February 11, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Decision Date: January 16, 2009
Mrs. B, was injured in a motor vehicle accident on May 12, 2004. She applied for and received statutory accident benefits from RBC General Insurance. Mrs. B applied to RBC pursuant to section 40 of the Schedule for a determination that she sustained a catastrophic impairment ("CAT"). An assessment at an Insurer's Examination determined that Mrs. B did not sustain a catastrophic impairment. The parties were unable to resolve their disputes through mediation, and Mrs. B applied for arbitration.The issues of the hearing was to determine if Mrs. B sustained a catastrophic impairment within the meaning of clauses 2(1.2)(f) and (g) of the Schedule.
The arbitrator heard testimony on behalf of Mrs. B from herself, Mr. B (Mrs. B's husband), Ms. B (Mrs. B's daughter), Dr. R (anesthesiologist), Dr. A (orthopaedic surgeon) and a co-worker of Mrs. B. Dr. O (physiatrist) and Dr. L (psychologist) testified on behalf of RBC.
At the time of the accident, Mrs. B was 39 years old working approximately 10-15 hours per week as a personal support worker. She was married with two children, a 20 year old daughter and a 15 year old son. Mrs. B obtained her nursing diploma the month before this accident.
Although Mrs. B initially failed her Ontario and Michigan nursing licensing exams following the accident, she subsequently passed them. She began working full time as a registered nurse in Michigan in May 2005, within almost one year of the accident. Her job duties included charting the condition of patients and dispensing medication to them. Mrs. B continued to work full time as a nurse, up to 12 hours a shift, at the time of the hearing.
The accident occurred while Mrs. B was a passenger in a car driven by her husband. Mrs. B was taken to the hospital by ambulance. Her initial injuries included injuries to her right knee, left shoulder, left elbow, lumbar spine and neck. Her family doctor also diagnosed her with depression.
Mrs. B testified that before the accident, she traveled, cooked, snowboarded and swam. She also assisted her husband with the paperwork for his trucking business. Following the accident, she said she did not swim or snowboard because of her knee and shoulder injuries, as well as her neck pain and depression. She also did not go to the temple on Sundays because she could not sit for long periods of time. Her evidence was that in addition to headaches, neck pain, numbness and tingling in her left arm, back pain and right knee pain, she was also depressed, anxious, and had difficulty sleeping.
Following the accident, she saw her family doctor, and was treated by Dr. S (psychiatrist) for over one year. She was also treated by Dr. G (orthopaedic surgeon), who recommended shoulder surgery to repair her rotator cuff and medial menisectomy surgery to her right knee. Her shoulder surgery was scheduled for May 2008 and her knee surgery was scheduled for September 2008. Mrs. B testified that the surgeries would have improved her condition, otherwise she would not follow through with them.
Mrs. B's evidence was that her employer accommodated her with respect to her job duties. She did not have to carry patients; nursing aids did her heavier jobs; the staff she worked with knew her limitations; and she worked fewer hours than when she started working as a nurse.
When cross-examined, Mrs. B stated that she could only sit for 40-45 minutes. However, she agreed that she sat for over one hour on the first day of the hearing. She could not recall having jaw or thigh problems in 2003, low back pain in 2003, or anxiety prior to the accident in 2004. Mrs. B could not recall whether the chiropractor she saw after the accident performed spinal manipulations on her neck.
Mr. B, Mrs. B's husband, testified that prior to the accident, Mrs. B used to do his bookkeeping for his trucking business. Following the accident, he did the bookkeeping. In addition, Mrs. B was irritable, depressed, complained, yelled unnecessarily and only cooked once a week.
Ms. B, Mrs. B's daughter, testified that before the accident she and her mother played volleyball and cooked together. Ms. B, who was away at university, returned home most weekends to help with the cooking and cleaning. She found that her mother was less patient than prior to the accident. When cross-examined, Ms. B agreed that it was possibly because she was away at university, she would not have done as much with her mother.
