May 15, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
RULING ON SUMMARY JUDGMENT APPLICATION
Heard Before: Madam Justice J. A. Blishen
Date of Decision: May 2, 1012
Nancy Stewart brought a motion for a declaration that she suffered a “catastrophic impairment” as defined under the Statutory Accidents Benefits Schedule due to a motor vehicle accident on November 4, 2005.
It was agreed the request was made by way of a motion for summary judgment on that issue pursuant to r. 20.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Nancy Stewart was severely injured in a motor vehicle accident on November 4, 2005. She was insured by State Farm Mutual Automobile Insurance Company (“State Farm”), and applied for no fault benefits under the SABS.
State Farm agreed Ms. Stewart was entitled to some benefits and, as of February 29, 2012, had paid her $281,046.28. However, State Farm argues Ms. Stewart has not established “catastrophic impairment” and is not entitled to the enhanced medical and rehabilitation benefits up to one million dollars.
On October 14, 2008, State Farm received an Application for Determination of Catastrophic Impairment (“OCF-19”) from Ms. Stewart dated September 17, 2008. The Application was signed by Ms. Stewart and completed by Dr. JTG psychologist.
Dr. JTG checked the box on the form indicating Ms. Stewart had a “catastrophic impairment” pursuant to s. 2(1.2)(f) of the SABS, an impairment that, in accordance with the American Medical Association Guides to the Evaluation of Performance Impairment (AMA Guides), results in 55 percent or more impairment of the whole person. Dr. JTG attached a one and one-half page letter dated September 19, 2008 elaborating on his findings. He noted Ms. Stewart suffered numerous physical traumas in the accident and outlined her psychological difficulties including post traumatic stress disorder, depression and anxiety/panic attacks. Dr. JTG is not a medical doctor. He did not attach any medical reports from her treating physicians nor did he make any specific reference to any medical assessments.
Under criterion 2, Dr. JTG stated he had seen Ms. Stewart six or seven times a year for many years prior to the accident to deal with a variety of work, marital and career issues and had previously administered psychological tests, one in 1988 and another in 1998. However, it was his opinion that the depression and anxiety revealed in testing post-accident were consistent with his clinical observations. Dr. JTG concluded that given Ms. Stewart’s physical and psychological limitations, he did not see her “moving toward her pre-morbid level of functioning”. He states “I doubt that her GAF score will ever reach 55 percent let alone go beyond that”.
After receiving the Application and attached letter, State Farm wrote to Ms. Stewart on October 23, 2008 providing Notice of Assessments required under s. 42 of the SABS, regarding “catastrophic impairment”. This notice was within the 30 days required under s. 40(2) of the SABS.
The Injury Claim Trainer at State Farm (“ICT”) recommended assessments by: an orthopedic surgeon, a psychologist, an oral and maxillofacial surgeon, a physiatrist or rheumatologist, an occupational therapist and/or general surgeon.
On November 13, 2008 (also within the 30 day time period), State Farm wrote to Ms. Stewart enclosing six OCF-25 Notices of Examination for assessments to take place between November 12 and November 25, 2008, one of which was with Dr. J, a psychologist on November 19, 2008.
On November 24, 2008, State Farm received a call from the assessment facility advising that psychologist, Dr. J, recommended a psychiatric assessment to determine whether Ms. Stewart might qualify for a finding of “catastrophic impairment” based on the alternative ground set out under s. 2(1.2)(g) of the SABS, an impairment that, in accordance with the AMA Guides, results in a “marked” or “extreme” impairment due to mental or behavioral disorder. State Farm arranged for a psychiatric assessment to take place on December 5, 2008 and notified Ms. Stewart. No written Notice of Examination was provided to Ms. Stewart.
The December 5, 2008 appointment was cancelled by Ms. Stewart and rescheduled by State Farm on two further occasions. Ms. Stewart did not attend either appointment and refused to attend any psychiatric assessment.
On December 23, 2008, State Farm wrote Ms. Stewart with an enclosed Explanation of Benefits form (OCF-9) providing notice of a denial that her impairments were “catastrophic” as defined under s. 2(1.2)(f) of the SABS. The physiatrist determined, without a psychiatric examination, that Ms. Stewart suffered from 37 percent whole body impairment, based on the physical assessments completed.
