March 06, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Decision Date: February 11, 2009
Ms. Pastore was injured in a motor vehicle accident on November 16, 2002. She applied for and received statutory accident benefits from Aviva Canada.
The issues in the hearing was to determine if Ms. Pastore suffered a catastrophic impairment as defined by paragraphs 2(1.1)(f) and/or 2(1.1)(g) of the Schedule.
At the time of the hearing, Ms. Pastore was 66 years old and was involved in a pedestrian motor vehicle accident on November 16, 2002. Ms. Pastore initially suffered a fracture of her left ankle and underwent several surgeries related to this ankle. Ms. Pastore contended that during the period of time when she was unable to use her left ankle, she over-compensated on her right side which then caused pain in both her right knee and right ankle. In approximately September 2007, she underwent a right knee replacement. Ms. Pastore attributed the need for all of her surgeries to the motor vehicle accident of November 16, 2002.
Ms. Pastore claimed that she suffered a catastrophic impairment from the injuries she sustained as a result of the motor vehicle accident on November 16, 2002.
In determining whether Ms. Pastore suffered a catastrophic impairment she was assessed under paragraphs (f) and (g) of section 2(1.1) of the Schedule as set out below:
“For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is,
(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.”
Both clauses (f) and (g) of the Schedule require the applicant's impairment to be evaluated in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition,1993 (the "Guides"). "Impairment" means a loss or abnormality of a psychological, physiological or anatomical structure or function.
If a mental or behavioural impairment is the result of a structural brain injury, then a Whole Person Impairment (WPI ) percentage rating can be assigned using the descriptions and tables found in Chapter 4 of the Guides dealing with the nervous system. Other types of mental and behavioural impairments are dealt with in Chapter 14 of the Guides. Chapter 14 however does not use percentage ratings to describe these types of impairments.
If a mental or behavioural impairment is the result of a structural brain injury, then a WPI percentage rating can be assigned using the descriptions and tables found in Chapter 4 of the Guides dealing with the nervous system. Other types of mental and behavioural impairments are dealt with in Chapter 14 of the Guides. Chapter 14 however does not use percentage ratings to describe these types of impairments.
Using Chapter 14 of the Guides, assessors look at four areas or aspects of functioning:(1) activities of daily living; (2) social functioning;(3) concentration; and (4) adaptation.
A "class" of impairment, not a percentage, is assigned to each of the four aspects of functioning:Class 1 is no impairment. Class 2, mild impairment, means the impairment levels are compatible with most useful functioning. Class 3, moderate impairment, means impairment levels are compatible with some, but not all, useful functioning. Class 4, marked impairment, means impairment levels significantly impede useful functioning. Class 5, extreme impairment, means impairment levels preclude useful functioning.
Ms. Pastore submitted that only one marked impairment is required to meet the definition under clause (g) and relied on the Ontario Superior Court of Justice in Desbiens v. Mordini and the FSCO arbitration decision of McMichael and Belair.
With respect to the (f) criterion, Ms. Pastore accepted the 30% WPI rating from the physical impairment of her right knee and left ankle as found by the CAT DAC. Ms. Pastore also asked me to determine an impairment rating for her neck, back and scars as these impairments were not considered and rated by the CAT DAC.
In addition, Ms. Pastore contended that she suffered a 25-30% WPI based on a psychological impairment and that combining the physical and mental impairment ratings would result in a 55% WPI (after rounding up from 51%)
Dr. O. was the clinical coordinator for the CAT DAC assessment. It was only his assessment of the physical impairments that impacted on the (f) portion of the CAT determination. Dr. O. concluded that as a result of the physical injuries sustained in the accident, specifically her left ankle and right knee, Ms. Pastore had suffered a 30% WPI (12% for the left ankle and 20% for the right knee). Although he assigned an impairment rating for the knee, Dr. O.'s position was that the impairment to Ms. Pastore's right knee was not caused by the accident. However, even with assigning an impairment rating for her knee, the CAT DAC concluded that Ms. Pastore did not meet the 55% WPI required under the (f) criterion.
