Catastrophic impairment due to overall marked impairment

T.S. and AllState Insurance – CATASTROPHIC IMPAIRMENT; Designated Assessment Centre determined insured not catastrophic; insured was self represented; insured’s psychologist assessed insured as CAT based on “overall” marked impairment; three categories rated as Marked; supporting psychological reports; absence of psychologist in DAC team and limited evidence of collective determination; fibromyalgia should have been provided with rating under AMA Guides by analogy; support for combining physical and psychological impairment ratings; DAC did not rate all impairments and Arbitrator would not speculate; Arbitrator supported CAT designation based on marked impairment due to mental or behavioural disorder based on evidence from insured

December 19, 2011, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Before: Arbitrator John Wilson

Decision Date: November 15, 2011

Issues:

T.S., was injured in a motor vehicle accident on November 21, 2001. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada payable under the Schedule. Allstate continued to pay weekly income replacement benefits but resisted T.S.'s claims for further housekeeping and attendant care benefits past the 104-week mark on the basis that she did not meet the definition of catastrophic impairment set out in section 2 of the Schedule.

T.S. filed a claim for designation as catastrophic, together with claims for ongoing attendant care and housekeeping benefits, all of which were rejected by Allstate. The parties were unable to resolve their disputes through mediation, and T.S. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.

Following issues were referred to arbitration:

1. Does T.S. meet the criteria for catastrophic impairment?
2. Is T.S. entitled to Attendant Care Benefits at the rate of $400 per week?
3. Is T.S. entitled to Housekeeping and Home Maintenance Expenses at $400 per week?
4. Is either party entitled to Expenses in this proceeding?
5. Is T.S. entitled to interest on any amounts found owing?
6. Is T.S. entitled to a special award?

Result:

1. T.S. meets the criteria for catastrophic impairment.
2. T.S. is entitled to Attendant Care Benefits at the rate of $77.40 per month.
3. T.S. is entitled to Housekeeping and Home Maintenance at $100 per week, ongoing.
4. Expenses in this proceeding remain to be addressed.
5. T.S. is entitled to interest on any net amounts found owing.
6. T.S. is not entitled to a special award.

EVIDENCE AND ANALYSIS:

Statutory Accident Benefits, or "no-fault insurance", forms part of the compensation spectrum for victims of motor vehicle accidents in Ontario. Although not intended to be comprehensive the current accident benefit scheme offers a basic level of core benefits to an insured following an accident, a level that may be supplemented by other private insurance schemes or compensation in tort where there is an at-fault third party who may be required to address accident-related loss.

In the case of T.S.'s motor vehicle accident, a catastrophic impairment designation would permit claims for housekeeping expenses beyond the 104-week period, an increase in the envelope of attendant care expenses from $100,000 to $1,000,000, and the right to claim for the services of a case manager, among others.

Without a catastrophic designation, T.S.'s claims for ongoing attendant care and housekeeping must fail, as she has exhausted her non-catastrophic benefits. T.S. decided to claim a catastrophic designation to allow her claims to go forward. As noted above, Allstate rejected that position and, indeed, the question of catastrophic impairment was forwarded to a Designated Assessment Centre (DAC) for their determination.

The Canadian Oxford Dictionary defines "catastrophe" as follows:

1 a great and sudden disaster. 2 The denouement of a tragedy. 3 A disastrous end: ruin.

Certainly elements of the plain English definition of "catastrophe" could apply to T.S.'s view of her world following the motor vehicle accident in question.

The word "catastrophic" as used in the Schedule, however, has a technical meaning quite distinct from its common usage. That definition (section 2(1.1)) reads as follows:

For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is,

(a) paraplegia or quadriplegia;

(b) the amputation or other impairment causing the total and permanent loss of use of both arms;

(d) the total loss of vision in both eyes;

(e) brain impairment that, in respect of an accident, results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

(f) subject to subsections (2) and (3), an impairment or combination of 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 impairment of the whole person; or
(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. O. Reg. 281/03, s. 1 (5); O. Reg. 314/05, s. 1 (1, 2).

In T.S.'s case, the DAC, which consisted of a psychiatrist, physical medicine specialist, and an occupational therapist, decided that she did not meet the definition of catastrophic impairment as defined in the Schedule. (A psychological DAC report was issued based on an April 13, 2006 examination by Dr. G. This report, however, only dealt with the proposed treatment plan of Dr. H. Although the CAT DAC had Dr. G's report available, there appears to have been no direct psychological contribution to the CAT DAC process).

Allstate accepted the results of the CAT DAC and based its position in this dispute on the DAC's conclusions as to catastrophic impairment.

T.S. claims either under "a combination of 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 impairment of the whole person" or an impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (AMA Guides), results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. These are complex criteria, involving the application of a system devised in the context of a worker's compensation system in another jurisdiction to the statutory environment surrounding the accident benefit system in Ontario.

To confuse matters further, the test for catastrophic impairment is only one of many tests for disability in the Schedule, although it is the only one that mandates the use of the AMA Guides.

In T.S.'s case, she was also faced with the post 104-week test for entitlement to income replacement benefits as well as the tests for the provision of attendant care and housekeeping services.

As of the commencement of this arbitration Allstate considered that T.S. was suffering "a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience" and continued to pay income replacement benefits. It did not, however, consider that she suffered a class 4 or class 5 impairment due to a mental or behavioural disorder or suffered from a 55 per cent or more whole person impairment.