According to a colleague of Mrs. B, the job duties of a registered nurse included pushing, pulling and lifting patients. Her evidence was that Mrs. B did not do any pushing or pulling and if Mrs. B was in pain, she could lie down. Furthermore, although other nurses worked five days a week, 12 hours a day, Mrs. B only worked three days a week.
Among other things, Mrs. B argued that RBC's assessors: (a) reviewed fewer documents than the assessors retained by her and therefore her assessments were more accurate; (b) failed to take into account Mrs. B's injuries as they affected her activities of daily living; and (c) failed to assess all of Mrs. B's impairments.
With respect to the Mrs. B's argument regarding the number of documents that experts reviewed, the evaluation of a witness does not turn on the number of documents reviewed. Reviewing more documents does not necessarily mean more accuracy in reporting and understanding of a patient. In addition, it is not necessarily the case that difficulties with activities of daily living amount to a CAT impairment within the meaning of clauses 2(1.2) (f) and (g) of the Schedule.
Dr. R (anesthesiologist) completed two CAT assessments on behalf of Mrs. B, one year apart. In the first CAT assessment, he concluded that Mrs. B had a 67% Whole Person Impairment (WPI). In his second CAT assessment, he concluded that Mrs. B had a 74% WPI. To put Dr. R's ratings into context, according to the Guides, at p. 301, a 100% WPI is considered to approach death; a 95% WPI or higher implies a state like that of coma. He found that Mrs. B had an upper extremity impairment, a gait disturbance, a cervical and thoracic impairment, a lumbar spine impairment, arousal and sleep difficulties, a chronic pain disorder and a mental and behavioural disorder.
An Insurer's Examination to determine whether Mrs. B was catastrophically impaired was conducted by Dr. O (physiatrist), Ms. F (occupational therapist) and Dr. L (psychologist).
Dr. O expressed the opinion that physically, as a result of the accident, Mrs. B sustained a WPI rating of 23%. With respect to mental and behavioural disorder, Ms. F thought that Mrs. B suffered a class 2, mild impairment, with respect to activities of daily living, social functioning and concentration. According to Ms. F, Mrs. B did not sustain any impairment with respect to adaptation to work environments. With respect to mental and behavioural disorder, Dr. L thought that Mrs. B suffered a class 2, mild impairment, with respect to activities of daily living and concentration and a class 3, moderate impairment, with respect to social functioning and adaptation to work environments. When clauses (f) and (g) of the Schedule are combined, Dr. O concluded that Mrs. B had a 31% WPI.
The burden of proof rested with Mrs. B. She had to prove on a balance of probabilities that, as a result of the accident, she was catastrophically impaired. The arbitrator had considered all of the evidence and for the following reasons Mrs. B did not discharge her burden. She did not provide reliable evidence that she sustained a catastrophic impairment.
Pre-accident physical condition and causation
Mrs. B saw a chiropractor between November 2003 and March 2004 as a result of a work related injury. In March 2004, she was on modified duties as a result of this work-related injury. This work-related injury had resolved by the time she was in this accident.
Dr. R stated in both his CAT assessments: "None of her symptoms were present prior to the (motor vehicle accident) of May 12, 2004. .. she suffers from anxiety …" This was incorrect because Mrs. B's family doctor's notes indicated that on August 20, 2002, Mrs. B was experiencing fatigue; on November 10, 2003, she had low back pain and her lumbar spine was x-rayed; she again had back pain on March 2, 2004; on March 30, 2004, she was experiencing anxiety.
The causation test is whether the motor vehicle accident of May 12, 2004 significantly contributed to Mrs. B’s impairment. The arbitrator found that all of Mrs. B’s pre-accident physical and psychological injuries had resolved prior to this accident.
Upper Left Extremity Impairment
In both his CAT assessments, Dr. R assessed Mrs. B’s upper left extremity impairment at 34% WPI based on a rotator cuff and nerve injury as well as grip strength. Dr. O concluded that Mrs. B had a 10% WPI rating of the shoulder.