Counsel for Aviva retained Dr. B. to review the CAT DAC assessment. Dr. B. came to a different assessment for Ms. Pastore's left ankle. He concluded that she suffered a 2% WPI for the left ankle. Dr. B. agreed with the WPI rating of 20% with respect to Ms. Pastore's knee and, unlike Dr. O., initially found that the accident was the cause of her right knee impairment. However, in his testimony at the hearing his evidence was that he had changed his opinion and concluded that the motor vehicle accident did not cause Ms. Pastore's right knee impairment.
The arbitrator found that a 2% WPI for Ms. Pastore's left ankle with the 20% WPI for her right knee were an accurate reflection of her physical impairments for the reasons that follow.
The Left Ankle
There are 13 different ways to look at a patient and the assessor has options in choosing which method is most appropriate in calculating an impairment rating.
Dr. O. approached the assessment of the left ankle using several different methods. It was difficult to get a clear sense of Dr. O.'s assessment and WPI rating as he gave contradictory positions within the CAT DAC report and his testimony. The CAT DAC assessment of the left ankle noted that Ms. Pastore was "not rateable" (which would result in a 0% WPI), however it also provided a "worst case scenario" (or "severe") impairment rating due to arthritis of 12%. Dr. O. did not provide any explanation for assigning a "severe" as opposed to the "moderate" or "mild" impairment rating.
Dr. O.'s evidence at the hearing did not clear up any confusion on this point. During cross- examination he admitted that his report should have said that Ms. Pastore's physical impairment was not rateable and therefore assigned it 0%. When asked why he did not just stop his assessment at this point, he stated that he looked at other scenarios, however this was "idle speculation" and "academic" and of "no relevance to the case or the SABS." His evidence was slightly different again on re-direct, he said that to calculate an impairment for the ankle based on the structural abnormality assessment he conducted was an acceptable form of assessment in the CAT DAC process.
Dr. B. reviewed Dr. O.'s report and provided his own assessment of impairment. Contrary to Dr. O.'s assessment, Dr. B. found that the left ankle was in fact rateable according to the AMA Guides and assigned it 2% WPI. He found that Dr. O.'s WPI ratings of the left ankle and knee were not helpful in providing a reliable rating because he provided ratings that were speculative and based on worst case scenarios. In Dr. B.'s opinion, Dr. O.'s ratings were consistent with a total obliteration of the joint space and that Dr. O. provided no basis for adopting this worst case scenario approach.
In Dr. B.'s opinion, the medical records did not support Dr. O.'s choice of assigning the most severe rating of impairment for arthritis. This was based on Dr. B.'s examination of a January 27, 2006 x-ray report. Dr. B. felt that it was appropriate to assign Ms. Pastore the "benefit of the doubt" and assign her the "mild arthritic ankle impairment" which resulted in a 2% WPI.
The Right Ankle
In the CAT DAC report, Dr. O. also noted that there was no active range of motion testing done on Ms. Pastore's right ankle either but passive range of motion testing was done. He provided a worst case scenario rating for the right ankle of 3%, which was "mild." However, he then noted that there was no documentation of right ankle pain and thus the 3% was not included in the overall WPI rating.
Based on the evidence presented, the arbitrator found that Ms. Pastore's right ankle was not rateable and as such assigned a 0% WPI rating.
The Right Knee
Dr. O. and Dr. B. arrived at the same impairment rating for Ms. Pastore's knee of 20% WPI. Where their opinions diverged, at times, was with respect to the issue of causation.
In his March 12, 2008 report, Dr. B. disagreed with Dr. O.'s assessment of causation. Dr. B. specifically addressed the issue of causation and concluded that by considering the sequence of events that occurred after the accident, it appeared that the treatment for the left ankle injury directly resulted in an aggravation of a pre-existing right knee arthritic condition. It was medically reasonable to believe that, as a result of increased load bearing on the right lower extremity for such a significant period of time, a permanent aggravation would occur to the right knee.