T.S. was not represented by a lawyer during her dispute with Allstate concerning her claim for a catastrophic impairment designation. T.S., who had taken a paralegal training course offered by a vocational college, rather bravely undertook all the tasks of a lawyer in advancing her cause.

While it is every litigant's right to proceed to arbitration without legal representation, one of the consequences of so doing is the absence of considered legal advice as to the appropriate meaning to be given to technical words, and the consequent challenge of presenting appropriate evidence to support a contention that an insured indeed met such a technical definition.

As part of the accommodation of an unrepresented party in this matter, all the documentary evidence presented at the outset of the hearing was admitted as an exhibit, provided only that it related in some way to the time-frame and the issues in this hearing.

The Arbitrator indicated at the hearing that it was his intention to review this documentary evidence, including expert reports, following the viva voce hearing, prior to making any determination of the issues in dispute. This approach, however, was not without its drawbacks since, in the case of expert witnesses, with a few exceptions, only the reports were entered in evidence, and the makers did not testify or otherwise appear before the tribunal.

While this approach to documentary and expert evidence is sanctioned by the Dispute Resolution Practice Code, it is less than desirable when complex issues are at stake, and the reports contain information that may be highly controversial. Despite the challenges, evidence was adduced sufficient to decide the majority of issues raised in this arbitration.

Catastrophic Impairment

Although both T.S. and Allstate filed a significant volume of documents relating to the history and background of this dispute, for this arbitration the crucial documents on the issue of catastrophic impairment are Dr. H's initial report assessing T.S.'s status in the context of catastrophic impairment, and the reports issued by the Designated Assessment Centre charged with determining whether T.S. met the criteria for catastrophic impairment.

Both Dr. H, T.S.'s treating psychologist, and two of the DAC assessors, Ms. N, the Occupational Therapist, and Dr. G, the psychiatrist, also testified at the hearing. In addition, T.S.'s testimony and cross-examination were also important in considering the evidentiary context of T.S.'s claim that she met the criteria for catastrophic impairment. As is evident from the definition of catastrophic impairment cited earlier, and a perusal of the AMA Guides referred to therein, this issue is highly technical and involves an assessment giving a numerical rating to the effect of certain disabilities.

Dr. H's OCF 19 report essentially set the catastrophic assessment procedure in motion, is dated December 9, 2005. Dr. H stated:

[T.S.] meets Class 4 criteria in social functioning and adaptation and activities of daily living, Class 3 criteria in concentration. Overall, marked impairments severely limit useful functioning.

Dr. H elaborated:

[T.S.] suffers serious & prolonged depression & anxiety, chronic pain & fatigue, cognitive impairments, & psychobehavioural aspects of post traumatic fibromyalgia that has resulted from her MVA. Although her attitude about her condition has improved, her psychological condition has not significantly changed in last year & is thus stable despite treatment.

Without considering the manner in which Dr. H translates observed impairments into a disability rating, it is important to note that his opinion that T.S. suffers significant psychological impairments is not an isolated observation.

In the context of a DAC assessment related to T.S.'s claim for ongoing psychological treatment, which occurred on April 13, 2006, scarcely six months after Dr. H's OCF 19, Dr. Ga, psychologist, concluded that:

[T.S.] suffers from a chronic Adjustment Disorder and a Somatoform Disorder, as a result of her November 25, 2001 motor vehicle accident. Borderline personality features, pre-accident chronic pain (fibromyalgia) as well as dissatisfaction, anger and preoccupation with medical-legal-insurance issues, are also contributors to her psychological symptoms. Her psychological impairments are considered to be of moderate-severe intensity.

Dr. Ga also commented:

[T.S.] will likely require psychological treatment beyond that recommended in Dr. H's December 23, 2005 Treatment Plan (OCF-18).

Likewise, even the CAT DAC summary consensus report noted that that "(T)here is documented Presentation Anxiety, Depression, and Initial Posttraumatic Stress Disorder." Significantly, Dr. G, the DAC psychiatric assessor, found the following DSM-IV diagnoses:

Axis I	Pain Disorder associated with both psychological factors and a general medical condition Major Depressive Disorder, single episode, chronic Anxiety Disorder Not Otherwise Specified, with features of PTSD
Axis II	Deferred
Axis III	Numerous soft tissue injuries Cervical injury Posttraumatic fibromyalgia
Axis IV	Financial strain Marital separation
Axis V	Current GAF = 50

Furthermore, Dr. G concluded:

Given the close temporal relationship between the 2001 motor vehicle accident and the onset of more intrusive pain and psychological symptoms, it is my opinion that the motor vehicle accident of November 25 2001 made a material contribution to [T.S.]'s current psychiatry disorders and related mental impairments. While [T.S.] may have had chronic pain before the 2001 MVA, there is no evidence indicating that such pain was substantially disabling.

The Arbitrator accepted Dr. G's opinion on the causation of T.S.'s psychological impairments as it is congruent with Dr. Ga's impression, the reports of T.S.'s treating physicians, and her treating psychologist, Dr. H. It is also consistent with T.S.'s own testimony as to her pre-accident work experience. As well, it is not inconsistent with Allstate's decision to pay income replacement benefits arising from the accident, an implicit if good-faith affirmation of the change in T.S.'s condition following the motor vehicle accident.

In the end, however, Dr. G found in each of the four domains related to be considered under the Schedule that he would rate T.S.'s impairments as moderate or class 3. Indeed, his conclusion was clear:

In light of these mental impairment ratings, in my opinion [T.S.] does not attain the threshold for Catastrophic Impairment as defined by Criterion (g) of Section 2.1 of the Statutory Accidents Benefits Schedule.

