Licence Appeal Tribunal File Number: 22-002158/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:
Hilary Popadiuk
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Hilary Popadiuk, Applicant
K Renee Reynolds, Counsel
For the Respondent:
Joanna Lemon, Adjuster
Dylan Crosby, Counsel
Court Reporter:
Prashanth Thambipillai
HEARD: by Videoconference:
May 1-3, 2023
OVERVIEW
1Hilary Popadiuk, the applicant, was involved in an automobile accident on July 14, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment (CAT) as defined by the Schedule?
ii. Is the applicant entitled to $625.24 for a walker, proposed by Lesya Dyk OT Services in a treatment plan/OCF-18 (“plan”) denied on July 7, 2020?
iii. Is the applicant entitled to $4,087.19 for multidisciplinary CAT assessment, proposed by AssessNet Inc in a plan denied on December 2, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
PROCEDURAL ISSUE
3The applicant asked to reschedule the third day of the hearing to accommodate the schedule of her witness, Dr. Adriano Perci. He was on vacation and only available to testify by telephone for two or more hours on the second day of the hearing.
4The applicant further submitted that she previously contacted the Tribunal about rescheduling the third day of the hearing and was told that this would not be possible because an adjournment had already been granted.
5The respondent took no position on this motion.
6I dismissed this motion for two reasons. Firstly, because this motion is untimely. This hearing was initially scheduled for January 17, 2023. On December 7, 2022, the Tribunal granted a motion to reschedule this hearing and a new date was set on a peremptory basis for May 1-3, 2023.
7The applicant was aware of the witness’ scheduling conflict in December, 2022, but never filed a motion to resolve this issue because “someone” at the Tribunal told her this request would not be granted. Instead, she waited until the day of the hearing to make this request. I found that the applicant’s last minute motion to reschedule the final day of the hearing cannot be justified by what appears to be an informal conversation. This is especially true given that Tribunal resources have already been spent to set up the hearing for the applicant.
8Secondly, the witness’s report is in evidence and the witness is available to testify, albeit in limited circumstances. The parties are in a position to adjust their questions to ensure that their time with the witness is used wisely. In my view, this gave the applicant a fair opportunity to present her case.
9As such, I ordered that the hearing proceed as scheduled.
RESULT
10This application is dismissed.
ANALYSIS
CAT
11Under 3.1(1)(2)(III) of the Schedule, an insured person is catastrophically impaired when an accident causes a severe and permanent alteration of the prior structure and function of one or both legs as a result of which the insured person’s score on item 12 of the Spinal Cord Independence Measure1 (SCIM), applied over a distance of up to 10 metres on an even indoor surface, is 0 to 5.
12A 3.1(1)(2)(III) assessment begins with a determination of whether the accident has caused a severe and permanent alteration to the structure and function of one or both legs. If the accident caused such an alteration, then the scoring exercise in item 12 of the SCIM is completed. A person is catastrophically impaired if they score in the range of 0 to 5. The applicant bears the burden of demonstrating on a balance of probabilities that she meets the test in s. 3.1(1)(2)(III).
Severe and permanent alteration to the structure and function of one or both legs
13The applicant submits that the accident caused a severe and permanent alteration of the prior structure and function to both legs. In regard to altering the prior structure of her right leg, the applicant cites the testimony of Dr. Ivan Dzaja, orthopaedic surgeon. He testified that the applicant has had extensive and complex surgeries that go far beyond a normal knee replacement. One surgery involved a resection of 80 to 90 millimeters of bone and then the stripping of all soft tissues from her femur. He described the soft tissue injury as being quite traumatic and that this procedure was a “salvage operation.” He also described how a rod was inserted up the bone and cemented in place. He explained that as a consequence the patella tendon is now stretched, the kneecap is higher than normal, and this has caused buckling and instability.
14The applicant also cites the Independent Mediocolegal Evaluation-Catastrophic Determination- Update, by Dr. Dzaja and Dr. Adriano Persi, chiropractor, dated December 6, 2022. This report notes that the accident caused the alterations described in Dr. Dzaja’s testimony and that the alterations are severe. Further, if the prothesis fails, then the only option available to the applicant would be amputation. The report states that the applicant’s function is affected by these alterations, causing “a severe gait derangement, which is continuous and substantial, restricting all daily activities.” Both doctors also opine that these alterations are permanent.
15The respondent agrees that the first part of the s.3.1(2)(III) test has been met.
16As such, I find that the evidence cited by the applicant establishes that the accident caused a severe and permanent alteration to the structure and function of her right leg.