Mrs. B was scheduled to have shoulder surgery in September 2008, after she testified at the hearing. When cross-examined, Mrs. B testified that her treating orthopaedic surgeon, Dr. Gilyard, said the surgery would improve her shoulder and chronic pain. Dr. A examined Mrs. B the day after Dr. R did the second CAT assessment. However, Dr. A concluded that Mrs. B had an intact neurovascular status in her upper extremities. Based on the opinions of Drs. O and A, the arbitrator found that the Mrs. B did not sustain a nerve injury.
When cross-examined, Dr. A opined that shoulder surgery would not have any long-term effect in alleviating Mrs B's pain because, in his opinion, the surgery was only addressing one component of her shoulder problems. The arbitrator placed little weight on Dr. A's opinion in this regard because: (a) he was not Mrs B's treating orthopaedic surgeon; and (b) he agreed that surgery was not recommended if it does not benefit a patient. The arbitrator also preferred Mrs. B's hearsay evidence regarding the improvement of her shoulder following surgery because it was based upon her treating orthopaedic surgeon's opinion. Common sense suggested that Mrs. B's treating orthopaedic surgeon would not have subjected her to intrusive surgery if he did not think it would do her any good. In addition, her family doctor opined that although it was unlikely that she would have had a "complete recovery," surgery "may improve her pain somewhat."
The Guides state: Before a judgment regarding impairment is made, it must be shown that the problem has been present for a period of time, is stable, and is unlikely to change in future months in spite of treatment.
The Guides are clear that impairments are not assessable until a person's condition has stabilized and all necessary surgeries have occurred. However, Mrs. B's upper extremity was assessed prior to the completion of her shoulder surgery and possible rehabilitative treatment in respect thereof, contrary to the Guides. Despite this, however, Dr. R conducted two CAT assessments of Mrs. B, one year apart, with a 7% difference in WPI rating.
For the above reasons, the arbitrator found that Mrs. B had not demonstrated that her left upper extremity was "unlikely to change in future months," "static and well stabilized" or "unlikely to change substantially and by more than 3%." In addition, Mrs. B's 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. B's upper left extremity until the completion of her surgery and her recovery there from.
In both his CAT reports, Dr. R, assessed Mrs. B’s gait disturbance at 7% based on Table 36 of the Guides, which states at clause (a) that if a patient has an "Antalgic limp with shortened stance phase and documented moderate to advanced arthritic changes of hip, knee or ankle," the WPI rating is 7%.
Dr. O assessed Mrs. B's knee impairment at 4% based on her range of motion.
In Dr. O's report, he stated that Mrs. B "walked with a normal gait pattern" and he was not able to detect any limping. Furthermore, she did not use an assistive device to walk. Dr. O concluded that Mrs. B’s gait derangement was zero. However, at p. 9 of Dr. O's report, he stated: "She had an elastic bandage on around the right knee, with a small patella brace." The arbitrator placed little weight on Dr. O's conclusion that Mrs. B did not use an assistive device to walk because, as he noted, she used a knee brace, which is an assistive device.
Mrs. B was scheduled to have medial menisectomy surgery to her right knee in May 2008, after she testified at the hearing. When cross-examined, Mrs. B testified that: (a) following knee surgery, she would require rehabilitation which included exercises and physiotherapy; and (b) her treating orthopaedic surgeon, Dr. G, said the surgery would improve her knee.
When cross-examined, Dr. A opined that knee surgery would not have had any long-term effect in alleviating Mrs. B's pain because, in his opinion, the surgery would only address one component of Mrs. B’s knee problems. The arbitrator placed little weight on Dr. A's opinion in this regard because: (a) he was not her treating orthopaedic surgeon; and (b) he agreed that surgery was not recommended if it did not benefit a patient. The arbitrator also preferred Mrs. B's hearsay evidence regarding the improvement of her knee following surgery because it was based upon her treating orthopaedic surgeon's opinion.