Unlike the consensus DAC report signed by Dr. O, Dr. G did not address the category (f) criterion, which looks at whole person impairment, even though, under the Desbiens (Desbiens v. Mordini,2004) approach a mental impairment rating could be a substantial element in scoring whole body impairment.

The consensus report found that:

With respect to the (f) criterion, "any impairment or combination of impairments that, in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, results in a 55% or more impairment of the whole person":

Dr. O, physiatrist, opined that due to numerous inconsistencies and non-organic findings during [T.S.]'s examination, her impairment is not ratable.

Dr. O's comment that T.S.'s impairments are not "ratable" is given some context by further comments in his report. He cites two situations which gave rise to his opinion of non-ratability:

There is a diagnosis of Fibromyalgia. [T.S.] believes that all of her symptoms are caused by Fibromyalgia and that any time she has a flare-up of Fibromyalgia her function deteriorates. Unfortunately, based on the American Medical Association's Guidelines I am not able to provide any impairment based on Fibromyalgia. There is no proven structural abnormality in those suffering from Fibromyalgia, therefore, the AMA Guidelines provide zero impairment for Fibromyalgia.

Dr. O also concluded that: "(A)gain, based on the AMA Guidelines due to numerous inconsistencies and non-organic findings her impairment is not ratable."

It should be recalled, however, that section 2(3) of the Schedule also provides:

For the purpose of clauses (1.1) (f) and (g) and (1.2) (f) and (g) of the definition of "catastrophic impairment" in subsection (1), an impairment that is sustained by an insured person but is not listed in the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person.

There is clear legislative direction granted to the DAC as identified above, and in Liu v. 1226071 Ontario Inc.[2009] , for the primacy of legislation in a CAT determination.

"In my view the trial judge fell into error in equating the statutory testto a medical one. It is not. Any notion of catastrophic injury, other than the specific meaning ascribed to that term by the legislation must be discarded when considering whether a claimant meets the statutory test."

It is thus, regrettable that Dr. O felt unable to provide an assessment rating for the fibromyalgia related disorders. The Arbitrator noted that although Dr. O was listed as a witness by Allstate, he was not produced, and consequently had no opportunity to elaborate on any reasons he had for according no weight to a condition that comprised a significant portion of T.S.'s complaint. Although the DAC rendered a decision on the question of full body impairment (f criterion), the process leading up to its conclusion is less than transparent. The DAC report has inserted amongst its pages (at the end of Dr. O's report) a hand-written addendum noting as follows:

Whole person impairment fibromyalgia	= 0
Tailbone Dislocation	= 5% - 10%
Psychological	= not given a score.

Whatever Dr. O's personal opinion as to the attribution of ratings to psychological impairments and to conditions such as fibromyalgia which do not involve "structural abnormality", he should have been aware by May 5 2006 (Spiegel J.'s decision in Desbiens v. Mordini, [2004] inaugurating the trend towards assigning ratings to all relevant impairments whether physical or not.), the date when the CAT assessments began, of an emerging consensus to include such ratings in an evaluation of a whole person impairment.

Although there has been significant controversy over the practice of combining mental and behavioural whole persons impairments, there has been considerable jurisprudence in favour of so doing, both in the courts and amongst arbitrators. There are as the Director's Delegate noted in Augello,(notable exception of Kusnierz v. The Economical Mutual Insurance Co., 2010) strong reasons for this position:

It would be even more unacceptable to restrict clause 2(1.1)(f) of the Schedule to physical impairments simply to satisfy the concerns of some of the authors of the Guides [footnote omitted] that a higher onus of certainty is required to prevent judges and arbitrators (the latter having the statutory duty under subsection 282(3) of the Insurance Act to "determine all issues in dispute") from erring in applying percentages to mental, emotional or behavioural impairments. (Economical Mutual Insurance Company and Augello, 2009)

The Director's Delegate further stated:

I agree with Arts that the Guides do not "prohibit" including mental or behavioural WPI percentage ratings. Rather, I find that whatever the advice of the authors of Chapter 14 of the Guides, the paramountcy of clause 2(1.1)(f) of the Schedule makes such WPI ratings not merely essential but mandatory, and that the ratings on page 301 of Chapter 14 and Table 3 on page 4/142 provide avenues for attaining requisite percentage ratings.
In Ms. G, I stated that:

Dr. A testified that once causal connection is established and the necessary examinations are completed, one looks to the Guides for the method or methods appropriate to score the impairment. In using the Guides, Dr. A testified that one should run a parallel analysis of several methods in order to see if the results agree. If the different methods yield roughly the same score, then one has some confidence that the result is valid. One would then pick the highest of the alternate methods as the applicable WPI rating.

While there has been and remains some controversy amongst some CAT DAC assessors as to the method of calculation of the whole person impairment rating, it is not unheard of for an assessment team to calculate alternative ratings based on both the inclusion of psychological impairments and their exclusion. In this case, it would have been more useful had the assessors not taken a dogmatic position on combined ratings. Clearly this was not done, leaving us only to guess as to what an open-minded assessment team would have found for a combined score.

The DAC assessment's shortcomings were not limited to its blinkered view of the assessment approach to be taken. Among the legislative directives and administrative guidelines referred to by Simmons J.A. is the Catastrophic Impairment Designated Assessment Centre Assessment Guidelines issued by the Financial Services Commission, and revised April, 2002.