Scoring Item 12 of the SCIM
17The means of determining catastrophic impairment for ambulatory mobility is set out in 3.1(1)(2) of the Schedule. The applicable subsection is (iii) which states:
Severe and permanent alteration of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12 (Mobility Indoors), as published in Catz, A., Itzkovich, M., Tesio L. et al, A multicentre international study on the Spinal Cord Independence Measure, version III: Rasch psychometric validation, Spinal Cord (2007) 45, 275-291 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5.
18As such, the following are the statutory requirements for scoring:
a) Use of the SCIM.
b) Ambulation on an even indoor surface.
c) Ambulation over a distance of up to 10 meters.
19The 0-8 rating scale for scoring item 12 of the SCIM is as follows:
Requires total assistance
Needs electric wheelchair or partial assistance to operate manual wheelchair
Moves independently in manual wheelchair
Requires supervision while walking (with or without devices)
Walks with a walking frame or crutches (swing)
Walks with crutches or two canes (reciprocal walking)
Walks with one cane
Needs leg orthosis only
Walks without walking aids
20Scoring is based on two components: i) the use, or not, of a walking aid, wheelchair, or supervision, and ii) gait.
21The applicant relies on the scoring of two different assessments. The first assessment took place on January 26 and 27, 2021 with Cristyn Franic, occupational therapist. Ms. Franic reports that the applicant ambulated with a Rollator walker indoors over a 10 meter level surface. Based on these observations, Ms. Franic scored the applicant’s ability to ambulate as a 4 on the SCIM.
22The observations of Ms. Franic are contained in a report dated July 16, 2021. At the end of the report, Dr. Persi and Dr. David Wismer, orthopedic surgeon, concur that the applicant’s SCIM score is 4.
23The respondent submits that no weight should be given to this scoring because the applicant used a roller walker with wheels. To score 4 on the SCIM, a person must need to walk with a walking frame or crutches and with a swing gait. Neither is evident from the applicant’s report.
24The points raised by the respondent are addressed in an addendum report by Dr. Dzaja and Dr. Persi dated February 9, 2023. They opine that a Rollator walker is a type of walking frame.
25In regard to assessing the applicant’s gait, they opine that a proper reading of the description for a score of 4 is for a person to use “a ‘walker frame’ or ‘crutches [with a] swing [gait].’” This wording indicates that the use of a walker frame is disjoined from the use of crutches with a swing gait. As such, Dr. Dzaja and Dr. Persi opine that there is no requirement to use a swing gait when ambulating with a walker frame in order to be scored 4.
26Additionally, they cite the Toolkit for Spinal Cord Independence Measure III (Toolkit) published by the Rick Hansen Institute, which states that “The patient should be scored on the walking aid they use rather than their gait pattern (ie: if they step reciprocally but use a walker they would be scored a 4 not a 5).” The addendum report opines that the applicant was correctly assigned a score of 4 even though she does not ambulate with a swing gait because precedence is given to walking aids over gait.
27I disagree. The statute incorporates the SCIM. Consequently, scoring must be done in accordance with the wording of the SCIM. As noted below, the wording for the scores of 3, 4, and 5 have parenthetical remarks after the description of the score:
Requires supervision while walking (with or without devices)
Walks with a walking frame or crutches (swing)
Walks with crutches or two canes (reciprocal walking)
28The parenthetical comment for a score of 3 applies to the entire description. Likewise, the parenthetical comment for score 5 must also apply to the entire description because the use of crutches in a score of 5 and 4 can only be distinguished by the parenthetical comment as both descriptions refer to the use of crutches. For example, where an applicant walks with crutches as opposed to a walking frame or canes, the only way to differentiate between a score of 4 and 5 is by relying on the parenthetical comment to determine how the crutches are used for mobility.
29Dr. Dzaja and Dr. Percy opine that the parenthetical comment does not apply to the use of a walking frame in the description for the score of 4. However, there is nothing in the language or punctuation that supports this premise. Moreover, the similarity in the wording for scores of 3, 4, and 5 suggests that they should be read in the same way. Specifically, that the parenthetical comment applies to the entire description. If the scoring of 4 differed for some reason, then it is reasonable to expect this would be reflected in the description. In my view, a plain reading of the description indicates that a swing gait is a necessary component for the score of 4.
30In regard to the Toolkit, this document states that patients “should be scored on the walking aid they use rather than their gait pattern (ie: if they step reciprocally but use a walker they would be scored a 4 and not a 5).” This approach is inconsistent with the wording in the SCIM which explicitly requires consideration of a person’s gait pattern. As noted above, the SCIM is incorporated into section 3.1(1)(2)(III) of the Schedule. For this reason, the wording in the SCIM takes precedence over the instructions of the Toolkit for the purpose of making a legal determination under the Schedule. Consequently, I give no weight to this section of the Toolkit.
