Arbitrator erred in not assessing all impariments for CAT assessment

June 26, 2010, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Delegate: Lawrence Blackman

Decision Date: June 3, 2010
I. BACKGROUND and NATURE OF THE APPEAL

In her January 16, 2009 decision, the Arbitrator found that Mrs. Sonia Bains had not sustained a catastrophic impairment ("CAT") within the meaning of clauses 2(1.2)(f) or (g) of the Schedule.
The Delegate assigned to the appeal of the January 16, 2009 decision, for reasons set out below, found that the Arbitrator erred in law by:
 
1. Not rating the left upper extremity and right knee impairments on the basis that those impairments had not stabilized;
2. Determining that a sleep disorder could not be rated separately, in part, because sleep is one of the factors assessed under mental and behavioural disorders in Chapter 14 of the Guides, and then failing to address the submitted sleep disorder in rating Mrs. Bains’ mental and behavioural impairment; and,
3. Determining that chronic pain could not be rated separately on the basis (the Arbitrator omitting the word "generally") the impairment percents in the chapters in the Guides that consider the various organ systems make allowance for accompanying pain, but then failing to address pain under any of the organ systems in dispute in this proceeding.

The Arbitrator found that Mrs. Bains’ combined impairments resulted in a 28% Whole Person Impairment ("WPI") under clause 2(1.2)(f). Mrs. Bains’ submissions regarding her left upper extremity and right knee, if accepted, when combined with the 28% WPI finding, would have alone resulted in a WPI of 56%, sufficient for a finding of catastrophic impairment.

Accordingly, this preliminary issue was to return to arbitration for a new hearing. Mrs. Bains submitted that all of the areas of impairment should have been readdressed. This was because there was an argued overlap between impairments that were not rated or addressed and impairments that were rated. The Delegate agreed with this statement.
II. ANALYSIS

(a) Subsection 2(2.1) of the Schedule – "two years have elapsed"

In discussing Mrs. Bains’ upper left extremity impairment, the Arbitrator stated that Mrs. Bains was scheduled to have shoulder surgery. The Arbitrator found that “the Guides were clear that impairments are not assessable until a person's condition has stabilized and all necessary surgeries have occurred. However, Mrs. Bains’ upper extremity was assessed prior to the completion of her shoulder surgery and possible rehabilitative treatment in respect thereof, contrary to the Guides.”
At page 315, in the Glossary to the Guides, it states that “Permanent impairment is impairment that has become static or well stabilized with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment. If an impairment is not permanent, it is inappropriate to characterize it as such and evaluate it according to Guides criteria.”
The Arbitrator held that Mrs. Bains had not demonstrated that her upper left extremity impairment was “unlikely to change in future months” (Guides), was “static and well stabilized” (Guides) or was “unlikely to change substantially and by more than 3%” (Glossary to the Guides). The Arbitrator found that Mrs. Bains” grip strength should not have been evaluated based on the requirement in the Guides that a patient must have reached “maximal medical improvement.” Therefore, pursuant to the Guides, it was inappropriate to rate Mrs. Bains’ upper left extremity until the completion of her surgery and her recovery there from, according to the Arbitrator. Likewise, the Arbitrator held that Mrs. Bains's knee impairment was not assessable due to future knee surgery.

As stated in Elmer A. Driedger, The Construction of Statutes and reiterated in Sullivan and Driedger, On the Construction of Statutes, Fourth Edition, the modern principle in statutory interpretation, is that “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

In Ms. G and Pilot Insurance Company (2006), and affirmed on appeal (2007), the Delegate noted that the Guides strongly state that the impairment percentages derived from the Guides' criteria should not be used to direct financial awards or to make direct estimates of disabilities. However, as noted both in Desbiens v. Mordini (2004) and Snushall v. Fulsang (2003) "the insurance legislation in Ontario appears to require precisely what the Guides themselves discourage."