For the above reasons, the arbitrator found that Mrs. B had not demonstrated that her knee condition was "unlikely to change in future months," "static and well stabilized" or "unlikely to change substantially and by more than 3%." Therefore, pursuant to the Guides, it was inappropriate to rate Mrs. B’s knee condition prior to completion of her surgery and rehabilitative treatment. However, in the event that the arbitrator was incorrect regarding the above, for the reasons set out below, the arbitrator concluded that Mrs. B had not demonstrated that she had a gait derangement.
The arbitrator found that Mrs. B's knee impairment was not assessable due to her future knee surgery. However, if the arbitrator had found that Mrs. B's knee impairment was assessable she would have agreed with Dr. O's assessment because, according to the Guides, an "evaluator should use the more specific methods of those other parts in estimating impairments" before an assessor utilizes gait derangement.
Cervical and Thoracic Impairment
In Dr. R's first CAT report, he assessed Mrs. B's cervical and thoracic impairment at 5%, stating the "cervical spine instability impairment rating by the use of digital motion x-ray and analysis … could quite possibly result in a much higher impairment rating." In his second CAT assessment, Dr. R relied on digital radiographic images taken by Dr. B (chiropractor) to measure loss of motion segment integrity. Dr. R assessed Mrs. B's cervical and thoracic impairment at 25%. Dr. B (radiologist; retained by Mrs. B) concurred with Dr. B's (chiropractor) assessment.
Dr. O reported that Mrs. B had a 5% impairment of the neck. According to Table 73 of the Guides, this impairment rating is defined as a "minor impairment: clinical signs of neck injury are present without radiculopathy or loss of motion segment integrity."
The arbitrator placed little weight on Dr. R's assessment of Mrs. B's alleged cervical and thoracic impairment for the following reasons: (a) the Guides define what loss of motion segment integrity is and how to measure it. The cervical spine is radiographed in flexion and extension and the two x-ray films are superimposed to measure any slippage. Mrs. B's loss of motion segment integrity was not measured in accordance with the Guides. The arbitrator did not find Dr. Baird's assessment, which was relied upon by Drs. R, A and Bennett (radiologist), reliable evidence based on the Guides' methodology for assessment, that Mrs. B suffered a loss of motion segment integrity; (b) Dr. French, an orthopaedic surgeon retained by Mrs. B, opined in his report dated September 20, 2005 that Mrs. B did not have any neck abnormalities; (c) in treatment plans dated May 31, 2004 and June 14, 2005, chiropractic and spinal manipulation were respectively recommended. The arbitrator found that spinal manipulation was contraindicated for someone with loss of motion segment integrity.
The arbitrator accepted Dr. O's assessment that the WPI rating was 5% for the cervical and thoracic impairment because Mrs. B's impairment accorded with the Guides' definition of a 5% rating.
Arousal and Sleep Disorder
In both Dr. R's CAT reports, he opined that Mrs. B's WPI for arousal and sleep disorder was 5%. Dr. O did not rate Mrs. B's arousal and sleep disorder.
The arbitrator found that Dr. R's assignment of 5% for Mrs. B's sleep disorder was inconsistent with the Guides. In Chapter 14 of the Guides dealing with mental and behavioural disorders, sleep is one of the factors that are assessed under the topic Activities of Daily Living. In Mrs. B's case, according to the Guides, no WPI rating should have been given for arousal and sleep disorder, because, for example, she did not have a disorder of the respiratory system and accordingly, Mrs. B's rating for this was 0%.
Chronic Pain Impairment
In both Dr. R's CAT reports, he opined that Mrs. B's WPI rating for chronic pain was 5%. Dr. O did not provide a WPI rating for chronic pain.
