Tribunal File Number: 16-002000/AABS
Case Name: 16-002000 v Jevco Insurance Company
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits
Between:
Applicant
Applicant
and
Jevco Insurance Company
Respondent
DECISION
Adjudicator: Anna Truong
Appearances: Luke J. Saites, Counsel for the Applicant
Jason Goodman, Counsel for the Respondent
OVERVIEW
1[ ] (the “applicant”) was involved in a motorcycle accident on May 7, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits (outlined below) by the respondent.
2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided:
Is the applicant entitled to a post-104 week income replacement benefit at the rate of $400 per week from March 27, 2016 and ongoing?
Did the applicant sustain a catastrophic impairment as defined by the Schedule?
If the answer to issue #2 is yes:
a. Is the applicant entitled to a medical benefit outlined in a physiotherapy treatment plan dated February 18, 2015, recommended by Shelburne Physiotherapy Centre in the amount of $226.53?
b. Is the applicant entitled to a medical benefit for medication expenses submitted on February 25, 2016, in the amount of $1,369.97?
c.Is the applicant entitled to a rehabilitation benefit for services recommended by Chantal Doerig in a treatment plan submitted on June 2, 2015, in the amount of $841.83?
d. Is the applicant entitled to a rehabilitation benefit for services recommended by Chantal Doerig in a treatment plan submitted on May 8, 2015, in the amount of $1,197.13?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the totality of the evidence before me, I find that:
The applicant is entitled to a post-104 week income replacement benefit.
The applicant has sustained a catastrophic impairment as defined by the Schedule.
The applicant is not entitled to any of the medical and rehabilitation benefits in dispute.
The applicant is entitled to all applicable interest.
ANALYSIS
5This hearing was conducted in writing. The only evidence submitted by the parties is documentary evidence. I have considered all of the documents submitted and summarized the ones I find relevant to my determination below.
1. Income Replacement Benefit
6The applicant bears the burden of proving on a balance of probabilities he is entitled to a post-104 week income replacement benefit in the amount of $400 per week from March 27, 2016 and ongoing.
7The test for entitlement for a post-104 week income replacement benefit is set out in section 6(2)(b), which states: “The insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” This is referred to colloquially as the “complete inability” test.
8The applicant sustained serious injuries as a result of the accident. These injuries include an open left iliac wing fracture, bilateral pneumothoraces, right second rib fracture, manubrium fracture, traumatic lower left lateral abdominal wall hernia, left adrenal hemorrhage, splenic lacerations, multiple left renal lacerations, a mesenteric hematoma about the right colic artery of the superior mesenteric artery, a left renal artery traction injury, left anterior para-renal space hematoma, a left rib fracture and a left grade 3 acromioclavicular joint dislocation.
9The applicant submits and the records show he continues to suffer from chronic pain, including pain in his left shoulder, low back, left hip and groin, left thigh, poor sleep, poor mood, anxiety, fatigue, upper chest pain, thoracic back discomfort, headaches, morning fatigue, residual post-traumatic stress symptoms, depression and the effects of his narcotic medications. The applicant is currently taking many medications to treat his accident-related injuries, including Hydromorphone, a narcotic, for breakthrough pain.
10Prior to the accident, the applicant worked full-time as a truck driver and warehouse labourer. He was paid $38 per hour and worked approximately 44 hours per week. In addition to this, he worked as a volunteer firefighter. His duties consisted of attending fires, dealing with car accidents, participating in training sessions and supervision. He was paid $35-40 per hour for practice sessions, which occurred once weekly. He also had dispatch duties with the fire department for which he was paid $25 per hour and worked on an as needed basis. In addition to these two jobs, the applicant worked as an attendant key holder for the local town hall. His duties involved allowing people into the hall and locking up. He was paid $19 per hour and he spent most of this job sitting in the office. He worked on an as needed basis.
11Post-accident, the applicant returned to doing dispatch and observation of practice sessions at the fire department as well as working as an attendant key holder, when available. He has not returned to full-time employment and has not done any retraining.
12The respondent argued the applicant has returned to part-time work, which is a strong indication he does not meet the complete inability test. I disagree. The main purpose of an income replacement benefit is to compensate the applicant for his inability to earn income at a comparable level to his pre-accident employment. The applicant did not submit his tax returns, which would have been helpful to properly assess his pre and post-accident income. However, it is not a fatal omission. I have done a rough calculation based on the information available in order to illustrate the discrepancy in the applicant’s pre and post-accident income. For the sake of simplicity, I did not account for the applicant’s employment at the town hall, because he did this job both pre and post-accident.
