Licence Appeal Tribunal File Number: 19-014493/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:
Iaroukhom Ifraimov Applicant
and
Wawanesa Insurance Respondent
DECISION [AND ORDER]
ADJUDICATOR: Paul Gosio
APPEARANCES:
For the Applicant: Iaroukhom Ifraimov, Applicant Ms. Moira Gracey, Counsel
For the Respondent: Darrell March, Counsel
HEARD: by Videoconference: October 18, 19, 20, 21, 22 November 10, 12, 2021
BACKGROUND
1The applicant seeks a determination that he is catastrophically impaired pursuant s. 3.1(1)(7) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
2The applicant was injured in a motor vehicle accident (“MVA”) on October 25, 2016. He applied for and received benefits pursuant to the Schedule until the non-catastrophic impairment limits were exhausted. At that point, a dispute arose as to the extent of the applicant’s injuries and whether they met the definition of a catastrophic impairment. The applicant submits that he meets the definition of a catastrophic impairment pursuant to s. 3.1(1)(7) of the Schedule as he has a whole person impairment (“WPI”) rating of 60%. The respondent disagrees with the applicant’s position and submits his impairments have largely resolved, that he is presently very functional in his abilities, and that his WPI rating falls well below the 55% threshold.
ISSUES IN DISPUTE
3The issue in dispute is as follows:
I. Did the applicant sustain a catastrophic impairment as defined by s. 3.1(1)(7) of the Schedule?
RESULT
4Based on the evidence before me, I find that the applicant has not sustained a catastrophic impairment as defined by s. 3.1(1)(7) of the Schedule.
ANALYSIS
The Law
5Section 3.1(1) of the Schedule provides that:
For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016 and the impairment results in any of the following:
Subject to subsections (2) and (5), a physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more physical impairment of the whole person.
Subject to subsections (2) and (5), a mental and behavioural impairment, excluding traumatic brain in jury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of the whole person.
The Accident
6The applicant was involved in a serious head-on collision on October 25, 2016. He was trapped in his vehicle for approximately half an hour before being taken to the Sunnybrook Health Sciences Centre (“SHSC”) to attend to his injuries, which included fractures to both arms and his left leg. He was hospitalized for three months and underwent several surgical interventions, which allowed him to progress gradually from being bedridden, to using a wheelchair, to ambulating with a walker and eventually a cane.
The CAT Assessments
7An application for Determination of Catastrophic Impairment (“OCF-19”) dated January 17, 2019, was submitted on behalf of the applicant by Dr. L. Becker (physiatrist) of Omega Medical Associates (“Omega”) pursuant to s. 3.1(1)(7) of the Schedule. Dr. Becker noted that 2 years had elapsed since the date of the MVA and, therefore, the applicant’s condition was considered stable for the purposes of rating his impairments. Accompanying the OCF-19 is a report authored by Dr. L. Becker and Dr. H. Becker (physician) entitled Catastrophic Impairment Summary and Analysis Report. The report describes the findings of the physiatry, orthopaedic, neuropsychological/psychological and occupational therapy assessments.
8The WestPark Assessment Centre (“WestPark”) conducted catastrophic impairment assessments on behalf of the insurer in April and May of 2019. A Catastrophic Impairment Determination – OCF-19 Executive Summary was completed by Dr. Mascerenhas (physician). The report describes the finings of the orthopaedic, neuropsychological and psychiatric assessments.
9The applicant’s impairments as assessed by Omega and WestPark can be summarized as follows:
| Impairments | Omega | WestPark |
|---|---|---|
| Left Lower Extremity | 21% | 15% |
| Right upper extremity | 13% | 6% |
| Left Upper extremity | 4% | 7% |
| Mental and Behavioural | 20% | 10% |
| Mental Status | 14% | No Rating |
| Medication | 3% | 0% |
| Skin Impairment (Scars) | 7% | 2% |
| TOTAL | 60% | 34% |
Left Lower Extremity
10The applicant’s most serious injury was his left leg fracture; this is also an area for which there is significant disagreement between the experts. Dr. Getahun (orthopaedic surgeon) assessed the applicant on behalf of Omega and Dr. Paitich (orthopaedic surgeon) assessed the applicant on behalf of WestPark.
