January 19, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: June 11, 2014
Heard Before: Adjudicator Marvin Huberman
The single issue dealt with at this hearing is:
Did Ms. Taylor sustain a catastrophic impairment as a result of the accident?
Ms. Taylor did not sustain a catastrophic impairment as a result of the accident.
REASONS FOR DECISION
Ms. Stacey Taylor was injured in a car accident on September 10, 2009. She was on her way to work when she was T-boned at a stop sign. Her car rolled twice and she was extricated from her car. Her Galsgow Coma Score was 14/15, which improved at the hospital. She suffered multiple injuries including fractured pelvis and acetabulum, fractures of her ankle and vertebrae, a dislocated finger, and a small amount of bleeding on the brain. She underwent open reduction and internal fixation for her left pelvic and acetabular fracture and right ankle fracture, and was discharged from the hospital after 3 weeks. She had a subsequent surgery 2 weeks later to remove bone fragments from her hip, and was confined to bed rest and a wheelchair for another 6 weeks. As a result of the inactivity she developed deep vein thrombosis and was on blood thinners for 6 months. Two years later she required surgery to remove hardware from her ankle. Her prognosis was that she would require a full hip replacement eventually.
She applied for and received statutory accident benefits from Pembridge Insurance Company of Canada. When she exhausted the standard medical and rehabilitation benefits available under her automobile insurance policy she applied to Pembridge for a determination that she sustained a catastrophic impairment (“CAT”). Pembridge denied her application, maintaining she did not sustain a catastrophic impairment as a result of this accident, as defined in the Schedule. Ms. Taylor applied for arbitration under FSCO.
Before the accident she was employed as an archeologist, and she lived with her common-law partner and she was in excellent health, with no serious medical issues. Following her accident she began psychological counselling, and speech pathology as well. Her pre-existing urinary problems increased. She underwent chiropractic and physiotherapy, active release and manual therapy. She did home exercise and attended weekly massage therapy, yoga and Pilates. She attended a pain management specialist as well.
She reported to her family physician that she was unable to return to her job due to the physical requirements of it. Her employer offered her a seasonal, sedentary job 5 hours from home which she took, but found exhausting. She continued to increase her hours on a graduated basis but was unable to return full time. She claims a complete inability to return to her full time job as an archeologist working in the field. Ms. Taylor testified that her LTD carrier ceased paying benefits in late 2012, as she had demonstrated the ability to work 25 hours a week for some period of time.
Ms. Taylor has developed osteoarthritis, constant pain, and has a severely limited range of motion in her hip which has resulted in making walking extremely awkward and which affects her entire spine. Her ankle continues to be painful, and she has developed stomach issues from the medications she must now take. Her right hip has begun to be painful from her walking pattern. Her surgeon has indicated that she will need a hip replacement at 50, but that the new hip will only last 15 years. She has been attending counselling for her depression. She claims her relationship with her partner is now more of a care taker arrangement. Ms. Taylor’s position is that she sustained a catastrophic impairment as a result of the accident, as defined in the Schedule.
The Arbitrator found Ms. Taylor to be forthright and her credibility was not in dispute. However, the burden of proof rests with Ms. Taylor that on the balance of probabilities she sustained a catastrophic impairment as defined in the Schedule.
Dr. B is a qualified expert in the use of the AMA Guides to the Evaluation of Permanent Impairment, he is a proponent of the newly released California Method which involves the use of a scale which correlates GAF scores to WPI (Whole Person Impairment). He testified to the use of the guides and combination of impairment ratings in Ms. Taylor’s situation.
The Arbitrator found the California Method as an acceptable way to convert GAF scores to WPI ratings.
Based on the California Method he took the GAF score arrived at by Dr. F and converted it to a WPI of 11-23%. The Arbitrator found the WPI score as unreliable in this case as it did not reflect Ms. Taylor’s mental and behavioural impairments accurately.
The Arbitrator was specifically interested in the use of Ranges versus Specific Numbers in rating WPI. Dr. B indicated that the Guides are silent with respect to the selection of specific values, and in most situations precise numbers do not accurately reflect the fluctuations of a patient’s condition on a day to day basis. In Dr. B’s view the ultimate decision as to catastrophic impairment based on WPI ratings necessarily rests with the Arbitrator.
Ms. Taylor’s CAT assessments concluded that she had a 31-60% WPI, while the Insurer’s CAT assessment concluded a WPI of 32% falling short of the definition of CAT impairment criteria in the Schedule. A rebuttal CAT assessment found that Ms. Taylor had a 44-71% WPI and that she met the catastrophic impairment criteria on that basis.
Pembridge acknowledges that Ms. Taylor sustained significant injuries and is left with some permanent impairments of function as a result of the accident but that Ms. Taylor does not meet the 55% WPI threshold of catastrophic impairment as defined in the Schedule. They argue her assessors made methodological errors by using ranges of percentages and the GAF score and California Method to rate Ms. Taylor’s impairments.
In Ms. Taylor’s case her GAF score of 55-63 straddles two categories – mild and moderate – in the GAF Scale. Dr. B used the California Method to convert Dr. Frank’s GAF score of 55-63, into a WPI score of 11-23%. The objective to be achieved under the Guides and the Schedule is to use a method – either a fixed percentage or a range of percentages – that reflects an accurate estimate of the extent of the impairment.
Under the Schedule, the determination of catastrophic impairment is ultimately an adjudicative, not a medical determination, as the role of the assessor is to provide a clinical opinion. The Adjudicator weighs expert evidence and makes a ruling. In this case the Adjudicator weighed the evidence presented from all assessments and found Ms. Taylor did not sustain a catastrophic impairment as she did not meet the 55% WPI and suffered only mild impairment across four areas of impairment.