13Pre-accident, the applicant worked 44 hours per week earning $38 per hour. Therefore, he earned approximately $1,672 on a weekly basis. The respondent submits post-accident, the applicant has returned to dispatch duties at the fire department working 20-25 hours a week. The applicant was earning $25 per hour for dispatch duties. Using 25 hours, the applicant is currently earning $625 per week post-accident. This is less than 40% of his pre-accident income. I concede this is not an exact calculation and I am aware there is disagreement over the number of hours the applicant worked, but this exercise was meant only for illustrative purposes. The fact remains the applicant’s current post-accident employment is not comparable in pay to his pre-accident employment. Therefore, the applicant’s post-accident employment does not preclude him from qualifying for a post-104 week income replacement benefit.
14In support of his entitlement, the applicant submits he was successful in his application for a Canada Pension Plan (“CPP”) disability benefit from the Social Security Tribunal of Canada (“SST”). The applicant submits the CPP disability test is more stringent than the complete inability test under the Schedule. I agree. In order to be successful in obtaining a CPP disability benefit, the applicant must show that he suffers from a severe and prolonged disability that renders him incapable regularly of pursuing any substantially gainful occupation. While the applicant’s successful application is not determinative of his entitlement to a post- 104 week income replacement benefit, some weight must be given to the SST’s finding.
15[15] The applicant provided the Medical Report from his CPP Application. The Medical Report is a form that must be completed by a physician, which outlines the medical condition that gives rise to the application for the disability benefit and the reasons the physician believes the applicant meets the test for the disability benefit. The applicant’s Medical Report dated December 22, 2015, was completed by Dr. Amy Catania, the applicant’s family physician. Dr. Catania stated in the report that the applicant suffers from multiple traumas resulting in chronic pain and depression secondary to disability/pain, caused by the 2013 motor vehicle accident.
16Dr. Catania opined the applicant is unable to return to work, because of pain and weakness. She also stated the applicant requires assistance with regular household tasks, and continues to have memory difficulties, poor organizational skills, is easily distracted and overwhelmed, and has difficulty with initiation and follow-through of tasks. She stated given the severity of injuries, the applicant is unlikely to improve resulting in resolution of his disability. This is also reflected in Dr. Catania’s clinical notes and records. I placed much weight on Dr. Catania’s records and observations, because as the applicant’s treating physician, she is in the best position to observe the functional limitations caused by the applicants’ accident-related impairments. She is also in the best position to observe the progression of the applicant’s impairments.
17Dr. S. Scherer, rehabilitation and vocational psychologist, completed a Psychovocational/Rehabilitation Evaluation dated February 29, 2016 and the two subsequent addendums, wherein he outlined the applicant’s impairments and his barriers to re-entry of the workforce. Dr. Scherer noted the applicant is no longer capable of engaging in any employment for which he is reasonably suited by education, training or experience. Dr. Scherer further noted the applicant’s neurocognitive inefficiencies, and pain and stamina problems would likely significantly complicate any efforts at practical short-term retraining.
18Dr. Scherer emphasized an assessment of employability is not strictly that of any one individual specialization, but a holistic assessment of function with respect to employability and the capacity to re-establish balance between work and after work hour life demands. Having said that, Dr. Scherer stated from a psychological perspective alone, the applicant’s functionality has been significantly affected and would preclude reengagement in the workforce on a consistent basis. He concluded the applicant is not employable in any capacity.
19The respondent conducted a multi-disciplinary assessment, which consisted of the following reports dated February 24, 2016:
An Independent Orthopaedic Assessment by Dr. Ato Sekyi-Otu, orthopaedic surgeon;
A Vocational Evaluation & Transferable Skills Analysis Assessment by Kelly-Ann Smith, Certified Vocational Evaluation Specialist;
A Labour Market Research report by Kelly-Ann Smith;
A Functional Abilities Evaluation by Zinnia Lee, physiotherapist; and
An Independent Psychological Assessment by Dr. Jason Bacchiochi, psychologist.