Slightly more than one month later, Dr. B.'s position had changed significantly. During his oral evidence at the hearing, he took the position that the accident had not caused Ms. Pastore's right knee impairment. At the hearing, Dr. B. cited several reasons for his reversal on the causation issue. He stated that in preparing to give evidence at the hearing he had additional records that he did not have when he reviewed the CAT DAC assessment. He initially considered the fact that Ms. Pastore favoured one side over the other and on re-examination he noted that he put too much weight on this factor. Further, he noted that there was no evidence that the right knee was directly injured in the accident and the x-rays showed degenerative arthritis in both knees.
The most significant concerns noted by Dr. B. were problems in terms of inconsistent examination, illness behaviour and credibility. He found Ms. Pastore "unreliable" and to have "very dysfunctional pain behaviour" as shown by the fact that she rated her pain as a 10. Finally, Dr. B. stated that the two significant risk factors of knee osteoarthritis were age and obesity and given Ms. Pastore's height and weight, it would not have been uncommon for her to have knee problems.
Information with respect to Ms. Pastore's height and weight, her x-rays and the fact that her knee was not directly injured in the accident were all pieces of information that were available to Dr. B. during his initial assessment of the case. It was clear that the most significant new information that caused Dr. B. to change his position with respect to causation was in relation to Ms. Pastore's credibility and what he termed her "pain behaviour." To further explain his concern, he noted that Ms. Pastore exhibited "pain focused" behaviour and reported greater pain than one would expect to see from someone with her injuries. Given that pain is subjective it was not clear to the arbitrator how this necessarily connected to the causation issue.
It seemed that Dr. B. viewed Ms. Pastore's pain complaints with some suspicion or disbelief which put doubt on her level of impairment in general. It seemed that in this case Dr. B. was not only examining inconsistent medical evidence and information that related to Ms. Pastore's knee but he was assessing her overall credibility – a role reserved for the decision maker.
Despite several inconsistencies that were mostly related to Ms. Pastore's low back pain, the arbitrator found that Ms. Pastore was a credible witness who gave clear and consistent evidence in relation to her left ankle and knee impairments and the affect that they had on her activities of daily living.
The arbitrator found that there was sufficient evidence to support the claim that the accident caused or materially contributed to the impairment in Ms. Pastore's right knee.
Dr. O. noted that the right knee was not rateable according to the Guides,but again also provided "worst case scenario" impairment ratings.
Dr. B. felt that the appropriate assessment tool for Ms. Pastore's knee was section 3.2i of the Guides, Diagnosis-based Estimates, as this addressed the total knee replacement that she underwent in September 2007.
Ms. Pastore's operation condition was noted as "unremarkable" and her x-ray post surgery did not show any complications. On examination, she had improved flexion but there was not full recovery yet. Dr. B. stated that if he was only considering the objective parameters, her recovery looked good and he would have rated her as a "good" result. However, he also took her pain complaints into consideration. Factoring in Ms. Pastore's pain, Dr. B. arrived at a "fair" rating instead which resulted in an impairment rating of 20% for the right knee. Dr. B. stated that the impairment results may improve once Ms. Pastore reached maximum medical improvement – one-year post operation.
Back, Neck and Scarring
The arbitrator found that there was very little medical documentation and evidence to adequately consider assigning an impairment rating for Ms. Pastore's back, neck and scars. The arbitrator agreed with the Aviva that if it was Ms. Pastores's intention to have the arbitrator assign a rating for these area, they should have led specific medical evidence in support of this position. Therefore the arbitrator concluded, Ms. Pastore did not lay an adequate evidentiary foundation to assign any ratings for the back, neck and scarring.
Ms. Pastore's Mental / Behavioural Impairments
The arbitrator heard extensive evidence with respect to the most appropriate method of assigning a WPI percentage rating to a psychological impairment. While a variety of approaches were explored, the central argument rested on whether to use the percentage ranges from the 2nd edition of the Guides or Table 3 in Chapter 4 (The Nervous System) of the 4th edition.
In this case, the arbitrator accepted that the use of Table 3 in Chapter 4 of the Guides provided the most accurate assessment of Ms. Pastore's psychological impairment and results in a 22% WPI.
