Licence Appeal Tribunal File Number: 22-007955/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:
Lyndon Handy
Applicant
and
Aviva General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Sandra Driesel
APPEARANCES:
For the Applicant:
Lyndon Handy, Applicant
Ashu Ismail, Counsel
Sarah Crittienden, Counsel
Joseph Campisi, Observing
For the Respondent:
Beth Thomson, Adjuster
Noella Thompson, Counsel
Kathleen Mertes, Counsel
Sarah Reisler, Counsel
Court Reporter:
Guido Riccioni
HEARD: by Videoconference:
October 16, 2023 – October 19, 202
OVERVIEW
1Lyndon Handy, the applicant, was involved in an automobile accident on August 31, 2016, 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, Aviva General Insurance Company(“Aviva”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
BACKGROUND
2In February 2020, the applicant forwarded to Aviva an Application for Determination of Catastrophic (“CAT”) Impairment (“OCF-19”) claiming he is catastrophically impaired under Criterion 7 as a result of the accident. When Aviva denied his claim, he filed an application with the Tribunal. The matter was eventually scheduled to a hearing before the Tribunal to begin November 15, 2021.
3On November 12, 2021, the parties attended a Motion Hearing to deal with the respondent’s objection to the applicant submitting into evidence, a report authored by Dr. John Baird DC. This report is dated October 8, 2021. For reasons that included the applicant failing to submit the report by the August 16, 2021 deadline for productions of reports, Adjudicator Hunter (in the Motion Order released December 8, 2021) ordered that the report by Dr. Baird, and his testimony, were to be excluded from the hearing.
4Subsequently, the matter proceeded to hearing that concluded on February 7, 2022. The Tribunal released a decision on September 16, 2022, finding the applicant had not sustained a CAT impairment.
5In January 2022, prior to the release of the decision on the previous application, the applicant submitted another OCF-19 to Aviva seeking a designation of CAT impairment and Aviva denied this second application. Through this second application with the Tribunal, the matter was scheduled for a hearing commencing October 16, 2023, with a preliminary issue hearing (by way of written submissions) to precede the substantive issue hearing. The preliminary issue was whether the applicant was barred from proceeding with the issue of CAT determination because the issue is res judicata.
6In an Order released September 1, 2023, Adjudicator Mazerolle decided that the applicant is barred from proceeding with his application for CAT impairment based on Criterion 7, pursuant to the doctrine of res judicata. However, he also concluded that this substantive issue hearing shall continue for a CAT determination under Criterion 6 only.
ISSUES
7The issues in dispute are:
i. Has the applicant sustained a catastrophic (“CAT”) impairment as defined in the Schedule by meeting the threshold of a Criterion 6 impairment?
ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payment to the applicant?
RESULT
8The applicant did not sustain a CAT impairment.
9The applicant is not entitled to an award.
ANALYSIS
The applicant does not meet the CAT impairment threshold under Criterion 6
10The applicant claims he has sustained injuries as a result of the accident that have exacerbated his pre-existing degenerative disc disease and knee osteoarthritis. He submits that since the accident, he suffers from decreasing physical functioning, especially related to his back, and mobility that has become CAT. The onus is on the applicant to establish on a balance of probabilities that he suffers a CAT impairment as a result of the accident.
11As noted above, in the prior hearing before the Tribunal, the applicant argued unsuccessfully for a determination that he suffers from a CAT impairment (albeit under a different criterion). In this proceeding, the applicant relies heavily on a report by Dr. John Baird, dated October 8, 2021, that was excluded from the previous hearing. This report, entitled “Assessment of Spinal Impairment Utilizing the Diagnostic Related Estimates (Injury Model) of the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Edition,” provides an assessment of the applicant that was used by the applicant’s CAT assessor in this proceeding. Specifically, the applicant’s assessor in this proceeding, Dr. Tajedin Getahun, Orthopedic Surgeon, relied on the report by Dr. Baird to revise his previous opinion that the applicant was not CAT in order to arrive at a new finding of CAT impairment under Criterion 6. Prior to receiving Dr. Baird’s report, Dr. Getahun concluded that the applicant did not meet the CAT impairment threshold.
12The respondent relies on its CAT assessment by Dr. Ato Skyi-Otu, Orthopedic Surgeon, who found the applicant has not sustained a CAT impairment.
13The respondent argues that Dr. Baird is a chiropractor and not a medical professional qualified to make an assessment of CAT impairment under the Schedule. Section 45(2) states:
(2) The following rules apply with respect to an application under subsection (1).
- An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.
14In addition to its argument that the Tribunal should assign little or no weight to Dr. Baird’s report for the above reason, the respondent also submits that the remaining evidence provided by the applicant shows him to fall short of the threshold required to be determined CAT impaired.
15In order to qualify for CAT status under Criterion 6 the applicant must prove that he has 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, (the “Guides”) results in 55 per cent or more physical Whole Person Impairment (“WPI”).