As its title indicates, this document sets out appropriate procedures for intake and performance of a catastrophic assessment. It also sets out the professional requirements for assessors. As a road map to the assessment process, it charts the flow of the procedure from start to finish and notes watersheds in the assessment process.

The FSCO CAT Guidelines relating to the choice of assessment team in a catastrophic impairment assessment involving psychological impairment note the following at subsection 2.2.2, Core Team, p.2-4:

SABS Criteria	Role/Expertise	Disciplines
e) ii) GOS	Each discipline may be required to complete a full assessment in order to determine status related to brain impairments in the application of the Glasgow Outcome Scale. GOS assessment is staged to avoid unnecessary over-assessment. Once catastrophic status is met, the assessment may be concluded.	Must be: occupational therapist or physiotherapist* and physician and one (1) of: neuropsychologist or neuropsychiatrist or neurologist or neurosurgeon.

⁵All disciplines marked with an asterisk (*) must have 'focus of practice' (minimum three years' experience assessing) with this impairment type. [footnote in original]

The unexplained failure of the DAC assessors to consistently assign impairment numbers to all causally related impairments has, at the very least, made determination of this issue much more difficult, as did the absence of a psychologist from the DAC assessors as mandated by the FSCO CAT Guidelines.

While FSCO CAT Guidelines may not be binding on an arbitrator or judge, they are set up to provide clear direction to assessors. Unexplained deviation from the protocol is thus a serious matter (Murray and Aviva Canada Inc. September 7, 2007)

Designated Assessment Centres were meant from their inception, to be independent and capable of making determinations based solely on the evidence before them whether through documentary review or the direct examination of the insured. In essence, the DACs were able to conduct an inquisition, or enquiry into the issue referred to them. Such an enquiry however did not take place in a vacuum.

Dr. H's referral for the catastrophic assessment made it clear that he believed that T.S. met the catastrophic impairment criteria on the basis of psychological and behavioural impairment. It should be remembered that Dr. H is a psychologist who based his findings on catastrophic impairment on matters within the competence of a psychologist.

Dr. G, a psychiatrist, attempted to address the "psychological" issues for the Insurer at the hearing and presumably for the DAC itself. Given the presence of a psychiatrist why would a psychologist be needed as part of a DAC assessment team? Quite simply, psychologists and the related discipline of psychometrists are the profession principally charged with the administration of psychological tests. As the AMA Guides states at p.14/293:

The results of well-standardized psychological tests, such as the Wechsler Adult Intelligence Scale, the Minnesota Multiphasic Personality Inventory-2, the Rorschach Psychodiagnostic Inkblot Test, and Thematic Apperception Test, may be useful in establishing the existence of a mental disorder….

In his testimony, Dr. G, the DAC psychiatrist, stated:

Psychiatrists are physicians first. so we usually use the traditional medical paradigm of assessing patients predominately by a clinical interview and the equivalent in mental health of a physical examination, which in psychiatry is called a mental status examination.

Dr. G continued:

The fourth way that psychiatrists are different from psychologists is that psychologists are better trained and more experienced in the use of pencil and paper tests, psychometric, as they call it.

Notwithstanding the lack of a psychologist in the examining team Dr. O's assessment group proceeded to evaluate T.S. on the basis of all elements of the section 2(1.1) definition. The FSCO CAT Guidelines deals with such situations.

The AMA's Guides are comprehensive in their analysis of impairment ratings. Many CAT DAC assessments will relate to the musculoskeletal system (Chapter 3 - pages 13 to 138). However, other body systems may be involved, and the DAC should ensure it evaluates the whole person.

The process of analyzing impairment is set out succinctly in the FSCO CAT Guidelines:

It is understood that the multidisciplinary decision-making process will involve a 'score' which will be calculated by one or more assessors, with final opinion provided as a consensus opinion with respect to catastrophic status.

In this matter, the ultimate impairment calculation was significantly weakened by the absence of some necessary numerical ratings or scores, making it difficult to understand whether the assessment team appropriately evaluated the whole person impairment.

As well, a multidisciplinary DAC is more than a collection of individual reports by experts in various fields. It is a collective determination which owes its outcome to the opinions of all assessors working in concert. The absence of a mandatory professional, the limited evidence of collective determination, and evaluative weaknesses in individual components of the assessment all give cause for concern about the credibility of its recommendations.

While the irregular composition of the DAC necessitates a careful weighing of its conclusions, elements of the reports contained in the DAC, together with the background medical reports, can give us a fairer appreciation of T.S.'s status at the time the DAC examinations were completed.

It should be remembered that the Med/Rehab DAC psychologist, Dr. G, had found that T.S.'s "psychological impairments are considered to be of moderate-severe intensity." This conclusion, taken with Dr. G's own observations should influence any rating of T.S.'s psychological impairment.

The Arbitrator accepted that both Dr. M's and Dr. H's reports on catastrophic impairment, filed on behalf of T.S., provide significant support for her contention that she meets the criteria for catastrophic impairment, and the Arbitrator was convinced that an appropriate CAT DAC would have been of assistance in making a fair "adjudicative assessment" on the issue of catastrophic impairment. However, given the fundamental problems with the DAC, and the failure to have a psychologist participate in the DAC's deliberations, merely referring this matter back to the original assessors, would have been unproductive.

