Citation: [A.V] vs. Western Assurance Company, 2019 ONLAT 19-000704/AABS

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:

[A.V.]

Applicant

and

Western Assurance Company

Respondent

AMENDED PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Maia Bent, Counsel

For the Respondent:

Lora Castellucci, Counsel

HEARD In Writing:

September 9, 2019

OVERVIEW

1The applicant was involved in an automobile accident on August 16, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule- Effective September 1, 2010 (the ''Schedule''). This case concerns the fact that the applicant then applied for a catastrophic (CAT) determination under Criterion 7 in order to access a greater tier of benefits. The respondent denied the application, after which the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Section 3(2)(e) of the Schedule provides that an individual is catastrophically impaired according to Criterion 7 if he or she has an impairment or combination of impairments that result in a Whole Person Impairment (WPI) of 55% or more when rated in accordance with the the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition, 1993 (“the Guides”).

3This case is complex given the applicant’s pre-accident health: he has type 1 diabetes with a lengthy history of serious medical complications. The crux of the parties’ underlying dispute is over the cause of what ultimately made him fully dependant on a wheelchair: the accident or his pre-accident condition. The parties agree that, if the accident caused the applicant to be fully wheelchair dependent, this amounts to a total WPI of 80% under the Guides, although a percentage would then be subtracted to factor in his pre-accident health condition. A number of doctors have assessed the applicant with respect to this issue.

4For example, the applicant relies on the CAT report of Dr. Death, physiatrist, who determined that he is fully wheelchair-dependent as a result of the accident and thus meets the CAT threshold. He also relies on the report of Dr. Safir, orthopaedic surgeon, who agreed on causation. In response, the respondent commissioned s. 44 CAT insurer examinations (IEs) completed by Dr. Waseem, physiatrist, and Dr. Paitich, orthopaedic surgeon, who had conflicting opinions. Dr. Waseem agreed that the applicant met the CAT threshold and that the accident caused his current impairments. Dr. Paitich came to the opposite conclusion, finding that the accident is not at all causally related to the applicant’s impairments and that he does not meet the CAT threshold. Consequently, the respondent had Dr. Seiden, general practitioner, prepare a CAT executive summary which determined that the applicant does not meet the CAT threshold under Criterion 7.

5This particular aspect of the parties’ dispute is about whether the respondent is bound by the opinion of Dr. Waseem. The applicant seeks an order that, in essence, recognizes that he has already been deemed CAT, and holds the respondent to the opinion of Dr. Waseem and the opinions of the applicant’s own medical experts. Put another way, I have not been asked to determine whether in fact the applicant has suffered a catastrophic impairment. Rather, I have simply been asked to find that such a determination has already been made and binds the respondent.

6The respondent argues that there is no authority binding it to the findings of its s. 44 IE. According to the respondent, the decision to accept a CAT determination ultimately rests with an insurer.

PRELIMINARY ISSUES

7I have been asked to decide the following preliminary issues:

(i) Has the applicant been deemed CAT as defined in s. 3(1) of the Schedule based on the s. 44 IE of Dr. Waseem?

(ii) If the answer to paragraph (i) is no, is the applicant required to attend a s. 44 psychiatric IE to determine if his injuries meet the definition of CAT impairment pursuant to the Schedule?

RESULT

8For the reasons that follow I find that:

(i) The applicant is not deemed CAT as defined in s. 3(1) of the Schedule. This determination will be made following a complete hearing.

(ii) The applicant is required to attend the s. 44 psychiatric IE prior to proceeding with his application.

BACKGROUND:

9A year and a half prior to the accident, the applicant underwent a right below- knee amputation following the development of osteomyelitis in the right calcaneus. This was caused by certain medical complications arising from the applicant’s history of suffering from type 1 diabetes. As a result, he wore a prothesis on his right knee stump, which he required for mobility and to carry out his daily activities. He used a motorized scooter to navigate the community when travelling longer distances.

10One week prior to the accident, he developed a small stage 2 ulcer on his right stump.

11One week later, on August 16, 2011, the applicant was riding his motorized scooter when he was hit by a vehicle. As a result, he was thrown from the scooter onto the pavement. The applicant contends that, when he was thrown to the ground, his right knee stump twisted inside the prosthesis and, consequently, this twisting resulted in his right knee stump swelling which, in turn, compromised the fit of his prosthesis. More significantly, the applicant maintains that the accident caused his stage 2 ulcer to develop into a stage 4 medial right ulcer and lateral popliteal ulcer. After the accident, the skin on his right knee stump became vulnerable and continued to break down whenever he would wear his prosthesis.

12For the next four years until November 2015, the applicant’s doctors advised him at different times not to use the prosthesis or to limit its use. On the advice of his doctors, the applicant became reliant on a wheelchair for mobility, which, he submits, severely impacted his ability to carry out his daily activities. The applicant has also had multiple surgeries to address the stage 4 ulcer, resulting in fragile healing. In November 2015, the applicant was advised not to wear his prosthetic limb at all. He complied. He is now completely reliant on a wheelchair for mobility.