20Rebecca Steinke, kinesiologist, completed the Executive Summary of these reports. Ms. Steinke does not provide an overall analysis of the applicant’s capacity to work taking into account all the individual findings of the various experts. She only provides a summary of each expert’s opinion, which was not particularly useful. The main conclusion of these reports was the applicant does meet the complete inability test for a post-104 income replacement benefit. For the sake of brevity, I will not reiterate all of the findings, but there are a few points from the reports relevant to my analysis.
21Dr. Sekyi-Otu found the applicant has a left shoulder functional impairment, gait disturbance, slow gait pattern and numbness over the left thigh consistent with meralgia paresthetica. Dr. Sekyi-Out concluded the applicant had sustained a permanent functional impairment of his left shoulder and would have difficulty with prolonged sitting and prolonged walking. He also opined the applicant would have difficulty resuming his pre-accident jobs tasks at regular hours and regular duties. In spite of these findings, Dr. Sekyi-Otu concluded the applicant could work jobs of sedentary strength that allow for positional changes.
22Dr. Bacchiochi diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, because he presented with low mood, irritability, transient dysphoric mood, anhedonia, sleep difficulties, fatigue, inappropriate guilt, concentration difficulties, anxiety, worry, and some nightmares related to the accident. Dr. Bacchiochi opined despite the lack of improvement to date, it is felt that these impairments could be temporary. Dr. Bacchiochi concluded from a psychological perspective, the applicant does not meet the complete inability test. Dr. Bacchiochi noted the applicant did not think he could work, because he would be unreliable due to pain even in a sedentary position.
23Ms. Smith listed several alternative occupations the applicant could pursue employment in. However, Ms. Smith qualified this list in two ways. First, she stated these jobs are the best matches with consideration only for the applicant’s test results, educational requirements and current labour market trends. Second, she stated there may be medical, neuropsychological or psychological contraindications that could preclude the applicant from pursuing employment, so medical clearance should be sought.
24I did not find Ms. Smith’s list of alternative occupations compelling, because she does not take into account the applicant’s functional impairments. Overall, I did not find the respondent’s reports particularly helpful, because each expert provided their opinion in isolation and there was no analysis of the combined impact from all of the applicant’s impairments on his ability to work. I find a holistic assessment of the applicant’s capacity to work with respect to his impaired functioning a lot more compelling. That is why I placed greater weight on Dr. Scherer’s report. While far from perfect, Dr. Scherer provided a more holistic look at all of the applicant’s functional impairments and how they affect his ability to work and retrain.
25Ms. Smith suggested the applicant complete a training program in transportation operations and dispatching to improve his competitiveness in obtaining employment as a dispatcher. Ms. Smith further suggested the applicant complete a training course and obtain a licence as a private investigator prior to pursuing employment as a private investigator.
26While Ms. Smith listed alternative occupations the applicant could potentially retrain for, Dr. Scherer noted the Appellant has limited transferable skills and poor literacy on formal examination. Dr. Scherer further noted he has below average to average learning abilities. The applicant reported to various assessors that he did not excel at school and only has a high school education. Moreover, Ms. Smith provided an outline of the various training programs the applicant would be required to complete in order to be competitive in the alternative occupations she listed. I found these training programs to be extensive and I find the applicant would struggle given his impairments and poor learning abilities. For example, in order to become a security guard or private investigator, an individual must be licensed. To be licensed in Ontario, Ms. Smith noted the applicant would be required to complete a basic training course (the one outlined is 34 weeks long) and pass the licensing test.
27Furthermore, the applicant is suffering from neurocognitive and psychological disorders that interfere with his functioning. These will be discussed in greater detail below in conjunction with the applicant’s catastrophic impairment. However, it is important to note these disorders will make the applicant’s successful retraining unlikely. Taking into account all of these factors, it is highly unlikely the applicant would be able to successfully retrain for other types of employment. Therefore, I do not find any of the suggested occupations that require retraining qualify as alternative occupations for the applicant.
28Ms. Smith conducted a job search that revealed a very limited number of job postings in the area surrounding Shelburne, Ontario, for which the applicant is currently suited by education, training or experience. She noted Shelburne is a small rural community with a very limited labour market therefore the applicant would likely be required to commute to work. All of the job ads Ms. Smith listed in her report were for jobs from bigger cities such as Toronto and Mississauga, which is at least an hour drive from Shelburne. Commuting would likely be a problem for the applicant as he has difficulty with prolonged sitting and he consumes narcotic medication.