16The Guides are a compilation of chapters that contain specific rating criteria for the degree of impairment to a particular body system. To arrive at a total WPI rating under the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides. Once the individual impairment ratings are obtained, they are combined according to a formula in the Guides to arrive at the total WPI rating. As can be seen on the chart below, the combination relies on a formula rather than a straight addition method to arrive at the WPI ratings.
17The following shows the difference in the WPI ratings assigned by the applicant’s assessors and the respondent’s assessor. This chart also shows the influence that Dr. Baird’s report had on the applicant’s revised determination of WPI related to the “cervicothoracic spine” and “lumbosacral spine” ratings which led to the latter finding of a WPI that meets the CAT threshold of at least a 55% WPI:
Applicant
Respondent
Ratings on Musculoskeletal perspective:
Summary report dated February 5, 2020, with reports of Dr. Getahun and Dr. Chang:
Amended report of Dr. Getahun dated December 19, 2021, with Dr. Baird’s report:
Report of Dr. Sekyi-Otu dated April 21, 2022:
Lower extremity
20%
20%
0%
Cervicothoracic spine
5%
25%
0%
Lumbosacral spine
10%
25%
0%
Medication
3%
3%
3%
Mental Status
1% - 14%
14%
0%
Sleep Disturbance
1% - 9%
9%
0%
Headaches
3%
3%
0%
FINAL RATING:
50% WPI
67% WPI
3% WPI
18Included in the applicant’s Catastrophic Impairment Evaluation summary report dated February 5, 2020, the 50% WPI was determined as a result of Dr. Getahun’s physical assessment of October 29, 2019, and physiatrist Dr. Chang’s physical assessment of November 7, 2019. Following this summary report, Dr. Getahun was provided with the report by Dr. Baird, which he used to amend his first opinion to now determine the applicant suffers a 67% WPI, which meets the 55% threshold for CAT.
19Dr. Baird is a chiropractor. He conducted a computerized assessment of the applicant on September 29, 2021, approximately five years after the subject accident. Using a radiographic evaluation and a digital radiographic analysis using computer software, Dr. Baird concluded the applicant suffers a 44% WPI. Specifically, he applied a 25% WPI to each of the cervicothoracic spine and lumbosacral spine categories. Dr. Getahun then applied these ratings to his previous scoring of WPI, resulting in a 17% increase in the WPI calculation, indicating the applicant meets the threshold for CAT.
20The respondent has challenged the reliability of Dr. Baird’s report. As mentioned above, Dr. Baird as a chiropractor is not a medical professional qualified to make a determination of CAT impairment under the Schedule. Dr. Baird fails to mention in his report if he was assisted by a qualified medical professional and the doctor fails to provide any details to suggest a physical examination was conducted to reconcile his computerized analysis with the applicant’s physical condition.
21The respondent relies on the report by Dr. Ato Sekyi-Otu, dated April 21, 2022. This report results from a paper review to address the latest OCF-19 (dated January 4, 2022) submitted by Dr. Getahun for a Criterion 6 CAT impairment. Dr. Sekyi-Otu, who already assessed the applicant prior to this paper review, summarizes his findings as unchanged from his previous assessment of September 11, 2020. He concludes that the applicant only has a total 3% WPI and therefore does not meet the threshold for a CAT designation.
22The respondent also relies on surveillance evidence of the applicant provided by Xpera Investigations starting from August 2018 (with various sets of surveillance up to February 2023). It submits this evidence supports the respondent’s position that the applicant is not as functionally restricted as he reports. The surveillance videos show him walking around and performing certain tasks of daily living without assistive devices or support captured over an approximate five-year period.
Lower extremity WPI
23I find the applicant has not met his onus to show he suffers from a 20% lower extremity WPI (gait derangement).
24According to the Guides, under Table 36, a 15% WPI rating for gait derangement is for a person who requires part-time use of a cane or crutch for distance walking but not usually at home or in the workplace. The Guides also state that for a 20% WPI gait derangement, the applicant would have to require the routine use of a cane, crutch or long leg brace.
25The applicant’s case relies on Dr. Getahun’s rating of 20% “lower extremity” impairment under the gait derangement category. This rating was not impacted by Dr. Baird’s report. In a rebuttal report dated June 11, 2023, Dr. Getahun reiterates his findings that, from an orthopaedic perspective, the applicant has a 20% WPI rating under gait derangement. However, I find he does not address the surveillance evidence provided by the respondent that shows the applicant walking around and performing certain activities without a cane or walking aids. This evidence only captures certain moments in time, but it shows that the applicant, over a 4-5-year span, did not require the use of walking aids on many occasions. I find that the surveillance evidence more accurately shows a person who “may require a part-time use of an assistive device to walk” rather than someone who is “routinely” dependant on a device to function, which is the criteria for a 20% WPI according to the Guides. In addition, I find Dr. Getahun also considered an estimated WPI for a future total knee replacement and future surgery, neither of which is criteria used in rating a WPI.