13On November 3, 2016, Dr. Death completed an application for a CAT determination (OCF-19) under Criterion 7. Dr. Death concluded that, as a result of the accident, the applicant met the 55% WPI. In Dr. Death’s view, the applicant met this threshold as the accident made him completely wheelchair-dependent which, in his opinion, automatically meets the 55% WPI threshold. Dr. Safir completed an independent medical assessment on May 19, 2017, and agreed with Dr. Death’s opinion with respect to causation.

14In response, the respondent denied that the applicant was CAT based on a lack of medical documentation in its possession. It then retained Seiden Health to complete s. 44 IEs. Dr. Seiden prepared a triage assessment report recommending various IEs be completed. Dr. Seiden indicated in his report that total wheelchair dependency in the Guides equals an 80% WPI. However, a rating for the applicant’s pre-accident impairment would need to be assessed and deducted from this number.

15The parties initially disagreed on the type of IEs to be completed and the legal test to be applied. However, they eventually agreed that IEs would be completed by Dr. Waseem and Dr. Paitich, the latter of whom would also complete a CAT summary rating IE. Further, the parties also agreed that the IEs would address the issue of causation. The applicant conceded that, if the IEs did not conclude that he sustained a 55% WPI under Criterion 7, then he would attend a s. 44 psychiatric IE to be assessed under Criterion 8 to determine whether his combined physical and psychiatric impairment meet the CAT threshold.

16The results of Dr. Waseem and Dr. Paitich’s IEs on causation and total WPI percentage conflicted.

17On one hand, Dr. Waseem determined that the accident materially contributed to the applicant’s impairment and that he met the 55% WPI threshold under Criterion 7. Dr. Waseem calculated the applicant’s total WPI at 81-to-82%. He calculated the applicant’s pre-accident impairment within a range of 28-to-32%. Thus, Dr. Waseem’s total final accident-related WPI rating was 49-to-54%, which was rounded up to 55%, thereby meeting the CAT threshold.

18By contrast, Dr. Paitich opined that the applicant’s impairments are not causally related to the accident but, rather, to his poorly managed diabetes and related medical complications. Dr. Paitich submitted that, if he was wrong on causation, then the applicant sustained, at most, a 30% WPI as a result of the accident.

19Due to the conflicting findings, the respondent requested that Dr. Seiden prepare an executive CAT rating summary to resolve the difference in opinion. In his report Dr. Seiden discussed the different methodologies used by the assessors in apportioning ratings for the applicant’s pre-accident condition and why he supports one over another. Dr. Seiden also addressed the applicant’s pre-accident health and why he preferred Dr. Paitich’s method of apportionment over Dr. Waseem’s. Ultimately, Dr. Seiden determined that the applicant did not meet the threshold for CAT under Criterion 7.

ANALYSIS

(i) Is the applicant deemed to be CAT pursuant to s. (3)(1) of the Schedule based on the s.44 IE of Dr. Waseem?

20Based on the evidence before me, the applicant is not deemed to be catastrophically impaired.

21The applicant argues that he should automatically be deemed CAT under Criterion 7 given Dr. Waseem’s determination that the accident not only materially contributed to his impairment but that, as a result, he met the 55% WPI threshold. Of significance, Dr. Waseem’s opinion was consistent with the opinions of the applicant’s medical experts, Dr. Death and Dr. Safir. Further, the applicant maintains that Dr. Seiden’s CAT summary rating IE was inappropriate as the respondent is simply cherry-picking assessors to support its position that the applicant is not CAT. In addition, the applicant argues that he was not given proper notice that Dr. Seiden would be doing the CAT summary rating IE, and that Dr. Seiden is not qualified to give an opinion as he is a general practitioner and not a physiatrist or orthopaedic surgeon.

22While the respondent acknowledges that the opinion of one physician is sufficient to support a finding of CAT, it contends that an insurer is not bound by the findings of any one s. 44 IE assessor. To this end, it argues that the applicant has not cited any caselaw or legislative authority to support his position that an insurer must accept the opinion of a single or any particular s. 44 IE assessor. Instead, it argues that the wording of s. 44 of the Schedule provides that assessments are to “assist an insurer,” not bind an insurer, in addressing claims. The respondent asserts that, in this case, it was appropriate to have Dr. Seiden complete the CAT executive summary IE as its two assessors had conflicting opinions and this file involves complexities in assessing causation. Further, Dr. Seiden determined that Dr. Paitich’s analysis provided a more thorough analysis with respect to causation which, it submits, was not fully addressed by Dr. Waseem. The respondent also argues that the applicant did not provide any authority that an insurer is not allowed to procure an executive summary when reviewing a CAT application.

