrect reading of the appropriate section which reads as follows:

Only rarely do the complete loss of the closely related senses of olfaction and taste seriously affect an individual’s performance of the usual activities of daily living. The rare case invariably involves occupational considerations and disabilities that are outside the scope of a physician’s responsibility in the evaluation of permanent impairment.

For this reason, a single value of 3% impairment of the while person is suggested for use in cases involving complete bilateral loss of either sense due to peripheral lesions. This value is to be combined with any other impairment of the patient by means of the Combined Values Chart.²⁸

Thus, the Guides themselves recognize that loss of smell may not seriously affect a person’s performance of the usual activities of daily living, and cases where an examiner might determine functional limitations based on loss of smell are rare.

Despite this difficulty, the Guides suggest 3% for the loss of smell. Therefore, I reject the Appellant’s argument that an impairment due to loss of smell could not be rated.

Further, I note that the Arbitrator accepted Dr. Gallimore’s evidence over that of the Appellant’s experts. Dr. Gallimore testified as to the Respondent’s “anosmia”²⁹. Thus, there was evidence to support her findings on loss of smell, and I see no reason to intervene in her determination to rate this impairment. Nonetheless, the AMA Guides allow for a maximum of 3% for this impairment, and I would reduce the rating from 5% to 3% accordingly. A re-calculation of the total WPI, based on these revisions, is undertaken in the final section of this analysis.

d. Did the Arbitrator err in law by providing an impairment rating for headaches contrary to the AMA Guides?

The Appellant argued the Respondent’s expert, Dr. Gallimore, should not have created an impairment rating for headaches by way of analogy. In her decision at page 29, the Arbitrator accepted Dr. Gallimore’s evidence and applied his 5% rating for headaches. She found the headaches interfered with Respondent’s functioning, and Dr. Gallimore effectively captured the rating appropriate for the circumstances in the Applicant’s functioning based on the detailed history of various assessments and on all the evidence.³⁰

This is another finding based on the Arbitrator’s assessment of the evidence and I see no reason to interfere in her determination.

Further, the SABS specifically provide for the rating of impairments by analogy:

For the purpose of clauses 2(e) and (f), an impairment that is sustained by the insured person but is not listed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, is deemed to be the impairment that is listed in that document that is most analogous to the impairment sustained by the insured person.³¹ [emphasis mine]

Thus I find no error of law in the Arbitrator’s rating of the Respondent’s headaches.

e. Did the Arbitrator err in law by providing an impairment rating under Chapter 9 of the AMA guides despite there being no functional limitations as a result of any TMJ disorder?

The Arbitrator accepted the evidence of Doctors Gallimore and Catre in regard to the Respondent’s TMJ, and noted that the diagnosis of TMJ was not in dispute. What was in dispute was the extent of the impairment and the limitation of function as a result.³²

In this regard, the Arbitrator noted that the Appellant’s experts had not directly asked the Respondent if she limited her diet to “soft or semi-solid food.” In fact, the Respondent’s own testimony was that she “… [needed] to choose, pick and choose of what I am eating.”³³ The Respondent testified she avoided “crunchy and chewy food.” Further, when asked if she could eat meat, she responded, “Sometimes, if it’s like really tender and falls off the bone or something like that or I’ll eat a little bit of it.”³⁴

The Arbitrator determined that there was no conclusive evidence the Respondent was eating crunchy food.³⁵ Thus, there was evidence to support her finding. I see no error of law in the rating of 5% for TMJ.

f. Did the Arbitrator err in law by providing an impairment for use of medications?

The Guides specifically allow for a rating for the use of medications.³⁶ The Arbitrator accepted Dr. Gallimore’s evidence that it was appropriate to give a rating based on the number of medications given to the respondent. Further, she also considered evidence from Dr. Robinson concerning the side effects of the medications taken. I find no error in law in the Arbitrator’s rating of 5% for medications.

g. Did the Arbitrator err in law by providing an impairment rating for skin contrary to the AMA Guides?

The Appellant argued there was no evidence of functional impairment or limitation in the Respondent’s ability to engage in normal activities because of the scarring, and the Arbitrator could not have rated the Respondent for this impairment. I reject this argument because the AMA Guides provide that a Class I Skin Disorder (such as this one) does not require a finding of any limitations to daily living.³⁷ Instead, the Guides allow for a rating from 0%-9% for this impairment.

The Arbitrator accepted the evidence of Dr. Gallimore and applied the definition of impairment found in the SABs.³⁸ She found it was appropriate to provide a rating of 5% for the scarring. I find no error in law in this rating.

h. Did the Arbitrator err in law by drawing an adverse inference by favouring the medical evidence of psychiatrist over a psychologist, when no evidence was tendered as to the difference between the specialties?

The Arbitrator provided a detailed analysis of all the evidence before her, including the testimony and reports of the various psychologists (including Doctors Khaled, Hope, and Zakzanis of the Appellant) and the psychiatrist (Dr. Kiraly of the Respondent).³⁹ She made findings of fact, assessments of credibility, and drew conclusions on the probative value of that evidence. There was evidence to support all her findings, and I find no errors of law in her weighting and assessments.

Nor is there anything to substantiate the Appellant’s claim that the Arbitrator drew her conclusions based on a “favouring” of a psychiatrist’s qualifications over a psychologist’s. For instance, the Arbitrator reasoned why she preferred the evidence of the Respondent’s experts over the Appellant’s psychologists on page 30 and 31. She considered the evidence of the family doctor,⁴⁰ noted the consistency of results between Dr. Kiraly and Dr. Mills⁴¹, and the supporting evidence of Ms. Javasky, occupational therapist.⁴²

i. Did the Arbitrator err by drawing an adverse inference against the Insurer for failing to obtain a psychiatrist report without being given an opportunity?

I reject this argument. The Appellant did not provide a psychiatrist’s report as part of its evidence, but objected to the Respondent’s introduction of such a report. As previously discussed, I have already found that the Arbitrator provided ample opportunity to the Appellant to respond to the Respondent’s reports. Whether the Arbitrator drew an adverse inference was irrelevant to her decision. She based her conclusions on mental and behavioral disorders on the evidence before her, and I find not error of law in how she made those determinations.

j. Did the Arbitrator err in law by misapplying the Combined Value Charts of the AMA Guides to arrive at a WPI%?

The Arbitrator accepted the evidence of Dr. Gallimore in his report under his Option 1.⁴³ There was evidence to support her findings on WPI, apart from the 5% given for olfaction, which should be reduced to 3%, as set out in the AMA Guides.

At the appeal hearing (but not in written submissions), the Appellant also challenged Dr. Gallimore’s rating for the Thoracic and Cervical spine⁴⁴, but as argued by the Respondent, Dr. Gallimore submitted two reports (the second of which provided a corrected rating for the spine). Both reports were before the Arbitrator, and there was evidence on which she could base her findings. Again, I see no reason to intervene in her determination.

Finally, even when I reduce the rating for olfaction to 3% and deduct the rating for the Thoracic spine (to apply the corrected value), the recalculation of the final WPI% based on the Combined Values Chart still attains the threshold for catastrophic impairment.

The appeal is rejected.

IV. EXPENSES

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