A year and a half later, on June 29, 2010, Ms. Stewart signed another Application for Determination of Catastrophic Impairment (OCF-19) with additional information. The form was once again completed by psychologist, Dr. JTG, who indicated Ms. Stewart had been in his care for 27 years. He expanded on his determination of “catastrophic impairment” to include not only 2(1.2)(f) but (g) of the SABS and attached a further one and one-half page letter addressed to State Farm. On this occasion, Dr. JTG outlined the reasons for his opinion that Ms. Stewart was “catastrophically impaired” based on s. 2(1.2)(g) of the SABS.
On the second page of his letter, he lists impairment ratings/loss of function as follows:
Thought and Cognition 5
Emotion, Behavior and Coping:
Activities of Daily Living Nil
Treatment Needs 10
There is no further explanation in the letter of these ratings or their significance.
On July 9, 2010, State Farm sent Ms. Stewart a notice indicating receipt of the new application and requiring s. 42 examinations. However, on July 27, 2010, Ms. Stewart’s legal representative wrote to State Farm withdrawing the second application. As a result, no further assessments were arranged. Therefore, the only application for determination of “catastrophic impairment” made by Ms. Stewart was for a finding under s. 2(1.2)(f) of the SABS.
Positions of the Parties:
Ms. Stewart argues there is sufficient evidence before the Court for a finding on the balance of probabilities of “catastrophic impairment” pursuant to s. 2(1.2)(f) of the SABS. Therefore, it is argued that there is no genuine issue requiring a trial as to “catastrophic impairment”.
Ms. Stewart bases her argument for summary judgment on the following:
Her psychologist, Dr. JTG, provided an opinion to State Farm that due to the accident, Ms. Stewart suffered both physical and psychological impairments that resulted in 55 percent or more impairment of the whole person;
Ms. Stewart complied with State Farm’s request for a number of assessments under s. 42 of the SABS, which requests were made in writing within 30 days as required under the Regulations;
Although Ms. Stewart refused State Farm’s further request for a psychiatric assessment, that request was not made within 30 days nor in writing, as required under s. 40 of the SABS and was therefore, not valid; and
At the end of the day, the determination by State Farm’s assessors of 37 percent physical impairment, along with Dr. JTG ’s unrefuted opinion as to “catastrophic impairment”, is sufficient evidence upon which to find on a balance of probabilities “catastrophic impairment” under s. 2(1.2)(f) of the SABS.
In oral submissions, Ms. Stewart’s counsel acknowledged that the June, 2010 application for determination of “catastrophic impairment” based on s. 2(1.2)(f) and (g) of the SABS was withdrawn. Therefore, the only application for determination was made under (f).
State Farm argues there is insufficient evidence on this summary judgment motion for a finding on a balance of probabilities that Ms. Stewart was “catastrophically impaired” as defined under s. 2(1.2)(f) of the SABS due to the accident.
State Farm argues that:
State Farm could not rely on Dr. JTG’s September 2008 assessment and attached letter and therefore requested further assessments under s. 42 of the SABS, which requests were made in writing within 30 days as required.
The s. 42 assessments conducted on behalf of State Farm found that Ms. Stewart did not meet the definition of a “catastrophic impairment” based on criterion (f).
One of the s. 42 assessors, psychologist Dr. J, believed that a psychiatric assessment was required to determine if Ms. Stewart qualified for “catastrophic impairment” based upon the alternative definition under s. 2(1.2)(g). Although that request was not made within 30 days nor in writing, it did flow from the original requests and was an offer to consider a finding of “catastrophic impairment” under the alternative definition in subsection (g).
Ms. Stewart initially agreed to the psychiatric assessment but ultimately refused to attend. Therefore, State Farm was left with findings made in the assessments conducted on State Farm’s behalf that Ms. Stewart was 37 percent physically impaired, along with Dr. JTG’s assessment.
The evidentiary burden remains on Ms. Stewart to prove “catastrophic impairment”. Such a finding cannot be made on the basis of the evidence submitted to the Court on the summary judgment motion.