31In my view, the description of the score of 4 requires persons ambulating with a walking frame to have a swing gait There is no dispute that the applicant used a walker with wheels and did not ambulate with a swing gait for the purposes of the SCIM in the first report. Consequently, I find that the methodology applied in the report dated July 16, 2021 does not adhere to the scoring requirements of the SCIM.
32The applicant also relies on a second report, dated December 6, 2022, by Dr. Dzaja and Dr. Persi. During this assessment, the applicant was able to walk 10 meters on an even carpeted floor with a walker. Safety was a concern due to the buckling of her right knee. The applicant required standby assistance and, for this reason, received a score of 3.
33The respondent disputes this score. It submits that all persons have a risk of falling. The mere risk of falling does not justify a finding that the applicant is catastrophically impaired.
34Ms. Kai Rasmussen, a physiotherapist who previously treated the applicant, testified that the applicant leans hard on her cane and reaches for solid objects, like a wall, to compensate for the lack of stability the cane provides. This increases her stance width and makes her gait pattern more lateral. The result is she walks from side to side “like a gingerbread man.” At one point in the gait cycle, her foot and cane are on the ground at the same time. This is a two point stabilization. Ms. Rasmussen testified that the applicant would do better with three or four points of stability, such as what is provided by a walker. In light of this testimony, I find that the applicant’s accident related impairments have compromised her ability to walk in a stabilized manner with two points of stabilization. I further find that this differs from a generalized risk of falling raised by the respondent in its submissions.
35Surveillance captures the unstable “gingerbread man” walk in the grocery store parking lot when she exits her vehicle without a walking aid. She reaches onto her car for stabilization. She subsequently goes grocery shopping and uses a shopping cart for stabilization, similar to using a roller walker. I note that she spends 30 minutes, indoors, continuously ambulating while she shopped.
36As such, I do not accept the score of 3 given in the second report, dated December 6, 2022, by Dr. Dzaja and Dr. Persi. To be scored a 3 on the SCIM a person must require supervision to walk, either with or without a walking aid. The surveillance footage was taken on January 17, 2023. This was after the second assessment by Dr. Dzaja and Dr. Persi. It shows that the applicant is properly stabilized and can walk when using a walking aid. For this reason, I find that she does not require supervision to walk and, therefore, cannot score 3 on the SCIM.
37The respondent relies on the report of Dr. Greg Jaroszynski, orthopedic surgeon, dated October 4, 2021. He observed the applicant to walk at least 10 meters without the need for two crutches or two canes. Instead, he supported her with his hand. Based on this observation, he assigned a SCIM score of 6.
38I give no weight to this report.
39A score of 6 requires a person to walk “with one cane.” Dr. Jaroszynski testified that his hand provides a level of support similar to a cane. In fact, he opined at the hearing, his hand actually provides even less support than a cane.
40I do not accept this explanation. Section 3.1(1)(2)(III) requires adherence to the methodology in the SCIM. There is no provision allowing for variances in how the scoring exercise is administered. Dr. Jaroszynski did not use a cane to score the applicant. Therefore, his score is invalid.
41It is open for me to review the evidence and assign a score under Criterion 2. However, this is not possible as I do not accept the testing methodology of either party. Moreover, surveillance shows the applicant walking with a cane outdoors, but she has not been properly tested indoors with a cane which is required under 3.1(1)(2)(III) of the Schedule . Consequently, there is insufficient evidence upon which I can rely to score the applicant on the SCIM.
42The applicant has not satisfied me, on a balance of probabilities, that her SCIM score is 0 to 5. For this reason, I find that she is not catastrophically impaired under Criterion 2.
43To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
44Two treatment plans are in dispute. The applicant made no submissions regarding her entitlement to these plans.
45The respondent submits that this issue can be resolved in its favour based on the written record which establishes that the denials are properly justified and that the applicant is not entitled to either plan.
46I find that the applicant is not entitled to either treatment plan. She made no submissions to establish that the two plans are reasonable and necessary. The Tribunal cannot connect the dots and make the applicant’s case. Doing so inappropriately places the Tribunal in the role of her advocate. Consequently, I find that the applicant has not established, on a balance of probabilities, that the treatment plans are reasonable and necessary.
Interest
47As there are no benefits owing, the insurer is not liable to pay interest pursuant to 51(2) of the Schedule.
ORDER
48This application is dismissed.
Released: November 9, 2023
Harry Adamidis
Adjudicator