11The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (AMA Guides) provide a number of different options for evaluating the lower extremity. These include a range of movement model, a diagnosis-based estimate model, and a gait derangement model. Both Dr. Getahun and Dr. Paitich assessed the applicant according to the diagnosis-based estimate model and the gait derangement model.
Diagnosis-Based Estimate Model
12Under this model Dr. Getahun assigned a WPI of 21%. Dr. Paitich on the other hand assigned a WPI of 15%. The main differences between the ratings given by Dr. Getahun and Dr. Paitich revolve around whether there was a non-union fracture in the applicant’s left leg.
13Dr. Getahun opined that the applicant suffered from a non-union fracture and explained why. Using the diagnosis-based estimate chart at Table 64 of the AMA Guides, Dr. Getahun concluded that the applicant’s non-union fracture translates to a 10% WPI rating.
14Dr. Paitich did not provide any WPI rating based on Table 64 of the AMA Guides. He described the x-ray as showing a “perfect” healing of the fracture.1 On cross-examination, he conceded that he should have used a 2% WPI for an undisplaced femur fracture.2
15On May 31, 2019, the applicant received a total knee arthroplasty. The parties disagree as to whether this surgery was as a result of osteoarthritis or a non-union fracture in the left leg. However, the cause of the total knee arthroplasty, whether osteoarthritis or a non-union fracture, is to a great extent irrelevant to the applicant’s present impairment. The applicant’s knee was repaired in a May 2019 surgery, subsequent to the assessments of both Dr. Paitich and Dr. Getahun.
16Importantly, the relevant time for determining the impairment of the applicant is at the time of the hearing.3 During his examination, Dr. Paitich addressed his Material Review Report, dated March 30, 2021, which included a review of the surgery reports and maintained that his WPI rating of 15% was still correct. I find this review more telling of the applicant’s actual impairments after his surgery, and at the time of the hearing. In doing so Dr. Paitich advised that “…I didn’t change my impairment rating…because this is a highly successful restorative procedure that improves function markedly.”
17On the other hand, Dr. Getahun, who had the ability to reassess, review, and speak to the actual impairments of the applicant since the surgery of May 2019, failed to do so in his rebuttal report. Dr. Getahun, instead, maintained his prior ratings based upon future outcomes of surgery, and not the actual impairments which the applicant was suffering from.
18As stated by Vice Chair Flude in P.P. v. Wawanesa Mutual Insurance Company:4
adjudicators must assess the applicant they have before them and not some future version of that applicant following surgery. Where the AMA Guides talk about the need for stability, the SABS has adopted a 2-year period to allow for stability, thereafter it is the current condition of the applicant that is to be assessed.
19As such, the WPI rating of 15% provided by Dr. Paitich is preferred under this method.
Gait Derangement Method
20Again, both Dr. Getahun and Dr. Paitich utilized the gait derangement method. Dr. Getahun found that the applicant “requires routine use of cane, crutch, or long leg brace.” Dr. Getahun’s finding was based in part on the applicant’s reports that he uses a cane to ambulate outside of the home and that inside the home, he is able to lean on furniture. In doing so, he placed the applicant in the “moderate” category, which provides for a 20% WPI rating.
21In contrast, Dr. Paitich placed the applicant in the “mild” category, because he found that the applicant “utilizes a cane for 80% of the time when walking outdoors, but he does not utilize a cane when walking indoors.” The was confirmed to be the medical recommendation of the applicant’s own doctors5. Part-time use of a cane triggers a 15% whole person impairment rating according to Table 36 of the AMA Guides.