The arbitrator heard evidence with respect to this issue from Dr. Be., Dr. B. and Dr. L. Dr. Be. was asked by Ms. Pastore to review the CAT DAC and to provide commentary with respect to the impairment ratings. Dr. B. and Dr. L. conducted a similar review and analysis on behalf of Aviva.
The common starting point of the rating approaches used in this case involved arriving first at a Global Assessment of Functioning (GAF) score and then using one of the editions of the Guides to convert the GAF score into a WPI percentage rating.
Global Assessment of Functioning is a widely used method to assess functioning. The GAF is part of a multi-axial diagnostic system. Adaptive functioning and impairments are recognized as important indices of mental health that are conceptually distinct from symptom severity. Functional impairment and adaptive functioning focus on what the person can do, the quality of their daily life and the need for assistance. The GAF assessment looks at to what extent the psychiatric disorder experienced impacts a person's daily life. The GAF is a numeric scale (0 through 100) used by mental health clinicians and doctors to rate the social, occupational and psychological functioning of adults.
Drs. S., R. and L. arrived at very similar GAF scores for Ms. Pastore – all within a range of 45 to 57. A GAF score of between 51-60 indicates moderate symptoms. In order to convert this GAF score into a WPI percentage rating for Ms. Pastore's psychological impairments, the assessors used percentage ranges in either the Guides 2nd edition or 4th edition.
The Guides 2nd edition, published in 1984, was the first edition to include the measurement of impairments associated with mental and behavioural disorders and a numeric rating scale. These 2nd edition impairment ranges are included in Chapter 14 of the Guides 4th edition in a section entitled "Comment on Lack of Percents to This Edition." This section notes that the procedure for the second edition was highly subjective.
Using the DSM-IV TR axial system, Dr. R. assigned a GAF score of 55. A GAF score of 51-60 is moderate symptoms or any moderate difficulty in social, occupational, or school functioning.
Dr. R. conducted the psychiatric assessment portion of the CAT DAC. He and Dr. S, concluded that Ms. Pastore met the criteria for an Adjustment Disorder with Depressed Mood and that she suffered from a mild phobia. He noted that her psychological factors were playing a significant role in her chronic pain and he made a diagnosis of Pain Disorder associated with Psychological factors.
Dr. R. concluded that Ms. Pastore had a WPI from a psychiatric perspective in the 25-30% range, it appeared that he converted a "moderate" range on the GAF score into a "moderate" impairment from the 2nd edition Guides.
The arbitrator agreed that the reference in the Guides to the 2nd edition impairment ranges was merely a historical reference. Further, the fact that it was included did not somehow automatically incorporate it into the 4th edition or mandate its use. The authors of the Guides refer to it after explaining why percentages have not been included in the 4th edition and caution against the use of assigning percentages for psychological impairments. However, the 2nd edition does provide physicians with "an approach" to determining a whole person impairment rating from the very qualitative descriptors in Chapter 14 of the Guides.
The arbitrator found that where the 4th edition of the Guides give clear guidance about rating an impairment it should therefore be followed. However, in the case of assigning percentages to a mental or behavioural impairment, the 4th edition is silent. Reference to the 2nd edition of the Guides is one possible option but it is not mandated and there may be other approaches that are more appropriate given the specific circumstances of an individual's case.
Each edition of the Guides indicate that the reviewer could turn to other sources of information to help clarify an impairment rating if the additional information would lead to further clarity in the impairment rating process. In light of all of the evidence presented, the arbitrator found that it was then open to assessors to use not only previous editions of the Guides but also those subsequent to the 4th edition to assist them in determining the most accurate impairment rating for an individual.
In arriving at an impairment rating for Ms. Pastore, Dr. L. used Chapter 4, Table 3. He adopted this approach because he found that it was the only table in the 4th edition that was remotely similar and had the most common ground with the GAF scale. Although in Dr. L.'s opinion the Guides did not provide a basis for assigning percentages to psychological impairments, he conceded that using Table 3 in the 4th edition chart was most in line with the Desbiens decision.
