M.C. v. BelairDirect, 2019 CanLII 22219

M.C. v. BelairDirect

Date: 2019-03-09

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:

M.C.

Appellant(s)

and

BelairDirect

Respondent

DECISION

PANEL:

Cezary Paluch, Adjudicator

APPEARANCES:

For the Applicant:

[The Applicant]

James J. Mays and Daniel Hynes, Counsel

For the Respondent:

Suban Kathirgamathamby, Representative

Andrea R. Lim, Counsel

Reporter:

Clearly Spoken Inc.

HEARD In Person on:

October 9, 10, 11, 2018 and November 8 and 9, 2018 in Kitchener, Ontario

INTRODUCTION

1The applicant, MC, was injured in an automotive accident on December 8, 2016. He applied for and received benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010, as amended by O. Reg. 251/15 (the "Schedule") from the respondent, Belair Insurance Company Inc. ("Belair").

2In the early hours of December 8, 2016, MC was a seat-belted driver and sole occupant of a van returning home from work when he was hit head on by another incoming vehicle which crossed the center line. It took about 1 ½ hours to extricate MC from the vehicle. He was taken by ambulance to the local hospital and then transferred to [Health Sciences Centre]. At the hospital, investigations revealed that he sustained blunt force trauma to his chest, dislocated left shoulder, fractured inferior left pubic rami, neck fracture, fractured of left tibia and fibula, dislocated left ankle, fractured right ankle. In addition to his multiple orthopedic injuries, there is evidence the he developed symptoms of anxiety, depression and post traumatic symptoms since the accident. It is undisputed that MC continues to suffer both physical and mental/behavioral impairments as a result of this accident.

3On March 8, 2018 (15 months post-accident) MC applied to Belair for a determination that his accident injuries resulted in a catastrophic impairment.

4Belair commissioned a series of medical assessments and determined the applicant has not reached maximum medical recovery at this time and the OCF-19 - Application for Determination of Catastrophic Impairment was submitted prematurely and MC's permanent impairments could not be determined currently.¹

5On April 13, 2018 Belair denied MC's application essentially refusing to go forth with a catastrophic evaluation and explaining in a letter to the applicant that the non-catastrophic limits under the Schedule continue to apply and he is to submit a new OCF-19 and re-apply at two years post-accident to determine if his impairments meet the statutory threshold for a "catastrophic impairment" defined in the Schedule as a 55% impairment of the whole person ("WPI").²

6However, the applicant did not wait to reapply for the catastrophic impairment determination and instead applied for a hearing at the Licence Appeal Tribunal under the Insurance Act, R.S.O. 1990, c.I.8, on May 10, 2018. The parties participated in case conferences held on July 11, 2018 and September 14, 2018, but were unable to come to a resolution and the matter proceeded to an in-person hearing.

7The issue that I am being asked to decide is whether the applicant's impairments, are sufficiently severe that it can be found that MC has suffered a catastrophic impairment, as that term is defined in clause (7) of subsection 3.1(1) in conjunction with the two additional criteria in s. 3.1(2)(b)(i) and (ii) of the Schedule as the application was submitted prior to the two year mark.³ Catastrophic impairment status is not itself a benefit but must be determined before the entitlement to enhanced benefits can be assessed.

ISSUE:

1. Did the applicant sustain a catastrophic impairment as defined in the Schedule as a result of the accident?

8The main issue in this hearing is whether the applicant suffered a "catastrophic impairment" that results in a mental or behavioural impairment, combined with a physical impairment that results in WPI.⁴ However, as the OCF-19 application was filed prior to the two year mark (at approximately the 15 month mark post-accident), the applicant must also satisfy the additional two criteria in s. 3.1(2)(a) and (b) of the Schedule.

9I find that the applicant has not satisfied the two additional criteria in s. 3.1(2)(a) and (b) of the Schedule which must be satisfied by a party who applies for a catastrophic determination prior to the two year mark. As such, I did not conduct an assessment whether the applicant meets the 55% WPI threshold under s. 3.1(1) paragraph (7) of the Schedule.

The Law

10"Impairment" is broadly defined in the Schedule as "a loss or abnormality of a psychological, physiological or anatomical structure or function." But there are many different ways of being impaired or, by extension, being catastrophically impaired.