22This issue focuses on the interpretation of part-time use versus routine use under the AMA Guides. Based on the totality of the evidence before me, I find that the applicant’s requires routine use of his cane and is properly rated as moderate as opposed to mild. The applicant’s reliance on his cane is referred to throughout the medical records. He requires it whenever he goes outside and for any distance that would take him more than 3 to 5 minutes to walk.
23The applicant’s reliance on his cane is so much a part of his routine that he has two canes, one at home, and another always in the car. His need for mobility support does not come and go, it is a part of his life. As such, the WPI rating of 20% put forward by Dr. Getahun is accepted. This finding stands alone and should not be combined with my previous finding under the diagnosis-based estimate model. As such, a WPI rating of 20% is accepted for the applicant’s left lower extremity.
Right Upper Extremity
24The applicant sustained multiple fractures to his right upper arm, left shoulder, and left wrist, as well as a nerve injury in his right arm that affected his right hand. Dr. Hastings (physiatrist) conducted the assessment on behalf of Omega whereas Dr. Paitich conducted the assessment on behalf of WestPark. Both assessors followed the appropriate process as outlined by the AMA Guides.
25In his report, Dr. Hastings assigned a right upper extremity WPI rating of 22%. At the hearing, Dr. Hastings clarified that while his range of motions measurements were properly completed and correct, he incorrectly calculated the WPI rating. Once properly calculated, Dr. Hastings assigned a right upper extremity WPI rating of 13%.
26Dr. Hastings’ and Dr. Paitich’s range of motion measurements were similar; however, there are two points of difference between the ratings given by Dr. Hastings and Dr. Paitich which account for the difference in WPI rating. The first difference is with respect to a sensory deficit issue with respect to the back of the applicant’s right hand, and the second is with respect to the weakness in the applicant’s right wrist.
27With respect to the sensory deficit issue, Dr. Hastings using Table 11 of the AMA Guides, classified it as a Grade 2 issue (“Decreased sensibility with or without abnormal sensation or pain, which may prevent activity and/or minor causalgia”) because he found the existence of minor causalgia. This category attracts a sensory deficit rating of 61-80%. According to Table 15 of the AMA Guides, since the radial nerves affected are below the elbow, the maximum sensory impairment allotted is 5%. As a result, Dr. Hasting multiplied 80% x 5% and arrived at an Upper Extremity rating of 4% for the right-hand sensory deficit issue.
28Dr. Paitich on the other hand, arrived at a rating of 1% for the right-hand sensory deficit issue. As he stated in his examination, he was informed by the applicant that the “radial nerve had largely resolved”, although there was some numbness noted. He noted full range of movement involving the right elbow and right wrist. Given that there was no associated pain, and that the numbness had no effect on the applicant’s activity, Dr. Paitich determined that his impairment most closely aligns with a Grade 2 issue and used the following calculation: 0.25 x 5% which would equate to a 1% upper extremity impairment.
29During his cross examination, Dr. Hastings admitted that the applicant did, in fact, fit into Grade 2, and that while he had not asked whether there were any actual effects on the applicant’s activity, he simply assumed such and utilized the higher rating available to him. I find this to be problematic and as such, I find that the 1% upper extremity impairment for the sensory deficit issue as provided by Dr. Paitich more closely aligns with the evidence before me and I accept it.
30With respect to the issue of the applicant’s right hand motor weakness, Dr. Hastings placed the right had motor deficits in Grade 4 under Table 12 of the AMA Guides (“active movement against gravity with some resistance”). This category attracts a motor deficit rating of 1-25%. This is multiplied by the maximum motor deficit available for radial nerve impairment below the elbow of 35 found in Table 15 of the AMA Guides. As such, Dr. Hastings used the following calculation: 35 x 25% = 8.75 which was then rounded up to a 9% Upper Extremity rating for the ongoing right hand motor weakness.