29In addition to the potential barriers above, Ms. Smith identified several other barriers to employment for the applicant, which include the applicant’s reported physical, emotional and cognitive difficulties, his limited work history in manual labour, and his relatively high pre-accident income. Based on these barriers, Ms. Smith concluded the applicant’s job search would likely be more challenging than other job seekers. I accept and agree with the findings of Ms. Smith with respect to the applicant’s vocational barriers. I find the limited labour market in his rural community, the applicant’s limited transferable skills and job history, the requirement to commute and the possible need to retrain will greatly limit the applicant’s ability to return to the workforce.
30I gave weight to the applicant's work history. He has worked at the same manual labour job for over 20 years. In addition to his full-time job, he worked at two other part-time positions and was in the process of obtaining another job as a snowplow driver before the accident. One can reasonably surmise that an individual with his demonstrated work ethic would not have left the labour market unless there was some substantive underlying cause. The totality of the evidence indicates the applicant’s accident impairments interfere with his functioning.
31I find the applicant does not have work capacity. It is highly unlikely that an employer would hire and retain such an unpredictable and unreliable worker. The applicant would not be able to fulfil the basic expectations of an employer such as punctuality, regular attendance and the ability to consistently complete his job duties in a timely manner due to his accident-related impairments. In other words, the applicant is unable to meet reasonable standards of productivity in a competitive marketplace. He would be too inconsistent as a worker based on his accident-related impairments. This is supported by the applicant’s own assertion, the records from Dr. Catania, and the reports of Dr. Scherer. Based on the evidence before me, I find the applicant does not have the capacity to work.
32For the reasons outlined, I find the applicant suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. Therefore, the applicant is entitled to a post- 104 week income replacement benefit from March 27, 2016, and ongoing. Given the applicant is receiving a CPP disability benefit, the respondent is entitled to all applicable deductions. I will leave it to the parties to determine quantum as quantum is not an issue in dispute at this hearing.
2. Catastrophic Impairment
33The Schedule provides several criteria for an accident related impairment to be considered catastrophic. Section 3(2)(e)’s criteria include 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 (the “Guides”), results in a 55% or more impairment of the whole person. Jurisprudence has held these impairments can include physical impairments, individually or in combination with mental and behavioural impairments, as long as it results in a whole person impairment (“WPI”) of 55% or more according to the Guides.
34The Guides are a compilation of chapters, which contain specific rating criteria for the degree of impairment of individual body systems. Each chapter is dedicated to a particular body system. In order to arrive at a total WPI rating under section 3(2)(e) of the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides to obtain an individual impairment rating. Once all the individual impairment ratings are obtained, they are combined according to a formula in the Guides to arrive at the total WPI rating under section 3(2)(e) of the Schedule.
35In catastrophic impairment assessments, whole person impairments under section 3(2)(e) are referred to as criterion 7 impairments. Mental and behavioural impairments under section 3(2)(f) are referred to as criterion 8 impairments. The applicant claims he has sustained a catastrophic impairment pursuant to section 3(2)(e) on the basis his combined accident-related impairments results in a 55% WPI as defined by the Schedule.
Physical Whole Person Impairments
36In the respondent’s Orthopaedic Catastrophic Impairment Determination Report dated February 11, 2015, Dr. C.B. Paitich, orthopaedic surgeon, opined under criterion 7, the applicant’s WPI rating for physical impairments total 28%.
37The applicant submits Dr. Paitich underestimated his physical impairments. In the applicant’s Catastrophic Impairment Review report dated March 30, 2015, and the addendum dated July 14, 2015, Dr. Harold Becker, Omega’s Clinical Coordinator, argued Dr. Paitich’s physical WPI rating of 28% underestimates the applicant’s physical impairments, because Dr. Paitich did not rate the applicant’s medication use. Dr. Becker opined in order to accurately rate the applicant’s physical WPI, his medication use should be rated at 3% and added to Dr. Paitich’s 28% rating.
38In the respondent’s Neurocognitive-Behavioural Catastrophic Impairment Determination Report dated February 11, 2015, Dr. Konstantine K. Zakzanis, neuropsychologist, opined the applicant sustained an uncomplicated mild traumatic brain injury as a result of the accident. Dr. Zakzanis found the applicant’s functioning is mildly below his premorbid intellectual and cognitive abilities. While Dr. Zakzanis opined there could be various causative factors for this, he conceded there is a remote possibility brain injury sequelae could account for the applicant’s cognitive impairments. Thus, Dr. Zakzanis diagnosed the applicant with a Mild Neurocognitive Disorder without Behavioural Disturbance due to Multiple Etiologies and assigned a WPI rating of 14% for the applicant’s mental status impairment under Table 2 in Chapter 4 (the Nervous System) of the Guides. As indicated by the chart below, a WPI rating of 14% is on the edge of, but not requiring direction and supervision for activities of daily living.