11The Schedule sets out several different categories of catastrophic impairment. An insured person need only prove entitlement to one category to be deemed catastrophic. Here, the applicant claims he has sustained a catastrophic impairment pursuant subsection 3.1(1) paragraph (7) of the Schedule.

12That paragraph defines a catastrophic impairment as a combination of mental or behavioural with a physical impairment that results in a 55% impairment or more of the whole person. The mental or behavioural impairment is measured in accordance with Chapter 14, Section 14.6 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 and the rules for combining the mental or behavioural impairments with the physical impairment are set out in Combined Value Table in the 4th edition.

13At the time of the application for a catastrophic designation, two years have yet to elapse from the date of the accident. Thus, according to s. 3.1(2) of the Schedule, the applicant is not entitled to a catastrophic designation unless a he is assessed by a physician who determines that he has a whole person impairment of 55% or more and the physician determines that his condition is unlikely to improve to less than 55%. My analysis will focus on the facts that a physician has not made the necessary determination and that there is evidence of a likely improvement in the applicant's condition to below 55% WPI.

14The Ontario Court of Appeal in Liu v. 1226071 Ontario Inc.,⁵ confirmed that the test of catastrophic impairment is a legal test and not a medical test. As such, it is the trier of fact who ultimately makes the finding reliant on objective medical evidence.

Position of the parties

(a) The applicant

15The applicant's counsel submitted that MC received significant and life altering lower and upper limb injuries and meets the threshold for a catastrophic impairment because he suffered an impairment as a result of the accident that results in 55 percent or more impairment of the whole person. With respect to the two additional criteria, s. 3.1(2)(b)(i) and (ii) of the Schedule, the applicant submits that stability or permanence of injuries is not required and the question posed in that subsection, by the nature of that question, does call for a projection or an estimate as to what the future holds for MC.

16Further, the applicant argued that I ought to be guided by policy considerations of allowing injured persons timely access to benefits that will facilitate their integration back to their normal lives. Besides, applicant's counsel submits, it would also be contrary to the intent of the Schedule to require piecemeal or repetitive assessments.

17The applicant submitted 6 cases that I find are all distinguishable from this application.⁶ None of the cases dealt with s. 3.1(2)(b)(i) and (ii) of the Schedule which is the key two part test that I must address. Both applicant and respondent cited Bains v. RBC General Insurance Company⁷, a Financial Services Commission of Ontario (FSCO) appeal decision, (which dealt with the old s. 2(2.1) of the 1996 Schedule which is similar to the current s. 3.1(2)) for the proposition that it is appropriate and mandatory to rate impairments that are not static, stable or permanent. In Bains, the Delegate held that the arbitrator erred in law and ordered a new hearing explaining that it was appropriate, and indeed mandatory, to rate all impairments regardless if they were stable or not (the arbitrator found that the impairments are not assessable until a person's condition has stabilized and all necessary surgeries have occurred)⁸.

18The Bains decision is distinguishable on its facts. First it deals with a request for catastrophic determination after the two year mark. Second, the appeal itself did not come to any conclusion regarding the appellant being catastrophically impaired or not (as the matter was referred back for a new hearing). Finally, with respect to this matter, I did not read the respondent's IE reports as declining to rate the applicant's impairments because they were not permanent. More precisely, even if one accepts that all impairments are to be rated even if not permanent or stable, including the policy considerations (ie. to have timely provisions of benefits to insured persons), in accordance with Bains, the applicant must still comply with the two-part test in s. 3.1(2)(b)(i) and (ii) of the Schedule. In other words, I do not see how Bains assists the applicant.

(b) The respondent

19The respondent submitted that the MC has not reached maximum medical recovery and that the OCF-19 application was submitted prematurely as it was submitted prior to the two year mark requiring him to satisfy the criteria in s. 3.1(2)(b)(i) and (i) of the Schedule which the applicant failed to do. For this reason, the respondent's medical experts did not conduct a catastrophic impairment evaluation under criteria 7.

Evidence and Analysis:

s. 3.1(2)(b)(i) and (i) of the Schedule – Two Part Test⁹

20In Ontario, typically, adjudication of catastrophic claims takes place several years after an accident. It is implicit in the regulations that two years is considered to be a sufficient period of time to permit for stabilization of the person's condition, although an earlier assessment can be done if a physician certifies that the person's condition is unlikely to improve.