31Dr. Paitich on the other hand, testified that he “did not find any motor deficit, so I did not apply a motor…. rating”. Dr. Paitich found this to be consistent with the information provided to him by the applicant who said that his radial nerve had recovered. Dr. Paitich also indicated that this finding is consistent with the fact that the applicant was no longer using a wrist drop splint, which is commonly used for wrist weakness. Dr. Paitich stated “…if you have weakness in your wrist and you can’t elevate your wrist because of the motor component of that nerve, you wear a wrist drop splint, and he is no longer wearing that.” As such, there would be no effect on his ability to perform activities.
32Dr. Hastings, though he rated weakness to the right wrist, admitted during cross examination that he had not inquired about whether it had any effect on the applicant’s ability to perform physically demanding activities, such as navigating busy GTA highways in driving to the assessment centre. The purpose of determining impairment ratings is to allow for an analysis on the overall ability of an injured party to function. As admitted by Dr. Hastings, the applicant would have had to use his wrists in order to drive to the assessments. This oversight of Dr. Hastings raises some concerns as this would be directly relevant to the applicant’s wrist weakness and, therefore, his level of impairment. Given that Dr. Hastings’ opinion had no functional basis in determining any weakness in the right wrist, I prefer Dr. Paitich’s determination.
33As a result, Dr. Paitich’s WPI rating of 6% is preferred and I accept it.
Left Upper Extremity
34Dr. Hastings assigned a left upper extremity WPI rating of 4%. Dr. Paitich assigned a left upper extremity WPI rating of 7%. Dr. Paitich’s reasoning is clearly set out in his report.
35As Dr. Hasting noted during his testimony, Dr. Paitich advanced a more significant rating in relation to the left wrist and is the difference in the final WPI rating advanced. In doing so, Dr. Paitich advised that “I note that in the other reports, they never…they didn’t provide an impairment score for the wrist, which is unusual. I mean, it’s normal when you have a fracture to reacquire most of the range of movement, but to reacquire all of it is relatively unusual. Usually there is some stiffness detectable.”
36Both parties accept the 7% WPI rating of Dr. Paitich as fair and as a result, so do I.
Mental and Behavioural
37Both assessors, Dr. Westmacott (psychiatrist) and Dr. Zielinsky (psychiatrist) formulated their Catastrophic Impairment Rating according to the Chapter 14 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition.
38Dr. Westmacott evaluated the applicant according to the Brief Psychiatric Rating Scale (“BPRS”), the Global Assessment of Functioning (“GAF”) and the Psychiatric Impairment Rating Scale (“PIRS”) and obtained the following scores:
- BPRS Impairment Score 30%
- GAF Impairment Score 15%
- PIRS Impairment Score 20%
39Dr. Westmacott assigned a mental and behavioural WPI rating of 20%.
40Dr. Zielinsky also evaluated the applicant according to the BPRS, the GAF and the PIRS and obtained the following scores:
- BPRS Impairment Score 5%
- GAF Impairment Score 10%
- PIRS Impairment Score 15%
41Dr. Zielinsky assigned a mental behavioural WPI rating of 10%. I prefer the evidence of Dr. Zielinsky in this regard.
42During the hearing, Dr. Westmacott acknowledged that at the time of her assessment, she was unaware of relevant information that might affect her conclusion. Examples include that the applicant returned to work approximately 2-3 days a week, at a few hours each day. Dr. Westmacott was under the impression that the applicant made attempts to return to work but, in fact, never did.
43Also, Dr. Westmacott, while aware that the applicant was continuing to attend the gym, was not aware of that he was actually attending the gym as much or more than he did prior to the MVA. She also never asked the applicant to clarify the nature of his activity while there and whether he socialized with anyone while at the gym. Dr. Westmacott acknowledged that this would have been important to know for the purposes of her assessment.
44Ultimately, Dr. Westmacott acknowledged that had the applicant returned to work, and the gym as described, and--should he be socializing while doing so--she would need to re-evaluate her findings, which may ultimately change her rating. For this reason, I prefer the mental and behavioural WPI rating advanced by Dr. Zielinsky.