Consequently, late in the hearing process the Arbitrator exercised his discretion to "adjourn a hearing pending completion of an assessment that is required for a fair hearing." (Villers and Pilot Insurance Company, January 30, 2006)

That was, however, no longer as simple as originally conceived by the Director's Delegate. While the legislative framework for DAC assessments remains in place, where an assessment was requested prior to the change in legislation, indeed, many of the DAC organizations may well have faded into the twilight, in the absence of new references. Consequentially, the Arbitrator gave T.S. some time to advise whether or not she wished to proceed with a new DAC assessment, or rely only on the evidence already before the Arbitrator in any decision on catastrophic entitlement. As T.S. has always had the onus of demonstrating her entitlement to a catastrophic determination, it is up to her to decide what evidence she requires to complete her case.

Since the neutral DAC assessments formed part of the consumer protection mandate of the statutory accident benefits scheme, it follows that a knowledgeable consumer can make an informed decision to waive the benefit of that provision. Ultimately T.S. waived her right to any further assessments.

Primarily T.S. has alleged that she meets the criteria for catastrophic status by reason of class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. She has also alluded to (as did the CAT DAC itself) a greater than 55% whole-body impairment.

In terms of medical evidence of impairment, T.S. relied principally upon the testimony and report of Dr. H, her treating psychologist, the records of Dr. M, her treating psychiatrist, as well as those of Dr. Mc, her family physician. All of these were filed as part of the documentary evidence in this proceeding.

Allstate, on the other hand, relied principally on the DAC assessors, especially the psychiatrist, Dr. G and Ms. N, the O.T., both of whom testified at the hearing.

In assessing the severity of mental and behavioural impairments under the Guides, four aspects of functional abilities are considered: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decompensation in work or work-like settings). Also, independence, appropriateness, and effectiveness of activities must be considered. The Guides provide a guide for rating mental impairment in each of the four areas of functional limitation on a five-category scale that ranges from no impairmentto extreme impairment.

It was Dr. H's opinion that T.S. met the criteria for catastrophic impairment by reason of a category (g) (marked or extreme) impairment. It was Dr. M's opinion that T.S. suffered from a "Major depression and Chronic Pain Disorder”.

On the face of it, both opinions are worthy of consideration. Both come from qualified practitioners with a lengthy record of dealing with T.S. and her psychological issues. The views of both practitioners that T.S. suffered significant depression are also consistent with other medical observations post-mva including the records of Dr. Mc, T.S.'s family physician. This opinion of T.S.'s condition is, however, inconsistent with that expressed by the DAC assessors upon whose opinions Allstate relies to contradict T.S.'s medical evidence.

The Arbitrator expressed concerns about the manner in which the DAC was both constituted and conducted. As noted earlier, however, this does not give T.S. an automatic pass to catastrophic status. It is however relevant in evaluating and giving effect to the opinions put forward by the DAC examiners.

The Arbitrator mentioned first of all the O.T. assessment. As Dr. G implicitly recognized, Ms. N's report did not necessarily reflect a true measure of T.S.'s impairment. More specifically, the Arbitrator was unable to find evidence that Ms. N adequately addressed "deterioration or decompensation in work or work-like settings" in assessing T.S. as required by the AMA Guides.

Ms. N stated in examination-in chief that her analysis in this domain was based on observations in her home, as well as T.S.'s ability to "follow simple instructions" and make decisions.

Returning to the question of evaluating "deterioration or decompensation in work or work-like settings", it should be noted that the Guides define employability as: "the capacity, with or without accommodation, to meet job demands and the conditions of employment as defined by the employer…" It is difficult to imagine how Ms. N could adequately analyse "deterioration or decompensation in work or work-like settings" without an examination of both her employability and her ability to perform tasks effectively, particularly in light of the fact that T.S. was clearly part of the employment market prior to the motor vehicle accident in question.

While Ms. N paid lip service to the four domains for assessment in catastrophic cases involving psychological issues, in T.S.'s case her examination of both workplace and social functioning was perfunctory at best. Socialization was addressed only through observations of interactions with a store clerk and a taxi-driver. These were extremely brief and task-related, and would have shed little light on T.S.'s ability to conduct herself appropriately in a broad social environment.

Given that Ms. N's conclusions from her brief observations on social functioning ran contrary to the consensus of the treating practitioners, Ms. N should have explained her opinions more fully, with specific reference to those conclusions that deviated substantially from those in the medical record. At the very least it can be said that Ms. N set the bar for functionality somewhat low by concentrating on simple household tasks such as shopping for a few items, and in T.S.'s eyes at least, not taking into consideration the consequences of the exertion involved in even those basic tasks.

Although Ms. N noted T.S.'s failure to participate in the second day of assessment, no weight was given to T.S.'s contention that her incapacity on the second day was due to overexertion on the first day of assessment. Certainly, Ms. S's professed reasons for failing to attend were consistent with her own medical history as noted by Drs. H and M.

Ms. N defended both her approach and her conclusions by stating that her report was a "snapshot", concerned only with observable phenomena at the time of the assessment. It should be noted that the Guides comments that "knowledge of the course of an individual's medical condition over time is essential in reaching an understanding of the individual's health status." Ms. N's report, while reciting some of T.S.'s complaints, fell short of the goal of integrating clinical history into her observations.

Dr. G, the other DAC assessor called to testify, was an attractive witness. It is clear that he has read and considered the AMA Guides in depth and that he has clear opinions as to their application.

Even the cleverest expert, however, may have his Achilles heel. In Dr. G's case, it was his willingness to provide a psychiatric assessment without the opportunity to review the testing that would form part of the mandatory psychological assessment. Indeed, in his testimony Dr. G minimized the role of psychologists. It is also troubling that Dr. G failed to contact Ms. N to discuss her analysis of T.S.'s capabilities when it was obvious from his testimony that Dr. G had some reservations about her conclusions.