A finding of catastrophic impairment, by itself, provides no compensation to an insured person. It simply opens the door to a higher threshold of possible benefit entitlement. An insured found catastrophically impaired must still meet the entitlement criteria to each benefit claimed. A CAT designation simply recognizes significant initial injury or significant impairment.
A primary purpose of the Schedule is the timely provision of benefits to an insured person. The timely provision of benefits furthers the legislative goal of timely medical treatment and rehabilitation.

Dr. O testified four years after Mrs. Bains’ accident. His evidence essentially indicated that Mrs. Bains, or someone in similar circumstances, may have to wait for several more years, through successive surgeries and rehabilitation from each surgery, until certain impairments could be rated under clause 2(1.2)(f) of the Schedule, in a further time consuming, expensive process. That, again, would be followed by years of possible dispute resolution.

Subsection 2(2.1) of the Schedule specifically provides that clauses 2(1.2)(f) and (g) do not apply unless the insured's medical practitioner states in writing that the insured's condition is unlikely to cease to be a catastrophic impairment or two years have elapsed since the accident. The clear, grammatical and ordinary meaning of the provision is that if two years have elapsed since the accident, clauses 2(1.2)(f) and (g) apply.

Subsection 2(2.1) does not say two years, unless an impairment is not static, stable or permanent, or any words to that effect. Clauses 2(1.2)(f) and (g), by themselves, do not require that the impairments, to be given a percentage rating, must first be determined to be permanent, or restrict the word "impairment" by the words stable, static or other such modifiers. If this had been the legislative intention, it would have been a simple matter to have indicated such.

Rather, the essence of clause 2(1.2)(f) is that all impairments are to be rated. Indeed, subsection 2(3) of the Schedule provides that if a sustained impairment is not listed in the Guides, the impairment shall be deemed to be the impairment that is listed in the Guides that is most analogous to the impairment sustained by the insured person.

The Delegate found that while clause 2(1.2)(f) of the Schedule states that impairments are to be rated in accordance with the Guides, the timing of all rating assessments are determined by subsection 2(2.1) of the Schedule, to which the Guides must defer. The Guides are indeed a guide to be applied, under the direction of and consistent with the purpose of the Schedule, in determining catastrophic impairment. The Guides, created for a purpose different than that of the Schedule, cannot be blindly obeyed in every procedural aspect as if the Guides exist in a statutory vacuum.

In the Delegate’s view, it was appropriate, and indeed mandatory, to rate such impairments. A finding of catastrophic impairment, as noted, does not, by itself, result in any compensation. Each benefit claim must still meet specific statutory requirements. If there is future improvement in an insured's condition, reasonableness and necessity remain as defenses to benefit claims based on an earlier, more pessimistic prognosis. On the other hand, if the future surgery or treatment still anticipated two or more years post-accident does not improve an insured's impairment, it may do an insured person little good to be subsequently found catastrophically impaired and eligible to apply for CAT level benefits when the acute period during which such benefits were most needed has now passed.

Further, even if the future surgery or treatment is successful, immediate rehabilitation and other assistance may be necessary to cement those gains. However, as an example, under subsection 18(2) of the Schedule, a non-catastrophic insured person is not entitled (subject to the subsection 40(3) exemption, set out below) after 104 weeks post-accident, to any attendant care no matter how crucial such assistance may be. Other assistance may also not be available if the non-catastrophic limits for medical and rehabilitation benefits have been exhausted.

The Delegate was not persuaded that it is the Schedule's intentto so thwart an insured's reintegration into his or her family, the rest of society and the labour market, being the raison d'être of rehabilitation benefits under subsection 15(2) of the Schedule. Nor was the Delegate persuaded that the two-year provision in subsection 2(2.1) and the two-year non-CAT limit on attendant care is merely a coincidence. Rather, the Delegate was persuaded that the legislative intent is a timely catastrophic determination that allows for a continuity of benefits.

