Citation: G.T. vs. The Guarantee Company of North America, 2020 ONLAT 18-003334/AABS

Released Date: January 23, 2020

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:

G.T.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: David F. Smye, Counsel Carlo Tittarelli, Counsel

For the Respondent: Patrick Brennan, Counsel

HEARD IN-PERSON: April 1, 2, 3 and May 8, 10, 15, 2019

OVERVIEW

1The applicant was involved in an automobile accident on December 3, 2010. While in the course of her employment as a bus driver in the city […], she collided with a transport truck that made a left turn in front of her bus. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). A dispute arose regarding whether she sustained a catastrophic impairment. The applicant submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issue to be determined is:

i. Did the applicant sustain a catastrophic impairment as defined by the Schedule?

RESULT

3As a result of the accident, the applicant sustained a catastrophic impairment as defined by the Schedule.

LAW

4The sole issue is whether, as a result of injuries sustained in the December 3, 2010 motor vehicle accident, the applicant should be designated as catastrophically impaired under Criterion 7: that is, whether she suffered an impairment or combination of impairments that, in accordance with the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, (the “Guides”) results in an impairment of 55% or more of the whole person.

5The parties agree that the remaining criteria for determining catastrophic impairment do not apply.

ANALYSIS

6An Application for Determination of Catastrophic Impairment was completed on June 3, 2016.¹ To that end, the applicant retained AssessNet Inc. to perform an independent medical evaluation for catastrophic impairment. That report, dated June 3, 2016, indicated that under “criterion E” the applicant had sustained a 67% Whole Person Impairment (“WPI”).² Although various assessors performed the evaluations, the impairment ratings were all provided by Dr. Persi (chiropractor), who prepared the executive summary.

7In response, the respondent retained the services of Benchmark. The responding Benchmark report, dated January 31, 2017, concluded that the applicant sustained a 37% WPI.³ All of the Benchmark’s assessors provided their own impairment ratings.

8AssessNet prepared a rebuttal report, dated April 18, 2017, which maintained its conclusions.⁴

9Benchmark then modified its conclusions in its addendum, dated June 5, 2018. It added 3% for the left knee meniscectomy, and concluded that the applicant’s impairments reached 39% WPI.⁵

10With the exception of the applicant’s right knee, the parties generally agree that the nature of the applicant’s injuries and causal relationship between the injuries and the accident are not in dispute. The primary dispute turns on the interpretation and application of the Guides to the facts.

11The applicant’s impairments as assessed by AssessNet and Benchmark can be summarized as follows:

Impairments	AssessNet	Benchmark
Mental/Behavioural	29	18
Left Lower Extremity	15	15
Right Lower Extremity	7	0
Face: Disfigurement + Cranial Nerve v2	10 + 5	5 + 5
Spine: cervical-thoracic + lumbar-sacral	5 + 5	0 + 0
Headaches	10	0
Disfigurement	9	0
Sleep Disorder	9	0
Chronic Pain/Burden of Treatment	3	2
TOTAL	67	39

I will examine each area of impairment in turn.

Mental and Behavioural Impairment

12The applicant relies on a neuropsychological assessment prepared by Dr. Unsal for AssessNet, dated June 3, 2016.⁶ This report does not contain any conclusions regarding impairment levels. As mentioned above, the impairment ratings are instead provided in the summary, authored by Dr. Persi, who assigned 29% WPI as a result of the applicant’s mental-behavioural disorders.⁷ Dr. Persi’s summary concludes that the applicant sustained a Class 3 Moderate Impairment across the four categories of evaluation: (1) Activities of Daily Living; (2) Social Function; (3) Concentration, Persistence and Pace; and (4) Deterioration or Decompensation in a Work or Work-Like Setting. Dr. Persi used an analogous chart, found at Table 4-3 of the Guides, to apportion percentages for emotional and behavioural impairment. Given his conclusion that the applicant fell into the moderate range, Dr. Persi determined that the applicant had a percentage rating of 15 to 29%. Ultimately, Dr. Persi selected a rating of 29%.