In light of his signing the final DAC report (with no psychological component) despite his own comments that further psychological testing was indicated and that he would defer in that domain to a neuro-psychological assessor, Dr. G's conclusions must be carefully considered. Even so, Dr. G diagnosed a Major Depressive Disorder, single episode, chronic as well as a pain disorder. He also accepted the causation of such disorders as being due to the MVA.

Dr. G, however, did not consider that his diagnosis translated directly into serious impairment. Rather, he found most impairments in the various domains to be moderate, and hence not qualifying for catastrophic status. Of course, in so doing Dr. G had neither the benefit of a full psychological report or an O.T. assessment that fairly addressed T.S.'s activities of daily living challenges, including those related to employment. It is important to emphasize that a psychological Med/Rehab DAC, undertaken by Dr. Ga about a month prior to the CAT DAC, noted that T.S.'s "psychological impairments are considered to be of moderate-severe intensity."

Dr. G has elaborated that diagnosis does not translate directly into impairment, and that the AMA Guides deals with impairment. Dr. G deprecated the usefulness of Dr. H’s and Dr. M's opinions since, in his opinion, they spoke to diagnosis rather than directly to impairment. The AMA Guides note that in the evaluation of disability, context is important. In the DAC, much of the functional context should have been provided by the O.T. examination. Frailties in this part of the DAC must necessarily translate into Dr. G's analysis and rating of functionality.

It is important to note that according to the DSM IV at least, impairment is a necessary element of the diagnosis of a major depressive episode, such as that found by Dr. H and others. Without clinically significant distress or impairment in social, occupational or other areas of functioning there can be no major depressive episode. Thus a diagnosis of major depression necessarily entails conclusions as to impairment.

The Arbitrator also minimized Allstate's attempt to discredit Dr. M's observations contained in the documentary evidence through Dr. G's testimony, and noted that although Dr. M had been listed for cross-examination by Allstate, counsel ultimately decided not to give Dr. M the opportunity to respond to the criticisms inherent in Dr. G's testimony.

It is important to note that although T.S. may have had earlier problems, pre-accident, with pain issues and had not led a trouble-free life, her evidence is that she was able to be gainfully employed prior to the motor vehicle accident, in multiple jobs. She was able to function in a workplace pre-accident, while post-accident, the consensus of her own physicians was that she could not. Indeed, Allstate continued to pay income replacement benefits on the basis that she was unable to work effectively at any occupation to which she might be suited.

Dr. G's recognition of the significant changes in T.S.'s functioning post-accident was not made in a vacuum. The Arbitrator agreed with Dr. G on that issue and accepted that the serious decline in T.S.'s functioning can be directly related to the motor vehicle accident.

T.S. had the burden of proving that she met the definition of catastrophic impairment on a balance of probabilities. In this matter, although there were opinions to the contrary, the balance of the psychological and psychiatric evidence suggests that is more likely than not that T.S. met these criteria.

The Arbitrator made this finding noting that, while Dr. O accepted some physical impairment in the DAC, and purported to address whole body impairment, the Arbitrator’s finding is based primarily on impairment due to mental and behavioural disorders.

While there may be some controversy in this area, even if a final classification of impairment due to mental and behavioural disorders needs to take into consideration the four functional domains of ADL; social functioning; concentration, persistence and pace; and work adaptation, T.S.'s evidence, which the Arbitrator accepts, is sufficient to establish at the very least a marked impairment in these areas. As well, her evidence was consistent with that of Dr. H, her treating psychologist, and the medical records produced by her family physician. As Dr. H reported:

[T.S.] meets Class 4 criteria in social functioning and adaptation and activities of daily living, Class 3 criteria in concentration. Overall, marked impairments severely limit useful functioning.

Even Dr. G's testimony acknowledged serious problems, although he failed to agree as to whether the problems reached an acute level. Briefly, T.S.'s social functioning was poor. There is clear evidence that she spent inordinate times in bed due to her pain perception. Her relationships with family and friends were frayed and difficult. Indeed, her reaction to the outside world was challenging as evidenced by her interpretation of the actions of the schoolchildren whom she believed were targeting her, causing her even to sell her house to avoid them.

One of T.S.'s major complaints has been the lack of concentration. Her testimony mentioned the difficulties in doing banking among many other tasks which required concentration. This is echoed in Dr. H's reports, which rate "Class 3 criteria in concentration." As well she appears to have been unable to stick to tasks to completion or pace herself so that she can undertake her activities of daily living without assistance.

As to work adapting, given T.S.'s constant complaints of pain, her significant use of strong pain relief medication and her emotional outbursts, it is hard to imagine her surviving for any time in any competitive employment situation, notwithstanding the evidence that she worked at several jobs prior to the accident.

Although her disabilities seem to stem from pain and depression, it is clear that these have manifested themselves in the entire range of her activities of daily living. Dr. H's conclusions were:

[T.S.] meets Class 4 criteria in social functioning and adaptation and activities of daily living, Class 3 criteria in concentration. Overall, marked impairments severely limit useful functioning.

The Arbitrator agreed and found that, in accordance with Dr. H's analysis, T.S. met the criteria for catastrophic impairment based on a marked impairment due to mental or behavioural disorder. While, given the interaction of T.S.'s pain disorders, pre-existing fibromyalgia, and her psychological impairments, it is not at all unlikely that she would meet the requisite whole body impairment, the Arbitrator declined to make a specific finding on that issue.