21When a claimant applies for a catastrophic determination prior to the two year mark after an accident, as in this case, they must meet two additional criteria to qualify for a catastrophic impairment designation. In other words, s. 3.1(2) of the Schedule provides an exclusion to the application of s. 3.1(1), paragraph 7.

Part 1 – s .3.1(2)(b)(i) of the Schedule – An assessment that results in 55% impairment

2. An assessment conducted by a physician three months or more after the accident determines that, the insured person has a combination of a mental or behavioural impairment and a physical impairment determined that results in 55 per cent or more impairment of the whole person.

22Although several physicians did conduct an assessment more than three months after the accident, I find that none of the assessments explicitly conclude that MC currently has a combination of mental or behavioural and physical impairment that results in the 55% threshold for catastrophic impairment.

23In this case, the accident occurred on December 8, 2016. Approximately 11 and a half months later on November 22, 2017, the applicant was seen for the first time by Dr. P. Potter, physiatrist, who prepared a report and diagnosed the applicant with a multitude of injuries including: dislocated left shoulder; fractured left pubic rami; left femoral neck fracture; left mid-shaft fracture; left tibia and fibular fracture; fracture dislocation of left and right ankles; right tibia and fibular fracture; dislocation of right MPT joint; left traverse process fracture; rib fracture; skin necrosis – left leg; lower extremity infections; neuropathic pain; low back pain secondary to trauma lumbar spine; cervical sprain with residual neck pain; cervicogenic headaches; impaired mood; and impaired sleep.

24In his report, Dr. Potter wrote that "Unless there is significant and unexpected recovery, it is probable that Mr. C. would be rated at least as 50% whole person impairment based on lower limb impairment from gait derangement." From a functional perspective, Dr. Potter opined that MC will be wheelchair dependent "which would carry a rating of 80% whole person impairment."[emphasis added]

25In cross-examination, regarding his November 22, 2017 report, the following exchange took place between Belair's counsel and Dr. Potter which confirmed that Dr. Potter did not determine that the applicant's injuries resulted in an impairment that met the statutory threshold for a "catastrophic impairment" but rather was an estimate or projection into the future.

Q: And of course, this is just a projection of 55 percent of WPI assigned to psychological sequelae because you did not yet have a rating for WPI assigned to psychological impairment, is that correct?

A: That's correct

Q: The purpose of your report of November 22nd, 2017 was to provide a projection of probability of WPI, is that correct?

A: I don't know if it's projection or could I calculate WPI.

Q: No, the question is the purpose of your report, Dr. Potter, was to provide a projection of WPI, not an actual WPI rating? Because based on your report you just mentioned...

A: Yeah

Q: you wrote it is probable – it is probable, it is probable. So in other words, the purpose of your report was it not....

A: So I didn't say

Q: to project WPI?

A. I agree that I didn't say that it was absolute rating, I agree.

Q: Right. Thank you

26The use of particular words in a statute or regulation are important. The modern approach to statutory interpretation requires that the words of a statute be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."¹⁰ This approach involves consideration of three factors: the language of the provision, the context in which the language is used, and the purpose of the legislation or statutory scheme in which the language is found.

27With this approach in mind, and on a plain reading of s. 3.1(2)(b)(i) of the Schedule, I note that the legislature opted to include the words "insured person has a combination of a mental or behavioural impairment and a physical impairment determined that results in 55 per cent WPI" as opposed to "will have" or "would have" or "could have". In my opinion, the plain, grammatical and ordinary meaning of this paragraph, and in harmony and object of the Act, denotes a requirement for an absolute or actual present rating, or opinion as to the actual rating. More specifically, the use of the common word "has", which is the present tense of the verb "to have", meaning to be "marked or characterized by"¹¹ indicates that the legislature intended for the physician to provide an actual present opinion as to the impairment level of the injured person and not a projection or prognostication or estimation. I note that when the legislature created this statutory exception it did not chose difficult or technical terms, it used words which are common and ordinary. As a result, in my view, this is not a case of wording being ambiguous where it would be appropriate to construe the Schedule in a manner that favours the insured person. I also do not accept the respondent's argument that this is needless semantics about whether or not Dr. Potter actually completed a WPI rating in his report, nor that a projection or an estimation is what is required by the very nature of that question in s. 3.1(2)(b) under the Schedule.