The Guides state: "the impairment percents shown in the chapters that consider the various organ systems make allowance for the pain that may accompany the impairing conditions." Chapter 15 of the Guides deals with pain. The Guides contain three examples of various medical conditions accompanied by chronic pain, with discussion on WPI rating. However, in each of the three examples, no WPI rating is assigned for chronic pain. When asked where in the Guides the 5% WPI rating is contained, Dr. R stated: "percentages aren't given for chronic pain." In Dr. R's opinion, chronic pain "interfered with (Mrs. B's) … Activities of Daily Living." However, Mrs. B's Activities of Daily Living were assessed in the mental and behavioural component of the CAT assessments.
The arbitrator found that Dr. R's WPI rating of chronic pain was inconsistent with the Guides' statement that "the impairment percents shown in the chapters that consider the various organ systems make allowance for the pain that may accompany the impairing conditions" and the three examples given in the Guides. The arbitrator found that in Mrs. B's case, her WPI rating for chronic pain was 0%.
Impairment due to mental or behavioural disorder
Dr. R concluded in both his CAT assessments that Mrs. B had a class 3, moderate impairment and assigned Mrs. B a 35% WPI rating. He stated in his CAT reports that for a moderate impairment: "the 4th edition of the AMA Guides suggest a range impairment rating of 25-50%." The 4th edition of the Guides does not suggest any percentage rating, as outlined below. The percentages referred to in Chapter 14 of the Guides are in reference to the AMA Guides to the Evaluation of Permanent Impairment, 2nd edition.
Mrs. B completed for Dr. R various tests as part of her psychological assessment which, according to the descriptions contained in his reports, dealt with her perceived pain, its interference with her life, and depression.
In both Dr. R's CAT assessments, he concluded that Mrs. B's Global Assessment of Function ("GAF") score was 55, which, according to Dr. L's (psychologist) testimony, was "almost vegetative" and such a person should be hospitalized. However, in Dr. Salama's (treating psychiatrist) assessment, Mrs. B's GAF score was 75.
An assessment with an occupational therapist, Ms. F, was conducted and revealed that Mrs. B's daily routine consisted of the following when she worked:
· She woke up at 5:30 am, showered, prepared tea and prepared self for work;
· Left for work around 6:15-6:30;
· Either drove or was driven for 30 minutes with colleagues across the Michigan border to go to work;
· Worked for two days a 12-hour shift and two days for an 8-hour shift;
· Returned from work between 8-8:15 pm;
· Slept around 10:00 pm
Ms. F concluded that Mrs. B had a class 2 impairment, mild impairment with respect to activities of daily living, social functioning and concentration, and no impairment with respect to adaptation to work environment.
Dr. L concluded that Mrs. B had a class 2, mild impairment with respect to activities of daily living and concentration, and a class 3, moderate impairment with respect to social functioning and adaptation to work environments. Dr. L assigned Mrs. B a 10% WPI rating. In his testimony, Dr. L agreed that Mrs. B's WPI rating could be slightly higher.According to Dr. L's testing, Mrs. B over-reported her psychological symptomatology.
A moderate impairment means that the identified impairments are compatible with some but not all useful functioning.
Mrs. B was not as active socially as she was before the accident. She claimed to have suffered a loss of libido. She had some accommodations at work. However, she continued to work full time as a nurse.
Dr. R concluded that "it was not realistic to expect her to return to full-time employment because of the physical and psychological demands of employment." However, for over one year thereafter, Mrs. B continued to work full time.
Dr. R concluded that Mrs. B had reached "maximum medical improvement" and that her physical and psychological injuries were not likely to improve with any treatment. This was contrary to her family doctor's report that stated: "With time it was anticipated that her symptoms of anxiety, stress and depression would improve and mentally she would be able to handle her day-to-day activities."
Dr. R stated in his report of February 25, 2007 that Mrs. B was unable to drive a car. This was incorrect.
The arbitrator found Dr. L's insight, both in his report and testimony, credible and useful. The arbitrator preferred his assessment to that of Dr. R's assessment because: (a) as the parties agreed, Dr. L was an expert in neuropsychology, whereas Dr. R was an anesthesiologist, who opined outside the scope of his expertise; and (b) his testing included an assessment of the validity of psychological tests, whereas Dr. R's testing did not.