With the failure of the DAC to provide any useful, numerical ratings and the limited medical evidence as to the appropriate ratings, any number rating the Arbitrator could give would be purely speculative. It would also be redundant, given the above finding as to psychological impairment.

Substantive Claims

According to the pre-hearing letter issued by Arbitrator Nastasi on October 24, 2007, in addition to the claim for recognition of catastrophic impairment, T.S.'s entitlement to the following substantive benefits was also in issue:

1. Attendant Care Benefits at the rate of $400 per week.
2. Housekeeping and Home Maintenance at $400 per week.

3. Expenses in this proceeding and interest on any amounts found owing.

It was confirmed at the outset of the hearing as well that T.S. was claiming a special award pursuant to section 282 (10) of the Insurance Act.

Attendant Care Benefits

The Arbitrator dealt first with the attendant care claim as much attention was addressed to it at the hearing.

The Schedule provides that an attendant care benefit covers all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident. More specifically, the provision states that the benefit is meant to pay for either services provided by an aide or attendant or by a long-term care facility.

T.S. testified that she required the presence of an attendant to assist her with her daily tasks, and indeed an attendant was present with her throughout the hearing. Although a single reason for the presence of an attendant was never provided, the evidence touched on several possible scenarios to justify the expenditure.

It should be remembered that T.S. suffered from a significant pain disorder and serious depression, which limited her daily activities. She spoke in her testimony of long hours spent in her bed when she felt unable to get up without assistance to attend to her basic needs, including food and even use of the toilet. Presumably an attendant would assist her in eating and food preparation and getting up to attend to her physical needs.

Another possible scenario that was only briefly touched upon by the direct evidence would be the prevention of harm to T.S. This could be either assisting her in keeping her financial affairs in order (allegations of persons or institutions defrauding her) or assuring her personal security. The latter would be at least partially supported by references in the psychological and psychiatric evidence to suicidal tendencies and the apparent abuse of prescription medication, all of which would have been harmful to T.S.'s well being.

Although both of the above scenarios could well be both reasonable and indeed necessary in the context of assistance to T.S., there is no specific recommendation in the evidence, in either the written materials submitted or in the oral evidence specifically endorsing the provision of attendant care services for any of the above reasons.

Even more problematic is the lack of a Form 1 filed by T.S., prepared by a qualified professional, outlining the nature or extent of the attendant care services required. Section 16(4) of the Schedule is clear that "the monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1."

A glance at the Form 1 prescribed by the legislation gives an idea of the nature of the information required to determine the amount of attendant care. There is a requirement to analyze the nature of the care provided and indeed to break it down into minutes for each particular activity that may require assistance. There are similar requirements for level 2 attendant care and level 3 attendant care. There is also provision for certification of the analysis by the regulated health professional performing the assessment.

Although it could be argued that the type of analysis provided for in a Form 1 is an unrealistic reflection of the real world in which professional assistance would never be rendered by minutes per day, the fact is that the legislature mandates the Form 1 approach. The centrality of the Form 1 has been confirmed by the jurisprudence in this area, including the decision of the Court of Appeal in Daly v. ING Halifax Insurance Co., 2006.

The Arbitrator accepted that the medical evidence of T.S.'s ongoing pain disorders and depression suggest that some assistance would be both reasonable and necessary as a result of the accident, he was limited by the absence of any Form 1 supporting T.S.'s claim. In this context, both the nature of the attendant care and the amount actually required would have been the sort of information provided by a Form 1.

It should be noted, however, that Form 1s were completed in the context of insurer assessments, and consequently may be used in any assessment of attendant care needs.

Dr. H concluded:

[T.S.] meets Class 4 criteria in social functioning and adaptation and activities of daily living, Class 3 criteria in concentration. Overall, marked impairments severely limit useful functioning.

Given such a marked impairment of social functioning and the activities of daily living, it is not surprising that T.S. requires some assistance in dressing, shopping, meal preparation and service, not to mention household management tasks.

The Arbitrator accepted that in the context of T.S.'s physical and psychological symptoms, which appear to arise from the motor vehicle accident, some attendant care would be both reasonable and necessary to assist her with her activities of daily living. The Arbitrator did not accept that there is sufficient credible evidence, combined with a valid Form 1, to justify the level of attendant care T.S. currently claims.

A Form 1 on record issued by Ashok Jain on July 24, 2002 recommended that T.S. receive $77.40 per month by way of attendant care. Although the assessment addressed the physical aspects of T.S.'s disability and did not deal directly with any needs arising from her at times acute depression, the Arbitrator was satisfied that at least the amount of attendant care specified remains appropriate.

Even though, in T.S.'s estimation, the amount of the attendant care required certainly far exceeds the amount recommended on the Form 1, the Arbitrator was not prepared to order more at this time, in the absence of an appropriate Form 1 analysis by an accredited health professional substantiating her claim. Consequently, the Arbitrator found that T.S. is entitled to attendant care in the amount of $77.40 per month.

Amount and duration of Attendant Care payment:

At the outset of the hearing process the Arbitrator ruled that T.S. could not present any further evidence as to attendant care expenses that post-dated the commencement of the hearing. No one anticipated that the hearing process would be delayed over a period of years.

Consequently, although the award of benefits is ongoing and binding on both parties until amended or replaced by a new order the Arbitrator has considered no new evidence and made no findings as to evidence of quantum for the period following the commencement of this hearing.

Housekeeping and Home Maintenance:

As noted above, T.S. has claimed some $400 per week for housekeeping. Section 22(2) of the Schedule provides, however, that:

(2) The amount payable under this section shall not exceed $100 per week.