13I did not find Dr. Unsal and Dr. Persi’s reports on mental behavioural impairment compelling or reliable. Dr. Unsal initially testified at the hearing on April 1, 2019. Concerning her assessment and report, she testified that she did not come to conclusions on mental/behavioural impairment, as these ratings were completed by Dr. Persi. She denied that she assigned impairment ratings to the applicant. She did not ask the applicant about self-care and, she testified, only “touched on” activities of daily living because the applicant was going to participate in a more comprehensive occupational therapy assessment. Dr. Unsal denied that she revised her report after reviewing the occupational therapy report, or after discussing the applicant’s case with Dr. Persi. She testified that she simply reviewed the summary section completed by Dr. Persi and agreed with his final ratings.

14However, prior to the third day of the hearing, while preparing to give his evidence, Dr. Kurzman discovered a document that was in the materials provided by AssessNet to Benchmark. This document, which contained Dr. Unsal’s raw test data, was admitted and marked as Exhibit 9. Dr. Unsal was recalled to testify, and explained that it was a draft of her final neuropsychological report. She stated that she submitted Exhibit 9 to Dr. Persi for completion of his final report and that, after meeting with Dr. Persi, she completed revisions to her report, resulting in her final report dated June 3, 2016.

15I find the differences between the draft report and the final report are significant, and contradicted the evidence Dr. Unsal gave on April 1, 2019. Specifically, Exhibit 9 makes clear that, following her meeting with Dr. Persi, Dr. Unsal deleted sentences with respect to the applicant’s ability to work, her performance at work, her relationships with her coworkers, the frequency of functional impact, and variable and normal test results.⁸ Moreover, Dr. Unsal’s provided impairment ratings in Exhibit 9 , which differ from the final ratings in the summary prepared by Dr. Persi. Whereas Dr. Persi’s Executive Summary in Exhibit 14 assigned Class 3 impairments in all four categories, Dr. Unsal’s ratings were as follows:

a. Activities of Daily Living: From the neuropsychological evaluation, there appear to be no significant impairments in this area, warranting a rating of Class 2 Mild Impairment at the most.

b. Social Functioning: Given the reduced social activity associated with her psychological challenges and periodic mood issues, useful function in this area likely warrants a rating of Class 2 Mild Impairment, as she is able to appropriately interact with the public in her work setting and during testing for the current evaluation.

c. Concentration, Persistence and Pace: Current and previous testing indicate ongoing periodic challenge with processing speed and working memory and this was also consistent with questionnaire results. Useful function in this area likely warrants a rating of Class 3 Moderate Impairment.

d. Deterioration or Decompensation in Work or Work-Like Settings: Overall useful function due to impairment due to mental behavioural disorder is deemed at the current time to be consistent with Class 3 Moderate Impairment given the applicant’s ability to work in a clerical position on a full-time basis for the past two years, and travel independently to and from work.

16Dr. Persi denied ever reviewing Exhibit 9, which was put to him at the hearing. He gave evidence that there was no diagnosis or ratings provided by Dr. Unsal. This was in direct opposition to Dr. Unsal’s evidence that she provided Exhibit 9 to Dr. Persi, then consulted with him before coming to a consensus on the impairment ratings. Dr. Persi specifically denied that he consulted with Dr. Unsal before completing his report.

17I find the evidence of Dr. Unsal and Dr. Persi with respect to the mental behavioural impairment unreliable. In particular, I have difficultly with:

1. Dr. Unsal’s explanation for the differences between her reports;
2. the explanation she provided for the changes in her ratings between Exhibit 9 and her final report;
3. her failure to provide ratings within each sphere in the final report;
4. her contradictory evidence at the hearing, and,
5. the inconsistent explanations of her process for completion of her report.

For these reasons, I give little weight to the AssessNet reports on mental/behavioural impairment.

18Dr. Gnam prepared the mental/behavioural assessment for Benchmark. Dr. Gnam assigned the applicant a Global Assessment of Functioning (GAF) in the range of 58 to 60, and then applied the GAF to the Schedule for Rating Permanent Disabilities published by the State of California. This method of evaluation is known as the “California Method”.

19The applicant submitted that this method for evaluation should be rejected, relying on the FSCO decision in Jaggernauth.⁹ However, the California Method has been accepted by this Tribunal as an appropriate method for converting mental and behavioural impairment into WPI ratings.¹⁰

20I accept that this is a suitable method for rating mental/behavioural impairment, because it provides greater precision with respect to ratings, as opposed to the broad ranges that are provided by Dr. Persi’s method.