28Dr. Potter's use of the word "probable" in his report to describe the applicant's WPI, coupled with his own admission in cross examination that he did not arrive at an absolute WPI rating and provided probable ratings, is problematic as it connotes uncertainty as to the present valuation of WPI. More importantly, this is not in compliance with the requirement of s. 3.1(2)(b)(i) of the Schedule which the applicant has the onus to satisfy before proceeding to a catastrophic determination prior to the two year mark.

29On March 5, 2017, Dr. Potter submitted another report.¹² On page 2, he again used prognostic language referring to a future date (at the 2 year mark) to describe the purpose of his report writing: "I am to determine, the probable level of whole person physical impairment, according to the Guides...as at December 8, 2018."

30He concluded that if one considers the best case consequence of recovery in December 2018, of routine use of 2 canes and 2 crutches and short leg brace for in home ambulation and that MC will be wheelchair dependent the majority of the time and "would reach the threshold of 55% whole person impairment" and "...combining the estimate of physical impairment with the significant psychological impairment (based on the report of Dr. McKillop) MC will in December 2018 meet the greater than 55% WPI designation."¹³ Again, there was no determination that the applicant presently has a physical impairment of 55% WPI in this second report.

31Subsequently, on March 7, 2018, Dr. Potter, completed the OCF-19 application form (approximately 15 months after the accident) indicating that criterion seven was applicable to the application (equivalent to s. 3.1(1) of the Schedule). Dr. Potter also ticked off the box on the OCF-19 indicating that MC has: (i) a physical impairment or combination of physical impairments determined in accordance with paragraph 6 of subsection (1), or a combination of a mental or behavioural impairment and a physical impairment determined in accordance with paragraph 7 of subsection (1) that results in 55 per cent or more impairment of the whole person, and (ii) MC's condition is unlikely to improve to less than 55 per cent impairment.

32On re-examination at the hearing, Dr. Potter did provide some evidence that the applicant's current WPI rating would result in the applicant being 55 % WPI. However, I do not put a lot of weight on this part of his evidence as it was substantially different from what was in his reports and it would be unfair and highly prejudicial for the applicant to rely upon it without being in his report(s) and giving the respondent's experts an opportunity to respond. Again, Dr. Potter's report of March 7, 2018, talks about recovery in 9 months and that MC as at December 2018 will meet the greater than 55% WPI designation. The use of the words "as at" means at a particular time in the future – in 9 months on December 2018.

33Dr. S. McKillop, psychologist, conducted an assessment of the applicant on February 1, 2018, to estimate his level of mental and behavioral impairment using Chapter 14 of the Guides in the four areas of activities of daily living , social functioning, concentration, persistence and pace, and adaption. Impairments due to psychological disorders are not assigned a percentage but are classified according to how seriously they affect a person's useful functioning in the four areas or domains in the form of word descriptors, mild, moderate, marked or severe. Dr. McKillop rated the applicant as category 5 (extreme) in activities of daily living, and category 4 (marked) in social functioning. Dr. McKillop did not rate the applicant in concentration, persistence, pace (citing that this was premature) and adaption (citing that due to MC current employment status he could not offer an opinion in this area). He concluded that MC's impairments should be viewed as catastrophic.

34The Schedule provides that a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning will qualify as a "catastrophic impairment" under category 8 (s. 3.1(1) para. 8) subject to compliance with s. 3.1(2)(3). However, the applicant is not claiming a catastrophic impairment under this criterion. Nevertheless, it may be relevant because mental and behavioural impairments can be combined under criterion 7 to obtain a total WPI rating.