The arbitrator found that Mrs. B had a class 2, mild impairment with respect to activities of daily living and concentration because it was a level of impairment which was "compatible with most useful functioning." Mrs. B had a class 3, moderate impairment with respect to social functioning and adaptation to work environments because her impairment levels were compatible with some, but not all, useful functioning.
Combined WPI Ratings
According to the Combined Values Chart in the Guides, the combined value of the physical impairment ratings of 5 and 5 is 10% WPI. This does not meet the threshold of 55% WPI specified in clause 2(1.2) (f) of the Schedule which is required to satisfy the definition of "catastrophic impairment".
Mrs. B's impairment rating based on mental or behavioural disorder, which was found to be mild, was 20%. This did not meet the threshold of a class 4 impairment (marked impairment) or a class 5 impairment (extreme impairment) specified in clause 2(1.2)(g) of the Schedule. However, when the physical impairment rating of 10% was combined with the mental and behavioural impairment rating of 20%, the result was a WPI of 28%.
Based on the above, Mrs. B did not sustain a catastrophic impairment within the meaning of clauses 2(1.2) (f) and (g) of the Schedule.
The arbitrator had concerns regarding Dr. R's evidence. He went beyond his area of expertise, which was anesthesiology, when he conducted the CAT assessments which included: (i) assessing and evaluating orthopaedic injuries; and (ii) administering and evaluating psychological tests and diagnosing mental and behavioural disorders.
In addition, Dr. R adopted the stance of an advocate for Mrs. B, as opposed to providing objective evidence to the Tribunal. For example, when asked whether given Mrs. B's future surgeries and pre-accident medical history, he would have changed anything in his report, his testimony was "no." He also testified that despite Mrs. B's future surgeries, he would not have altered his opinion regarding the permanency of Mrs. B's injuries. When cross-examined, he was often evasive and unresponsive. As well, he referred to RBC's counsel as "heartless."
The arbitrator also had concerns regarding Mrs. B's credibility and gave it little weight. Some of the following factors were considered when assessing credibility: (a) Apparent powers of recall: Although she reported to various assessors and testified that she lost consciousness following this accident, the ambulance call report, emergency record and emergency notes indicate that she did not lose consciousness. The arbitrator preferred the records made contemporaneously with this accident rather than Mrs. B's evidence following the accident; (b) Ability to resist the tug of self interest: When cross-examined, she had a selective memory. She could not recall matters which could impact on the causation test, such as her jaw or thigh problem in November 2003, anxiety in March 2004, her back problems in 2003 (in this regard she stated she's never had back problems), or whether her chiropractic treatment included spinal manipulations. However, she was able to recall most everything else; (c) Inherent plausibility of her evidence within itself: She "denied any history of pre-existing medical conditions, and the use of medications prior to the accident" despite taking Tylenol 3. When cross-examined, she said that she answered that way because she wasn't on the medication long-term. The arbitrator found both her denial and her explanation of the denial disingenuous; (d) Consistency of evidence standing alone and as compared to other evidence: Although she testified that she could only sit for 40-45 minutes, she sat during the hearing, excluding the time she was testifying and times she sat outside in the reception area at FSCO and during breaks, for upwards of 1.5 hours without any apparent discomfort.
Mrs. B did not call any of her treating practitioners to give evidence, such as Dr. Gilyard, her orthopaedic surgeon, nor did she file a report by him. This issue was considered by the authors of the text The Law of Evidence in Canada in which it is stated: "an unfavourable inference can be drawn when, in the absence of an explanation, a party ... fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party." As well, this hearing continued past the dates that were scheduled for Mrs. B's surgeries. However, Mrs. B did not request that the arbitrator consider additional evidence regarding those surgeries.
To conclude, from the evidence gathered by the arbitrator and stated above, Mrs. B did not provide reliable evidence to support a catastrophic impairment.