21Dr. Gnam diagnosed the applicant with a Depressive Disorder, an Anxiety Disorder and a Pain Disorder, and assigned a GAF of 58-60 which is considered the mild end of the moderate range of impairment. This score is consistent with the GAF scores assigned by the applicant’s long-term treating psychologists.¹¹ I accept the impairment rating calculated by Dr. Gnam of 18% WPI.¹²

Left Lower Extremity

22Both parties’ assessors agree that the applicant has sustained a 15% WPI for the left lower extremity. The approach used by both assessors is different, however the result is the same. I accept that the applicant has sustained a 15% WPI for the left lower extremity.

Right Lower Extremity

23There are two issues with respect to the right knee: causation and proper apportionment of WPI. As explained below, I accept that the applicant’s knee issues were caused by the subject accident. I also agree with the applicant that these issues account for a 7% WPI.

Causation

24The respondent’s assessor, Dr. Mathoo (physiatrist – Benchmark), opined that the applicant’s right knee issues are not related to the subject accident on the basis that there were no reported right knee issues immediately after the accident. This is contradicted by the ambulance call report from the date of the accident which indicates that she was “pinned by her legs,” trapped in a sitting pose, complained of “pain in lower legs”, and references possible bilateral leg fractures. At the hospital, bilateral knee x-rays were performed. She had platelet-rich plasma injections to her right knee within days of the accident in an attempt to alleviate her pain. She has also had viscosupplementation and cortisone injections. An MRI of the right knee on June 21, 2012 revealed a small meniscal tear and a sprain of her patellofemoral joint. The applicant has used a soft splint on her right knee.¹³ A review of the medical records reveals ongoing complaints of right knee pain since the accident.

25On November 19, 2013, Dr. Qutob, the applicant’s treating orthopedic surgeon, performed a bilateral knee arthroscopy with a multi-compartmental debridement.¹⁴ He noted that approximately 80% of the meniscus was left intact following the debridement. Dr. Qutob is a treating professional who was not retained by either party. His unsolicited opinion was that the pre-operative diagnosis of right knee meniscal tear and post-traumatic arthritis were secondary to the subject accident. I accept that, on a balance of probabilities, there is a causal relationship between the applicant’s knee pain and the subject accident.

Apportionment

26In February 2014, the applicant had a follow-up appointment with Dr. Qutob, who opined that ongoing discomfort and arthritic symptoms were expected for the right knee. Dr. Henriques (physiatrist) diagnosed bilateral patellofemoral pain syndrome and medial meniscal tear.

27The applicant reported to Dr. Muniz-Rodriguez (physiatrist - AssessNet) that she continued to experience pain in both knees.¹⁵ Her left knee was generally worse, but sometimes the right knee was worse. She tended to rely more on her right leg to compensate for her left. On testing, the right knee was unremarkable. Dr. Muniz-Rodriguez diagnosed chronic pain of the right knee secondary to medial meniscus injury and degenerative patellar changes.

28The applicant reported to Dr. Wismer (orthopedic surgeon – AssessNet) that she had bilateral knee pain that awakened her at night. Dr. Wismer’s examination revealed a full range of motion of the right knee, with tenderness on palpation. Imaging taken in October 2015 revealed bilateral chondromalacia patellae, worse on the right. Dr. Wismer opined that this ongoing, progressive impairment would cause her permanent difficulties with kneeling, squatting, and navigating stairs. There is no surgical procedure to alleviate the problem. During functional assessment testing with Dr. Tartaglia (chiropractor - AssessNet), the applicant was observed to have reduced flexion of the right knee (69% of normal), and reported sharp internal knee pain.

29With respect to the WPI apportionment, AssessNet considered the partial medial meniscectomy as a 2% lower extremity impairment and the patellar-femoral degeneration debridement as 15% lower extremity impairment, for a total of 17% lower extremity impairment, or 7% WPI.¹⁶

30Dr. Mathoo assessed the applicant on behalf of Benchmark. Dr. Mathoo provided a rating of 0% for the right knee given that there was no evidence of joint space, no crepitus, and no signs of impairment. The respondent points out that there were no findings of crepitus by any of the evaluators, indicating a lower rating than assigned by AssessNet due to the lack of crepitus or radiological evidence of loss of joint space as required by the Guides.