Table 2 Mental Status Impairments[^1]
| Impairment Description | % Impairment of the Whole Person |
|---|---|
| Impairment exists, but ability remains to perform satisfactorily most activities of daily living | 1 – 14 |
| Impairment requires direction and supervision of daily living activities | 15 – 29 |
| Impairment requires directed care under continued supervision and confinement in home or other facility | 30 – 49 |
| Individual is unable without supervision to care for self and be safe in any situation | 50 – 70 |
Mental and Behavioural Impairments (Criterion 8)
39Mental and behavioural impairments are not rated like physical impairments. These impairments are not assigned a percentage rating by the Guides. Instead, mental and behavioural impairments are rated within four spheres of function and assigned a rating using a five level scale. The Table below from Chapter 14 sets out the four spheres of function and the criteria for each class of impairment.
Classification of Impairments Due to Mental and Behavioural Disorders[^2]
| Area or Aspect of Functioning | Class 1: No Impairment | Class 2: Mild Impairment | Class 3: Moderate Impairment | Class 4: Marked Impairment | Class 5: Extreme Impairment |
|---|---|---|---|---|---|
| Activities of Daily Living | No impairment is noted | Impairment levels are compatible with most useful functioning | Impairment levels are compatible with some, but not all, useful functioning | Impairment levels significantly impede useful functioning | Impairment levels preclude useful functioning |
| Social Functioning | |||||
| Concentration, Persistence and Pace | |||||
| Adaption |
40Under section 3(2)(f) of the Schedule, an impairment is considered catastrophic if, as a result of the accident, the individual suffers a marked (class 4) or extreme (class 5) impairment in one of the four spheres of function due to a mental or behavioural disorder (criterion 8). The applicant is not claiming a catastrophic impairment under this criterion. However, it is relevant to my determination, because mental and behavioural impairments can be included under criterion 7 to obtain a total WPI rating. If the combined total WPI rating reaches a 55% WPI or more, the applicant will be deemed catastrophic.
41In the respondent’s Mental-Behavioural Catastrophic Impairment Determination Report dated February 11, 2015, Dr. Zakzanis opined the applicant did not sustain a catastrophic impairment under criterion 8. With respect to the applicant’s impairment in function, Dr. Zakzanis found the following:
| Sphere of Function | Impairment Rating |
|---|---|
| Activities of Daily Living | Moderate |
| Social Functioning | Moderate |
| Concentration, Persistence and Pace | Mild |
| Adaptation | Mild |
42It is well-established law any mental and behavioural WPI ratings under criterion 8 can be combined with physical WPI ratings to provide a total WPI rating under criterion 7. However, the Guides themselves do not contain any guidance on how to convert a Chapter 14 mental and behavioural rating into a WPI percentage rating. Jurisprudence has outlined the accepted method of doing so is to utilise Table 3 from Chapter 4 to come up with a percentage rating that parallels the descriptive ranges with the percentage rating system.
Table 3 Emotional or Behavioural Impairments[^3]
| Impairment Description | % Impairment of the Whole Person |
|---|---|
| Mild Limitation | 0-14% |
| Moderate Limitation | 15-29% |
| Marked Limitations | 30-49% |
| Severe Limitation (of almost all functions) | 50-70% |
43Utilising this chart, Dr. Zakzanis converted the applicant’s mental and behavioural rating under Chapter 14 to a WPI rating of 29%, because the applicant presented “with moderate limitations of some, but not all social and interpersonal daily living functions”. 29% is at the upper end of moderate and on the edge of marked, which is the threshold for a catastrophic designation under criterion 8.