Law and Analysis
Test for Summary Judgment
Before embarking on any consideration as to whether Ms. Stewart is “catastrophically impaired” as defined under s. 2(1.2)(f) of the SABS, it is necessary to carefully consider the test for summary judgment outlined under amended r. 20 of the Rules of Civil Procedure and recently considered by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII), 2011 ONCA 764.
In January, 2010, the amendments to r. 20 regarding summary judgment motions came into force. These amendments gave the Court power to grant summary judgment if satisfied there is “no genuine issue requiring a trial with respect to a claim or defence”. This was a change from the previous wording of r. 20 which provided that summary judgment could be granted if there was “no genuine issue for trial”. In addition, the Court was granted expanded powers to weigh evidence, evaluate credibility, and draw any reasonable inferences from the evidence in order to determine whether there is a genuine issue requiring a trial.
In Combined Air, the Ontario Court of Appeal introduced a new approach and a threshold test to be met prior to any substantive analysis of the merits or a utilization of powers available under r. 20(2.1). The threshold “full appreciation” test is outlined as follows:
50 ...In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
The Court emphasized the purpose of the amendments to r. 20 is:
38 ...to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.
39 Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the "interest of justice", the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties. In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools that are now available to the motion judge. In such cases, a just result can only be achieved through the trial process. This pivotal determination must be made on a case-by-case basis.
In considering whether the motion record along with the use of the new tools available to the judge is sufficient to ensure a just result without the need for a full trial, the Court of Appeal states:
53 ...Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them.
54 The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.
55 ...Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record - as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) - the judge cannot be "satisfied" that the issues are appropriately resolved on a motion for summary judgment.
In considering the “full appreciation” test, the Court of Appeal sets out in general terms three types of cases amenable to summary judgment as follows:
“where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment”;
cases encompassing “claims or defences that are shown to be without merit”; and
cases “where the trial process is not required in the “interest of justice””. see paras. 40-44
It is the third category of cases amenable to summary judgment which is new and arises from the change in wording of the summary judgment test from “no genuine issue for trial” to “no genuine issue requiring a trial”, along with the motion judge’s additional powers under r. 20.04.
Although the Court notes that decisions about whether to apply the summary judgment process are to be made on a case by case basis, it does outline factors that may indicate a trial is required as follows:
51 ...In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the "interest of justice" requires a trial.
Those cases are contrasted with others where the “full appreciation” test may be met such as:
document driven cases with limited testimonial evidence;
cases with limited contentious factual issues; and
cases where the record can be appropriately supplemented at the motion judge’s direction by the hearing of oral evidence on discreet issues. see para. 52
In adopting the “full appreciation” test, the Court emphasizes in paragraph 56 that established principles regarding evidentiary obligations on a summary judgment motion continue. Each side must put its best foot forward with respect to the existence or non existence of material issues to be tried. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial.
Can a “full appreciation” of the evidence and the issues required to make a finding of “catastrophic impairment” be achieved by way of this summary judgment motion? Has each party put its best foot forward with respect to the material issues to be tried?
In her Statement of Claim, Ms. Stewart applies for a declaration of “catastrophic impairment” and a declaration of entitlement to statutory accidents benefits at the “catastrophic impairment” levels, in accordance with the SABS. The onus is on Ms. Stewart to prove, on a balance of probabilities, “catastrophic impairment”. She applied for such a finding under s. 2(1.2)(f) of the SABS.
As noted in Combined Air, each party must put its best foot forward in terms of the evidence filed on a summary judgment motion. Ms. Stewart’s evidence on the summary judgment motion consisted of an affidavit from a lawyer who is an associate in the law firm representing Ms. Stewart, attached to which were: a copy of Ms. Stewart’s settlement conference brief, copies of the applications for determination of “catastrophic impairment” (OCF-19s) and the letters from Dr. JTG dated September 19, 2008 and June 28, 2010, as well as two pages from the cross-examination of TS, a senior claims adjuster employed by State Farm, responsible for accident benefit claim brought by Ms. Stewart.