31The Guides at page 84 indicate that some impairment estimates are more appropriately assigned on the basis of a diagnosis than on the findings on physical examination. Dr. Wismer used Table 3-62, which rates impairment due to degeneration by the amount of loss of joint space on imaging. Dr. Wismer relied on both Dr. Qutob’s surgical report, which reported findings of degeneration requiring debridement, and the imaging from 2015, which showed chondromalacia. I accept the ratings assigned by AssessNet. Based on the evidence and using Tables 3-62 and 3-64, Dr. Wismer’s assignment of 2% for the meniscectomy and 15% for the patellar-femoral debridement is appropriate, for a combined rating equivalent to 7% WPI.

Face: Disfigurement and Trigeminal Nerve

32The parties agree that because one of the three branches of the Trigeminal nerve are adversely impacted, a 5% WPI is appropriate, which I accept. However, the parties disagree about the extent to which the applicant’s facial scarring and disfigurement translate into a WPI.

33With respect to this facial scarring, AssessNet concluded that the applicant sustained a Class II facial impairment in accordance with section 9.2 of the Guides, while Benchmark concluded that it was a Class I impairment. Class I provides a WPI rating of 0-5%, while Class II provides 5-10%. Class I impairments are disorders limited to cutaneous structures, such as visible scars or abnormal pigmentation, while Class II requires a loss of the supporting structure. The cause of the applicant’s scarring and facial disfigurement is not in dispute: the facial scars are attributed to lacerations sustained in the accident, and the surgery that was performed under her eyelid as an entry point to fix the facial bone fractures.

34Both parties retained a plastic surgeon to assess the applicant’s facial disfigurement. Benchmark’s assessor, Dr. Krajden, noted that “orbital examination revealed post-traumatic asymmetry with left-sided enophthalmos”. Dr. Krajden determined that a 5% WPI was appropriate due to the scarring. It is not clear why Dr. Krajden did not address the post-traumatic asymmetry or the enophthalmos in his conclusion or rating.

35However, AssessNet’s plastic surgeon did not find any loss of supporting structure. In his summary, however, Dr. Persi noted that “although there is no loss of supporting structure per se”, the applicant does have a depression in her scar, which he determined is consistent with Class II. Dr. Persi also noted that the applicant’s treating surgeon, Dr. Strumas, had expressed concern that the scar on her left lower eyelid may pull down over time, though not presently evident. As a result, Dr. Persi assigned 10% WPI for the facial scarring. I do not agree with Dr. Persi’s rationale. If the applicant’s current facial disfigurement is limited to scarring or pigment, it would be a Class 1.

36That said, I find that the applicant’s facial disfigurement belongs in Class II given Dr. Krajden’s finding of post-traumatic asymmetry and enophthalmos. Enophthalmos is depression or retraction of the eye within the orbit, due to changes in the volume of the orbit (bone) relative to the contents (eyeball, fat) or loss of function of the orbitalis muscle.

37Page 229 of the Guides indicates that loss of structural integrity can result from cutaneous disfigurement or loss of supporting structures such as soft tissue or bone. I find that the diagnoses of post-traumatic asymmetry and enophthalmos are consistent with a Class II impairment because enophthalmos involves loss of the supporting structures. Thus, I find that the rating of 10% WPI for facial disfigurement is appropriate. As noted above, I also accept the 5% WPI for the trigeminal nerve that both parties assigned.

Spinal Impairments: Cervical-Thoracic and Lumbar-Sacral

38The AssessNet report concludes that the applicant suffers from 5% WPI for cervical-thoracic spine and 5% for the lumbo-sacral spine. Benchmark assigned a WPI of 0%.

39Category I is defined as complaints or symptoms with no significant clinical findings, no muscle guarding or history of guarding, no documented neurologic impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness. Category II requires a history and examination findings compatible with a specific injury or illness, such as: significant guarding observed and documented by a physician, non-uniform loss of range of motion, or non-verifiable radicular complaints.

40I accept Benchmark’s conclusions with respect to the cervical, thoracic and lumbar spine impairment. I find that the applicant’s impairments are consistent with DRE Category I. The impairment rating for Category I impairments is 0% WPI.

41Benchmark’s assessor, Dr. Mathoo, concluded that the applicant’s persistent neck and lumbosacral pain without radiculopathy or loss of motion segment integrity was consistent with a DRE Category I impairment of the cervicothoracic and lumbosacral spines based on Table 72 and 73 in Chapter 3 of the Guides.