Whatever costs T.S. may have incurred for housekeeping expenses, reimbursement is limited by the legislation to a maximum of $100 per week. Housekeeping benefits, unlike attendant care benefits, need not be submitted in conjunction with a Form 1. It is sufficient that the claim be for reasonable and necessary additional expenses arising from the accident.

Housekeeping benefits are not specifically defined by the Schedule as in the manner of Attendant Care claims. Indeed, there is a potential for an overlap between the two types of claims.

T.S., at the time of the accident, lived in a detached, single family residence, which would have required both inside and outside maintenance. The Arbitrator noted that the Insurer tendered video surveillance (which it later purported to withdraw after having cross-examined T.S. on its contents). The surveillance does confirm T.S.'s contention that her home possessed gardens and landscaping that would require ongoing maintenance. Although items submitted such as a repair to a sprinkler system would not qualify for the benefit, general exterior maintenance including snow removal would, provided such expenses were "additional."

The Arbitrator could see no reason that to consider T.S.'s travel expenses (including a trip to India) as part of her housekeeping claim.

T.S.'s evidence was that she received assistance in the preparation of food and the performance of household tasks, including shopping. Some of these expenses would be reflected in her service provider’sinvoices while others would form part of the "caretaker" expenses outlined by T.S.

A functional abilities assessment by a physiotherapist and a kinesiologist on May 24, 2002 found that T.S. was substantially unable to perform her housekeeping tasks at that time. Given the medical reports already considered in the context of the catastrophic determination which indicated an ongoing psychological deterioration, and T.S.'s own testimony, the Arbitrator accepted that reimbursement for housekeeping services remains both reasonable and necessary.

It should be noted that at current minimum wage rates, the limit of $100 per week would likely pay for fewer than 10 hours of housekeeping and home maintenance a week. T.S. has submitted expenses that, even with deductions for dubious claims, far exceed the statutory ceiling. Given the severity of T.S.'s depression and dysfunction, it is clear that substantial assistance was required to maintain both the inside and outside of her home.

Even though many elements of T.S.'s claim remain non-compensable, given total amounts incurred, the Arbitrator had no trouble accepting that at least $100 per week of housekeeping and home maintenance expenses has been incurred, and find that T.S. is entitled to compensation for such expenses at that rate.

Special Award:

Insurance Act provides that if an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, the arbitrator shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured.

T.S. has claimed that the delay in payments caused by Allstate's failure to recognize her catastrophic status, and certain alleged misconduct by Allstate entitle her to a special award. The Arbitrator disagreed. Even ignoring the fact that T.S. neglected to provide any particulars of her misconduct allegations prior to the hearing, notwithstanding many requests, there are substantive reasons for finding that any delay in payments may not have been unreasonable under the circumstances.

Firstly, it is not at all clear whether there is a net benefit owed at this time to T.S. The Arbitrator’s understanding was that Allstate at some point paid up all potential non-catastrophic benefits, leaving the calculation of net benefits a live issue. Indeed, it is possible that she has been overpaid.

Secondly, perhaps as a result of T.S.'s determination not to avail herself of legal advice in her prosecution of her claim, the materials presented to Allstate in support of a catastrophic designation appear to have been chaotic and at best unclear. More importantly, the lack of any Form 1 analysis would have justified non-payment of the attendant care claim.

It is clear from the hearing that there was not the best rapport between the representatives of Allstate and T.S. Whomsoever is to blame for this breakdown of trust, the fault is unlikely to be exclusively that of Allstate. The Arbitrator had no doubt that the level of mistrust did not assist in the prompt resolution of payment disputes.

Indeed, the Arbitrator indicated that at the outset of the hearing, having heard both parties' opening statements, he would have been loathe to accept the possibility of T.S. meeting the criteria for catastrophic assessment. It was only after considering the documentary evidence, painstakingly assembled and filed by Allstate, in the light of the viva voce testimony that the Arbitrator began to reconsider his initial impression. The Arbitrator did not accept that it should have been plain and evident to Allstate that T.S. met catastrophic status until such time as the hearing process was virtually complete.

While the issue of the CAT DAC is highly troubling, in the context of this case the Arbitrator did not accept that the failure to include a psychological component automatically entails a special award. As is well known, a fault in the DAC does not in itself support an automatic finding of catastrophic impairment.

It should be remembered that the failure to observe the DAC guidelines may be placed at the door of the at least nominally independent DAC. Had this been a section 42 assessment, organized by an Insurer as part of its own determination process, the outcome might have been quite different, but it was not.

There is no evidence that Allstate either conspired with the DAC to undermine the assessment or actively attempted to conceal the frailties of the assessment process.

Consequently, for the above reasons the Arbitrator found that it was not unreasonable for Allstate to have refrained from paying further benefits to T.S., when such payments depended upon what was at best a speculative catastrophic determination.

Repayment:

The Arbitrator noted that the second interim benefit order was specifically made to be repayable at the request of the Insurer. While T.S. has been successful in obtaining benefits, the amounts in question do not necessarily accord with the amount of the interim benefit order. The Arbitrator remained seized of this issue should it remain in dispute.

Interest:

Once the parties agree, or are in a position to make submissions on the exact amounts and timing of any outstanding benefits, the Arbitrator may be spoken to on this issue.

About Paquette Travers & Deutschmann

Paquette Travers & Deutschmann serve South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann and Doug O’Toole focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

Accident Benefit Blog

Practice Areas

Personal Injury Blog

Accident Benefit News