Madam Justice Blishen had a number of concerns regarding the evidence filed in the motion record. Madam Justice Blishen found Ms. Stewart has not met her evidentiary obligations in putting her best foot forward with respect to the material issues in this case.
There are the following weaknesses with respect to Ms. Stewart’s evidence:
There is no sworn affidavit evidence from Ms. Stewart, Nancy Stewart, regarding the accident, its effect on her, the assessment by Dr. JTG or the assessments required by State Farm. In fact, there is no sworn evidence whatsoever from Ms. Stewart.
There is no sworn affidavit evidence from Dr. JTG.
The letter he attaches to the OCF-19 provides a very general overview as to the criteria outlined on the form.
There is no evidence as to Dr. JTG’s expertise or qualifications to make an assessment of “catastrophic impairment” under s. 2(1.2)(f) of the SABS. There is no evidence whatsoever of any of his qualifications. His curriculum vitae was not provided.
In his September 19, 2008 letter, Dr. JTG refers to the physical injuries suffered by Ms. Stewart but he does not attach nor make reference to, any of the reports reviewed in that regard. He is a psychologist and it is unclear what qualifications he would have to draw any conclusions with respect to physical impairment.
No evidence was provided as to the AMA Guides nor as to Dr. JTG’s qualifications to apply those Guides. No detail was provided as to how Ms. Stewart’s situation fits within those Guides. No expert evidence was provided.
The Ontario Court of Appeal decision in Kusnierz v. Economical Mutual Insurance Company, 2011 ONCA 823 (CanLII), 2011 ONCA 823, makes it clear that s. 2(1.2)(f) of the SABS is to be interpreted to allow assessment of physical impairments in combination with psychiatric impairments in determining whole body impairment or impairment of the whole person. “Catastrophic impairments” will still remain rare. In this case, the evidence presented on the summary judgment motion was, as previously noted, the form and letters of Dr. JTG and conclusion of State Farm’s physiatrist of a 37 percent physical impairment. Again, the onus remains on Ms. Stewart. No expert evidence was provided with respect to any psychiatric impairment. Ms. Stewart was never seen by a psychiatrist in the course of the SABS assessments. The application for a finding under s. 2(1.2)(g) that Ms. Stewart was “catastrophically impaired” due to an impairment that, in accordance with the AMA Guides results in “marked impairment” or “extreme impairment” due to mental or behavioural disorder, was withdrawn.
Madam Justice Blishen did not accept Dr. JTG as an expert in assessing the physical or psychiatric impairment of Ms. Stewart. In addition, Madam Justice Blishen had no evidence as to his expertise as a psychologist. With respect to his assessment of psychological impairment, Madam Justice Blishen noted that Dr. JTG had been seeing Ms. Stewart for 27 years prior to the accident for pre-existing issues. In his letter of September 2008, he makes reference to psychological testing done in 1988. The need for further assessments as requested by State Farm under s. 42 of the SABS was reasonable and understandable. Those assessments resulted in a finding of 37 percent physical impairment and a recommendation for a psychiatric assessment which Ms. Stewart refused, arguing that the notice provisions under s. 42 were not adhered to.
State Farm’s senior claims adjuster responsible for Ms. Stewart’s accident benefit claim provided a sworn affidavit with attached Exhibits. The physiatrist who performed the overall assessment for State Farm indicated a physical impairment of 37 percent. As with Ms. Stewart’s evidence, no report was provided nor was there any evidence as to the expertise or qualifications of the physiatrist or other assessors. State Farm found Ms. Stewart had not met the definition of “catastrophic impairment” under s. 2(1.2)(f) – i.e. 55 percent whole person impairment. Although there are weaknesses, this was not a case where State Farm provided no evidence and rested its case on mere denials and the weaknesses in Dr. JTG’s assessment. As previously noted, the onus remains on Ms. Stewart
The argument by Ms. Stewart that the declaration of “catastrophic impairment” should be made based on Dr. JTG’s form and letters given that the request for a follow up psychiatric assessment was not made within the strict notice provisions of s. 40 of the SABS, is not persuasive. The fact that the notice was inadequate does not and should not automatically result in reliance on Dr. JTG’s letters and a payment of accident benefits based on “catastrophic impairment”.