42Dr. Mathoo reviewed the CT scans of the applicant’s cervical, thoracolumbar spine and sacrum from December 3, 2010 which revealed no acute injury. The applicant reported intermittent aching pain along the back of her neck and across her lumbar area, with no radicular pain or associated numbness, tingling or weakness. She also reported some radiating pain from her back to the posterior aspect of her right thigh. During the examination, the applicant demonstrated full and pain free motions of the cervical and lumbar spine. She touched her toes easily without any reported discomfort. There was no tenderness reported, upon palpation, and there was no appreciable muscle guarding, spasm or trigger points. Dr. Mathoo concluded that the applicant sustained soft tissue sprain/strain type injuries to her neck and back areas, without objective evidence of any serious musculoskeletal or neurological injury. She had some persisting myofascial neck and back pain symptoms without any associated signs of ongoing measurable impairment despite pain. She had normal active emotion, strength and stability across all spinal segments despite pain.

43Dr. Persi concluded that the applicant’s cervicothoracic impairments were most consistent with the DRE Category II. He based his conclusions on the CT scan from the day of the accident and an MRI report dated May 23, 2012. The CT scan revealed a posterior disc bulge at C5/6 with thecal sac encroachment, loss of the prevertebral fat plane at C4/5 and possible associated small fluid collection, suggesting ligamentous injury. The MRI noted the presence of degenerative disc disease at C4/5, likely representative of early onset degeneration secondary to injury in the accident. The MRI also noted disc desiccation at C3/4, C5/6 and C6/7 that was not noted in the CT scan. Dr. Persi noted that there were no other differentiators to consider.

44With respect to the lumbosacral spine, Dr. Persi noted that the applicant experiences consistent ongoing back pain with tenderness and non-uniform loss of range of motion.

45However, neither AssessNet’s orthopedic surgeon nor the physiatrist referenced the MRI or the CT scan in their reports even though they referred to the medical records they found notable. Dr. Persi took it upon himself to rely on the MRI and CT scan for spinal impairment ratings despite no mention from the assessors. During her examination of the applicant, Dr. Muniz-Rodriguez found that range of motion of the cervical spine was unremarkable, but forward flexion of the lumbar spine was limited. She was only able to reach about one foot from the floor due to pain. Palpation of the spine was unremarkable and did not elicit pain. Dr. Wismer found full range of motion of the cervical and lumbar spine, but did note some tenderness over the right trapezius on palpation. He did not ascribe any spinal injury to the applicant.

46The functional assessment completed by Dr. Tartaglia revealed reduced ranges of motion of the cervical, thoracic and lumbar spine with reports of pain during testing. The applicant argued that only Dr. Tartaglia’s assessment was in compliance with the Guides, because he performed three sets of measurements with an inclinometer.¹⁷ However, those are the requirements under the Range of Motion Model and are not required for determination under the Injury Model using the DRE impairment charts.

47Dr. Mathoo distinguished between reported pain and impairment. He also used an inclinometer and found no range of motion limitations.

48At the hearing, Dr. Tartaglia confirmed that even though the applicant’s cervical range of motion was reduced, it was still considered to be within the normal range. However, the thoracic rotation to either side was considered to be moderately outside of normal, at approximately one third of normal ranges. The lumbar spine flexion was “quite low” at 17% of normal, while extension was considered to be moderately restricted at 44% of normal.

49Mr. Kaplun performed range of motion testing for Benchmark. He found that the thoracic and lumbar ranges were reduced but within functional limits.

50I do not find that Dr. Persi’s references to the scans particularly helpful because they are several years old and may not reflect the applicant’s function at the time of the CAT assessments. I also find it significant that neither of the AssessNet assessors referred to the scans in their reports. Although Dr. Tartaglia reported findings of reduced ranges of motion, Dr. Mathoo and Dr. Wismer did not. Given the inconsistent findings, I am not satisfied that there are clinical signs of injury required for a DRE Category II impairment. I find that the applicant’s injuries are consistent with a DRE Category I impairment: she has persistent neck and lumbosacral pain with no significant clinical findings. The WPI for spinal impairment is 0%.

Headaches

51The applicant testified that she experienced headaches four to five times a week. The clinical notes and records document consistent reports of headaches, and she has been prescribed several medications to treat her headaches.¹⁸ She continued to see her neurologist, Dr. Savelli, with complaints of constant headaches.¹⁹

52AssessNet concludes that the applicant suffers a 10% WPI as a result of headaches. AssessNet rated this impairment by analogy by referring to Table 4-23 and comparing headaches to bilateral greater occipital neuralgia, which provides 5% each for the left and right, resulting in 10% WPI. In my view, this was improper.