Dr. Be. opined that Chapter 4 was not appropriate for arriving at a psychological impairment rating because the chapter was intended for use in the case of a head injury. Further, Dr. Be. stated that Table 3 overstated Ms. Pastore's impairment.
Dr. B. was firmly of the school of thought that it was not appropriate to assign a percentage rating to a psychological impairment, however his evidence was that if he had to choose an approach, he would have used Chapter 4 as it was the "lesser of two evils" as compared to referring back to the 2nd edition of the Guides. He agreed with Dr. Be. that using Chapter 4, Table 3 overstated the impairment.
Desbiens did not specifically decide or comment on the use of one prevailing methodology in assigning percentage ratings to psychological impairments. In fact, one rigid formula or approach was not consistent with the general analysis adopted in Desbiens.
The arbitrator found that there should have been some flexibility in the choice of assessment tool and method selected for rating impairments. The Guides themselves provide some flexibility in terms of options for rating impairments for the different body systems. Clinicians are encouraged to examine and assess impairments having considered the various sections in order to determine which assessment tool is most appropriate for a particular individual and impairment.
After reviewing the approaches and analyses of the various assessors in this case, the range of possible impairment scores for Ms. Pastore's psychological impairment spanned from 10% WPI using the 6th edition of the Guides to 30% WPI using the 2nd edition of the Guides. Using Chapter 4 of the 4th edition of the Guides resulted in somewhat of a near midway score of 22% WPI rating.
The arbitrator accepted that the use of Table 3 (Chapter 4) would have provided the fairest representation of Ms. Pastore's psychological impairment. The one area where there was some consistency among the assessors was in respect of Ms. Pastore's GAF score. Table 3 (Chapter 4) provided the most common ground with the GAF assessment and therefore a more accurate conversion into a WPI rating.
The arbitrator found that given the lack of guidance offered in the 4th edition of the Guides that adopting a more wholistic and flexible approach resulted in the most fulsome and true picture of an individual's impairments. Such an approach produced the most fair and accurate results and was most in line with the true intent, meaning and spirit of the legislation.
Ms. Pastore's Combined WPI Rating
According to the Combined Values Chart combining 2% WPI for the left ankle, 20% WPI for the right knee and 22% WPI for Ms. Pastore's psychological impairments resulted in a combined impairment rating of 39% WPI. As this fell below the 55% WPI threshold, the arbitrator found that Ms. Pastore had not sustained a catastrophic impairment as defined by paragraph 2(1.1)(f) of the Schedule.
Paragraph (g) of Subsection 2(1.1)
According to clause (g) of the Schedule, an impairment is considered to be catastrophic if it results in a Class 4 impairment (marked impairment) or a Class 5 impairment (extreme impairment) due to mental or behavioural disorder. Chapter 14 of the Guides deals with mental and behavioural disorders. After identifying a mental or behavioural disorder, Chapter 14 directs clinicians to examine four areas of functioning to assess the severity of the impairment – activities of daily living, social functioning, concentration and adaptation.
The consensus opinion of the CAT DAC was that Ms. Pastore did meet the definition of catastrophic impairment under the (g) criterion of the Schedule. Drs. R. and S., with the assessment of Ms. J.W., OT, concluded that overall Ms. Pastore suffered from a Class 3 – Moderate Impairment, however she did achieve a Class 4 – Marked Impairment in the Activities of Daily Living sphere of function due to her recognized Pain Disorder.
Ms. J.W., OT, conducted a three-day Occupational Therapy Assessment in which she concluded that there were physical and some emotional barriers that limited Ms. Pastore from functioning at her pre-accident status.
Ms. Pastore testified that in addition to her pain complaints she experienced the following: difficulty sleeping; fear in walking outside on her own; anxiety; depression; extremely low energy; fear while in a car; and strained relationship with husband with limited intimacy since the accident.
Ms. Pastore's evidence was that prior to the accident she was an avid churchgoer who was also active in related church social events. She liked to play cards, bocci ball and bowling and was responsible for all of the housekeeping and cooking in the home. Ms. Pastore was also the primary caregiver for her husband of 38 years who was receiving chemo-dialysis three times a week.