35I did not place much weight on Dr. J. McKillop's evidence and psychological report of February 12, 2018, and addendum letter of October 3, 2018, for the following reasons.

i. His report did not provide any WPI rating in accordance with Chapter 14.6 of the Guides, 6th ed. as required by s. 3.1(1) the Schedule. Although he concludes that MC's impairments should be viewed as catastrophic he does not indicate in his report what criterion/paragraph the applicant qualifies for a catastrophic impairment rating.

ii. Dr. McKillop references the AMA Guides to the Evaluation of Permanent Impairment but does not confirm anywhere in his report what version he was referring to – although in cross examination he explained it was the "fourth format" and "fourth edition". This was not surprising as in cross examination, he conceded that he was not provided with the OCF-19 signed by Dr. Potter and did not know that the applicant was requesting for a determination under criterion seven. As such, he was not aware under what criterion to best evaluate the applicant because he was just asked to do a psychological assessment and not an assessment under s. 3.1(1) paragraph (7) of the Schedule.

iii. The 3 page psychological report of February 12, 2018, was very brief and not comprehensive. I am also not certain what protocols, if any, practices or methodology were used as recommended in the Guides. Although, Dr. McKillop states that in addition to the clinical interview, MC completed the PHQ-9, the WHO Major (ICD-10) Depression Inventory and the PTSD Checklist, no results on these test were provided or analyzed in the report. The Guides also tell us that a clear, accurate, and complete report is essential and suggest that certain information be included by the assessor. For example, a report should contain a list of the affected activities.¹⁴ I did not see a specific list of activities in Dr. McKillop's report (although he does very generally mention MC having difficulty with household management tasks and exterior maintenance tasks).

iv. The one page addendum letter of October 3, 2018, has one sentence without any supporting explanation or updated data or medical information and I find his conclusion is unsupportable.

v. In his report, Dr. McKillop did not rate the applicant in two of the four areas of functioning. He did not rate MC in the area of adoption and concentration, pace or persistence.

vi. At the hearing, during re-examination, Dr. McKillop attempted to provide a rating of "marked impairment" or "extreme" in adaption but I assigned little weight to this evidence as this information was not included in his report.

vii. Dr. McKillop did not diagnose the applicant with any psychological impairments in his report. The methodology of the Guides requires that the presence of a mental disorder be documented primarily on the basis of reports from accepted professional sources, such as psychiatrists, psychologists and other health professionals. I am not certain what other reports Dr. McKillop relied on as there is no indication in his report what records he reviewed.

36The third medical expert for the applicant, Dr. D. Sanders, orthopedic surgeon, provided a report dated March 15, 2018, where he concluded that MC "will be catastrophically impaired for rest of his life". This again seems to be a projection as opposed to a present medical assessment. More importantly, no impairment rating is given by Dr. Sanders in accordance with the Schedule. I also note that Dr. Sanders also states in his report that the applicant has not yet achieved maximum medical recovery as further surgeries may improve to some slight degree his ability to ambulate on both lower extremities.

37I have reviewed all of the reports of the applicant's medical experts – Drs. Potter, McKillop and Sanders and conclude that none of them (or for that matter any other assessor as well) conclude that MC has a combination of a mental or behavioural impairment and a physical impairment determined that results in 55 per cent or more impairment of the whole person. I do note that Dr. McKillop is a psychologist is not a physician and could not conduct the WPI rating in any event but Dr. Potter is a physician who was able to do so.

38Therefore, the evidence is clear that although an assessment was completed by a qualified physician, Dr. Potter, of the applicant more than three months after the accident, but prior to the 2 year mark. Dr. Potter only provided different scenarios of projections that may apply to the applicant at a future point in time but did not explicitly conclude that the applicant is presently catastrophically impaired. In addition, neither Dr. McKillop nor Dr. Sanders concluded that MC has a combination of mental or behavioural and physical impairment that results in the 55% WPI threshold.

39Therefore the applicant has not met the first of the two additional criteria in s. 3.1(2)(b)(i) and his application is dismissed based on this finding alone.

40However, I now turn to the question whether the applicant's condition is unlikely to improve to less than 55% of the whole person. The second part of the two part test. Notwithstanding that both parts have to be satisfied by the applicant for him to succeed.

Part 2 – s.3.1(2)(b)(ii) of the Schedule –Condition is unlikely to improve to less than 55%

2. The insured person's condition is unlikely to improve to less than 55 per cent impairment of the whole person.

41I find that the evidence does not support the conclusion that the applicant's condition is "unlikely to improve to less than 55 per cent impairment of the whole person." To the contrary, the evidence established that MC was still expected to improve and had further surgeries that need to be scheduled which could improve his mobility. Given the lack of certainty from the applicant's medical experts, I am left wondering if the applicant's condition could possibly improve towards a percentage less than 55 percent WPI which would not make him catastrophic under criteria 7.