53The Schedule requires that, where an impairment is sustained by an insured person but is not listed in the Guides, it shall be deemed to be the impairment that is listed in that document that is most analogous to the impairment sustained. Analogous grounds are only permitted where an impairment is not listed in the Guides. Headaches have a dedicated section in the Guides at section 15.9.²⁰ Thus, Dr. Persi’s conclusion that the Guides do not provide a method to rate headaches is incorrect.

54Benchmark assigned no impairment for headaches on the basis that the Guides did not consider intermittent headaches a permanent impairment, and that the applicant’s headaches did not present with any neurological features. Dr. Mathoo testified that headaches are not an impairment in and of themselves, especially if they are not permanent or functionally debilitating. In order to be rated under the criteria of the Guides, the condition must be permanent, stable and unlikely to change in the future despite therapy.

55Dr. Persi acknowledged that the applicant’s level of function and ability to complete her activities of daily living were prime considerations when assigning a rating for headaches. However, Dr. Persi’s conclusions do not reflect that these factors were considered. Dr. Persi did not inquire whether the applicant’s medications successfully treated her headaches. I am not satisfied, based on the evidence before me, that the applicant’s headaches are permanent, stable or unlikely to change with therapy. I am also not satisfied that the applicant’s headaches in and of themselves interfere with her ability to complete her activities of daily living such that an impairment rating would be appropriate.

56The evidence has not established that the applicant’s headaches should be assigned an impairment rating.

Disfigurement

57The applicant also sustained significant scarring to her legs as a result of the accident and subsequent surgeries to both knees. The scarring was observed in person and in photographs.²¹ The scar on her left leg is approximately 14 centimeters long from the outside of her knee down her shin, with multiple wide ‘cross-hatch’ suture/staple marks 3 centimeters wide. AssessNet’s plastic surgeon determined that the scar had healed acceptably well but could not be improved with revision surgery. There are also two scars on each knee from the arthroscopic surgeries the applicant underwent as a result of her injuries.

58The applicant testified that she tries to hide her scars as much as she can, and avoids wearing clothing that exposes her legs. She has to apply sunscreen to her scars several times a day, because the scars become more prominent if exposed to the sun.

59The psychological impact of her scars is not included in this impairment rating – it is properly captured under mental/behavioural impairment.

60The Guides indicate that the “impact of the skin disorder on daily activities should be the primary consideration in determining the class of impairment”. There are five classes of impairment, and the text indicates that the frequency and intensity of signs and symptoms and the frequency and complexity of medical treatment should guide the selection of the appropriate percentage within each class. Therefore, functional limitation dictates the Class, while the complexity of treatment informs the WPI rating within the Class.

61According to page 281 of the Guides, an impairment belongs in Class I when (1) signs or symptoms of a skin disorder are present or intermittently present; and, (2) there is no limitation, or limitation in the performance of a few activities of daily living; and, (3) no treatment, or intermittent treatment is required. The Guides also provide several examples at pages 281 and 282 to assist assessors in determining an appropriate rating within the ranges.

62The applicant’s facial scars discussed above were addressed by Dr. Krajden in Benchmark’s report, however the leg scarring was left to Dr. Mathoo. Dr. Mathoo determined that there was no significant cosmetic, functional or treatment implications with respect to her scars and assigned 0% WPI.

63I find that the applicant’s scarring is consistent with a Class I impairment. Nevertheless, I do not accept AssessNet’s assignment of 9%. The applicant has permanent scarring, but it results in few limitations to her activities, and requires only that she either cover her scars or apply topical sunscreen. Considering the evidence, as well as the examples provided in the Guides at the pages mentioned above, the most appropriate rating is 5% WPI.

Sleep Disorder

64The applicant testified that she has two sources of sleep disruption: (1) emotional disturbances, which cause nightmares and related symptoms; and, (2) her physical pain which interferes with her ability to initiate sleep. She was prescribed Zoplicone, which helped with initiating sleep, but she still had difficultly staying asleep. In 2015, she reported to her family physician that she felt that the medication was no longer effective.²² Nevertheless, she continued to take this medication consistently until she became pregnant.

65The respondent submits that the applicant’s reported sleep issues were included in Dr. Gnam’s ratings for mental/behavioural impairment. Dr. Gnam noted that sleep was included in the Activities of Daily Living domain.²³ However, I am not satisfied that the applicant’s impairments related to her sleep disorder are captured in mental/behavioural criteria because there is both a physical and mental component to her sleep disruption.