Since the accident, Ms. Pastore had been dependent on her husband and daughter-in-law for housekeeping, personal care and mobility. During the day Ms. Pastore sat on the couch and watched TV, listened to the radio or read the newspaper. She was not able to always sit comfortably on the couch and could not sit for long periods of time without pain.
Ms. Pastore was only able to get around using a walker. She could no longer use public transportation and could not walk long distances alone. Ms. Pastore could not climb stairs except by going backwards and with assistance. Her bedroom was upstairs and since the accident she slept downstairs on the couch – in particular since her knee surgery. The bathroom was also upstairs and she was not able to go alone. She received assistance from her husband if he was home and at other times she used a portable commode downstairs.
Ms. Pastore was no longer able to do any of her housekeeping and was completely dependent on her husband and daughter-in-law to complete these tasks. Food preparation was also done by either her husband or daughter-in-law. Ms. Pastore no longer participated in any of her previous recreational activities and was no longer able to babysit her grandson. In terms of her personal care, Ms. Pastore needed assistance with the following: getting dressed, getting in and out of the tub, combing her hair and cutting her nails.
The CAT DAC found that the impact of these disorders on her daily functioning significantly impeded her daily living tasks.
Dr. L. disagreed with the CAT DAC's conclusion. Although he arrived at a GAF score within the same range as Drs. R. and S., he concluded that none of the four spheres of function exceeded a Class 3 moderate level. In Dr. L.'s opinion, the primary reason for Ms. Pastore's functional limitations was related to her physical impairments. In his March 12, 2008 report, Dr. L. concluded that psychological factors may have contributed to her impairment in activities of daily living, but there was no documentation to support the point of view that it was the primary cause of her impairment.
Dr. L. agreed with Dr. R.'s assessment that Ms. Pastore suffered from mild depression and acknowledged that Ms. Pastore had been diagnosed with a Chronic Pain Disorder. However, his position was that since chronic pain was considered by the Guides as not rateable because of the subjective nature of the pain, other psychological disorders such as depression and anxiety would need to be identified as contributing to difficulties in performing activities of daily living. Although he conceded that psychological factors may have contributed to Ms. Pastore's impairment, he concluded that they were not the primary cause.
Chapter 14 of the Guides direct that in assessing impairment, any limitation with respect to activities of daily living should be related to the mental disorder. The clinician is directed to determine the impact of the mental condition on normal life activities. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions. The arbitrator did not interpret this as requiring a complete separation of physical and mental impairments nor was it possible when considering an impairment that also involved pain. The appropriate focus should have been on how the mental part of an overall condition or impairment impacted the various spheres of function. The experience of pain and a diagnosis of Pain Disorder fell properly within the examination.
The arbitrator found that Dr. L.'s assessment overemphasized the need for the mental aspect to be the "primary" cause of the overall impairment as this overlooked the fact that Ms. Pastore's impairment had both a physical and mental component – it was complex with intertwined psychological and physical elements.
Dr. L. further opined that in assessing someone's physical impairments, the WPI rating included a rating for pain and the psychological condition related to the pain within the rating itself. Therefore, pain should not have been assessed and rated separately under the (g) criterion as this would result in double counting. The arbitrator disagreed with this interpretation and approach.
Chapter 15 of the Guides discusses pain. The Guides note that in general, impairment percents given in the tables and figures applicable to permanent impairments in the various organ systems include allowances for the pain that may occur with those impairments. Although the arbitrator agreed with Dr. L. that it was important to avoid double counting, the chapter also notes that the important task of evaluating impairment due to pain is difficult but not impossible.
The arbitrator did not find that this challenge led to the necessary conclusion that pain should have therefore been ignored in the assessment of impairment or that a comprehensive assessment and rating of pain was encompassed within the rating of other organ systems. Quite the contrary, Chapter 15 notes that traditional evaluation models are not appropriate for properly evaluating pain. It includes some of the assumptions that clinicians should be aware of when considering pain including:
1. Pain evaluation does not lend itself to strict laboratory standards of sensitivity, specificity, and other scientific criteria.