23In his reply submissions, the applicant argued that s. 44 must be interpreted in light of the Schedule’s intent and objectives, namely its remedial, consumer protection aims. As a result, he argues, when an opinion is rendered by an expert medical assessor under s. 44 and entitlement to a benefit is supported by one of its assessors, the insurer is in fact bound by the opinion supporting entitlement. To find that insurers are not bound by the opinions of its medical assessors would allow insurers to shop for opinions to defend against claims for all benefits.

24For the reasons that follow, I agree with the respondent and, ultimately, do not find the applicant is deemed CAT based on the IE of Dr. Waseem.

25First, I agree with the respondent that the applicant did not submit any case law or legislative authority to support his position that the respondent is bound by Dr. Waseem’s opinion. Nor did the applicant submit any authority to support the proposition that the respondent is not entitled to prepare a CAT executive summary IE. In my view, the case law is clear that an insurer has the right to pick the assessor of its choice to complete s. 44 assessments as long as it is reasonable and necessary. I find Dr. Seiden’s CAT executive summary to be reasonable and necessary given the previous conflicting opinions, the fact that this file is complex, and that procuring such an executive summary is something routinely done by parties when completing CAT assessments.

26Regarding the applicant’s argument that Dr. Seiden was not qualified to do the CAT executive summary, the doctor highlights his qualifications in his reports which include being certified as a medical examiner with experience in assessing CAT applications according to the Guides. Therefore, I find that he is qualified to do the CAT executive summary. In addition, I find that the respondent provided the applicant with notice that Dr. Seiden would be doing the assessment as there were emails exchanged between the adjuster and counsel for the applicant with respect to same.

27Second, while I agree with the applicant that the Schedule is consumer protection legislation, I find that the respondent has raised valid concerns with respect to causation as the applicant’s pre-accident medical history is significant. I am unable to deem the applicant CAT based upon the evidentiary record before me. The crux of this dispute involves whether the accident caused the applicant’s impairments and wheelchair dependency. The medical records that informed the expert’s opinions are not before me. In Dr. Paitich’s IE, he references the medical records of Drs. Scilley, Turnbull and Burns as being important to his findings. These records were not submitted on this preliminary issue hearing. Dr. Seiden also refers to medical records in his report which seemed to be important to his analysis. Further, the medical records relied upon to support the findings of Drs. Death, Safir or Waseem were not submitted as part of this preliminary issue hearing. In my opinion, these records are fundamental in assessing causation. As would be the testimony of witnesses pertaining to the applicant’s pre- and post-accident function if causation is established. I find it would be procedurally unfair to deem the applicant CAT without having the ability to review all of the relevant evidence.

28Finally, in my view the medical evidence is complicated and an in-person hearing focussing on causation is required so that the evidence of the experts can be tested and clarified. Likewise, the qualifications, neutrality and opinions rendered in the expert reports will need to be analyzed and weighed by the hearing adjudicator based on the evidentiary record and relevant case law. Therefore, I do not deem the applicant to be CAT pursuant to s. 3(1) of the Schedule.

(ii) Is the applicant required to attend a section 44 psychiatric IE prior to proceeding with his application on the CAT impairment?

29The applicant is required to attend the s. 44 psychiatric IE prior to proceeding with his application on the substantive issues.

30Section 44(1) of the Schedule provides that an insurer has the right to send an insured to an IE by a health professional of its choice in order to assess whether an insured is entitled to certain benefits. However, that right is limited to those IEs that are “reasonably necessary.”

31As I highlighted earlier, the respondent contends that the purpose of the s. 44 psychiatric IE is to determine whether the applicant has a psychological impairment as a result of the accident. In addition, whether the applicant’s combined physical and psychological impairments would meet the CAT threshold. I find the applicant is required to attend the s. 44 psychiatric IE for the following reasons.

32First, in September 2018 the applicant originally agreed to attend the psychiatric IE if the respondent’s s. 44 IE under Criterion 7 did not meet the 55% threshold. After receiving the respondent’s final CAT IEs in February 2019, which determined that he did not meet the 55% threshold, the applicant changed his mind and refused to attend. In my view, just because the applicant is not satisfied with the results of the respondent’s IE does not justify his decision to now not to attend.

33Second, I find the s. 44 psychiatric IE reasonable and necessary as the applicant suffered from depression prior to the accident and there are references to post-accident social worker records suggesting that post-accident his condition may have been exacerbated. Therefore, I find that there is a reasonable nexus between the examination requested and the applicant’s impairments. Further, the psychiatric IE may assist the parties in resolving the issue or at the very least narrow the issue in dispute which would be mean a more economical and efficient hearing for both parties.

34This application is stayed until the applicant attends a s. 44 psychiatric IE. The parties will contact the Tribunal for a resumption case conference pending compliance with same to discuss next steps if necessary.

CONCLUSION

35The applicant’s request for an order deeming him catastrophically impaired is dismissed.

36The applicant is required to attend a s.44 psychiatric IE before proceeding with his application.