42Dr. Potter in his reports of March 5, 2018, and November 22, 2018, does not conclude that the applicant's condition is "unlikely to improve to less than 55 per cent impairment of the whole person." Dr. Sanders also does not come to this finding.

43Neither does Dr. McKillop in his report of February 12, 2018, conclude that the applicant's condition is "unlikely to improve to less than 55 per cent impairment of the whole person." In his addendum letter dated October 3, 2018, Dr. McKillop does state that: "With reference to my report of February 12, 2018, Mr. C.'s prognosis is quite poor. In my opinion, it is unlikely that Mr. C.'s health status would have changed by the end of 2018." However, in my view, section 3.1(2)(b)(ii) of the Schedule, is more specific and requires an assessment be conducted by a physician that determines the applicant's condition is unlikely to improve to less than 55 per cent impairment of the whole person. This is quite different than saying generally that an injured person's health status is unlikely to change as Dr. McKillop has done. The Schedule requires that a physician draw a conclusion regarding a person's accident-related impairments based on a calculation of WPI. As already stated above, it was also not possible for Dr. McKillop to draw any conclusions regarding WPI (and therefore whether the applicant is unlikely to improve to less than 55 per cent impairment of the whole person) since he did not do an impairment rating in accordance with the Guides, 6th ed. Finally, Dr. McKillop is not a physician (he is a psychologist) and on a strict and plain reading of s. 3.1(2)(b)(ii) only a physician is able to conduct the required assessment and come to a conclusion that the insured person's condition is unlikely to improve to less than 55 per cent impairment.

44Therefore, the applicant also has not satisfied the second part of the two-part test in s. 3.1(2)(b)(ii) of the Schedule.

CONCLUSION:

45For the above reasons, I conclude on the balance of probabilities that the applicant has not established that he was catastrophically impaired under criterion 7 because he has not satisfied the additional two criteria in s. 3.1(2)(a) and (b) of the Schedule.

46As a result, subsection 3.1(1) paragraph (7) of the Schedule does not apply, as the applicant must comply with these two additional criteria before moving to a catastrophic determination before the two year mark after the accident. As such, I do not need to conclude whether the applicant meets the 55% WPI threshold under s. 3.1(1) paragraph (7) of the Schedule.

Footnotes

1. 1Multi-Disciplinary Consensus Opinion dated April 9, 2018 signed by Dr. C. Paitich.
2. 2The application for Determination of Catastrophic Impairment (OCF-19) relied on criterion #7 under Part 4 and was dated March 7, 2018. Criterion #7 is equivalent to s. 3.1(1) of the Schedule.
3. 3The Tribunal Order dated September 26, 2018, allows parties to request another case conference within 30 days of the date of this decision to address the remaining issues in dispute as part of this application but those issues are not before me as part of this hearing.
4. 4I refer to this interchangeably as a whole person/body impairment or WPI.
5. 5Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para. 30.
6. 6Two cases: 17-007962 v. Scottish York, 2018 CanLii 81950 at Tab 7 and Applicant v.Aviva, 2018 CanLii 98285 at Tab of the Applicant's Book of Authorities were struck on consent and did not form part of the record.
7. 7Bains v. RBC General Insurance Company, FSCO Appeal P09-0005, Tab 2, Applicant's Book of Authorities ("Bains").
8. 8The arbitrator did not provide a rating for the left upper extremity and right knee impairments on the basis that those impairments had not stabilized.
9. 9For ease of reference, I also refer to this as the two part test.
10. 10Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 1998 CanLII 837 (SCC) citing Driedger on the Construction of Statutes (3rd ed. 1994) at page 87. [as also cited in M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT)]
11. 11https://www.merriam-webster.com/dictionary/have
12. 12Dr. Potter also prepared a third report dated April 5, 2018, to review the London Health Sciences Records which he did not have available prior. This report essentially confirms his findings in the November 18, 2017 and March 5, 2018 reports.
13. 13Dr. Potter also opined that if MC was considered wheelchair dependant for the purpose of WPI, his whole person rating would be 80%.
14. 14AMA Guides, 4th ed., 2/10 and 14/199.