Mental Status
45Dr. Westmacott performed a cognitive screening assessment for the purposes of assigning a WPI rating in relation to the applicant’s mental health status. Dr. Westmacott noted that the applicant “demonstrated clear deficits on standardized tests of verbal learning, verbal retrieval, word finding, auditory attention, working memory and processing speed.” Dr. Westmacott opined that:
The applicant's current cognitive symptomatology relates to the synergistic impact of complicated mild traumatic brain injury sustained in the October 25, 2016, accident and post-accident depression, anxiety, pain and fatigue. His current mental status impairments are best accounted for within the first tier of Table 2 (1-14%): "Impairment exists, but ability remains to perform satisfactorily most activities of daily living".
46Dr. Jovanovski assigned no WPI rating in relation to the applicant’s mental status impairment. She explained:
The current neuropsychological test results were not considered a valid representation of the applicant's actual cognitive abilities.…
In any case, the presence, nature, and/or extent of the applicant's reported neuropsychological difficulties could not be determined as objective testing was considered to be of mixed/questionable validity and the neuropsychological test results were uninterpretable.
Therefore, with respect to impairment rating, I have no valid data to offer any rating for whole person impairment (WPI).
47The respondent submits that given the thoroughness of the testing performed by Dr. Jovanovski, the numerous validity concerns present, the fact that Dr. Westmacott was not present during the applicant’s testing, and that no reason was given for the chosen rating of 14% (as opposed to any other rating within the prescribed range), that no rating should be provided for mental status impairments of the applicant.
48During the hearing, the respondent repeatedly alleged that the applicant’s failure on Dr. Jovanovski’s neuropsychological validity testing impugns his overall credibility. I disagree with the respondent on this point: Dr. Jovanovski’s evidence does not support this. Furthermore, the applicant’s credibility has not been questioned by any other assessor over the course of his claim.
49I am not persuaded by the respondent’s position and accept the 14% WPI rating proposed by Dr. Westmacott for the following reasons:
I. Findings on validity measures were within normal limits;
II. Neither the applicant’s total score nor his scores on the individual scales were suggestive of malingered psychopathology. Review of validity scales indicates that the applicant responded in a consistent, reliable and forthright manner;
III. There was no evidence of pain magnification and symptom embellishment;
IV. There was no evidence of discrepancies or inconsistencies; and
V. The applicant consistently addressed the assessors in a friendly, yet deferential manner, and provided information in a straightforward, forthright, and candid manner. He presented as entirely genuine.
Medication
50When the applicant was assessed by Dr. Hastings in December 2018, he noted that the applicant was taking Cymbalta and painkillers. Dr. Hastings assigned a 2-3% WPI rating for the potential and experienced side effects of that medication. By the time the applicant was assessed Dr. Paitich, he had stopped taking those medications, and Dr. Paitich provided a 0% WPI rating in this regard.
51The applicant submits that the 3% rating was appropriate at the time it was given and continues to be the appropriate rating because his condition has not stabilized, and furthermore, he had two surgeries after the CAT assessments and is now taking the antibiotic Cephalexin daily.
52As noted by Dr. Paitich, the only considerations available for the purpose of including a WPI rating under medication is when there is a masking of a ratable impairment or there is a ratable side effect from the medication.
53In this case, there is no indication that the applicant’s use of medication has created an impairment that is ratable based on a side effect, and there is no indication that the applicant’s use of medication has masked an impairment that would otherwise be ratable.
54In addition to this, Dr. Hastings, on cross examination, admitted that the only side effect that the applicant reported from the medication he was taking at the time of his assessment was dry mouth, which was not really affecting him in any meaningful way. There is no evidence before me that would suggest that the applicant’s dry mouth is ratable in this regard.