The Delegate was further persuaded that the Legislature deems it inappropriate, at two years post-accident, for an insured person to have to exhaust further treatment before being able to access a higher level of possible entitlement. The purpose of future treatment is the legislative, and societal, goal of assisting an insured's recovery and reintegration. The legislative purpose of future treatment is not to insulate an insurer from a possible higher threshold of claims under the Schedule.

The consequences of following the Guides rigidly, with the presumption that it trumps the legislation, is further illustrated by also interpreting clause 2(2.1)(a) of the Schedule "in accordance with" the Guides. As noted, clause 2(2.1) (a) provides that clauses "f" and "g" apply where the insured person's medical practitioner states that the insured person's condition is unlikely to cease to be catastrophic. Nonetheless, following RBC's argument, where an adjudicator finds that an insured's combined impairments, if rated, are presently catastrophic, but that the impairments are not static, stable or permanent, but will get worse, "in accordance with" the Guides, those impairments cannot be rated and the insured person cannot be found catastrophically impaired.

Respectfully, such a result would be an absurdity. The Delegate was not persuaded that the Legislature intended such a result.

III. AROUSAL AND SLEEP DISORDER

The Arbitrator gave a 0% WPI rating for Mrs. Bains’ claimed arousal and sleep disorder because Mrs. Bains did not have a respiratory system disorder as required by the Guides. Further, the Arbitrator found that sleep was assessed under Activities of Daily Living in Chapter 14 of the Guides, entitled "Mental and Behavioral Disorders."

The Schedule defines an impairment as "a loss or abnormality of a psychological, physiological or anatomical structure or function." Clause 2(1.2)(f) of the Schedule requires all impairments to be counted. Impairments cannot be double counted. Impairments, however, must be counted and must be shown to be counted.

When an arousal and sleep disorder is advanced as an impairment, it is insufficient to decline to rate it as a separate impairment because another section includes it as a factor to be assessed and then, when addressing the latter section, fail to assess as a component part of that impairment, the submitted arousal and sleep disorder.

Capturing and providing a percentage rating for a claimed impairment, either separately or, where appropriate, within a broader classification, is the statutory essence and a fundamental element of clause 2(1.2)(f) of the Schedule. Failing to evaluate a claimed impairment is not the same as not discussing specific evidence or not being as comprehensive as one might be.

IV. CHRONIC PAIN IMPAIRMENT

RBC argued that the Arbitrator did address chronic pain by including it within the mental and behavioural impairment. RBC was, however, unable to locate specifically where in that discussion the Arbitrator evaluated pain, although RBC stated that the Arbitrator acknowledged there was evidence before her that Mrs. Bains completed tests that dealt with her perceived pain and its interference with her life. RBC submitted that the Arbitrator's 20% WPI for mental and behavioural impairment rather than RBC’s 10% submission also implied a consideration of pain.

RBC was further unable to point to any of the Arbitrator's assessments on the various organ systems as including a discussion of the accompanying pain.

In using, at both pages 2/9 and 15/304, the qualifying words "in general," the Guides indicate that while the various organ systems usually make allowance for pain, that is not always the case. Again, when pain is advanced as an impairment, that impairment must be addressed and accurately captured in the per cent impairment rating.

The Guides set out at page 15/304 what it states is a basic assumption that the "important task of evaluating impairment due to pain is difficult but not impossible." On the same page, the Guides define impairment as involving interference with the individual's performance of daily activities. Theyprovide that "in this context, pain may be viewed as an impairment that should be assessed according to the individual's residual functional capacity." At pages 15/312 and 15/313, the Guides provide examples of evaluating pain.

In the Delegate’s view, it is insufficient for the reader to have to presume that the per cent set out in the chapter or chapters of the Guides respecting the organ systems under consideration make allowance for any accompanying pain impairment. Further, as Mrs. Bains submitted that a 35% mental and behavioural WPI was appropriate, it could not be presumed that the Arbitrator`s finding of a 20% WPI included a consideration of pain.

Posted under Accident Benefit News, Automobile Accident Benefits, Catastrophic Injury, Chronic Pain, Pain and Suffering, Treatment

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