2. Chronic pain is not measureable or detectable on the basis of the classic, tissue-oriented disease model.
3. Pain evaluation requires acknowledging and understanding a multifaceted, biopsychosocial model that transcends the usual, more limited disease model.
4. Pain impairment estimates are based on the physician's training, experience, skill, and thoroughness. As with most medical care, the physician's judgment about pain represents a blend of the art and science of medicine, and the judgment must be characterized not so much by scientific accuracy as by procedural regularity.
Ms. Pastore was diagnosed with a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition. The arbitrator regarded this diagnosis as a separate aspect of Ms. Pastore's overall impairment which caused her to suffer impairments that properly fell within Chapter 14.
Pain may be subjective and hard to quantify, but it is important to examine and consider the role of pain in relation to an individual's functional limitations. It is important to deal with a person as a whole and not a mere list of quantifiable impairments. In doing so, it is necessary to take a step back to get a sense of the full picture of a person's impairments individually as well as how they interact with each other – the affect of pain is part of this picture.
Therefore, a complete assessment had to consider the affect of pain and Ms. Pastore's Pain Disorder on her activities of daily living. The pain not only limited her physical abilities to do the activity but it played a role in the feeling of loss of meaningful activities or social relationships. This loss was noted as resulting in frustration, resentment or anger, which further increases pain.
For Ms. Pastore, the combination of physical limitations and the associated pain were intertwined. They both played an integral part in having transformed her life from being a completely self-sufficient and independent individual and caregiver to her husband to becoming almost completely dependent on him and others for her most basic personal care needs.
Based on the medical documentation and evidence including the OT assessment and the testimony of Ms. Pastore, the arbitrator concluded that the impact of these disorders on her daily functioning significantly impeded her daily living tasks and the resulting impairment fell within a Class 4 marked level of impairment.
Is one "marked" impairment adequate to meet the definition of catastrophic under 2(1.1)(g) of the Schedule?
Justice Spiegel in Desbiens noted that it was not disputed that it was sufficient for Mr. Desbiens to establish that his impairment in any one of the areas of functioning met the requirements of clause (g). Arbitrator Muir in McMichael and Belair adopted this same approach, however, as in Desbiens, it was not specifically an issue before him.
There is nothing in the language of clause (g) to suggest that the approach taken by the Court in Desbiens was incorrect. If the provision is ambiguous and the arbitrator found that it was that ambiguity ought to be resolved, in the absence of anything pointing elsewhere, in a liberal manner having regard to the ultimate remedial purpose of the legislation.
The Superintendent's Guidelines ("CAT DAC Guidelines") for undertaking catastrophic DAC assessments are clear in dictating that two marked impairments are required to render a catastrophic determination under the (g) criterion. The arbitrator found that they are merely guidelines and an assessment tool for clinicians, however they are not incorporated into the legislation.
The arbitrator agreed with Dr. L. that there was a strong interaction between the four areas of function described in Chapter 14. It was this very interaction that persuaded the arbitrator that a marked impairment in one area of function alone was sufficient for a person to be deemed catastrophic for the purpose of Ontario accident benefits legislation.
In examining each of the four areas of functional limitation (activities of daily living, social functioning, concentration and adaptation), it is clear that these areas represent the most basic and core aspects of function – they are the things that define us. The four areas are interrelated with significant overlap between them. For example, it is highly unlikely that an impairment that affects activities of daily living will not also have related effects in the areas of social functioning and concentration, however not necessarily at a marked level of impairment.
If an individual has reached a marked level of impairment in any one area, then they are being deprived of a level of function in a basic and core area of life.
This amounts to a serious loss. It is highly unlikely that in such a case the other areas of function would not also be negatively affected in some way. Given the importance of each area of function the loss of any one alone is significant and adequate to meet the definition of catastrophic impairment. To accept that one marked impairment is adequate is in line with a remedial approach to the Schedule. Therefore the arbitrator found that one marked impairment was adequate to meet the definition of catastrophic impairment for Ms. Pastore.