26Dr. Sekyi-Otu assessed the applicant’s knee symptoms and concluded they may be related to undiagnosed arthritis, not the accident, and determined that a 0% WPI rating was appropriate. He opines that there is a lack of medical evidence to support the rating by Dr. Getahun. He refers to the surveillance evidence provided by Xpera Investigations and notes that the applicant is shown driving his car, walking, using a metal detector, shovelling, standing and walking a dog and, at all times, he did not use a walking aid, which is required for the rating he assigned under this category. Dr. Seyki-Otu states that the surveillance of the applicant supports his assessment findings that the applicant does not suffer from a lower extremity impairment.
27I agree with Dr. Sekyi-Otu that the movements performed by the applicant in the surveillance videos and the activities he is able to perform without a walking aid are more supportive of his conclusion of no impairment than those of Dr. Getahun, who opines that the applicant has an extreme impairment.
28Given the above, I prefer Dr. Sekyi-Otu’s opinion over that of Dr. Getahun and find the applicant to have a 0% WPI of the lower extremity. With the lower extremity 20% WPI removed from Dr. Getahun’s calculation, I find there is no way to achieve the required total 55% WPI for a CAT determination. However, I have addressed the other WPI ratings below for completeness.
Cervicothoracic spine and Lumbosacral spine
29For the reasons below I put little weight on Dr. Getahun’s revised report that found the applicant to have a significant increase in WPI to meet the 55% threshold based on Dr. Baird’s report.
30Dr. Baird’s report of October 12, 2021 formed the basis for an amended determination of WPI by Dr. Getahun. Dr. Baird’s spinal impairment ratings were substituted for the previous assessment ratings by Dr. Getahun and Dr. Chang, and the resulting impairment ratings in these two spine categories were increased from 5% to 25% and 10% to 25%, respectively, to attain a total WPI rating meeting the threshold of CAT.
31The respondent argues that the report by Dr. Baird was not made for the purpose of a CAT determination, but rather to determine whether the applicant suffers from LMSI (Loss of Motion Segment Integrity). Further, while Dr. Baird makes a finding of a 44% WPI impairment, he is not qualified to make a CAT determination as he is a chiropractor.
32The applicant submits Dr. Baird’s report is a diagnostic tool and as such, the CAT assessor, Dr. Getahun, may use this information to make a determination on impairment. I would agree with the applicant’s position in principle, but in this case, in a June 11, 2023 rebuttal report, Dr. Getahun states, regarding Dr. Baird’s examination that: “…this examination was not a trauma assessment. This was an AMA Guides catastrophic determination assessment. The purpose of Dr. Baird’s analysis was to identify whether Mr. Handy meets the description and verification requirements.” I take this to mean that Dr. Getahun has accepted Dr. Baird’s assessment as a complete CAT diagnosis even though Dr. Baird is not qualified to provide such an opinion pursuant to the Schedule. His acceptance of Dr. Baird’s ratings as being valid CAT diagnosis is evident in the fact that he replaces his previous WPI ratings with those as presented by Dr. Baird.
33As much as Dr. Getahun may use Dr. Baird’s report to assist his own evaluation, there is no convincing evidence that Dr. Getahun reconciled Dr. Baird’s conclusions with any physical examination, or with other medical evidence. Dr. Getahun does not explain why he relies solely on Dr. Baird’s opinion of WPI in his amended report over those opinions previously concluded by himself and physiatrist Dr. Chang. Also, Dr. Getahun fails to explain why he accepts that the applicant’s spinal WPI ratings increased so significantly from October and November 2019 when he and Dr. Chang completed their assessments to the amended WPI ratings he relies on from an assessment that occurred approximately two years later (September 2021).
34I am not convinced by the applicant’s evidence that he has sustained 25% WPI of the cervicothoracic spine or a 25% WPI of the lumbosacral spine. Because I have come to this conclusion it is not necessary for me to determine whether the previous opinion of the applicant that he has a 5% WPI of the cervicothoracic spine and a 10% WPI of the lumbosacral spine is more correct than the 0% WPI by the respondent for each spinal rating. Whether I find in favour of these original WPI ratings provided by the applicant (which exclude Dr. Baird’s opinion), or in favour of the respondent’s WPI ratings in this category, the results would not enable the applicant to reach the 55% WPI threshold required for a Criterion 6 CAT impairment.
Medication, Mental Status, Sleep Disturbance and Headaches WPI
35Because of my findings for the lower extremity and spinal WPI ratings, the applicant cannot meet the threshold of a 55% WPI required to be determined CAT under Criterion 6. Therefore, I have not analyzed the parties’ positions regarding their WPI ratings for Mental Status, Sleep Disturbance or Headaches because the cumulative ratings presented by either party in these categories will not increase a total WPI to meet the threshold required of a CAT impairment.
The applicant is not entitled to an award
36The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find the applicant has not submitted evidence to establish that the respondent’s conduct rises to a threshold that would warrant an award and as such, no award is payable.
ORDER
37For all of the above noted reasons, I find:
i. The applicant has not sustained a catastrophic impairment under Criterion 6.
ii. The applicant is not entitled to an award under s. 10 of Regulation 664.
38This application is dismissed.
Released: January 26, 2024
Sandra Driesel
Adjudicator