Total Whole Person Impairment (Criterion 7)
44In summary, the applicant was given three individual WPI ratings:
| Rater | Type of Impairment | WPI Rating | Chapter |
|---|---|---|---|
| Dr. Paitich | Physical | 28% | Various |
| Dr. Zakzanis | Mental status | 14% | 4 |
| Dr. Zakzanis | Mental and Behavioural | 29% | 14 |
45As mentioned above, Dr. Becker disagreed with Dr. Paitich’s rating and recommended another 3% be added to the applicant’s physical WPI rating. Outside of the 3% discrepancy, there is no disagreement over the WPI ratings themselves. The parties disagree on how to combine the individual WPI ratings. The applicant did not submit his own mental and behavioural WPI ratings. He relies on the ratings provided by the respondent. I accept the ratings of Dr. Zakzanis with respect to the applicant’s mental and behavioural WPI, having no evidence or submissions to the contrary.
46In the chart below, I have outlined possible combinations of the individual WPI ratings that can be used in calculating the applicant’s total WPI rating. As mentioned earlier, the individual WPI ratings are combined using a formula from the Guides, not simple addition.
| Dr. Paitich | Dr. Zakzanis Chapter 14 | Dr. Zakzanis Chapter 4 | Dr. Becker | Total WPI Rating |
|---|---|---|---|---|
| 28% + | 29% | 49% | ||
| 28% + | 29% + | 3% | 50% | |
| 28% + | 29% + | 14% | 56% |
47In denying the applicant sustained a catastrophic impairment as a result of the accident, the respondent relied on Dr. Paitich’s calculation of the applicant’s total WPI. Dr. Paitich did not combine all three individual WPI ratings for reasons that will be discussed below. Dr. Paitich combined only the 29%, the higher of the two WPI ratings from Dr. Zakzanis, with his 28% physical WPI rating in calculating the applicant’s total WPI. This resulted in a total WPI rating of 49%, which does not meet the 55% threshold required for a catastrophic designation.
48I will not comment further on the disagreement over the applicant’s physical WPI rating. Even if I accepted Dr. Becker’s augmented physical WPI rating and combined the extra 3% to the applicant’s total WPI rating- which results in a total WPI rating of 50%, the applicant would still not reach the 55% WPI threshold to be deemed catastrophic. Therefore, I do not need to make a finding as to which physical WPI rating is correct.
49The catastrophic impairment determination in this case will turn on whether or not the 14% mental status impairment rating from Chapter 4 and the 29% mental and behavioural rating from Chapter 14 can be combined to calculate the applicant’s total WPI rating. If I find the ratings can be combined, the applicant’s total WPI rating would be 56% and he will have sustained a catastrophic impairment. If I find they cannot be combined, the applicant’s total WPI rating would be 50% and he will not have sustained a catastrophic impairment.
50The respondent’s position is if the two ratings were to be combined, there would be an overestimation of the applicant’s total WPI. Dr. Paitich prepared the Multi- Disciplinary Consensus Opinion Report dated February 11, 2015, wherein he argued since the tables from Chapters 4 and 14 all rely on the same evidence of function and behaviour, combining both ratings from Chapter 4 and Chapter 14 would result in double-counting and lead to an artificially high total WPI figure. In order to avoid double-counting, Dr. Paitich disregarded the lower 14% mental status impairment WPI rating. He only combined the 29% mental and behavioural WPI rating with the 28% physical WPI rating in calculating the applicant’s total WPI rating. This resulted in a total WPI rating of 49%.
51The applicant’s position is if the two ratings are not combined, there would be an underestimation of the applicant’s total WPI. Dr. Becker in his Catastrophic Impairment Review report dated March 30, 2015 and the addendum dated July 14, 2015, argued the two ratings are obtained from different chapters rating different body systems. Chapter 4 deals with cognitive impairments associated with brain injury and Chapter 14 deals with mental and behavioural impairments. Therefore, they should be combined.
52The lead medical experts for each party have quoted case law within their reports. Unless the case was put before me by the parties in their submissions, I have not reviewed them. These cases are not properly before me, because the experts are providing evidence as medical experts, not legal experts. Both parties submitted jurisprudence in support of their arguments. However, I did not find any of the decisions directly on point with respect to the combination of a Chapter 4 Table 2 WPI rating and a Chapter 14 WPI rating.
53Dr. Zakzanis provided a WPI rating from both Chapter 4 (under Table 2) and Chapter 14 (using Table 3 of Chapter 4). In his reports, Dr. Zakzanis does not raise or address the issue of double-counting. This issue was raised by Dr. Paitich in his Consensus Opinion Report. I placed little weight on Dr. Paitich’s opinions with respect to the combination of the applicant’s neurocognitive, and mental and behavioural WPI ratings, because Dr. Paitich is an orthopaedic surgeon and not an expert with respect to neurocognitive, and mental and behavioural ratings. Since Dr. Zakzanis assigned ratings from both Chapters 4 and 14, and did not express any concern about potential double-counting, his methodology leads to the conclusion that both ratings are distinct and required.