55Dr. Hastings also admitted on cross examination that he had mistakenly indicated that the applicant was taking Cymbalta, when in fact he was not. The evidence before me suggests that the applicant primarily uses Tylenol and Advil for pain. While the respondent acknowledged that the applicant is presently taking an antibiotic (Cephalexin), there is no evidence before me with respect to the side effects of this medication and how it would be rated on the AMA Guides.
56As such, I accept the 0% WPI rating as suggested by Dr. Paitich.
Skin Impairment
57The applicant has multiple scars over several part of his body as a result of the MVA and the subsequent surgeries. These include:
I. A scar “about a foot long” down the side of his right arm from shoulder to elbow;
II. A scar on the left wrist, from surgery for his tibial fracture;
III. A 12 cm scar over his left ankle from the initial degloving trauma.
IV. A 41 cm scar running up his femur as a result of the MVA and multiple surgeries.
V. Other small scars on his knee from the initial open femur fracture; and
VI. Various other small scars.
58At the hearing, the applicant gave evidence that his major scars affect his activities. For example:
I shy to go to beach … when I go to beach, I try to .. to not show my … all that … you know, that … scars or the … I don’t know … and I try walk with shorts because once, two times I would go with the … without T-shirt and just … and the people look at me, like what’s going on and … I shy sometimes … like, you know, like long sleeves and the long pants on the beach … I’m sure not comfortable of course, when they look people to you like that.
59Furthermore, the applicant testified that he applies creams to his scars in order to make them softer.
60Dr. Getahun and Dr. Hastings provided 5% and 2% WPI ratings for the applicant’s scarring for a combined 7% WPI, placing him at the high end of the Class I skin impairment. Dr. Getahun and Dr. Hastings, however, both stated that they did not evaluate how the scarring effected the applicant’s ability to perform his activities of daily living. Rather, the ratings given for scarring had nothing to do with the scars impairing the applicant’s function. The ratings given by Dr Getahun and Dr. Hastings were based simply on the existence of the scars.
61Dr. Paitich assigned a skin WPI rating of 2%. He came to this conclusion because none of the scars were disfiguring, many of them were barely visible, and none of them require any treatment. When Dr. Paitich was questioned about his findings, he stated that for there to be a Class I skin impairment, there must be signs and symptoms which limit activity or require treatment. Given that the applicant had no physical signs or symptoms resulting from the scars which limit his activity (such as numbness) or which require treatment, Dr. Paitich indicated that he would generally assign a WPI rating of 0%. However, because he was aware that the applicant’s behaviour was altered due to the scarring (such as wearing a long sleeve shirt or pants where he might have worn short sleeve shirts or shorts) he provided a WPI rating of 2%.
62The AMA Guides provide for a Class 1 (0-9%) impairment rating for scars where “signs and symptoms of skin disorder are present … and there is no limitation … and no treatment or intermittent treatment is required.” The AMA Guides state that, “the impact of the skin disorder on daily activities should be the primary consideration in determining the class of impairment. The frequency and intensity of signs and symptoms and the frequency and complexity of medical treatment should guide the selection of an appropriate impairment percentage and estimate within any class.” That is, the mere existence of a scar can give rise to a Class 1 impairment, but with a low or even zero rating within the range.
63I find Dr. Paitich’s reasoning more closely aligns with the AMA Guides and as a result, I accept his 2% WPI rating it in this regard.
CONCLUSION
64For the reasons outlined above, in accordance with the Combined Values Chart under Section 8 of the AMA Guides, my WPI findings can be summarized as follows:
| Impairments | WPI |
|---|---|
| Left Lower Extremity | 20% |
| Right Upper Extremity | 6% |
| Left Upper Extremity | 7% |
| Mental and Behavioural | 10% |
| Mental Status | 14% |
| Medication | 0% |
| Skin Impairment (Scars) | 2% |
| TOTAL WPI | 46% |
65As a result, I find that the applicant has not sustained a catastrophic impairment as defined by s. 3.1(1)(7) of the Schedule.
Released: May 10, 2022
Paul Gosio Adjudicator