66No sleep study was undertaken as a part of the CAT assessments. However, AssessNet attempted to capture this impairment using Table 6 at page 143 of the Guides, which provides a range of 1-60%. The respondent submits that it is inappropriate to use Table 6. The text at pages 143 and 144 of the Guides notes that sleep disorders related to particular systems should be evaluated under that system. There is not a specific system that is causing the applicant’s sleep disturbance, and therefore it should be rated independently using Table 6.

67Referring to Table 6, chronic disturbed sleep with significant daytime fatigue is rated as a Mild Impairment, rated from 1-9% WPI, and defined as “reduced daytime alertness with sleep pattern such that patient can carry out most daily activities.” Dr. Persi determined that the upper end of this range was appropriate due to the constant disruption of her sleep, the fatigue she experienced during the daytime, and her ongoing use of medication. I accept Dr. Persi’s impairment rating of 9% WPI.

Chronic Pain and Burden of Treatment

68There is a 1% difference in the WPI assigned by AssessNet and Benchmark. AssessNet assigns 3% for “Chronic Pain and Burden of Treatment”, while Benchmark assigned 2% for Medication Side Effects.

69The Guides allow for an increase in the impairment up to 3% for Adjustment for the Effect of Treatment. In assigning 3%, Dr. Persi considered several criteria: (1) the applicant’s chronic residual pain of a number of areas limiting function; (2) taking several medications with significant psychoactive profiles, including Pristiq, clonazepam, and Celebrex (an anti-inflammatory); (3) weight gain of about 15 lbs. due to decreased physical activity as a result of her physical impairments, which would cause further stress and strain to her knees, back and neck.

70Dr. Kurzman assigned a 2% WPI for medication use, noting that she continued to use medications to manage her pain, but also based on the finding that the side effect of her antidepressant medication was likely contributing to her sexual functioning impairment. I find that 3% WPI is an appropriate, considering her ongoing use of medications to manage her pain, the impact of her medications on her sexual functioning, and her weight gain since the accident.

CONCLUSION

71In light of the foregoing, I find that the applicant has sustained 54% WPI.²⁴ After rounding, as permitted by the Guides, the applicant meets the threshold of 55% and therefore has sustained a catastrophic impairment.

Impairments	AssessNet	Benchmark	ACCEPTED RATING
Mental/Behavioural	29	18	18
Left Lower Extremity	15	15	15
Right Lower Extremity	7	0	7
Face: Disfigurement + Cranial Nerve v2	10 + 5	5 + 5	10 + 5
Spine: cervical-thoracic + lumbar-sacral	5 + 5	0 + 0	0 + 0
Headaches	10	0	0
Disfigurement	9	0	5
Sleep Disorder	9	0	9
Chronic Pain/Burden of Treatment	3	2	3
TOTAL	67	39	54

72I find that the applicant is catastrophically impaired as a result of the injuries she sustained in the accident.

Footnotes

1. 1Exhibit 14 page 1.
2. 2Exhibit 14 page 3.
3. 3Exhibit 14 page 144.
4. 4Exhibit 14 page 122.
5. 5Exhibit 14 page 267.
6. 6Exhibit 14 page 49.
7. 7Exhibit 14 page 88.
8. 8Exhibit 9 at page 19, 20, 26, 27, 30 and 31.
9. 9Jaggernauth v Economical Mutual Insurance Company [FSCO A08-001413] 2010.
10. 10Adjudicator Bickley in 17-002561/AABS v TTC Insurance Company Ltd, 2018 CarswellOnt 3079.
11. 11Exhibit 18 at page 471 and 477.
12. 12Exhibit 14 page 190.
13. 13Exhibit 14 page 25.
14. 14Exhibit 2 – Tab 10.
15. 15Exhibit 14 page 32.
16. 16Exhibit 14 at page 99.
17. 17Guides page 112.
18. 18Exhibit 1 – Tab 29 page 5; Exhibit 4 - Tab 3.
19. 19Exhibit 3 - Tab 3 page 2.
20. 20Guides, page 311.
21. 21Exhibit 8.
22. 22Exhibit 4 – Tab 3.
23. 23Exhibit 14 page 187.
24. 24Using the Combined Values Chart at page 322 of the Guides.