54Combining a rating from Chapter 4 and Chapter 14 does not automatically result in double-counting and an overestimation of an individual’s impairment. Whether or not there is double-counting that results in an overestimation is dependent on the individual facts of each case. In order to discern whether or not there is double- counting in the impairment ratings from Chapters 4 and 14, I must look to the cause of the impairments.
55From a neurocognitive perspective, Dr. Zakzanis diagnosed the applicant with a Mild Neurocognitive Disorder without Behavioural Disturbance due to Multiple Etiologies. From a mental and behavioural perspective, Dr. Zakzanis diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. Zakzanis’ mental and behavioural Rating from Chapter 14 stems from his moderate ratings of the applicant’s activities of daily living and social functioning.
56[56] Chapters 4 and 14 list different capabilities that should be tested in order to assign an impairment rating under those chapters. In Chapter 44 under “Disturbances of Mental Status and Integrative Functioning”, the Guides list capabilities that should be tested for a Table 2 Mental Status Impairment rating. These capabilities are not the same types listed in Chapter 145 under the spheres of “Activities of Daily Living” and “Social Functioning”.
57Under the “Emotional or Behavioral Disturbances” section in Chapter 46, the Guides acknowledge the interplay between the fields of neurology and psychiatry when it comes to emotional and behavioural disturbances. The Guides state these disturbances can stem from neurologic impairments, but may have psychiatric features as well. The Guides specifically state, “The criteria for evaluating these disturbances (Table 3, below) relate to the criteria for mental and behavioural impairments (Chapter 14, p. 291)”.
58It is clear from the text under both sections, the overlap between Chapter 4 and Chapter 14 is encompassed predominately by Table 3 and not Table 2 of Chapter 4. If there was an overlap between Chapter 14 and Table 2 of Chapter 4, it would be under the sphere of “Concentration, Persistence and Pace”, not “Activities of Daily Living” and “Social Functioning”, which are the two categories Dr. Zakzanis predominately based his WPI rating of 29% on.
59In his Catastrophic Impairment Determination and Executive Summary Addendum dated May 11, 2015, Dr. Paitich argued the Guides dictate if there is more than one rating from Chapter 4, the highest rating should be used to combine for a total WPI rating. The Guides7 state:
A patient may have more than one of the types of cerebral dysfunction listed above. The most severe of the first five categories shown above should be used to represent the cerebral impairment. Any impairments in the last four categories may be combined with the most severe of the first five by means of the Combined Values Chart (page 322); the result would represent the estimate of total cerebral impairment [Emphasis added].
60It is important to note the applicant did not have more than one type of cerebral dysfunction. The applicant has a Table 2 Chapter 4 rating and a Chapter 14 rating that was converted to a WPI percentage using Table 3 of Chapter 4. That is not the same as having two Chapter 4 ratings. Furthermore, a Chapter 14 rating has nothing to do with a cerebral impairment, it rates impairments from a mental and behavioural disorder, so combining the two WPI ratings would not be in contravention of the Guides.
| Impairment Type | WPI Rating | Chapter | Cause | Table Used |
|---|---|---|---|---|
| Mental Status | 14% | 4 | Physical (cerebral) | Table 2 from Chapter 4 |
| Mental and Behavioural | 29% | 14 | Mental and behavioural | Table from Chapter 14 then converted to a WPI percentage rating using Table 3 from Chapter 4 |
61Dr. Paitich further argued in his Executive Summary Addendum the combination of a neurocognitive “non-physical” impairment from criterion 7 with an emotional and behavioural non-physical impairment from criterion 8 is not justified and contrary to the principle articulated in the Guides8. This is not quite accurate: the Guides9 states Chapter 4 “provides criteria for evaluating permanent impairments resulting from dysfunction of the brain, brain stem, cranial nerves, spinal cord, nerve roots and peripheral nerves.” While the applicant’s impairments are neurocognitive (or “non-physical” according to Dr. Paitich), the cause of those impairments are physical and must be physical in order to be rated under Chapter 4. Dr. Zakzanis rated the applicant’s impairments under Chapter 4, so he must have determined the cause of that rating to be physical in nature. Otherwise, it would have been an improper rating and I have no evidence or submissions to indicate that.