In Stranges v. Allstate Insurance Co. of Canada, 2010 ONCA 457 (CanLII), 2010 ONCA 457, the Respondent suffered both physical and psychological injuries due to a motor vehicle accident in May 1996. The Appellant insurance company paid the Respondent IRBs until September, 1997 when the benefits were terminated. The trial judge referred to the decision of the Supreme Court of Canada in Smith v. Co-operators General Insurance Co.,2002 SCC 30 (CanLII),  2 S.C.R. 129 (S.C.C.), where the majority of the Court held that the Notice of Termination form did not comply with s. 71 of the SABS as it did not inform the complainant of the entire dispute resolution process. The trial judge concluded the Notice of Termination provided to the Respondent was invalid and therefore found the insurance company had improperly terminated Ms. Stewart’s weekly benefits. The Ontario Court of Appeal found the trial judge’s reliance on Smith was misplaced and referred to the Reasons of Gonthier J. in the Smith case as follows:
[T]here was no proper refusal made and the limitation period did not begin to run. The appellant is not barred from bringing her action. However, I make no conclusion about the merits of her claim which a trial judge must assess. para. 8 [Emphasis added]
The Ontario Court of Appeal in Stranges made it clear that inadequate notice did not automatically entitle the insured to payment of benefits. She was still required to prove her claim. The Court goes on to state:
10 That same reasoning applies to the facts of this case. The inadequacy of the refusal notice did not entitle the respondent to payment of benefits in perpetuity until proper notice was given or a proper DAC assessment was carried out. The respondent was still required to prove that she was entitled to the continued payment of IRBs because of her continued substantial inability to perform the essential tasks of her employment. Moreover in this case no question of an expired limitation period arises.
As in the Stranges case, inadequate notice to Ms. Stewart of a further s. 42 psychiatric assessment does not automatically entitle her to the payment of benefits on the basis of “catastrophic impairment”. As previously stated, Ms. Stewart is still required to prove her claim.
Full Appreciation Test / Oral Evidence
Has Ms. Stewart in this case met the “full appreciation” test on her motion for summary judgment? The motion record provided by Ms. Stewart in this case suffers from significant inadequacies. It does not permit the Court to have a “full appreciation” of the evidence and issues required to make dispositive findings - in this case, whether or not Ms. Stewart is “catastrophically impaired”.
The next question is whether the motion record can be supplemented by the presentation of oral evidence under r. 20.04(2.2) such that the “full appreciation” test can be met. Neither counsel made any submissions regarding oral evidence nor as to the appropriateness of conducting of a mini-trial for the purposes of exercising the powers set out in subrule (2.1) to weigh the evidence, evaluate credibility and draw any reasonable inferences from the evidence.
In Combined Air, the Court notes significant limits on the discretion of the motion judge to order oral evidence. Such discretion is circumscribed and cannot be used to convert a summary judgment motion into a trial. The Court states:
60 The discretion to direct the calling of oral evidence on the motion amounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceed with a summary disposition rather than requiring a trial.
The Court stresses that the power to direct the calling of oral evidence is not intended to permit the parties to supplement the motion record.
The Court states at para. 63:
63 A party who moves for summary judgment must be in a position to present a case capable of being decided on the paper record before the court. To suggest that further evidence is required amounts to an admission that the case is not appropriate, at first impression, for summary judgment....
In the case at bar, expert evidence will be critical in determining whether or not Ms. Stewart is “catastrophically impaired”. There is potential for conflicting evidence from a number of expert witnesses as to physical, psychiatric and psychological impairments. There is a significant gap in the evidence with respect to psychiatric impairment, although there is some evidence from a psychologist regarding psychological impairment. Evidence from an expert in applying the AMA Guides may also be required. The motion record presented by Ms. Stewart in this case, even if supplemented by hearing some oral evidence on discreet issues, would not have enabled Madam Justice Blishen to achieve the “full appreciation” of the evidence and issues required to make a dispositive finding of “catastrophic impairment”.
Therefore, Ms. Stewart’s motion for summary judgment finding Ms. Stewart “catastrophically impaired” under s. 2(1.2)(f) of the SABS is dismissed.