62In his Neurocognitive Report, Dr. Zakzanis considered the possibility the applicant’s emotional or behavioural impairments could be caused by a neurocognitive disorder and he found they were not. Dr. Zakzanis did not give the applicant a Chapter 4 Table 3 rating, which meant he did not find the applicant’s neurocognitive disorder resulted in any emotional or behavioural disturbances. This is further supported by Dr. Zakzanis’ diagnosis of Mild Neurocognitive Disorder without Behavioural Disturbance due to Multiple Etiologies. The underlined portion of that diagnosis makes clear there are no behavioural disturbances stemming from his neurocognitive disorder. Therefore, any mental and behavioural impairments the applicant is experiencing are not as a result of his neurocognitive disorder. It is more likely the cause of the applicant’s mental and behavioural impairments stem from his psychological disorder.
63While it can be difficult to discern the psychological causes from the neurocognitive ones when assessing mental status impairment, it is not impossible. I acknowledge the overlap between Chapters 4 and 14 creates the possibility of double counting, which may lead to the overestimation of the applicant’s impairments. However, in this case, I find the specific neurocognitive disorder diagnosis of Mild Neurocognitive Disorder Without Behavioural Disturbance due to Multiple Etiologies as well as the distinct psychological disorder diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood supports the conclusion that the applicant’s impairments should be accounted for and rated under both chapters, because there are two distinct causes.
64From my review of the evidence, I am satisfied the cause of the Chapter 4 and Chapter 14 impairments are different. I find there is no overlap between the Chapter 4 and Chapter 14 WPI ratings. Based on this, I find the Chapter 4 and Chapter 14 WPI ratings can be combined. Since I have found the two WPI ratings can be combined, I find the applicant has a total WPI rating of 56% [28% + 14% + 29%] meeting the threshold of 55%. Therefore, the applicant has sustained a catastrophic impairment as defined by section 3(2)(e) of the Schedule.
3. Medical and Rehabilitation Benefits
65Since I have found the applicant sustained a catastrophic impairment as defined by the Schedule, I must now determine whether the medical and rehabilitation benefits in dispute are reasonable and necessary.
66Sections 14, 15 and 16 of the Schedule provides an insurer is only liable to pay for medical and rehabilitaiton expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities the treatment plans in dispute are reasonable and necessary.
67The Case Conference Order dated January 26, 2017 was clear, evidence the parties intend to rely on for the hearing has to be resubmitted, because nothing submitted for the Case Conference would be before the hearing adjudicator. The treatment plans and expense forms in dispute are not currently before me for the hearing. For a few of the treatment plans, I cannot even discern what the proposed treatment is, because the issues provided for the hearing do not specify.
68In any event, even if I had the treatment plans and expense forms in dispute, the applicant has made insufficient submissions as to why they are reasonable and necessary. There is no discussion about the goals and benefits of the proposed treatment, and why the treatment plans and expenses are reasonable and necessary. The applicant did not argue the treatment plans and expenses in dispute are reasonable and necessary. The words “reasonable and necessary” do not even appear in the applicant’s submissions.
69The applicant did not lead me to the most basic information pertaining to these treatment plans and expenses. For example, I do not know what medication expenses are being disputed and if they are accident-related. The only evidence the applicant points to in his submissions is the Occupational Therapy Progress Report #2 of Chantal Doerig dated March 11, 2016. While Ms. Doerig’s report outlines the applicant’s ongoing need for rehabilitation, I cannot reconcile that with the treatment plans or expenses in dispute. There is simply too much information missing to conduct a meaningful analysis of the goals, the efficacy and cost of the proposed treatment, and whether there are other treatments available.
70For the reasons above, I find the applicant has not met his onus of proving on a balance of probabilities the treatment plans and expenses in dispute are reasonable and necessary. Therefore, the applicant is not entitled to any of the medical and rehabilitation benefits claimed.
4. Interest
71Since I found benefits payable, the applicant is entitled to all applicable interest pursuant to section 51 of the Schedule.
CONCLUSION
72For the reasons outlined above, I find the applicant is entitled to a post-104 income replacement benefit and all applicable interest. I find he sustained a catastrophic impairment as defined by the Schedule. However, I find the applicant is not entitled to any of the medical and rehabilitation benefits claimed.
Released: August 16, 2017
Anna Truong, Adjudicator